EDIT September 2020
New Guidance has now been issued by the Department of Education; see this article for explanation.
The Safe Schools Alliance issued a press release on Wednesday 5th February 2020 to provide an update regarding the judicial review of Oxfordshire County Council’s support of the lawfulness of the Trans Inclusion Toolkit.
This was introduced with the objective of seeking to tackle and reduce LGBT bullying and ensure LGBT inclusion in schools. However, it purports to advise schools and others as to the law contained in the Equality Act 2010. Therefore it needs to get the law right.
The objectives of the Toolkit are clearly important and necessary. No child should face bullying or harassment at school or anywhere and certainly not any discriminatory treatment which relates to one of the protected characteristics in the Equality Act.
The problem arises however that there appear to be significant aspects of the Toolkit which are unlawful; in particular the guidance given concerning single sex toilets, single sex changing rooms, single sex sleeping arrangements and single sex sports.
Most tellingly, the Toolkit continually misrepresents the relevant protected characteristic of the Equality Act – ‘gender re-assignment’ – as some kind of nebulous ‘gender identity’ or ‘being trans’. Neither of these are protected characteristics.
Members of the SSAUK tried to raise and discuss their concerns about this from late 2018 – but this resulted only in the re-issue of the guidance in September 2019, that dealt with none of the concerns. Therefore an action in judicial review has become the only remedy – which is pretty dispiriting.
I have written previously about why I think this guidance, along with many others in a similar vein, risks being an unlawful diminishment of both child safeguarding and parental responsibility.
This legal challenge is one of many similar challenges to the apparently nationwide imposition of a the new orthodoxy that it is possible to change your biological sex and it that it should require nothing other than the assertion of the person who wishes to ‘change’ it.
As a disabled person who has a keen appreciation of the limits to ‘self identification’, I have written here about why I reject the assertion that biological sex can change, and written here about why I am very concerned about the implications of any such orthodoxy on the safety of women and girls.
The main objections to the guidance were summarised by Tanya Carter, a spokeswoman for SSA UK. She argues that it fails to take into account all the protected characteristics of the Equality Act 2010 and is in direct opposition to all safeguarding protocols which separate children over age of 8 and segregate by sex for reasons of safety.
In particular, it will result in schools and other educational settings being compelled to allow male pupils to share confined spaces with female pupils – without parents knowledge or permission – and allows males to take part in sports alongside females.
Tanya Carter said:
“We are concerned at the impact this guidance could have on all children, but particularly on the ability of lesbian, gay and bisexual teenagers to understand and embrace their sexual orientation. In addition, the guidance does not effectively safeguard the trans-identified students it purports to help. The misrepresentation of article 16 of the United Nations Rights of the Child removes trans-identified children from the protective processes of schools and parents working together in the child’s best interests.”
The claimant in this action is now a 13-year-old Oxfordshire girl whose identity is not revealed given her young age. Her reaction as set out in the press release is powerful:
The toolkit has a very significant impact on me as a girl. I am very surprised that the council never asked the opinion of girls in Oxfordshire about what we thought before they published the toolkit. Under these guidelines I have no right to privacy from the opposite sex in changing rooms, loos or on residential trips. Sports could end up being unsafe as I am a really small teenage girl and boys are bigger than girls. This guidance could be used in any educational establishment in Oxfordshire, which possible includes sports clubs.”
“The guidance makes me feel that my desire for privacy, dignity, safety and respect is wrong. It makes me feel sad, powerless and confused. I recently did my level 1 safeguarding course for guider training and I don’t understand how allowing boys and girls to share private spaces is okay”.
Why is this legal challenge so necessary?
These are hugely significant issues for ALL children. Children with genuine gender dysphoria need help and support. But confusion and unhappiness about one’s identity may spring from a variety of sources. It is dangerous to assume – as apparently we must now all do – that the moment a child declares a desire to ‘change sex’ that this stated desire must be supported without any examination into what underpins such a significant assertion.
It is dangerous because it seems many of those now responsible for devising and implementing safeguarding for children have apparently jettisoned its most basic and obvious principles in order to promote ‘inclusivity’ and a pathway for children of ‘affirmation’. Such a pathway, leading as it often does to medication and surgery, has very little credible evidence to support it as being in the best interests of children and worrying indications that it has the potential to do very serious – and irreversible – harm.
Refusal to allow deviation from the ‘affirmation model’ – or, even worse, to accuse those who raise concerns of some kind of ‘hate speech’, risks serious harm to children. The prescription of puberty blockers and other drugs to children is now the subject of a separate legal challenge to the Tavistock and Portman NHS Foundation Trust AND investigation by the NHS
It is very alarming for me to note that so many seem so invested in protecting the purity of the affirmation message that they will resort to very determined efforts to silence and intimidate any who speak up against it.
I note with particular concerns the recent actions of Social Work England – the new social work regulator – who are ‘investigating concerns’ against two senior social workers who have expressed their views about child safeguarding and issues of transition.
When even those, whose entire professional careers have been dedicated to promoting and protecting the rights of children, may not speak without fear of that career being ended – is a pretty stark indicator of just how bad things have become.
I hope that the various legal actions, now either pending, awaiting judgment or appeal will assist to bring some clarity back into the debate and some accurate representation of the law.
We all want the same thing – for children to be safe. To have the best chance they can have, to be the best adults they can be.
For some – this may mean a process of transition. For others – I suspect the majority – they need access to support, therapy, counselling and an environment were they are protected against bullying or other forms of harassment. And some children need to have respect shown to their sex based rights, to protect their safety and dignity.
But above all – children need honesty from the adults charged with keeping them safe. And safeguarding assessments based on actual risks and harms, not on adult wishful thinking.
These comments by principle contributors to the development of Affirmation guidelines may be of interest..
Ehrensaft: “We now have a different cultural understanding. From a clinical perspective, social gender dysphoria is understood as the culture having the pathology, because it fails to see beyond two boxes [boy and girl]. It is no longer the individual who has the pathology.”
UCSF Transcare guidelines – increasing presence of non-binary GNC patients indicates that not all ( or even most ) patients reporting dysphoria are in the category of transgender envisioned by earlier rulings/decisions and that these patients don’t exhibit the same risk profile as that group.
And if the risks to Transgender students are lower than expected, that should prompt a reassessment of rights entitlements on a proportionality basis. Also I notice that the EU is shifting their Gender Equality strategy to accelerate women’s status towards the CEDAW 2030 goals. It appears that their Gender Identity push was counter productive. I assume the UK is still a CEDAW signatory – the court should consider the cost of disrupting girls educational climate and access to sport programs in light of those goals, and in consideration of the emerging non-binary cohort.
Lastly , the introduction of Self-ID and relaxed LGR in several EU countries has allowed activists to reflect on those policies in practice, and to realize their limitations. It’s quiet possible that the current gender neutral preference falls out of favor and a binary preference returns. And in truth gender neutral was never a harm reduction strategy, it’s purely political. e.g. https://discoversociety.org/2020/02/05/gender-is-dead-long-live-gender-the-dilemmas-of-trans-recognition/
Thanks, that is interesting. I have no desire at all to put people into binary boxes and tell boys or girls they may or may not dress a particular way or enjoy a particular activity. I don’t understand why we can’t welcome and celebrate the feminine boy or the masculine girl.
But sex remains immutable. The majority of those of the male sex retain considerable advantages in terms of strength and speed over most members of the female sex. We have to protect women and girls.