The Equality and Human Rights Commission (EHRC) is consulting on new technical guidance for schools in England, Scotland and Wales about how the Equality Act 2010 applies. The deadline for responses is Wednesday 30th September.
This is an update of guidance that the EHRC first produced in 2014 and revised in 2023. Schools will use this guidance to inform how they think about sex discrimination and harassment, and transgender identification, and to make decisions about policies on sport, toilets, changing rooms and potentially about “social transition”. The Scottish and Welsh governments will use it when updating their own schools guidance, and the Department for Education (DfE) will take it into account when it updates the statutory safeguarding guidance Keeping children safe in education (KCSIE) next year.
The guidance is required to be in line with the Equality Act 2010. We think it has serious flaws.
It is completely inadequate on sport, barely addressing the legal obligation of schools to ensure girls receive a fair, equal offer of sport and PE.
It steers schools towards treating children who identify as transgender differently from their peers. We think this is likely to amount to unlawful gender-reassignment discrimination against those children, as well as sex and belief discrimination against other children.
It encourages schools to allow children to make inappropriate choices,and to invite into their school and take advice from organisations that will undermine safeguarding and compliance with the Equality Act.
We have analysed the draft in detail.
Analysis of EHRC draft technical guidance for schools
Girls’ sport provision
There is no dedicated section on school sport, only a short passage on after-school clubs and a section on “competitive sport” which focuses on the section of the Equality Act that relates to treatment of competitors in “gender affected” sporting activities. Children taking part in physical education, PE, at school are not “competitors”; they are pupils.
The guidance should explain clearly how equality law applies to PE, which is a compulsory part of general education. It should emphasise that the Equality Act protects equal access to all aspects of education, including PE and school sport for girls and boys. As the charity Women in Sport says, offering only mixed sport will tend to exclude, discourage and disadvantage girls.
The focus on Section 195 as the one part of the Equality Act relevant to sport is misguided (as we have pointed out more generally in our report on how the Equality Act protects women and girls in sport, Getting back on track). It is not true that this is the only, or primary part of the Act in relation to all sporting activity – its focus is participation as a competitor – and focusing just on this provision can distract from applying the basic principles about sex discrimination in relation to specific duty bearers.
When schools are thinking about sport, the most important part of the Equality Act remains Section 85, the overall requirement not to discriminate against any pupil in the way it provides education or affords access to a benefit, facility or service, and not to subject them to any other detriment.
If a school doesn’t provide an equal programme of physical education, coaching, facilities and support for girls and boys, it will be committing sex discrimination.
The 2018 Court of Appeal ruling in Al Hijrah School v Ofsted held that although complete segregation of male and female pupils “for all lessons, breaks, school clubs and trips” would be sex discrimination, “it is not the mere fact of segregation which gives rise to discrimination… but rather it is the impact on the quality of education”. Limited sex separation in school, such as for PE lessons, that improves rather than harms the quality of education is not likely to be unlawful (this is also recognised in guidance published by the DfE in 2018).
The EHRC guidance says nothing about this standard legal basis for allowing single-sex PE lessons, or about the indirect discrimination that can be suffered by girls by only having mixed sports sessions. Instead it offers three small, individualised examples focused on ad hoc extracurricular activities – a girl removed from a primary-school football team, discounted cricket tickets given only to boys, and a girl asking to join an under-7s boys’ team. It frames sex discrimination in sport as uncertain and complicated, and as about who is allowed onto which team, rather than emphasising the basic responsibility to ensure girls receive equal opportunity, time, coaching, funding and facilities.
By over-weighting s.195 (and saying it is uncertain), and staying silent on indirect discrimination, the guidance risks schools coming away with the false understanding that separate and equal provision for girls in PE is legally risky, when the reverse is true: the real legal risk is not providing it.
Children who identify as LGB or T
The starting point in the Equality Act is simple: a child who has, or is thought to have, a protected characteristic should be treated in the same way as other comparable children, except where the act creates a specific, narrow exception.
A boy who identifies as transgender, non-binary or gender-questioning, or who is effeminate or gender non-conforming, is a boy who might be perceived as having the protected characteristic of gender reassignment. He may in fact be a child that grows up to realise he is gay, or he might grow up and live as a transsexual. Treating that child differently — encouraging his exclusion from boys’ sports and facilities, requiring other pupils and staff to treat him as a girl and excluding him from the ordinary rules that apply to boys (while not allowing him access to girls’ sports and facilities)— is not “inclusion”. As the statutory safeguarding guidance from the DfE notes, children who try to live “in stealth” (that is, to conceal their sex from those around them) are likely to approach puberty in a fearful and anxious state.
