Letter to Cabinet Secretary for Education and Skills

We sent the following letter to Shirley-Anne Somerville (Cabinet Secretary for Education and Skills) and Clare Haughey (Minister for Children and Young People) on 31st August 2022 regarding single-sex facilities and the impact of the Interim Cass Report on the Scottish Government’s transgender guidance for schools. The guidance is not lawful and should be withdrawn and extensively revised.

Dear Ms Somerville and Ms Haughey,

We wish to draw to your attention several recent developments which have a serious impact on the ongoing suitability of the Scottish Government’s Supporting transgender young people in schools: guidance for Scottish schools.

The decision of the Inner House of the Court of Session in For Women Scotland v Lord Advocate and Scottish Ministers (2022) CSIH 4 made several important findings regarding the Equality Act 2010, namely that incorporating transsexuals living as women into the definition of woman conflates and confuses two separate and distinct protected characteristics (para 39) and a definition of “woman” which impinges upon the nature of protected characteristics is not within the legislative competence of the Scottish Parliament (para 40). Furthermore, any exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male (para 36).

This ruling confirms that the protected characteristic of sex in the Equality Act refers to sex as a biological term, so when schools use the Equality Act exceptions for providing female-only toilets, changing rooms, overnight accommodation or sports they must exclude all those who are biologically male. Children of school age are not eligible to apply for a Gender Recognition Certificate so any legal arguments about how GRCs are viewed for the purposes of the Equality Act are not applicable here. The ruling means that all boys, regardless of how they personally identify, must be excluded from girls’ spaces and services (and vice versa).

Following on from this ruling, we sought a legal opinion from Aidan O’Neill QC on the provision of single-sex toilets for school pupils. His advice sets out how any mixed-sex school failing to use the single-sex exceptions in the Equality Act for toilet provision leads to a breach of a school’s duty, under the same Act, to prohibit harassment related to the pupils’ sex and which can be perceived by pupils as having the effect either of violating their dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This legal advice has been sent to all local councils and, while some councils have said they will ensure compliance, it may be the case that enforcement legal action will be necessary for others.

Of course, there is nothing to prevent schools providing alternative arrangements for any pupil who does not feel comfortable using the toilets provided for their biological sex, such as individual self-contained gender-neutral toilets. However, these must be in addition to the minimum number of separate-sex toilets required for the size of the school roll, as stipulated in the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 and the provision of accessible toilets according to the guidance in the Building Standards Technical Handbook 2019: Non-domestic.

The Equality and Human Rights Commission recently published its own guidance Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions, which clarifies that protecting girls’ privacy, dignity and safety are eminently legitimate aims for providing single-sex spaces such as toilets and changing rooms in schools, and advises on the need to take into account other legislation (such as the School Premises Regulations).

The Attorney General for England and Wales, Suella Braverman, spoke at length earlier this month about the Equality Act and single-sex spaces during which she clarified that schools are expected to comply with her legal guidance on single-sex toilets. Concurring with the For Women Scotland judgment she re-stated that the Equality Act exceptions operate on the basis of sex as a biological term:

“In law, single sex services are intended for one sex only: that is the very thing permitted by Schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are XY chromosome adults using it, however they define themselves personally, it becomes mixed-sex.”

“Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child, who identifies as a trans-girl, from using the girls’ toilets. This does not constitute direct sex discrimination and is not unlawful indirect discrimination on grounds of gender reassignment. Indeed, if the school did allow a trans-girl to use the girl’s toilets this might be unlawful indirect discrimination against the female children. Further, in law, there is a duty to provide separate single sex toilets, a breach of which would be unlawful under the School premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014.” The comparable law in Scotland is the School Premises (General Requirements and Standards) (Scotland) Regulations 1967.”

“Similarly, yes, it is lawful for a mixed school to refuse a biologically and legally male child who identifies as a trans girl from using a single sex girls’ dormitory. This is neither direct sex discrimination or unlawful indirect discrimination on grounds of gender reassignment.”

