Updated EHRC guidance suggests misgendering trans pupils not discriminatory

The UK’s equalities watchdog has issued an update to previous guidance, stating that teachers who misgender trans pupils are not guilty of discrimination. 

The Equality and Human Rights Commission (EHRC) published an update to its Technical Guidance for Schools in England on Friday (22 September), which replaces a previous document published in 2014.

In the previous guidance, the EHRC stated it would be discriminatory – under the Equality Act’s protected characteristic of gender reassignment – to refer to a trans pupil using their deadname or former pronouns. 

In the update, the EHRC removed this section entirely, suggesting that the watchdog no longer sees misgendering or deadnaming as discriminatory.

The updated guidance also states single-sex toilet facilities must be provided in schools for children over the age of eight and single-sex changing facilities for children over 11. 

It goes on to advise schools to segregate these spaces by biological sex rather than gender – meaning trans pupils would not be allowed to use the toilet or changing room which aligns with their gender identity. 

Instead, the new guidance says schools should provide private changing facilities for trans children.

The update comes as the Department for Education is working on specific guidance for schools in regards to trans pupils, leaks of which suggest the guidance will be less than positive for trans youth in schools. 

Baroness Kishwer Falkner, chair of the Equality and Human Rights Commission, said in a statement: “As the equality regulator, we have a duty to promote and uphold Britain’s equality laws.

“The update issued today ensures schools have access to definitive guidance on their obligations under the Equality Act 2010.

“Schools across England and Scotland can feel confident the updated guidance will support them to comply with the law.”

Falkner continued: “We reviewed our technical guidance because we recognise that this complex area of policy and law has evolved since it was first published in 2014.

“We have now revised some areas to ensure the guidance is legally correct.

“It is crucial we avoid any confusion on this important topic. Our technical guidance for schools focuses on the practical implementation of the Equality Act.

“The EHRC has additionally provided the Department for Education with advice on equality law and, where appropriate, human rights. We have urged them to bring forward their guidance for schools in England as soon as possible, to help provide further clarity for schools and families.”

The government has promised trans guidance for schools for months, with initial reports suggesting it would be published this summer but, as of September, no such guidance has appeared.

Concerns over the guidance have been voiced by teachers, charities and the trans community, which leaks suggest would see trans pupils outed to their parents and stopped from socially transitioning without parental permission.

Speaking with PinkNews in the wake of the leaks, teachers expressed fears that trans pupils could be put in danger by being outed to potentially transphobic parents and care givers.

“As a teacher, my number one priority is safeguarding and I can’t really understand how this has anything to do with safeguarding students,” one teacher said.

“It seems to just be safeguarding Tory interests.” 

In July, while speaking to ITV’s Robert Peston, education secretary Gillian Keegan confirmed government plans that would see schools require parental consent before teachers can recognise trans pupils’ social transition.

She said at the time: “We think parental consent is really very important in this.

“That’s something that I know a lot of schools have been pressing for guidance, a lot of parents have been worried about this and we do think it’s important that parents are involved in the discussion.”