School and college leaders have been asking for government guidance on this extremely sensitive and contentious issue for many years. ASCL has been representing those views to government with increasing urgency. We are therefore pleased that this draft guidance has finally been published. 

Leaders need government guidance in this area for two main reasons: 

a.    To support schools and colleges in taking compassionate, evidence-informed decisions in relation to provision for gender-questioning children and young people, which keep both them and other pupils safe.

b.    To protect schools and colleges, and the people who work in them, from increasingly vitriolic and threatening challenges in relation to decisions they make regarding gender-questioning pupils – including legal challenges.

We evaluated the guidance on the extent to which it answers these two needs. Our overall view is that it goes some way towards achieving this, but some aspects are problematic. These include: 

• The inclusion of some partisan language and selective use of research. 
• The expectation on school and colleges to make decisions before a pupil is permitted to socially transition which, in our view, require clinical expertise. 
• Some confusion and concern about how this guidance will apply to children and young people of different ages, including those of primary school age and post-16 students. 
• The extent to which the guidance aligns – or rather doesn’t align – with wider current societal expectations around transitioning, and the potential impact of this on already increasingly fraught relationships between schools and some families.  
• How schools and colleges would be expected to implement the guidance in relation to children and young people who have already socially transitioned. 
• The non-statutory nature of the guidance.
• Whether the guidance fully aligns with equalities legislation. 

On the final point above, we were concerned to read reports of leaked advice from the government’s own lawyers that, in their view, some parts of the draft guidance were ‘misleading or inaccurate’ and could misrepresent equality laws. According to these reports, government lawyers warned ministers that elements of the advice could potentially put both the government and schools at ‘high risk of a legal challenge’. The key point we make in our response, therefore, is that it is imperative that schools and colleges are confident that, if they follow government advice (whether statutory or non-statutory), they will not leave themselves open to legal challenge as a result. If this assurance cannot be provided, then the government itself must commit to taking on any legal challenges against individual schools, colleges or trusts which are following the guidance. 

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