On 19 December 2023, the Department for Education (DfE) released a consultation on draft, non-statutory guidance for schools regarding 'gender-questioning children', which ran until 12 March 2024. Once finalised, the guidance is intended to provide practical advice to help schools and colleges make decisions regarding children who are questioning their gender.

Note that once finalised the non-statutory guidance will apply only to schools in England. Guidance for schools in Wales is also expected but has not yet been published. Northern Ireland's Education Authority published non-statutory guidance in 2019 (updated in 2021). 

Until a final response from the government is released, this guidance remains under consultation and is therefore not currently agreed policy. This means that while members may wish to review the draft guidance when considering any approaches, it is important to underline that you do not need to change your current policies at this stage. 

NAHT’s response

Having engaged with members and utilised insight from advice queries we receive from members around this, NAHT has submitted a response to the consultation on behalf of members. However, given the complexities of this and the different contexts that members are in, we also encouraged all members to submit their own responses to the consultation.

Below we outline some of the key principles and concerns that we have on the draft guidance as it is currently written:

• We continue to believe that there is a need for clear, practical guidance for schools, based on the current law and regulations, and schools’ statutory responsibilities, to aid them in navigating support for ‘transgender and/or gender-questioning’ children and young people
• At the heart of this is individual children and young people, and schools need to be focused on their core duties, including safeguarding the children in their care
• Any final guidance should be focused solely on clarifying operational and practical issues, such as access to single-sex spaces and admissions registers. While there are sections in the proposed guidance that reflects this need and do provide a clear line around these requirements and/or duties for schools, this is not consistent throughout. We firmly believe that the guidance should not be the place for any form of ideological debate
• As such, we do not feel that the draft guidance currently provides all the, much needed, advice to support schools and colleges to meet their duties effectively
• It should also be noted that any final guidance should provide advice on how schools should navigate the new ‘recommendations’ against a backdrop of support and/or approaches that may have already been implemented.

Our concerns fall into three key areas:

1. Legal and regulatory

a. We are particularly concerned that, as it is currently drafted, aspects of the guidance may leave schools at ‘high risk’ of successful legal challenges. It should go without saying that schools should feel confident that in following, government guidance, they are operating in accordance with the law

b. It is therefore essential that the department release any legal review they receive on the final guidance, and be explicit throughout the guidance, any areas which may, despite best efforts for clarity, remain legally ambiguous, and which may pose a legal risk to schools, in order that they can obtain their own legal advice, if necessary.

2. Safeguarding

a. NAHT agrees that safeguarding should be a core overarching principle

b. However, we believe that the draft guidance includes aspects that appear to conflict with the principles outlined in Keeping children safe in education and the statutory Working together to safeguard children guidance. This is extremely concerning and must be addressed

c. When considering parental engagement, we feel that, as per the DfE’s advice around engaging with parents in relation to RSE, any final guidance should acknowledge that schools know the importance of strong, constructive, and open conversations and relationships with parents in the education and pastoral support of their children; and that this area is no different

d. We would also cite that the principles have already been well articulated as part of the Working together guidance (2023) section 'Principles for working with parents and carers'. Here, parents’ views are a key consideration, but ‘the wishes and feelings of the child and what is in their best interest remain central to decision-making’.

3. Mental health, well-being and external support

a. The government is clear that ‘Good mental health is important for helping children and young people to develop and thrive’ and that ‘Schools and colleges have an important role to play in supporting the mental health and wellbeing of their pupils and students’ (Promoting children and young people’s mental health and wellbeing)

b. Yet there is no obvious reference within the draft guidance to considerations of the mental health and well-being support that ‘gender-questioning’ children and young people may need

c. We believe that we believe that it is a significant oversight for consideration of the mental health and well-being of children and young people, not to be one of the overarching principles

d. ‘Guidance’ alone is not enough and to be truly effective it must be accompanied by relevant training, support, resources, and funding for schools, and any appropriate support services. 

Finally, it should be recognised that, although this draft guidance is focused on pupils, the narrative and framing of the final guidance may also indirectly impact on staff, leaders, and the wider school community. 

Existing guidance

Read the joint advice for members in maintained schools, academy trusts and academies in England that explores schools’ duties towards their transgender pupils. This was published pending the publication of the new guidance by the DfE and will be reviewed once this has been finalised.