KCSIE: new guidance on gender questionning children

This post focusses on the section dealing with children who are questionning their gender (paragraphs 252-282). Although there are no differences in approach to those set out in the short policy paper published earlier this year, this guidance is more detailed. 

The guidance is there to help schools and colleges deal with situations were a child wants to socially transition and has asked you to faciliatate this. 

You are required to follow these safeguarding principles before agreeing to socially transition a pupil:  

1. You should only respond to requests made by the child or their parent or carer. Your staff should not initiate discussions - even if they think doing so is in the child's best interests.
2. Accommodating social transition is an active intervention and you must take a ‘careful approach’ because it can have a significant effect on the child's ‘psychological functioning and longer-term outcomes’. This includes taking into account the needs of the child asking to socially transition alongside the impact on their peers. The guidance says that the decision you reach ‘may not be the same as the child’s wishes'.
3. Primary schools should exercise particular caution and supporting social transition in this age group should be very rare. Analysing the risks v's benefits is something for an expert to determine and should not be done by staff without ‘appropriate clinical training’.
4. In the vast majority of cases, you should work with the parents to determine what is in the best interests of their child. Take into account any clinical advice about the child and, if appropriate, involve your designated safeguarding lead. You should remain ‘professionally curious’ and consider everything that could be affecting the child, including any wider health issues or neurodiversity.
5. If you allow a child to socially transition at school/college, maintain an open dialogue with them and their parents. The guidance says you need to be flexible so the child can keep their options open and avoid feeling under pressure to ‘commit to a potentially irrevocable pathway when they are young’. There’s a specific paragraph dealing with children who wish to detransition. If that happens, you are required to work closely with parents and relevant experts to support them.  
6. The guidance provides advice about how to deal with children ‘living in stealth’ (those who fully present as the opposite sex). It says these pupils are likely to have fully socially transitioned from an early age and may approach puberty in a fearful and anxious state. In these situations, you should involve your designed safeguarding lead (if you have one).
7. There are important limits to social transition. You must not allow pupils in toilets, changing rooms, or boarding or residential accommodation designed for the opposite sex. There are no exceptions to this. Although the guidance doesn't expressly say this, it doesn't mean forcing children to use facilities where they feel uncomfortable - and you may need to look at providing some gender-neutral options. You must not allow pupils to take part in sports that don't align to their biological sex where these have been separated, by sex, for safety reasons. Your conversations with the child and their parents should make this clear.
8. You must balance the needs of the child alongside the rights of other pupils and staff. The guidance has the protected characteristics of ‘religion and belief’ very much in mind here and suggests that you discuss whether other people with different views can refer to the child by name rather than using their preferred pronouns.  

How to prepare

Policy

The guidance suggests that you put in place a policy which explains how you will approach requests to socially transition a child in your care, the things you will consider, and the person with authority to make that decision. It will need to be carefully worded to avoid rigid rules based on gender stereotypes, and be flexible enough to support children who change their minds. But it does need to clearly set out the limits to social transition which are set out in law.  

You will have to evaluate whether this policy (and requests to be exempt from it and any other relevant policy) puts children who are questionning their gender at a disadvantage relative to other children. If it does, you will need to apply the following legal analysis:

• Does the policy have a legitimate aim? For example, safeguarding or fairness in sport?
• Is the policy a proportionate means of achieving that legitimate aim? You will need to consider i) whether there is another way of achieving the same aim; and the impact of the rule, or of making an exception, on the child and anyone else affected. You will also have to consider whether supporting social transition is in the child's best interests and those of other children. However, you can not make an exception to allow a child to access provisions that are made for the opposite sex as set out above. The Equality and Human Rights Commission has published draft guidance which may help with this.

Records

Keep records to support the decision you reach and maintain these in line with data protection laws.  

The guidance requires you to make sure that staff know the biological sex of all children and their sex is recorded accurately on official documents.

Training

Your staff need to understand what they can and can't do to support any child questionning their gender. They should not initiate conversations with a child or their parent, but can respond to requests. In most cases they will need to escalate any conversations about transitionning (even where a child simply expresses their feelings rather than asks for support) to the safeguarding lead (or other designated professional) who can decide when and how to discuss this with their parent. 

Safeguarding leads may need additional training to support their role in facilitating conversations with parents (and the rare circumstances where involving parents puts the child at greater risk than not involving them), and helping decision makers to reach appropriate decisions.

Evaluate previous decisions

The guidance ‘expects’ that schools and colleges will want to reflect on whether the decisions they've already taken remain appropriate in light of this guidance. That may involve haven't difficult conversations with children and their parents.

How we can help 

We have a team of education specialists who will help you navigate these complex issues. Please contact Jenny Arrowsmith, our national head of education to find out how we can help your school or college.  

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