Transgender pupils: Scottish Government risks court over controversial guidance ordering teachers not to tell parents if their child changes gender at school

The Scottish Government could face a new court challenge, this time over controversial and misleading guidance for schools on dealing with transgender pupils.

Legal action is being threatened by a group representing thousands of Scots and which spearheaded the successful campaign to overturn the ‘state snooper’ named persons legislation.

A letter has been sent to the government by lawyers acting on behalf of The Christian Institute (CI) expressing “significant concerns” about the “incorrect” guidance published late last year.

The document – ‘Supporting Transgender Young People: Guidance For Schools in Scotland’ – says teachers should not tell parents if their child changes gender in school … unless the child, who could be as young as four-years-old, gives permission.

At the same time, school staff are to inform local authorities of parents who ‘struggle’ with their child’s transgender identity.

The guidelines were produced by LGBT Youth Scotland, funded by the Scottish Government, and advise that school kids as young as four ‘should be supported to explore and express their identity regardless of their age’.

The document also says parents should not be told if their children are sharing rooms with transgender pupils.

The CI – a national charity that defends religious liberty and has around 5,500 supporters in Scotland – has objected vehemently and states the guidance fails to safeguard the rights and responsibilities of parents.

The letter on their behalf from law firm Balfour + Manson states the guidance:

• Contains key errors in relation to the operation of the Equality Act 2010;
• Demonstrates that no regard has been had to crucial exceptions in the Equality Act;
• Does not adequately address the privacy rights of staff and other learners in schools where trans-pupils are seeking to express their gender identity;
• Has given no regard to the rights of parents.
The CI want to know what steps were taken to ensure the guidance reflects existing equality law and what steps were taken to comply with the Government Equality Unit’s duty in relation to people of religion or belief as well as the Human Rights Act 1998.

The letter also calls on the Scottish Government to confirm it will withdraw its endorsement of the guidance pending further consideration of these issues.

Outlining the possibility of a court challenge the CI warns that it may decide to take the matter further by seeking a Judicial Review – the same process through which they defeated the Scottish Government on the named person issue which went all the way to the UK Supreme Court.

The letter warns: “Our client reserves its position in terms of challenging the guidance and the failure of the Government Equality [Unit] to comply with its statutory obligations.”

Speaking for the CI, Deputy Director Ciarán Kelly said: “It beggars belief that the Scottish Government has authorised a state-funded campaign group to dictate to teachers what their obligations are and strip parents of their responsibilities – such a blinkered approach to gender confusion has to end.

“This ‘guidance’ also contains glaring errors in relation to the current law. The government needs to step back from its endorsement of this misleading and misguided document.”

The letter contains detailed objections to the guidance, particularly highlighting that “teachers and schools will be misled into thinking that equality law gives absolute rights to transgender people to the exclusion of the rights of other service users”.

On the rights of parents it states:

“Parents have the right to be kept informed by a school of matters relating to their child’s development and wellbeing. Yet, the guidance states (at page 10, in relation to primary schools), where pupils may be as young as four:

‘If a child in the school say that they want to live as a different gender, it is important to provide support and listen to what they are saying. Teachers and schools should be confident in discussing this with the child and, with the child’s consent, their family’. (emphasis added)

“The guidance discourages teachers from notifying parents about a life-changing decision which the school and the child are making. Similarly, the guidance repeatedly anticipates that teachers and schools will share information about a child or young person with third parties outside the school without parental consent.

“The guidance encourages schools to sideline parents and indeed to breach the rights of parents. We have already quoted the reference to parents not being told if their son or daughter will be sharing a bedroom on school trips with members of the opposite sex. This clearly breaches the right of parents to raise their children in accordance with their beliefs. Indeed, for many parents – religious or otherwise – allowing such a practice would be viewed as unsafe. Yet, the first a parent would know about it would be after the trip has taken place, if indeed at all.”

On the use of toilets and changing facilities the letter continues:

“The guidance selectively ignores the fact that for other learners the feeling of discomfort may have an entirely understandable basis.”

“For many young people, being forced to use toilet or changing facilities with trans young people who retain the genitalia of the opposite sex raises a concerning disregard for personal privacy.”

The letter adds:

“Likewise, it seems not to have occurred to those who have produced the guidance that being compelled to refer to a trans learner by their chosen name and pronoun might raise fundamental issues of freedom of conscience and/or freedom of expression. Whilst all transgender people must be protected from bullying, it is wrong to suggest, as the guidance does, that ‘deliberately using the wrong name and/or pronoun’ (page 12) necessarily amounts to transphobic bullying. Although a gratuitous use of a trans learner’s original name and related pronoun might amount to bullying, the guidance assumes that it would always be wrong to use such names and pronouns unless the use is merely ‘accidental’.”

Stressing its opposition to the guidance, the letter concludes:

“By failing to balance the rights of transgender young people with the rights of others, the guidance demonstrates a serious disregard for the need to foster good relations between transgender persons and others who do not share the protected characteristic of gender reassignment. It is difficult to see how guidance can promote good relations if it insists on the rights of the transgender person in every circumstance to the exclusion of the rights of others.

“Similarly, the guidance does not foster good relations between those who share a particular faith or belief and others who do not share it. Rather, the guidance sends the clear signal that those who may hold to beliefs about gender identity that do not align with this document are not worthy of respect and that any expression of those beliefs will amount to a case of bullying.”