Schools with only unisex lavatories are acting unlawfully, warns Suella Braverman

Suella Braverman - Paul Grover for the Telegraph
Suella Braverman - Paul Grover for the Telegraph
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Schools that only offer “gender neutral” lavatories are acting unlawfully, Suella Braverman has said as she uses a major speech to set out the Government’s legal advice on transgender pupils.

The Attorney General will warn on Wednesday that teachers who allow students to “socially transition” to the opposite gender without their parents’ consent could be in breach of their duty of care to the child and open themselves up to a negligence claim.

She will use a speech on equalities legislation on Wednesday to say schools should only use a transgender child’s preferred pronouns on the advice of a medical professional.

Ms Braverman, who ran for the Tory leadership and made it to the last six before being voted out, has endorsed Liz Truss and been tipped for a position in her Cabinet.

Her speech comes after a landmark review found that the Gender Identity Development Service, the NHS’s only facility for transgender children, at the Tavistock Centre in London, must be shut down on the basis that it is “not safe” for children.

Writing in The Telegraph, Ms Braverman said it can be lawful for schools to “refuse to allow a biologically and legally male child, who identifies as transgender, from using the girls’ toilets”.

She added: “There is also a separate duty to provide single sex toilets in schools, breach of which would be unlawful. The legislative background therefore means that biological male children are generally not permitted to use the female toilets in schools.”

Another contentious issue is children transitioning “behind their parents’ backs”, where schools allow pupils to assume a new gender identity without informing their family.

Ms Braverman argued that referring to transgender children as their preferred pronoun is a “serious intervention” and should not be done unless on the advice of an independent medical practitioner.

Children should not be punished for refusing to adopt the preferred pronoun of one of their peers, nor should they be forced to take part in the “social transitioning” of their peers, she wrote.

“Under the Equality Act it is lawful for a school to refuse to allow a biologically male child, who identifies as a trans girl, from wearing a girls’ uniform or participating in girls’ single sex competitive sporting activities,” she added. “And it is lawful for a single sex school to refuse to admit a child of the opposite biological sex who identifies as transgender.”

Officials at the Department for Education are drawing up guidance for schools on transgender children, which will need to be signed off by the Attorney General before it is published later this year.

Sources close to Ms Braverman said her speech, which will be delivered at the Policy Exchange think tank London, gives a clear indication of what the official guidance is likely to say.

Headteachers have urged the Government to provide national guidance on transgender issues to be published for schools, saying that education leaders are struggling to cope. They have said that, in the absence of official guidance, they are left to take advice from lobby groups when a pupil identifies as the opposite gender.

In recent years, many schools have started to implement “gender neutral” lavatories, acting on the advice of  groups that say this is “best practice” under the Equality Act.

Moredon Primary School, in Wiltshire, changed its lavatories to make them gender neutral in September, but was forced to reverse the decision after a backlash from parents.

Deanesfield Primary School, in South Ruislip, also introduced unisex facilities last summer prompted anger from parents who complained that girls were left feeling anxious about sharing with their male peers.