Schools at risk of breaking law by allowing children to use toilets

Thousands of schools could be at risk of breaking the law by allowing children to use toilets and changing rooms according to their chosen ‘gender identity’ rather than biological sex, report warns

• Nearly 79% of teachers said they had pupils identifying as trans or non-binary 

Thousands of schools and colleges are in danger of breaking the law over recognising pupils’ gender, a report warned yesterday.

Teachers that allow children to use toilets and changing rooms according to their chosen ‘gender identity’ rather than their biological sex risk breaching the law and could face legal action, according to the review.

The report, by campaign group Sex Matters, found that schools in England were legally obliged to recognise students’ biological sex and could not lawfully allow ‘social transition’, where the child is treated according to a chosen gender different to their biological sex.

Research has found that almost 79 per cent of teachers said their schools had pupils who identified as transgender or non-binary.

A fifth said their schools would allow pupils to use facilities that matched their chosen gender identity rather than their sex, and 81 per cent said their schools would use a child’s chosen pronoun.

Teachers that allow children to use toilets and changing rooms according to their chosen ‘gender identity’ rather than their biological sex risk breaching the law and could face legal action, according to the review (File image) 

In its review, Sex Matters warned that schools which took those steps could be acting unlawfully and risk facing legal action.

It blamed ‘a lack of government guidance and faulty existing guidance from the Equality and Human Rights Commission’.

The report follows a warning from Ofsted chief inspector Amanda Spielman that updated guidance for schools was ‘urgently needed’.

Previous guidance from the Equality and Human Rights Commission said it was discriminatory for schools to fail to provide appropriate changing facilities, or to use trans pupils’ previous names.

The commission has said the guidance is under review ‘as a matter of priority’ and that it will update it as soon as possible.

The Sex Matters report said schools were not legally obliged to accommodate children who wanted to transition to a different gender identity, by calling them by a new name or pronoun, or by allowing them to use different toilets or changing rooms.

The report, by campaign group Sex Matters, found that schools in England were legally obliged to recognise students’ biological sex and could not lawfully allow ‘social transition’ (File image) 

READ MORE: EXCLUSIVE: Pupils call on Rishi Sunak to keep single-sex toilets in schools to ensure girls’ safety, with many judging mixed loos ‘intimidating, humiliating and downright dangerous’

It said: ‘Social transition – treating a boy as if he is a girl, or a girl as if she is a boy – is not compatible with schools’ statutory responsibilities, and the Department for Education’s guidance should reflect this.

‘Schools must be clear that a boy who identifies as a ‘trans girl’ is not a girl, and a girl who identifies as a ‘trans boy’ is not a boy.

‘They should not make the mistake of concluding that a policy that meets a male child’s wish to use girls’ facilities is good for girls because ‘trans girls are girls’.’

The review said schools might need to be sensitive toward any ‘gender-distressed’ pupil, but said distress could not override safeguarding or other legal obligations towards the child and their classmates.

Sex Matters executive director Maya Forstater said the review had analysed more than 20 laws and regulations, including the Education Act, the National Curriculum, the Schools Standards and Framework Act and teaching regulations.

A DfE spokesman said: ‘We’ve been repeatedly clear about the importance of biological sex and we advise that schools and colleges proceed with caution – prioritising the safeguarding and wellbeing of all children and involving parents in decisions relating to their child.’

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