Teachers 'misgendering' trans pupils not discriminatory, equality watchdog suggests
Teachers who misgender transgender pupils are not guilty of discrimination, new guidance from the equality watchdog suggests.
The Equality and Human Rights Commission published updated guidance to replace a previous document published in 2014.
The new guidance removes a section which indicated that it would be discriminatory for a teacher to refer to a trans girl as boy.
The clarification was welcomed by gender-critical groups, which said it would help put an end to social transitioning in schools.
A spokesman for Transgender Trend said: “We are very, very happy to see that this has been completely removed.
“This is the point that has caused the biggest problems in schools since 2014: the surge in social transition of children, often behind their parents’ backs. So much harm done.”
The EHRC guidance also makes it clear that schools must provide single-sex toilet facilities for children over eight and single-sex changing facilities for children over 11.
It says that if the toilets or changing rooms are communal, they must be segregated by biological sex – meaning trans children cannot use them.
The old guidance had said: “Unless a specific exemption applies, segregation connected to gender will be unlawful.”
Private facilities for trans children
The new guidance says schools should provide private changing facilities for trans children.
On the issue of misgendering, the 2014 guidance included an example of a “previously female” pupil who had started to live as a boy with an adopted male name, and asked whether the school had to use this name and refer to the pupil as a boy.
The answer was: “Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination.
“Not referring to this pupil as a boy would also result in direct gender reassignment discrimination.”
The new guidance, published on Thursday, removes this section entirely.
A spokesman for Sex Matters said: “This deletion seems to be an admission that it would not be direct gender reassignment discrimination to refuse to refer to a female pupil as a boy (so called ‘misgendering’).
“Nor does the EHRC try to raise the spectre of indirect discrimination here, presumably recognising that referring to boys as boys and girls as girls is not indirect gender-reassignment discrimination.”
‘Result still isn’t perfect’
Helen Joyce, director of advocacy at Sex Matters, said: “It’s very helpful that, after years of pressure from campaigners, the EHRC has finally removed this legally faulty example from its technical guidance.
“The result still isn’t perfect, but the improvements will make it easier for the Department for Education to bring out strong schools guidance that protects and safeguards all children.”
Education Secretary Gillian Keegan has been promising official guidance from her department about trans matters for months.
On Thursday EHRC chairwoman Baroness Kishwer Falkner urged her to hurry up.
“We reviewed our technical guidance because we recognise that this complex area of policy and law has evolved since it was first published in 2014,” she said.
“We have now revised some areas to ensure the guidance is legally correct.
“It is crucial we avoid any confusion on this important topic. Our technical guidance for schools focuses on the practical implementation of the Equality Act.
“The EHRC has additionally provided the Department for Education with advice on equality law and, where appropriate, human rights. We have urged them to bring forward their guidance for schools in England as soon as possible, to help provide further clarity for schools and families.”
A spokesman for the EHRC said: “It may not be directly discriminatory for a school not to refer to a child by their preferred gender, where it differs from their legal sex.
“However, schools must carefully consider how they justify and consistently apply their policies on this matter to avoid any risk of indirect discrimination.”
