RSHE Consultation
RSHE Consultation
This is draft guidance and so schools should not make any changes as a result of the publication.
The Supportive Schools Campaign have released a statement which can be found at the link below.
We have also produced a document looking at the guidance - in particular the sections referring to Trans and Non-Binary identities.
TNB Education's Response
This is not legal guidance. We are not lawyers - we are educators, some of us are parents and we are trans & non-binary ourselves, and these are the lenses through which we are interpreting this draft guidance for Relationships and Sex Education.
The RSE guidance was released under the previous Government in draft form. Schools should not make any changes to their current practice as a result of its draft publication or through expectations that this will be published in this form or in time for the academic year 2024/25. It probably won't be.
This analysis references the relevant paragraphs of the guidance so that you can read around our references.
If/when the guidance is published, it will be statutory and the government clearly intend to instruct Ofsted to inspect schools’ implementation of this guidance (para 3). Statutory guidance is not law but schools will be expected to follow it “and where they depart from parts of the guidance which state that they should or should not do something they will need to have good reasons for doing so.” (para 5) We believe that there are very good reasons for not following the guidance in its current form and we have set these out below.
As we are a trans & non-binary education group, we will mainly focus on the issues for LGBT+ people. Other organisations will publish their responses regarding the additional safeguarding risks this guidance brings and we will link to those sources on TNB.org.uk as and when they are published.
This guidance refers to and relies on the Guidance for schools and colleges on gender questioning children which is still draft, non-statutory guidance. This RSE guidance would strengthen that non-statutory guidance and vice-versa, with the effect of making both documents statutory.
General Concerns
This guidance instructs schools to employ an extreme form of transparency with parents, consulting on policy, and providing parents with access to all planning and resources (para 22-27, 73). This is clearly unworkable.
The age limits imposed by this guidance mean that no sex education of any kind can take place before Y5 and that any mention of any sexual act cannot be mentioned before Y9. There are numerous studies that state that this is too late. Essentially, this guidance promotes censorship and will cause educators to fear topics which may be essential to safeguard the children they teach. Grooming, abuse, exploitation, genital mutilation, child pornography etc don’t just affect teenagers. Of course, we should not and do not have lessons with infants about these things but it is reckless to ban making pupils aware of the risks they face, particularly online. Again, there are organisations that will respond to this in more detail and links will be on the TNB.org.uk website when they are available.
Equality
The guidance states many times that schools must comply with the Equality Act 2010 (para 12, 36-37, 39, 47), and must not discriminate against pupils (para 38). It then immediately goes on to discriminate against all LGBT+ pupils and families (para 40-48)
Although the guidance does not re-introduce the historical Section 28 in name, it certainly gives primary schools the option to remove all references to LGBT+ identities who have, “discretion over whether to discuss sexual orientation or families with same-sex parents.” (para 41). This feels very much like the government introducing a ‘don’t say gay’ rule but washing their hands of the actual decision. The guidance does require schools to teach that it is possible for same-sex relationships to be healthy and stable (how generous!) by the end of secondary school, provided it is integrated within RSHE lessons and not elsewhere in the curriculum (para 41). A school would comply with this guidance if it taught just one RSHE lesson in a child’s life that acknowledged that healthy same-sex relationships may exist.
Essentially, this is a return to Section 28, albeit a badly-disguised one.
Gender Identities
The guidance completely and utterly bans all trans and non-binary identities from being mentioned and erases them from existence. (para 43-46).
The effect this will have on trans and non-binary pupils and those with trans and non-binary friends and family members is clear and outlined below. The devastating effect this has on trans and non-binary educators is less obvious. Because this guidance does not allow educators to discuss or recognise that trans and non-binary identities exist, all trans and non-binary educators and those with trans and non-binary family members are denied the right to be who they truly are.
