QC: Scottish trans guidance for schools ‘contrary to human rights law’

Schools in Scotland which affirm a child’s transgender identity without informing their parents could be breaking the law, a leading human rights lawyer has said.

In a legal opinion, Aidan O’Neill QC – who represented The Christian Institute in its successful challenge to the Scottish Government’s unlawful Named Person scheme – says guidance adopted by around half of Scotland’s local authorities goes against human rights law.

First published in 2017, ‘Supporting Transgender Young People’ was created by LGBT Youth Scotland and was originally endorsed by the Scottish Government. It backtracked after The Christian Institute threatened legal action, warning the document was “incorrect”, “misleading and misguided”.

Hidden from parents

The guidance still advises schools to encourage teachers to affirm a child who wishes to ‘change gender’, not to inform parents if their child began identifying as transgender, and to inform local authorities of parents who ‘struggle’ with their child’s transgender identity.

O’Neill’s opinion was sought by a mother in Scotland after discovering her daughter was being affirmed as a boy by her school without the mother’s knowledge.

the Scottish government is acting contrary to human rights law in supporting and promoting this guidance for use in Scottish schools

He said the guidance is based on “a misunderstanding or misrepresentation” of the relevant laws, “in particular as regards the role and rights of parents to determine issues around the child’s welfare and upbringing”.

On this basis, he said, “the Scottish government is acting contrary to human rights law in supporting and promoting this guidance for use in Scottish schools”.

Privacy

While LGBT Youth Scotland has argued that Article 16 of the UN Convention on the Rights of the Child protects a child’s right to privacy, O’Neill explained that this ignores the wider context of that convention, which he says emphasises the importance of family life.

He also explained that Article 8 of the European Convention on Human Rights establishes a child’s right to privacy “within their family and home, not from their family and home”, adding “parents have the right to be kept informed by schools about matters relating to their child’s development and wellbeing”.

The anonymous mother has written to Education Minister John Swinney to “request that he advise schools to not follow the existing guidance” on the basis of O’Neill’s legal opinion.

Simon Calvert, The Christian Institute’s Deputy Director for Public Affairs, said: “In our 2016 Supreme Court win over the Named Person scheme, the court said ‘within limits, families must be left to bring up their children in their own way’. Some activists think they know better than parents. But thankfully the law is not on their side.”