Excluding children from facilities and systems designed to keep them safe is itself a form of direct discrimination related to gender reassignment, whatever the intention behind it. Boys’ facilities, accommodation and sports should be safe and welcoming for all boys at the school, and girls’ facilities, accommodation and sports should be safe and welcoming for all girls.
This again is supported by the Al Hijrah ruling, which found that by applying inappropriate segregation based on a protected characteristic the school was discriminating by depriving children of the opportunity to socialise confidently “in preparation for personal, educational and work-related contexts on leaving the School”. Children who believe that it is inappropriate for them to be in same-sex facilities or sport, that they have a right to use opposite-sex ones and that it is “transphobia” to stop them, are not being prepared for the reality of personal, educational and work-related contexts outside school.
The draft guidance loses sight of the basic principle at several points. It tells schools they should consider a “preferred pronoun” policy and decide that some pupils can change pronouns. There is no basis for this in the Equality Act, and safeguarding guidance (including KCSIE) warns that children who present as the opposite sex at school can be left more vulnerable, not less.
It says a school should not require a child who identifies as transgender to use the correct changing room, calling this “unlikely to be justified”, and suggests a staff facility instead. This gets the law backwards: requiring a pupil to use the changing facility that is safe and suitable for their sex is not discrimination. But it is discrimination to treat the child’s use of their own sex’s facilities as inappropriate, and to move the child to an inferior, less safe space. Schools should make sure there is zero tolerance of bullying, not agree that children who identify as (or are perceived to be) LGB or T should not be in facilities for their sex.
It suggests that a pupil could be excluded from boarding accommodation for their own sex on a “case by case” basis because of unspecified “welfare considerations”. Singling a child out for exclusion from accommodation because of a protected characteristic is discrimination.
It even gives an example of a boys’ school having a policy of accepting “trans boys” without considering whether a school could do this safely and fairly.
Schools abdicating responsibility
In recent years it has been recognised that children can suffer from “adultification”, a bias leading to perceptions that some groups of children are more adult-like or “streetwise” that results in discriminatory treatment and weaker safeguarding. This issue has most frequently been identified in relation to race. But schools should also take care that they do not similarly apply weaker safeguarding protections to children who identify as (or are perceived to be) LGB or T, or allow such children to make decisions that are inappropriate for their age.
The guidance includes an example intended to illustrate the general point that it is good practice for a school to “consult with groups of pupils who share the protected characteristic in question” when considering developing a programme of positive action. But it does much more than this, encouraging schools to abdicate responsibility to children and to outside groups:
A secondary school has lesbian, gay, bisexual and transgender (LGBT) pupils and pupils whose parents are LGBT. The school wants to ensure that any barriers to learning that these pupils are facing, connected to those protected characteristics, are solved by appropriate measures. The school decides to run a small consultation group with the pupils, which is facilitated with the help of a local LGBT charity, to understand their needs better.
The group reports several barriers affecting these pupils’ full participation in school life. These include homophobic and transphobic bullying, which is contributing to underachievement, school anxiety and avoidance, and which is putting some pupils at risk of dropping out.
The group make several suggestions for activities to address these barriers, alongside a whole-school approach to tackling homophobic and transphobic bullying.
This includes inviting external speakers who are LGBT role models and running various activities for LGBT history month. These steps do not involve less favourable treatment of any group sharing another protected characteristic, so such actions would be lawful without having to rely on the positive action provisions within the Act.
The group also suggests setting up a special mentor programme for LGBT pupils and offering LGBT pupils a chance to meet with other pupils who are tackling homophobia and transphobia in their schools. While this involves more favourable treatment of LGBT pupils, it is likely to be a proportionate means of achieving the school’s aims. This means it would be lawful under the Act’s positive action provisions.
Anyone with safeguarding training should recognise several risks in this example. Adults (and older teenagers) who wish to talk to vulnerable children about their sexual orientation and feelings about their bodies may not have the child’s best interests at heart, or may simply be out of their depth. Without careful safeguarding such groups can attract predators and radicalisation, and spread socially contagious feelings of dysphoria, anxiety and introspection. Telling children that it is “transphobic” not to allow them into opposite-sex facilities can cause school anxiety and avoidance. Transgender Trend has written about the problem with school LGBT clubs.
