Rishi Sunak is expected to delay issuing transgender guidance for schools after the Attorney-General and Government lawyers warned that plans to rule out gender transition would be unlawful. The Times has the story.
A Whitehall source said that No. 10 and Kemi Badenoch, the Women and Equalities Minister, wanted the guidance to be hardened amid pressure from Tory MPs.
The draft guidance stated that children should be allowed to socially transition with the consent of their parents, meaning that they could choose another pronoun or name and wear the uniform of the opposite sex.
But the Government then commissioned legal advice from Victoria Prentis, the Attorney-General, about whether a ban on social transitioning in schools was possible. Last week she concluded that such a move would be unlawful and said that the Government would need to pass new legislation if it wanted to go further.
Sunak had committed himself to publishing the guidance by the end of this week, but the Times has been told that is unlikely given the Attorney-General’s advice. The Prime Minister is concerned about the “long-term implications” of allowing children to socially transition.
A Government source said: “We have consistently said that this is about protecting children, empowering parents, and supporting teachers and school leaders by providing guidance for them to implement. It’s a complex and sensitive area and it’s right we get it right. More information is needed about the long-term implications of allowing a child to act as though they are the opposite sex and the impact that may have on other children too.”
A Whitehall source said that No.10 and Badenoch had put forward a series of proposals to strengthen the guidance. The strongest — and a reflection of the Government’s concerns — was a blanket ban on social transitioning.
Social transitioning describes the process by which transgender children or adults adopt a name, pronouns, and gender expression, such as clothing and haircuts, that match their new gender identity.
Prentis said that a blanket ban would be unlawful because the Equality Act states that gender reassignment is a “protected characteristic”, regardless of age. She gave the same advice when ministers asked whether there could be a ban on social transitioning for primary school children.
Badenoch also wanted to include greater protection for free speech in the guidance, stating explicitly that teachers must not be “compelled” to address children by their chosen pronoun if they had a “good faith” objection.
The Attorney-General and Government lawyers advised ministers to caveat the guidance and state that nobody “should” be compelled unless there was a “particular justification” for doing so. Ministers have raised concerns that the approach could give schools grounds to discipline teachers if they failed to respect a child’s chosen gender.
Badenoch also suggested that doctors must be consulted before allowing children to socially transition as part of a “clinical gateway”. Again the Attorney-General suggested that the guidance would need to say that they “should” be consulted. The Department for Health said that the NHS would not be able to provide enough doctors and clinical support to advise on whether children should be able to socially transition.
Prentis herself is said to favour taking a tougher approach on the guidance, despite giving this unwelcome advice.
Worth reading in full.
Oddly, the advice from the current Attorney-General seems to contradict a speech made by then Attorney General Suella Braverman last year. She said:
The problem is that many schools and teachers believe – incorrectly – that they are under an absolute legal obligation to treat children who are gender questioning according to their preference, in all ways and all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing their parents or taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia. In my view, this approach is not supported by the law.
She added: “No child should be made to fear punishment or disadvantage for refusing to adopt a preferred pronoun for a gender questioning child. … The right to freedom of belief, thought, conscience and speech must be protected.”
Ms. Braverman pointed out that schools are wrong to treat children as ‘transgender’, since anyone under the age of 18 cannot obtain a gender recognition certificate. She stated: “Under-18s are unable to obtain a Gender Recognition Certificate and schools will generally be dealing with children whose sex for the purposes of the Equality Act is that registered at birth.”
But now it turns out – at least according to the current Attorney-General and “Government lawyers” – that because the Equality Act failed to specify age limits for the “protected characteristic” of “gender reassignment”, it actually is unlawful to forbid social transition of schoolchildren, all the way down to four years-old, and has been since 2010. Who knew?
If this really is the case (why did no one mention it before, and why was Prentis’s predecessor of a different view?) a simple amendment disapplying the Equality Act’s ‘gender reassignment’ provisions for under-18s ought to do it.
Let’s see what the Government comes up with.
Stop Press: Joan Smith in UnHerd has written about the Tory divisions on the issue and which MPs are obstructing the Government’s attempts to stand up for children’s safety and women’s rights on this hot-button topic.
Stop Press 2: Mark Lehain in ConservativeHome says the delays to the guidance are frustrating, but we must take the time to get it right.
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