Lawyers advised ministers that trans school guidance was ‘high risk’

Two children raise their hands in a school classroom.

A number of areas in the Tory government’s new guidance on gender identity for children in schools were dubbed “misleading” and “high risk” by legal experts.

A leaked draft of the Gender Question Guidance for public schools was reportedly criticised by lawyers in annotations handed to the Department for Education (DfE).

Initial reports in April suggested that the new guidance would force teachers to ‘out’ trans, non-binary, and gender non-conforming pupils to their parents without the child’s consent. It would also only allow faculty to use students’ new pronouns and names with explicit permission from parents or guardians.

Officially published by the DfE on Tuesday (19 December), the guidance claims that it will help schools “navigate complex and sensitive issues”, while using combative language and dog-whistles to describe trans experiences.  

Extra clauses in the published guidance include allowing teachers to refuse to use a child’s pronouns or chosen name on religious grounds.

In an interview, equalities minister, Kemi Badenoch, said the guidance was “comprehensive” and based on “legal certainty”.

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However, in legal annotations seen by the BBC, lawyers wrote that parts of the draft guidance were “misleading or inaccurate” and could breach equality laws.

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According to the comments seen by the BBC, the government’s own legal counsel warned ministers that certain parts of the guidance could leave schools open to lawsuits over breaches of the 2010 Equality Act.

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Sections of the guidance that claimed schools did not have a “general duty” to allow pupils to change their name or pronouns were flagged as misrepresentative of equality laws in the UK, and annotations suggested that lawyers had warned against this perviously.

One legal expert wrote: “We have made this point before with No 10 so this is unlikely to be agreed.”

Another annotation read that schools taking legal action against some areas of the guidance could have a 70 per cent success rate.

Lawyers also questioned the description of gender identity as a “contested belief”, dubbing it a “political definition”.

The government was told that a section claiming primary school-aged children “should not have different pronouns to the sex-based pronouns used about them” could present a “high risk” of legal challenges to schools, saying that it conflated obligations in the Equality Act with school safeguarding policies.

In its advice, the government’s lawyers urged the DfE to reconsider or reword several clauses of the draft guidance before it was published. However, according to the BBC, most suggestions had not been acted upon by the time the guidance was made public.

The government insisted in a statement that the published guidance is lawful, and said it did not believe legal annotations on a draft document should be viewed as representative of the final published document.

Further changes could be made to the guidance during a 12-week consultation which includes an online survey seeking the views of the public on the guidance.

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In a statement to the BBC, general secretary of the Association of Schools and College Leaders, Geoff Barton, said it was “obviously vital” that the guidance is free from legal murkiness.

“We’re going to be looking very closely at the draft guidance and this includes seeking legal advice,” Barton said.

Additionally, Good Law Project director Jo Maugham wrote on X/Twitter that he has received “very strong advice indeed” that the guidance is “unlawful”.

“Hugely irresponsible of the secretary of state to ignore legal advice from her own layers and put schools at considerable legal risk by issuing it,” Maugham posted.

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