The EHRC’s New Trans Schools Guidance Puts Children at Risk

No child is born in the wrong body and the fact that some are persuaded they might have been, via the idea of ‘inner gender identity’, is one of the safeguarding and medical scandals of our age.

Statutory safeguarding guidance for schools is one of the major tools that the Government could use to combat the idea of gender identity. Updated annually by the Department for Education, it could make clear that, at school, no child can be affirmed as being opposite sex. It could also make clear that when a child asks to be ‘socially transitioned’ this must be flagged as a safeguarding concern.

Unfortunately, the recent update to ‘KCSIE’ (‘Keeping Children Safe in Education’) falls far below this standard. In a nutshell, it allows for children to ‘socially transition’ at school. It does place boundaries around the concept. It makes clear that all children must have their sex accurately recorded, and also that no child can use opposite sex toilets or changing rooms. In effect, it is clear that everyone in a school – staff, children – can neither lie nor be lied to about a child’s sex.

So where are the problems?

KCSIE suggests that a gender-questioning child may join opposite sex sports if there are no safety concerns. It says a school does not have to allow a child to do so, but why leave wriggle room? Why should a young boy be allowed to race with the girls and perhaps beat them every time? How is that safeguarding the boy, grounding him in reality? What about fairness for the girls?

KCSIE also says that where a gender-questioning child doesn’t want to use the facilities for his or her sex then schools should consider whether they can provide an alternative. Note “consider” – they don’t have to. A responsible approach to safeguarding should involve working with a child to get him or her back to a point of comfort and ‘no special treatment’.

The real point of contention is speech – the spoken act of ‘affirmation’. KCSIE says that schools “must be conscious of the rights of pupils and staff in relation to their religion or belief”. Good – because no-one should be required to affirm anyone else as opposite sex, especially a vulnerable child. But it goes on to say: “Schools and colleges supporting social transition might consider discussing options with pupils and staff such as using names instead of pronouns.” Why? This is a safeguarding document. How can it responsibly suggest that staff and children contort their speech to support the delusion of a vulnerable child? What about responsibility to the other children?

The obvious approach to safeguarding children is a simple rule – no social transition in schools. The state should not participate in misleading and harming children.

A new and concerning concept has entered KCSIE – that of “Living in Stealth”. The idea is that there are young children who have been so successfully ‘transitioned’ by their families that nobody in the school – staff nor children – are aware of their true sex. Families have supposedly lied to the school from the start. Children have successfully participated in lying to other children and somehow carried it off, day after day, year after year. KCSIE rightly points out that such children will “approach puberty in a fearful and anxious state”.  It says: “Schools and colleges should involve the designated safeguarding lead in these cases.” This casual passage in a statutory safeguarding document is mind-blowing. It conjures up the sort of story that might once have appeared as a fantastical tabloid story – and blandly normalises it. Such an early ‘social transition’ of a young child would be a very serious safeguarding issue. KCSIE must, in its next iteration, make this absolutely clear. To the extent that such children exist, the NHS and Social Services need a joined-up approach to helping these children and their families with the singular purpose of undoing damage, with the earliest intervention possible.

However, if the safeguarding document, KCSIE, is bad at safeguarding gender-questioning children, then the ‘rights-balancing’ organisation, the EHRC, is even worse at balancing rights – and it makes the safeguarding of vulnerable children harder for schools.

On June 10th, the EHRC (Equality and Human Rights Commission) launched new draft ‘technical guidance’ to help schools comply with their duties under the Equality Act. The draft guidance is wide-ranging and anyone interested in the impact of the Equality Act, its framework of ‘protected characteristics’ and how they impact freedom and actual equality, should read it closely and respond to the consultation.

With respect to safeguarding gender-questioning children at school it has just made life harder.

First, the issue of facility usage. As above, from a safeguarding perspective, you would want school staff to encourage a child to feel comfortable in their own sex and therefore their own sex facilities. KCSIE allows for this. Not so the EHRC. That might be “unlawful indirect gender reassignment discrimination”. The protected characteristic of gender reassignment is used to undermine child safeguarding.

Second, pronoun usage, speech and freedom of conscience. KCSIE says schools “might consider” discussions about language. But the EHRC thinks other people should be “expected” to go along with preferred pronouns. It tries to argue that this is “practical” – when it is not. It says that this language contortion “respects the rights of all” – when it does not. The EHRC can’t see past its prioritisation of trans-identification and is oblivious to safeguarding. 

Finally, despite the Equality Act making clear that single-sex schools can lawfully discriminate on the basis of sex, the EHRC has found a way to undermine this. It says that if a single-sex girls school wants to accept a trans-identifying boy it simply needs to invoke an exceptional admissions policy. So much for the safeguarding of the boy. So much for the expectation of all the girls – and their parents – that they are in a single-sex space. How is this compatible with safeguarding? How does this balance rights? Why doesn’t the EHRC suggest a co-ed school?

Neither the Department of Education nor the EHRC seems to understand that a child engaging in the idea that he or she was born in the wrong body has been badly misled and is potentially on a pathway to irreversible harm. There should be an immediate safeguarding response.

A significant driver of this blind-spot seems to be the inclusion in the Equality Act of the “protected characteristic of gender reassignment”. One possible interpretation of this protected characteristic is that gender-questioning children deserve the same safeguarding as every other child. They deserve to be grounded in truth, steered from a pathway of harm. Neither the DfE nor the EHRC take this approach.  

To create clarity we should explore removing the protected characteristic of gender reassignment from the Equality Act – or ensure that it does not apply to children.

No-one is born in the wrong body and we should have neither laws nor guidance that require affirmation that anyone can be. We have seen how doing so undermines the basis of our society in reason and truth-seeking. It seriously undermines our collective responsibility to safeguard children.

The EHRC consultation is open till September 30th. Please have your say.

Caroline Ffiske is a Director of Conservatives for Women. Find her on X.