Untangling the Trans Inclusion Confusion

It is imperative that schools support all pupils, ensuring that safeguarding procedures and processes are robust, and that educators keep equality, diversity, and inclusion at the forefront of their work. Trans inclusion is one of the core elements of this, and this blog will outline ways in which schools can support their trans and gender questioning pupils. This blog will centre good practice, evidence, and the importance of safeguarding trans pupils in what is currently a hostile environment. Over the past few years, research has been done on the prevalence of transphobia in the UK, and the findings are alarming:

• 42% of year 5 and 6 primary school students and 54% of secondary school students have reported that homophobic, biphobic and transphobic language is common in school (Diversity Role Models, 2020).
• Happiness among the young transgender community halved between 2012 and 2022, from 59 per cent to 28 per cent (LGBT Youth Scotland, 2024) (Just Like Us, 2021).
• Almost half (48%) of young students admitted to being too afraid to ask questions about issues pertaining to the transgender community, out of fear of causing offence or upset (Unite UK – from Student Beans, 2021).
• Transphobic hate crimes increased by 11% in 2023 (Home Office, 2023).

It is more than evident that the protection of trans lives needs to be a priority. This blog will cover the existing legislation and guidance, including the draft guidance released by the Department for Education (DfE) earlier this academic year and most recently around the RSHE curriculum. There will also be suggestions for good practice around embedding trans inclusion authentically.

What Does the Law Say?

Though we emphasise a moral imperative to ensure that trans pupils are afforded equal worth, dignity, respect and inclusion, there are legal considerations, meaning that schools could face legal action if they are not complying with the law.

Gender reassignment is a protected characteristic under the Equality Act 2010. The Equality Act states that the protected characteristic of gender reassignment covers someone who is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. This doesn’t have to include any kind of medical intervention, and includes social transitioning, e.g. change of dress, name, and pronouns. All trans and gender questioning people are protected from discrimination and harassment.

The Equality & Human Rights Commission (EHRC) Equality Act Code of Practice explicitly states that children and young people are protected under gender reassignment in the Equality Act and the importance of affirming and validating trans and gender questioning children; “Manifestations of that personal process, such as mode of dress, indicate that a process is in place and they will be protected by the Act” (EHRC Code of Practice 2011, Section 2.21, page 29).

In addition, maintained schools and academies have to comply with the Public Sector Equality Duty and ensure they are eliminating discrimination, harassment and victimisation; advancing equality of opportunity; and fostering good relations between those who share a protected characteristic and those that do not.

Department for Education (DfE) Draft Guidance for Schools Outline

In December 2023, the DfE issued draft guidance about gender questioning children, for the purpose of helping schools in this area. The guidance can be accessed using this link: Gender Questioning Children – non-statutory guidance (education.gov.uk). Within the guidance, there is:

• Emphasis on “watchful waiting periods”, and consulting parents/carers in all cases except for when a child could be at significant risk of harm from having this information disclosed to their parents/carers.
• Mention of teachers/pupils not being pressurised to use preferred pronouns/names when referring to trans pupils.
• Encouragement of blanket bans on trans pupils accessing spaces which correspond to their gender identity.

There is no mention of the protected characteristic of gender reassignment or of trans children and young people in the draft guidance, though the Equality Act and statutory Equality and Human Rights Commission (EHRC) guidance directly refers to children being able to satisfy the definition, and evidence clearly shows that many trans people were aware that they were trans from a young age (Graham, 2023).

Keeping Children Safe in Education (KCSIE) states that “the fact that a child or a young person may be LGBT is not in itself an inherent risk factor for harm” (Section 203, page 51), but does highlight that many school environments are hostile towards LGBT pupils, even towards pupils who are perceived to be LGBT but may not be. It also states that the harms can be amplified if there aren’t safe and trusted adults to talk to at school (Section 204, page 51).

If trans pupils are in a position where they are constantly being misgendered or deadnamed (using someone’s old name) by their peers and staff, this can have a direct impact on their mental wellbeing, and in some cases has led to trans pupils dropping out of school (Horton, 2020; Bower, Zadeh & Jadva, 2021; Horton, 2022). Research has also shown that affirming a young person’s identity has an overwhelming positive outcome (Horton, 2020). Though the Cass Review states that social transitioning isn’t a neutral act, the review also states that doing nothing is not a neutral action (Cass Review Interim Report 2022, Section 5.20, page 63).

LGBT inclusion is also a compulsory aspect of the Relationships and Sex Education (RSE) curriculum, which is in place to ensure that “all pupils understand the importance of equality and respect” (RSE Guidance, 2019, Section 36, page 15). Troublingly, in May 2024, the DfE released draft guidance for schools about the RSE curriculum. This guidance states that “if asked about the topic of gender identity, schools should teach the facts about biological sex and not use any materials that present contested views as fact, including the view that gender is a spectrum” (Draft RSE Guidance, 2024, page 13). The draft RSE guidance is supposed to compliment the gender questioning guidance, and based on points raised earlier, it could be detrimental to trans and gender questioning children.

The law states that trans people can be excluded from single-sex spaces, but this needs to be on a case-by-case basis, and there needs to be evidence in place to suggest why each case is necessary and proportionate, as opposed to implementing blanket bans (EHRC, 2011, Section 13.60, page 201). The best approach is to work directly with the young person to determine what is the best solution for them and this will be different for each young person.