The other risk is that schools abdicate their responsibility to activist (or simply upset, confused and ill-advised) parents, who may themselves be under pressure from their children and from organisations promoting childhood transition. KCSIE expects that schools will negotiate some form of social transition via decisions involving the school and the child’s parents.
However, schools must not undertake direct discrimination even if a parent requests it. This includes having a policy that treats children differently and less safely, or in ways that are detrimental to their education, because they have the protected characteristic of gender reassignment.
As the Al Hijrah case reflects, it is well-established that the motive for discrimination is irrelevant: “parental choice… plainly cannot negate the statutory right of a child to be educated in a non-discriminatory manner as required by EA 2010.”
Children and their parents may have a strong belief that some children are “born in the wrong body” and that they would be happier if allowed to live as if they are the opposite sex. But a school acceding to these wishes is subjecting those children to misinformation about the law and depriving them of an opportunity to learn to socialise confidently “in preparation for personal, educational and work-related contexts on leaving the School” (the criteria established in the Al Hijrah case).
Baroness Hilary Cass, speaking in the House of Lords, gave an illustrative example of parental consent to treating a child in a way that, Transgender Trend notes, is clearly detrimental to their development:
I ask noble lords to consider the case of a child who I will call Jo who was a biological male, socially transitioned at two and a half by his parents. At eleven, she – which I say advisedly because the chances of her reverting to her biological gender is vanishingly remote – she has been in stealth and will not go to secondary school because she is so afraid of being outed in that environment. She’s now refusing to come out of her room except very rarely and she now has weak bones, not as a result of puberty blockers but through inactivity. I ask the noble lady the minister should her subsequent treatment be decided by politicians or by the clinicians who are looking after her?
What you can do
The consultation closes at 11.59pm on Wednesday 30th September. Before then:
Respond to the consultation. You don’t need to be a lawyer, a teacher, or an expert – the EHRC needs to hear detransitioners’ and parents’ perspectives, and perspectives on behalf of children, alongside the legal detail.
Focus on specifics. You might want to focus just on girls’ sport or just on the way the guidance treats “gender reassignment”. You don’t have to write from scratch – pick two or three of the points above (the missing sport section, the pronoun-policy paragraphs, the changing-room example, the boarding-school example) and explain in your own words why they’re wrong.
Say what good guidance would look like. The EHRC needs to hear not just “this is wrong,” but “this is what would be right”: that girls are entitled to equal sporting opportunity, and that a child with the protected characteristic of gender reassignment should be treated the same as other children of their own sex save for narrow exceptions.
Once this guidance is finalised, it will shape how schools operate for years. If you think schools need clarity that girls deserve a fair, equal offer in PE and sport, and that no child should be set up by well-meaning but legally wrong guidance to be treated exceptionally, unsafely, or unlawfully, now is the time to say so.
The consultation asks about different areas of school life. You can use the opportunity to raise the issues that matter most to you.
You might have concerns about:
sex and gender reassignment — are they clearly distinguished?
admissions — is the position on single-sex schools clear?
uniform — can schools apply their uniform rules consistently?
toilets and changing rooms — is the importance of single-sex facilities properly explained?
boarding and residential trips — does the guidance put safeguarding first?
sport — does it recognise the importance of girls’ sport and lawful single-sex provision?
bullying and harassment — does it properly protect children from bullying without treating ordinary sex-based rules as harassment?
pronouns and social transition — does the guidance distinguish legal requirements from school policy?
positive action — does it explain how schools can address sex-based disadvantage?
What if you don’t know the law?
That’s okay. The consultation asks whether the EHRC’s guidance is clear and useful. If you find something confusing, say so.
The consultation is quite long. You don’t have to write a long response to every question. Where you have something useful to say, explain it briefly.
Read our full analysis
Sex Matters has identified 25 specific changes we think the EHRC should make. Our analysis looks at the relevant paragraphs of the guidance and explains the problems in detail. You can read the full Sex Matters analysis before completing the consultation.
You don’t need to reproduce our analysis, but it might spark thoughts when you are writing your response.
We did! Thank you for spotting this – it's now been corrected.
Thanks for this really helpful analysis.
have cross posted
https://dustymasterson.substack.com/p/nine-to-five-what-a-way-to-make-a
Dusty