“Yes, it is lawful for a school to refuse a biologically and legally male child who identifies as a trans-girl from participating in girls’ single sex sporting activities. This does not constitute unlawful direct sex discrimination nor is it unlawful indirect discrimination on grounds of gender reassignment. This single sex exception is based on the average performance of male and female participants.”

Keynote Speech by Rt Hon Suella Braverman QC MP – Equalities and Rights: Conflict and the Need for Clarity

The law is now quite clear that single-sex facilities and sporting activities must be provided in schools and the following statements, in particular, in the guidance for schools are not compliant:

“There is no law in Scotland which states that only people assigned male at birth can use men’s toilets and changing rooms, or that only people assigned female can use women’s toilets and changing rooms.”

“It is therefore important that young people, where possible, are able to use the facilities they feel most comfortable with.”

“if PE classes are organised by sex, a transgender young person should be allowed to take part within the group which matches their gender identity. For a non- binary young person, ask them which group they would feel most comfortable being with”

“If a transgender young person wants to share a room with other young people who share their gender identity, they should be able to do so”

Supporting transgender young people in schools: guidance for Scottish schools

The Attorney General also addressed the implications of the Cass Interim Report, the findings of which were so troubling that it led to a decision to close down the children’s gender identity clinic at Tavistock, London as not being a safe or long term viable option for care. We wrote to you at some length (in a letter dated 28th April 2022) about the comparable children’s clinic at Sandyford, Glasgow where the situation is arguably far worse with a fifteen fold increase in referrals in six years and twice the expected number of children either receiving treatment or awaiting a first appointment compared to England, given the relative population size. Clinicians tell of more and more children who have already socially transitioned at school prior to any medical assessment or diagnosis creating an almost undeniable continuation of affirmation with (experimental) medication and surgery.

There can be little doubt that the advice given in the guidance to schools has largely contributed to the rapid increase in referrals by encouraging teachers to affirm children who say they are trans and use their chosen pronouns such as ‘zie’ or ‘ey’ and to avoid misgendering, along with changing pupils names and sex on school records. Consultant psychiatrist Dr David Bell spoke on the Nolan podcast of the harm this social transitioning can do: adults are confirming there is something wrong with a child’s body and it locks the child into a medical pathway which can be difficult to retract from, forecloses options and inhibits any therapeutic treatment.  

A FOI response shows that Sandyford recommends only watchful waiting for pre-pubertal children, in contrast to the schools’ guidance which, with no medical input, irresponsibly advises affirmation for both primary and secondary aged children leading to staff socially transitioning children as young as four years old.

We include a lengthy quote from Ms Braverman because it is vitally important given we hear from distressed parents with increasing regularity who have discovered the school has affirmed a social transition in their child without their knowledge. Her comments fully take into account a school’s legal obligations and its duty of care to pupils, which, of course, are similar throughout the UK:

“Schools should consider each request for social transition on its specific circumstances, and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children. I hope that understanding the law will free up schools to act in each and every child’s best interest rather than being driven by a generic misunderstanding of legal duties.

This legal view is supported by the emerging evidence. As the interim Cass Report points out, ‘it is important to acknowledge that it is not a neutral act’ to socially transition a child and there are different views on the benefits versus the harms and ‘better information is needed about the outcomes’. Given – I quote – the ‘lack of agreement, and in the many instances the lack of open discussion’ among clinicians there are very real legal dangers of schools ‘socially transitioning’ children in this way. Since the interim Cass report, schools must be sensitive to the fact that gender distress may be a response to a range of developmental, social and psychological factors- that something else may be going on. The fact that there has been an enormous increase in the number of cases, in addition to a complete ‘change in the case-mix’ of those with gender distress within the last decade, from predominantly boys presenting in early childhood to teenage girls with no prior history, the fact that ‘approximately one third… have autism or other types of neurodiversity’ and ‘there is over-representation’ of looked-after children, should illustrate the complexity of what schools are dealing with. Schools have a duty of care in relation to the health, safety and welfare of their children and they risk breaching this duty when they encourage and facilitate a child’s social transition as a blanket policy; or take the decision to do so without medical advice. Given the emerging nature of the evidence and the fact that even clinical professionals find it challenging to know whether transition is the right path for a child, it is not reasonable or fair for teachers to have to make this onerous decision alone. This is a decision that can have lifelong and profound consequences for the child.

