Teachers who use wrong pronouns could face legal challenges, unions warn

Teachers who refuse to use pupils’ preferred pronouns could face legal challenges despite new transgender guidance, unions have claimed.

Education unions have told the Government that its draft guidance for schools is flawed because it would leave teachers and schools open to “increasingly vitriolic and threatening challenges”.

England’s long-awaited first trans guidance for schools was published for consultation in December, in response to an increase in the number of children questioning their gender. The consultation closes on Tuesday.

The guidance states that schools do not have to, and should not, accept all requests for social transition, which is when a pupil asks to adopt the pronouns and uniform or use the facilities of their peers of the opposite sex.

It also makes clear that teachers should ensure parents are involved in decisions affecting their children, but says there could be exceptions for abusive families.

The guidance drawn up by Gillian Keegan, the Education Secretary, and Kemi Badenoch, the equalities minister, is non-statutory, which means it is not legally binding.

It does not impose an outright ban on social transitioning because ministers believed that they would need to amend the Equality Act 2010 in order to do so.

Mrs Badenoch has said the guidance was “comprehensive, and based on legal certainty”.

However, teaching unions said they would need assurance from the Government that they would not leave themselves open to legal challenges.

NASUWT, the teachers’ union, and the Association of School and College Leaders (ASCL) said they feared teachers who follow the guidance would risk breaching equalities legislation.

In its response, NASUWT quoted the Equality Act 2010, which states that a person has a protected characteristic of gender reassignment if “the person is proposing to undergo, is undergoing or has undergone a process of resigning the person’s sex by changing physiological or other attributes of sex”.

Unions raised concerns about advice from Government lawyers, leaked in December, which stated that schools face a “high risk” of successful legal challenges if they follow parts of the guidance.

Julie McCulloch, the director of policy at ASCL, said the guidance was needed to protect schools “from increasingly vitriolic and threatening challenges in relation to the decisions they make”. However, she questioned whether it was “legally sound”.

She said: “Reports that government lawyers have warned that following elements of the advice could potentially put schools at risk of a legal challenge, are deeply concerning. 

“If the Government cannot provide assurance that schools and colleges will not be leaving themselves open to legal challenge by following this guidance, then the Government itself must commit to taking on any legal challenges that arise against schools.”

‘Falls short’

Dr Patrick Roach, the general secretary of NASUWT, which represents 300,000 teachers, said the guidance “falls short of what schools and colleges have a right to expect” and called for it to be “withdrawn and replaced”.

The union said the guidance did not go far enough to protect children from the “risk” of “abuse at home” if parents are told that their child is questioning their gender. It claimed that the proposed rules would contradict existing statutory guidance, Keeping Children Safe in Education, which creates “important safeguarding thresholds” for schools responding to trans-identifying pupils.

The Department for Education has previously insisted that the guidance “is lawful and will help schools navigate these complex and sensitive issues, by urging caution, parental involvement, and prioritising safeguarding at all times”.

A government source said: “The NASUWT is finding problems where they don’t exist. The guidance is rooted in the Equality Act but also other legal obligations schools must meet, including safeguarding, information keeping and premises regulations. 

“Fundamentally, the NASUWT has bought into the dangerous ideology of self-ID pushed by the likes of Stonewall and Mermaids. This is exactly why the government’s guidance exists - to give teachers who have been abandoned by their unions a clear set of principles to abide by.”