Lawyers told ministers schools trans advice was ‘high risk’on December 22, 2023 at 6:11 pm

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Leaked document suggests lawyers warned government guidance puts schools at risk of being sued.

Department for Education building signImage source, Getty Images

Government guidance on gender identity and how it is approached puts schools at risk of being sued, according to a leaked document seen by the BBC.

The leaked document is a draft of the newly published Gender Questioning Guidance with annotations by lawyers.

It shows lawyers had significant concerns some parts of the guidance were “misleading or inaccurate” and could misrepresent equality laws.

The government insists the guidance is lawful.

A UK government spokesperson said the guidance “will help schools navigate these complex and sensitive issues, by urging caution, parental involvement, and prioritising safeguarding at all times”.

On Tuesday, the Department for Education (DfE) published its long-awaited guidance for schools and colleges in England, described by ministers as marking a “sea change” in schools’ approach to pupils questioning their gender.

The non-statutory guidance advises teachers that parents should be informed of any request made by a pupil to change their gender identity at school, with the exception of “exceptionally rare” circumstances where teachers believe telling parents could put a child at “significant” risk of harm.

The guidance also said teachers may refuse to use a child’s chosen pronouns if they have a religious objection, and that primary school children should not be allowed to change their pronouns at school.

In an interview given immediately after its publication on Tuesday, Equalities Minister Kemi Badenoch told the BBC the guidance was “comprehensive, and based on legal certainty”.

However, a draft version – seen by the BBC and Schools Week – reveals the government’s own lawyers warned ministers that certain elements of the advice could potentially put both the government and schools at “high risk of a successful legal challenge”.

Reacting to the leak, general secretary of the Association of School and College Leaders, Geoff Barton, said: “It is obviously vital that schools and colleges have the assurance that any guidance they are following does not expose them to the risk of legal action.

“We’re going to be looking very closely at the draft guidance and this includes seeking legal advice.”

‘Political definition’

According to the annotated document, some areas of the guidance could leave schools open to legal challenges with more than a 70% chance of success.

Lawyers also suggested changes to make the guidance more legally sound.

However, when the BBC compared the annotated draft with the published version, it found many of their suggestions had not been acted upon.

Kemi Badenoch MP looks towards the camera

Key parts of the guidance, such as schools not having a “general duty” to allow pupils to change names, pronouns or uniform (known as socially transitioning), were flagged in the draft as misrepresenting the Equality Act, which states that, in some cases, there is a legal duty to do so.

It was still included in the version published by government on Tuesday, despite the concerns raised.

The same legal adviser went on to say there was a higher than 70% risk the guidance could be challenged successfully in the courts, on the basis it was “misleading”

A note on the document, left by a lawyer, indicates the same reservation had been raised previously. It reads: “We have made this point before with No10 so this is unlikely to be agreed.”

The annotations suggest the line about schools not having a general duty to allow social transition had been added by Ms Badenoch – and shows advisers discussing whether they should raise the matter with the attorney general, Victoria Prentis, seeking further advice.

They also questioned the government’s description of gender identity as a “contested belief”, calling it a “political definition”.

Despite their queries, the original wording was kept in the version published by the government on Tuesday.

The published guidance also says “primary school-aged children should not have different pronouns to the sex-based pronouns used about them”.

The government was told this also presents a “high risk” to schools, as it appeared to conflate legal obligations in the Equality Act with school safeguarding policies.

Rainbow flag on teacher's desk

Image source, Gemma Laister

A spokesperson for UK government said it would be wrong to interpret partial legal assessments on individual sentences in a draft as an assessment of a final document.

An earlier deadline to publish the guidance in the summer was missed by the government after the attorney general warned it would be unlawful to apply a blanket ban on children socially transitioning at school.

The guidance now advises that schools should be cautious and not actively encourage social transition, stipulating that more information is needed about the potential effect on children.

A 12-week public consultation period on the guidance is currently being held, which means further changes could be made to the document before it is finalised.

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