This guidance refutes the very existence of trans and non-binary people, stating that “Many people do not consider that they or others have a separate (to biological sex) gender identity.” (para 45) and bans schools from using any materials that reflect anything other than binary cisgender identities. This will include ANY literature with trans or non-binary representation. More than that, though, the guidance suggests in para 46 that by acknowledging the existence of people who identify as trans or non-binary, schools are currently encouraging children to become trans or non-binary themselves. This was the belief that led to Section 28 back in 1986 (amendment 2A of Section 28 of the Local Government Act 1986): the belief that exposing children to the existence of gay, lesbian or bisexual people would turn them gay, lesbian or bisexual. It is not ‘Gender Ideology’ to acknowledge the existence of trans and non-binary people. Nor is it a choice or infectious. The only choice that LGBT+ people ever make is to live as their true selves or to hide out of fear of bigotry, abuse, discrimination and attack.
The guidance bends the truth conveniently to suit its transphobic aims by stating select pieces of the law and presenting the UK’s failings in ensuring equality for trans and non-binary people as evidence for its position. Namely:
Para 43: “...an individual must be 18 before they can legally reassign their gender.” This refers to a GRC (Gender Recognition Certificate). A provisional driver’s licence, for example, is a legal form of ID and anyone can have their name and gender (man or woman only unfortunately) represented on this according to their wishes. Gender-markers in school data systems can be changed without issue as all pupils are identified by a UPN (unique pupil number). Also, Social Transitioning is something that anyone of any age can do and falls under the protection of the Equality Act 2010. This means living as the gender that the person identifies with and includes non-binary identities.
Para 43: “...boys cannot be legally classified as girls or vice versa.” Whilst it is true that GRCs are not available to under 18s, in order to get a GRC, you must have been living as your ‘preferred’ gender for at least two years (Gender Recognition Act 2004). If schools do not support social transitioning, then trans people will have no option but to wait until their 20s to change their legal gender. Throwing the word ‘legally’ in that statement is pure misdirection. There are many things citizens of any age can do without the need for legislation. Questioning your gender or socially transitioning is an example of this. Whether boys or girls can be ‘legally’ classified as a gender they were not assigned at birth is not the issue here; they CAN be classified as a different gender and, under the Equality Act 2010, SHOULD be, as gender reassignment is, as the guidance says, a protected characteristic.
Para 44 asks schools to use the non-statutory guidance for gender questioning pupils which has not been published and contradicts existing law. See HERE for details.
Para 45 states that “Gender Identity is a highly contested subject.” This implies that the majority of people (including science) contest the existence of trans and non-binary people. This is simply not the case. Yougov recently conducted a poll on this very issue (YouGov) which found that two-thirds of people feel that gender identity should be taught in schools and even more contest the contents of the rest of this guidance. Gender Identity is ‘highly contested’ by a minority of people. In another YouGov Poll, The overwhelming majority of British People agree that ‘a person should be able to self-identify as a gender different to the one they were born in’. The only demographics who disagreed were ‘remainers’ and conservative voters. (YouGov)
Para 46 states that a school’s response to a pupil asking about gender should be to ‘teach the facts about biological sex’ and goes on to list the ways that using materials that include trans and non-binary identities is wrong and could influence the children to become trans or non-binary. It also doesn’t say what these ‘facts’ are. We can guess the ‘facts’ that the authors want to be taught but these are not factually correct. Just as with the guidance for gender questioning pupils, this guidance fails to recognise the likely 10% of the population that are intersex, the vast amount of scientific research into sex and gender, and the reality of the lived experiences of trans and non-binary people that the guidance even contests exist: “Many people do not consider that they or others have a separate (to biological sex) gender identity.” (para 45)
The guidance also says that if any such materials are used at all, that parents should be consulted on them in advance. This is censorship, with the guidance intentionally making it unworkable to include such materials.
Paras 47-48 do not explicitly mention LGBT+ identities but state that religious views on sexuality and other ‘certain topics’ should be respected. Because there is no line that says ‘except when this affects the rights of protected characteristics under the Equality Act 2010’, it effectively allows religious views to be taught that would otherwise be viewed as discriminatory.
