Braverman seeks to clarify schools’ legal duties to gender-questioning pupils

The Attorney General said she wanted to ‘free up schools to act in each and every child’s best interest’.

10 August 2022

The Attorney General has cautioned schools against a “generic misunderstanding of legal duties” in dealing with children who are gender questioning.

Suella Braverman said she wanted to “provide legal clarity to schools and parents” and “free up schools to act in each and every child’s best interest”.

In a speech at the Policy Exchange think tank in London, 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 in all respects, from preferred pronouns to use of facilities and competing in sports.

“All this is sometimes taking place without informing parents or without 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.”

Ms Braverman said: “Yes, it is lawful for a single-sex school to refuse to admit a child of the opposite biological sex who identifies as transgender”, adding: “This can be a blanket policy to maintain the school as single sex.”

She added it “is lawful for a mixed school to refuse to allow a biologically and legally male child who identifies as a trans girl from using the girls’ toilets”.

She said: “Schools and teachers who socially transition a child without the knowledge or consent of parents or without medical advice increase their exposure to a negligence claim for breach of their duty of care to that child.”

It “can be lawful”, she said, for a school to “refuse to allow a biologically male child who identifies as a trans girl to wear a girls’ uniform” and from “participating in girls’ single-sex sporting activities”.

She added that parents “have a right under the Freedom of Information Act 2000 to request access to teaching materials used in their children’s state-funded schools … Parents do have a right to know what is being taught to their children”.

“It is therefore wrong for schools to suggest that they have legal obligations which mean that they must address children by their preferred pronouns, names or admit them to opposite sex toilets, sports teams or dormitories,” she said.

The Attorney General said schools “should consider each request for social transition on its specific circumstances and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children.”

She added: “I hope that understanding the law will free up schools to act in each and every child’s best interest, rather than being driven by a generic misunderstanding of legal duties.

“True diversity and equality are at risk when as a society we divide groups, we divide everyone into separate groups and then silence views which may challenge those groups. This is not what democracy is about and it is not what the law requires.

“Of course, this is a complex and emerging area of law but I hope to provide legal clarity to schools and parents today.”

Speaking in a question and answer session after her speech, Ms Braverman said: “Ultimately, this is a role for the Department for Education and they are … in the process of issuing detailed and practical guidance which will hopefully be a tool for schools and teachers and parents in how to navigate these issues.

“That guidance must be applied, it must be clear and when we see instances where it’s not being applied or followed by schools then Ofsted must step in.”

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