Single-sex schools can reject transgender pupils

Single-sex schools will not be forced to accommodate transgender pupils under new government guidelines set to be issued within weeks.

Head teachers of girls’ schools will be told they can reject pupils who are legally male but identify as female, without fear of legal action.

The same rules will apply for boys’ schools receiving applications from girls who identify as male.

School leaders will also be told they can refuse to use different pronouns demanded by a pupil, it is understood.

It comes after school leaders and governors met lawyers in recent weeks to discuss fears they could be at risk of discrimination claims from parents of trans-identified pupils if they refused to accommodate them.

A Department for Education source said: “Single-sex schools can refuse to admit pupils of the other legal sex regardless of whether the child is questioning their gender.”

Schools will be reassured that they will not be breaching the Equality Act 2010 if they do so.

Teachers will not be required to call children by their preferred pronouns, the source said. There is no suggestion that a child who is questioning their gender identity would be forced to leave a single-sex school.

'Anxiety around litigious parents'

The guidance on transgender pupils is being drawn up by Gillian Keegan, the Education Secretary, and Kemi Badenoch, the equalities minister. It will apply to all state and independent schools in England.

It is intended to provide clarity on how schools respond to children with gender dysphoria and comes amid a dramatic increase in the number of pupils who say they are trans.

In 2021-22, the NHS reported more than 5,000 referrals to the Gender Identity Development Service run by Tavistock and Portman NHS Foundation Trust, up from just under 250 a decade earlier.

A recent report by the Policy Exchange alleged that the practice of affirming pupils questioning their gender in schools has become embedded.

MPs and campaigners have raised concerns that some schools are adopting inconsistent approaches to socially transitioning pupils and many appear to be neglecting their duty to keep children safe.

Miriam Cates - the Conservative MP for Penistone and Stocksbridge, who campaigns on gender issues in schools - has previously said that the teaching of trans identification has become increasingly common.

She fears it could be contributing to a rise in the number of children seeking medical intervention, including puberty blockers and hormone treatment.

A leader of a girls’ school in London said: “There’s anxiety around litigious parents.

“Most schools say they will be supportive but there are grey areas that the Department for Education needs to clarify.”

Question marks over the law

The Girls’ Day School Trust, which runs 25 schools in England and Wales, announced last year that it would only be admitting pupils based on their “legal sex”, rather than their gender identity.

However, an independent school governor at a seminar hosted in London said they were told by lawyers that girls’ schools were wrong to say they would only admit people legally born as girls, and that they could face discrimination claims under the Equality Act 2010.

Governors were also told that schools could be indirectly discriminating if they did not use a child’s preferred pronouns, the attendee said.

Philip Reed, a lawyer at Withersworldwide, told the Telegraph that under the existing guidance, it “would be impossible to rule out” a discrimination claim against a girls’ school that refused to admit a biologically male child who identified as female.

The guidance is expected to emphasise the importance of parental involvement.

“As a child, you don’t have the same rights as an adult,” said a Whitehall source. “A child cannot change gender.”

The guidance will also reflect the findings of the interim findings of the Cass review, an NHS-commissioned report by paediatrician Dr Hilary Cass.

She warned that allowing children to “socially transition” to their preferred gender was “not a neutral act” and could have “significant” impact on their “psychological functioning”.

In a sign of the Government's approach, Mrs Keegan said on Monday that it was “absolutely fine” for teachers to say “good morning, girls” at an all-female school.

She called for a “big dose of common sense” when dealing with issues of sensitivity and gender identity inside classrooms, following a report that a teacher had been made to apologise to some children at a private school who were upset at being referred to as “girls”.

The Equality Act prohibits discrimination because of or related to certain protected characteristics, including sex and gender reassignment. It includes an exemption for admissions to single-sex schools.

However, under schedule 11, it also says that pupils of the opposite sex can be admitted if their admission is exceptional or if they are admitted in comparatively small numbers for particular classes or courses.

Some transgender law experts argue that such provisions would permit a school to admit a trans girl or a trans boy, whatever view is taken of their legal sex.

Lawyers have also said that there is not any regulatory guidance or case law to interpret key sections of the Equality Act that have come under scrutiny following the rise in the number of children questioning their gender identity.

Dan Squires KC, of Matrix Chambers, said: “While the issue is legally difficult, on balance, I consider the correct interpretation of the Equality Act is that it requires a boys’ school to justify excluding a trans boy and a girls’ school to justify excluding a trans girl, and that if the exclusion cannot be justified the school is at risk of being found to have discriminated.

“I also think it would be helpful for clear guidance to be provided on the issue.”

Rishi Sunak, the Prime Minister, is understood to be personally concerned about parental consent. The guidance will set out in significant detail when schools must inform parents about children questioning their gender.

The document, which has not yet been finalised, will also make clear that children who change their gender identity will not be able to share changing or shower facilities with the opposite sex.

However, those who are socially transitioning or questioning their gender should be provided with alternative facilities where appropriate.

Mark Lehain, head of education at the Centre for Policy Studies, said: “There has been conflicting advice given by different lawyers and campaign groups before now, leaving single-sex schools in a tricky position and unsure what to do if gender-questioning children of the opposite sex applied.

“The DfE providing a firm position will help all concerned - school, young people, and their families.”