Conclusion
This guidance puts pupils at direct risk of harm through banning or discouraging learning that could protect them. Additionally, it promotes a minority gender-critical view, putting children, young people and educators at direct risk of harm by limiting or denying the discussion or existence of LGBT+ people and especially those with Trans and/or non-binary identities. It contravenes the Equality Act 2010 and its implementation would likely open schools up to litigation on the grounds of discrimination. It is Section 28 by another name.
The RSE guidance was released under the previous Government in draft form. Schools should not make any changes to their current practice as a result of its draft publication or through expectations that this will be published in this form or in time for the academic year 2024/25. It probably won't be.
This analysis references the relevant paragraphs of the guidance so that you can read around our references.
If/when the guidance is published, it will be statutory and the government clearly intend to instruct Ofsted to inspect schools’ implementation of this guidance (para 3). Statutory guidance is not law but schools will be expected to follow it “and where they depart from parts of the guidance which state that they should or should not do something they will need to have good reasons for doing so.” (para 5) We believe that there are very good reasons for not following the guidance in its current form and we have set these out below.
As we are a trans & non-binary education group, we will mainly focus on the issues for LGBT+ people. Other organisations will publish their responses regarding the additional safeguarding risks this guidance brings and we will link to those sources on TNB.org.uk as and when they are published.
This guidance refers to and relies on the Guidance for schools and colleges on gender questioning children which is still draft, non-statutory guidance. This RSE guidance would strengthen that non-statutory guidance and vice-versa, with the effect of making both documents statutory.
General Concerns
This guidance instructs schools to employ an extreme form of transparency with parents, consulting on policy, and providing parents with access to all planning and resources (para 22-27, 73). This is clearly unworkable.
The age limits imposed by this guidance mean that no sex education of any kind can take place before Y5 and that any mention of any sexual act cannot be mentioned before Y9. There are numerous studies that state that this is too late. Essentially, this guidance promotes censorship and will cause educators to fear topics which may be essential to safeguard the children they teach. Grooming, abuse, exploitation, genital mutilation, child pornography etc don’t just affect teenagers. Of course, we should not and do not have lessons with infants about these things but it is reckless to ban making pupils aware of the risks they face, particularly online. Again, there are organisations that will respond to this in more detail and links will be on the TNB.org.uk website when they are available.
Equality
The guidance states many times that schools must comply with the Equality Act 2010 (para 12, 36-37, 39, 47), and must not discriminate against pupils (para 38). It then immediately goes on to discriminate against all LGBT+ pupils and families (para 40-48)
Although the guidance does not re-introduce the historical Section 28 in name, it certainly gives primary schools the option to remove all references to LGBT+ identities who have, “discretion over whether to discuss sexual orientation or families with same-sex parents.” (para 41). This feels very much like the government introducing a ‘don’t say gay’ rule but washing their hands of the actual decision. The guidance does require schools to teach that it is possible for same-sex relationships to be healthy and stable (how generous!) by the end of secondary school, provided it is integrated within RSHE lessons and not elsewhere in the curriculum (para 41). A school would comply with this guidance if it taught just one RSHE lesson in a child’s life that acknowledged that healthy same-sex relationships may exist.
Essentially, this is a return to Section 28, albeit a badly-disguised one.
Gender Identities
The guidance completely and utterly bans all trans and non-binary identities from being mentioned and erases them from existence. (para 43-46).
The effect this will have on trans and non-binary pupils and those with trans and non-binary friends and family members is clear and outlined below. The devastating effect this has on trans and non-binary educators is less obvious. Because this guidance does not allow educators to discuss or recognise that trans and non-binary identities exist, all trans and non-binary educators and those with trans and non-binary family members are denied the right to be who they truly are.
This guidance refutes the very existence of trans and non-binary people, stating that “Many people do not consider that they or others have a separate (to biological sex) gender identity.” (para 45) and bans schools from using any materials that reflect anything other than binary cisgender identities. This will include ANY literature with trans or non-binary representation. More than that, though, the guidance suggests in para 46 that by acknowledging the existence of people who identify as trans or non-binary, schools are currently encouraging children to become trans or non-binary themselves. This was the belief that led to Section 28 back in 1986 (amendment 2A of Section 28 of the Local Government Act 1986): the belief that exposing children to the existence of gay, lesbian or bisexual people would turn them gay, lesbian or bisexual. It is not ‘Gender Ideology’ to acknowledge the existence of trans and non-binary people. Nor is it a choice or infectious. The only choice that LGBT+ people ever make is to live as their true selves or to hide out of fear of bigotry, abuse, discrimination and attack.