It is worth mentioning that both pieces of guidance are drafts – currently under review following the consultation period – and non-statutory. The previous government’s own lawyers have stated that the gender questioning guidance in its current form is not compatible with the law, arguing that it is “high risk for both schools and Department” (Schools Week, 2023). There is no requirement for schools to make any changes to their existing policies based on the guidance as it currently stands, but schools should continue to take child-centred approaches that focus on listening to young people and prioritising their wellbeing.

Good Practice

Below are some tips on how to best promote trans equality for pupils:

• Be mindful of how you refer to pupils, avoiding gendered terms where these are not necessary. Assess how responsibilities are assigned within the classroom, and if activities perpetuate stereotypes about gender roles, norms and expectations.
• Ensure that a child-centred approach is adopted, where pupils’ wellbeing is put first. This means listening to their individual and collective concerns and taking meaningful action, making their safety the number one priority. What are trans and gender questioning pupils at your school concerned about? Do they feel safe in and outside of school? Do they feel represented in the curriculum? Is a trans-inclusive school ethos clear? Do you actively combat gender stereotypes in the curriculum, e.g. through resources used, activities planned, open discussions about gender stereotypes and their negative impact?
• Have LGBTQIA+ support groups within the school where pupils with lived experience and allies can come together in a safe space to contribute to increasing LGBTQIA+ inclusivity in the school.
• Though it is always best practice to involve and work in partnership with parents/carers where possible, in some cases this may not be in the best interests of the child, and there is no legal obligation to inform parents/carers against a young person’s will. Young people under 16 who are Gillick competent already make important decisions about their own healthcare treatment and pathways within the NHS which can’t be overridden by parents and carers (NSPCC, 2022). If a young person doesn’t want their parents to know, then this also highlights a potential safeguarding issue at home and suggests the young person could be unsafe if parents/carers are aware.
• It is important that policies are inclusive and reflective of legislation and statutory guidance. Ensure that your diversity and inclusion policies are in line with the Equality Act and cover everyone who is part of the school community, including external visitors. Have reference to transphobic bullying in your Behaviour/Anti-Bullying Policy, and how these incidents should be recorded and reported. Consider your PSHE/RSE curriculum, and how these can be improved to be more inclusive of trans people and issues. Consider having a specific trans inclusion policy so that members of the school community know the expectations of them.
• Engage with the wider community and partners – external visitors, sharing learning with parents and carers (including those who have questions and perhaps have heard some misinformation about what a trans inclusive school looks like) and involving them in curriculum planning, social media presence and actively engaging with LGBTQIA+ groups and influencers, sharing good practice with other schools and organisations.
• Diversify your resources. Could you refer to more trans role models in your teaching? Could you use more media tools for aid teaching on trans issues? Think about how to incorporate current affairs into curriculum and refer to celebratory events such as Transgender Day of Visibility/Pride Month without being tokenistic. Do you continue talking about LGBTQIA+ inclusion beyond these timeframes?
• Consider incorporating mention of pronouns in email signatures, lanyards and badges to avoid assumptions about gender based purely on appearance.

Useful Resources

Listed below are some useful resources to help with this work:

• EqualiTeach’s classroom resources
• Brighton & Hove trans inclusion toolkit
• LGBT+ books and educational resources by Pop’n’Olly
• Pause, Rethink, Rewind, Be Kind – How to be an Ally Against Unkindness by Diversity Role Models
• Experiences of Trans and Gender Diverse Young People by Health Talk

EqualiTeach provides training and consultancy services for businesses, local authorities, schools and education settings throughout the UK. If you would like support with LGBTQIA+ equality in your school or organisation, please contact us.

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References

Bower-Brown, S., Zadeh, S., & Jadva, V. (2021). Binary-Trans, Non-Binary and Gender-Questioning Adolescents’ Experiences in UK Schools. Journal of LGBT Youth.

Diversity Role Models (2020), Pathways to LGBT+ Inclusion: Report Homophobia, Biphobia and Transphobia in Schools Today.

Department for Education, Draft Relationships Education, Relationships and Sex Education (RSE) and Health Education (2024), Statutory Guidance for Governing Bodies, Proprietors, Head Teachers, Principals, Senior Leadership Teams, Teachers.

Equality & Human Rights Commission (EHRC) 2011, Equality Act 2010 Services, Public Functions and Associations: Code of Practice.

NSPCC (2022), Gillick Competency and Fraser Guidelines.

Graham P. (2023). Transgender Children and Young People: How the Evidence Can Point the Way Forward. BJPsych bulletin.

Home Office (2023), Hate Crime, England and Wales, 2022 to 2023 Second Edition.

Horton, C (2020). Thriving or Surviving? Raising Our Ambition for Trans Children in Primary and Secondary Schools.

Horton, C. (2022). Gender Minority Stress in Education: Protecting Trans Children’s Mental Health in UK Schools. International Journal of Transgender Health.

Just Like Us (2021), Growing Up LGBT+: The Impact of School, Home and Coronavirus on LGBT+ Young People.

Department for Education, Keeping Children Safe in Education (KCSIE) 2023.

LGBT Youth Scotland (2024), Life in Scotland for LGBT Young People: Trans Report

Department for Education, Relationships Education, Relationships and Sex Education (RSE) and Health education (2019), Statutory Guidance for Governing Bodies, Proprietors, Head Teachers, Principals, Senior Leadership Teams, Teachers.

Schools Week (2023), Trans Guidance: Department for Education Lawyers Said Schools Face ‘High Risk’ of Being Sued. Accessed 5^th June 2024.

The Cass Review (2022), Independent Review of Gender Identity Services for Children and Young People: Interim Report

Legislation.gov.uk, The Equality Act 2010

Unite UK (2021), How to Tackle Transphobia in School and University. Accessed 13^th June 2024.