Allowing boys into girls’ toilets could break the law, campaigners warn
Allowing schoolboys into girls’ toilets and changing rooms could break the law, campaigners have warned.
Sex Matters, the gender-critical campaign group, has launched the UK’s first review of the legal framework on sex and gender in education and warns that thousands of schools and colleges in England risk breaching legal requirements regarding their duty of care to children.
The claims come as the Government’s long-awaited publication of trans guidance for schools has been repeatedly delayed amid mounting concerns that it will have no statutory authority.
The Sex Matters report, entitled Keeping Children Safe as Boys and Girls in Education, consulted a dozen lawyers, educational psychologists, headteachers and special educational needs experts and concluded that there is no obligation for single-sex schools to admit children of the opposite sex.
It also claimed that schools are legally obliged to recognise sex in a wide range of areas, including registration, data protection, toilet and changing facilities, and behaviour policies, and warned that it is crucial that every teacher knows each pupil’s sex in order to fulfil their duty of care and safeguarding.
The report said: “Schools may need to be sensitive to any psychological distress that telling the truth about a child’s sex might cause to a gender-distressed child. But that distress cannot override obligations the school has to that child, and to that child’s peers, to maintain safeguarding and clear sex-based rules.”
Legal obligation
Teachers and other staff in schools have a common law duty when in charge of pupils to take the same care of them as they would as a parent.
Maya Forstater, executive director of Sex Matters, said that schools that allow boys to use girls’ toilets and changing rooms and vice versa are failing in their duty of care, which they have a legal obligation to meet.
“It all comes under schools’ duty of care to fence the pond off, fence the stairs off, make sure there are no sharp railings they can fall onto off the climbing frame,” she said. “You do all of these things to keep children safe.”
Schools are required by law to have single-sex toilets from the age of eight and single-sex changing rooms or fully enclosed cubicles from the age of 11.
Sex Matters’ legal review, which has been sent to the education secretary, Gillian Keegan, comes ahead of the Government’s much-anticipated and repeatedly delayed guidance for schools and colleges in England on what to do when a child is “questioning their gender”.
The minister announced in July that there would be a delay in publishing the guidance amid reports the Government is considering changing the law to stop schools from allowing “social transitioning” – in which pupils change their pronouns, names and uniforms.
Unsafe ‘self-ID’ practices
Last month, the education secretary stressed that the overdue guidance to help teachers of children who are questioning their gender will only be “non-statutory”, rather than enshrined in law.
Ms Keegan also published a ministerial statement urging teachers to exercise “extreme caution” in the meantime over pupils who choose to self-identify as a different gender.
She said that ministers need more information about the “long-term implications of a child to act as though they are the opposite sex”.
“We also need to take care to understand how such actions affect other children in the school or college. These decisions must not be taken lightly or in haste,” she added.
The Sex Matters report analysed more than 20 laws and regulations, including the Education Act, the School Standards and Framework Act, Teachers’ Standards, the National Curriculum and statutory guidance on safeguarding.
Responding to the report, Conservative MP Miriam Cates warned it is the responsibility of the education secretary to provide clear guidance to teachers clarifying their safeguarding duties to all children, including those “questioning their gender” especially “given the unsafe and potentially unlawful ‘self-ID’ practices that are now prevalent in many schools”.
‘Hurry up and pull their finger out’
However, Rachel Dee, president of the Beaumont Society, a charity that supports trans people, said: “Schools are waiting for the trans guidance from the Government, and it seems to be taking a long time.
“I can see the difficulties in allowing boys into girls’ toilets. It could cause some serious problems and disruption. I would think it’s up to the individual schools to decide what to do, and schools should be consulting parents regarding policies involving trans pupils because parents need to be part of the decision-making.
“The Government should hurry up and pull their finger out and get this stuff sorted.”
According to research conducted by YouGov in April 2022, 79 per cent of teachers say their schools have pupils who identify as trans or non-binary, 81 per cent say their schools would use chosen pronouns, while 19 per cent say their schools would also allow pupils to use the facilities of their “gender identity” rather than their sex.
A government spokesperson said: “The Education Secretary is working closely with the minister for women and equalities to provide guidance to schools and colleges.
“We’ve been repeatedly clear about the importance of biological sex and we advise that schools and colleges proceed with caution - prioritising the safeguarding and wellbeing of all children and involving parents in decisions relating to their child.
“Given the complexity and sensitivity of the issue, we’re taking the time to make sure any guidance we provide is as clear as possible.”