The guidance bends the truth conveniently to suit its transphobic aims by stating select pieces of the law and presenting the UK’s failings in ensuring equality for trans and non-binary people as evidence for its position. Namely:
Para 43: “...an individual must be 18 before they can legally reassign their gender.” This refers to a GRC (Gender Recognition Certificate). A provisional driver’s licence, for example, is a legal form of ID and anyone can have their name and gender (man or woman only unfortunately) represented on this according to their wishes. Gender-markers in school data systems can be changed without issue as all pupils are identified by a UPN (unique pupil number). Also, Social Transitioning is something that anyone of any age can do and falls under the protection of the Equality Act 2010. This means living as the gender that the person identifies with and includes non-binary identities.
Para 43: “...boys cannot be legally classified as girls or vice versa.” Whilst it is true that GRCs are not available to under 18s, in order to get a GRC, you must have been living as your ‘preferred’ gender for at least two years (Gender Recognition Act 2004). If schools do not support social transitioning, then trans people will have no option but to wait until their 20s to change their legal gender. Throwing the word ‘legally’ in that statement is pure misdirection. There are many things citizens of any age can do without the need for legislation. Questioning your gender or socially transitioning is an example of this. Whether boys or girls can be ‘legally’ classified as a gender they were not assigned at birth is not the issue here; they CAN be classified as a different gender and, under the Equality Act 2010, SHOULD be, as gender reassignment is, as the guidance says, a protected characteristic.
Para 44 asks schools to use the non-statutory guidance for gender questioning pupils which has not been published and contradicts existing law. See HERE for details.
Para 45 states that “Gender Identity is a highly contested subject.” This implies that the majority of people (including science) contest the existence of trans and non-binary people. This is simply not the case. Yougov recently conducted a poll on this very issue (YouGov) which found that two-thirds of people feel that gender identity should be taught in schools and even more contest the contents of the rest of this guidance. Gender Identity is ‘highly contested’ by a minority of people. In another YouGov Poll, The overwhelming majority of British People agree that ‘a person should be able to self-identify as a gender different to the one they were born in’. The only demographics who disagreed were ‘remainers’ and conservative voters. (YouGov)
Para 46 states that a school’s response to a pupil asking about gender should be to ‘teach the facts about biological sex’ and goes on to list the ways that using materials that include trans and non-binary identities is wrong and could influence the children to become trans or non-binary. It also doesn’t say what these ‘facts’ are. We can guess the ‘facts’ that the authors want to be taught but these are not factually correct. Just as with the guidance for gender questioning pupils, this guidance fails to recognise the likely 10% of the population that are intersex, the vast amount of scientific research into sex and gender, and the reality of the lived experiences of trans and non-binary people that the guidance even contests exist: “Many people do not consider that they or others have a separate (to biological sex) gender identity.” (para 45)
The guidance also says that if any such materials are used at all, that parents should be consulted on them in advance. This is censorship, with the guidance intentionally making it unworkable to include such materials.
Paras 47-48 do not explicitly mention LGBT+ identities but state that religious views on sexuality and other ‘certain topics’ should be respected. Because there is no line that says ‘except when this affects the rights of protected characteristics under the Equality Act 2010’, it effectively allows religious views to be taught that would otherwise be viewed as discriminatory.
Conclusion
This guidance puts pupils at direct risk of harm through banning or discouraging learning that could protect them. Additionally, it promotes a minority gender-critical view, putting children, young people and educators at direct risk of harm by limiting or denying the discussion or existence of LGBT+ people and especially those with Trans and/or non-binary identities. It contravenes the Equality Act 2010 and its implementation would likely open schools up to litigation on the grounds of discrimination. It is Section 28 by another name.