This is particularly so when the child is harmed as a consequence, especially if social transition were to lead subsequently to binding, or medical or surgical procedures, and even more so if done without the knowledge or consent of the child’s parents.”

Keynote Speech by Rt Hon Suella Braverman QC MP – Equalities and Rights: Conflict and the Need for Clarity

The Scottish Government said that it does not intend to duplicate the work of the Cass Review and would carefully consider its findings but, so far, we have seen no evidence of this. It is imperative it takes immediate action regarding the NHS clinic at Sandyford, and, in light of the Attorney General’s keynote speech, the guidance for schools in Scotland should also be immediately withdrawn before more harm is caused to children and their families. Good legal and medical advice remains good advice regardless of the source and when an independent inquiry in England has done the hard work in seeking the evidence and addressing the situation a similar response is necessary in Scotland to ensure equality of care and mitigate the serious risk of legal repercussions for medical negligence.

We were disappointed the guidance for schools was not revised after the Inner House judgment in the For Women Scotland case and perhaps you can offer an explanation for this oversight. However, now that the Attorney General has further clarified the UK-wide legal situation there can be no question of further delay and we would appreciate confirmation that the points we have raised will be addressed in full, and immediate steps taken to withdraw the school guidance pending a comprehensive update to ensure consistency with the law and best medical evidence.

Yours sincerely,

Trina Budge, Marion Calder and Susan Smith
Directors, For Women Scotland

On 20th September we received the following reply from Ms Somerville, which is perhaps the most inadequate response we have yet received to any communication with the Government:
(PDF of response)

to which we replied on 23rd September with:

Dear Ms Somerville and Ms Haughey,

The previous response we received from Kirsten Leath did not answer the points we made about the Cass Review Interim Report. You have, likewise, made no attempt to answer our points about the government guidance which advises socially transitioning schoolchildren. The guidance is outdated and worryingly dangerous in light of recent medical evidence and legal advice from the Attorney General. Nor does your response account for the direct opposition of your school guidance to the FOI response from Sandyford clinicians which advises watchful waiting rather than affirming a social transition in young children.

A recent video (transcript) by a school in Ms Somerville’s constituency aptly demonstrates the horrific situation resulting from following the government’s guidance. Teachers are calling a young schoolgirl “it”, making medical interventions with profound psychological consequences for children, and actively deceiving parents. Biological facts are denied and other children are denied freedom of speech and respect for their legally protected beliefs. Most people are aghast at this situation but, unfortunately, this school is far from being an outlier. Readers comments to the Times article about the video should set alarm bells ringing for you. 

The Government said it would give serious consideration to Dr Cass’s enquiry. Please explain how you have done this with respect to the school guidance and what medical evidence you are relying on to socially transition children, and the long-term outcomes of such actions. Please also explain on what basis other children’s legitimate beliefs (see the Forstater ruling) are being over-ridden, and why parents are being denied the opportunity to provide guidance for their child and seek timely medical advice.

You have also entirely failed to address the points made about the unlawfulness of the guidance in light of our recent judicial review decision. Provisions in favour of women and girls must exclude biological males (see para 36). Therefore, all toilets, changing rooms, sports and any overnight accommodation provided for girls by schools must be single-sex. Please address this issue and explain what steps you will take to immediately bring the school guidance in line with the law.

Kind regards,

Trina Budge, Marion Calder and Susan Smith
Directors, For Women Scotland