Mark Lehain is Chief of Education at the Center for Policy Studies.
News broke last night that the publication of the transgender guide for schools has been delayed once again. He Times reports that this was because Number 10 and Kemi Badenoch wanted things firmed up in various ways, including a possible ban on pupils socially transitioning at school, but that legal advice from the Attorney General suggested that this could be illegal.
The government had long promised that the guide would be published for consultation before the summer holidays. That this is now unlikely to happen, even after 18 months and with all the professional and legal expertise available to ministers, shows the confusion and disagreement about what the law says schools should and should not do.
It also highlights the inconsistencies, conflicts, and challenges inherent in this material, and how difficult it has been for teachers to navigate. No wonder groups like Stonewall and Mermaids could do this!
So what to do with the situation?
First of all, I don’t think we should panic. It would have been great to have the guide available now so people could consider things at ease over the holidays, but waiting a little longer for things to be properly discussed and clarified isn’t the end of the world.
The relationship guidance and sex ed review is also happening over the summer, and this ties closely to trans work, so having both of you come out at similar times might not be too bad anyway.
Second, the clash we are seeing was inevitable considering the different approaches to the issue in government.
For some, the issue is about “being nice” and building on what schools already do; for others it was about going back to first principles in safeguarding, medical ethics and law. Since there is inconsistent practice across schools and differing views on what the law actually says, there will always be delays at this stage.
Alright. We needed to go through this process to try to reach, once and for all, a coherent and consistent understanding of what is required by law and medical practice!
And this clearly takes time and throws things along the way. For example, at one point requiring parental consent for any school transition was considered a breakthrough.
It definitely solved the problem of schools doing things behind the back of parents, a major step forward. But it wasn’t long before it was pointed out that it would end up with some children supposedly entitled to transition, and others denied it, and that this was completely open to legal challenge.
Which brings me to my final point: that there is still no government-wide consensus as to what the law says or requires has broader consequences. There are two main groups here: the clarifiers and the changers.
The clarifiers insist that the Equality Act is largely fine as it is and the problem is how it has been (mis)interpreted by activists. They say the existing rules around exemptions based on sex and “means provided to achieve a legitimate objective” are sufficient.
Money changers say the Act itself is a problem here, and that it should be changed because it conflicts with what medical specialists say is best for gender-questioning youth.
Many people much smarter and more experienced than me hold the above and other points of view. I don’t know if the Law needs changes. I know that there is little chance of this happening before the next election, and that even if legislative time were found for this, the chances of it being done without a massive parliamentary battle are zero. It is a Pandora’s Box that I would be very cautious to open.
Furthermore, the Conservatives have been in power for as long as the Equality Act has been in force; it was passed during the laundering before the 2010 election. That its practical implications are still not clearly understood thirteen years later, and that people have had to fend all this time at the mercy of activists, is rather shameful.
But that is history: we are very close to having an approach to this issue that has finally had the full attention of the legal and political brains of the Government.
Delays and disagreements are not a mistake, but a characteristic of a democratic government that does its job in situations like this. Rishi Sunak and other ministers should be respected for overcoming a difficult job, each time it takes the final form of the solution.