Letter to Cabinet Secretary for Education

We sent the following email to John Swinney, the Cabinet Secretary for Education, on 3rd June, regarding the transgender guidance for Scottish schools.

Dear Mr Swinney,

I am writing to you regarding the new Scottish Government transgender guidance for schools which was to replace guidance written by LGBT Youth Scotland.  This replacement was announced in June 2019 by the Cabinet Secretary for Social Security and Older People who said:

“We have therefore decided to replace the LGBT Youth work with guidance from the Scottish Government. This work is already under way and will be available by the end of the year and be subject to an Equality Impact Assessment.

I have recently received confirmation from the Support and Wellbeing Unit that, due to current prioritising of a response to the COVID-19 pandemic, the transgender guidance for schools that the Scottish Government was working on and was already delayed no longer has any timetable for publication.  While it is entirely appropriate that resources must be directed towards the immediate situation, this leaves the LGBT Youth Scotland guidance still in place with no replacement forthcoming.

A Freedom of Information request to the Scottish Government numbered FOI/201900003278 will be referred to throughout this letter.  As stated in the Scottish Government response to this FOI:

The decision to produce updated transgender guidance for schools was made by Ministers during a meeting on 7 March 2019. The basis of this decision was Ministers’ view that guidance that risked potentially excluding other girls from female-only spaces was not legal.

I hope you would agree that having guidance in place for schools which is not legal, while having no replacement imminent is not an acceptable situation.  I therefore would be grateful for a response to the following points.

1. In the guidance to education authorities you issued in May 2019 with the purpose of building on existing “good practice”, you link to the National Improvement Hub.  The first resource listed there (and therefore the first example of good practice) is the LGBT Youth Scotland guidance (link accessed 02/06/20). If you consider that you have a responsibility to recommend good practice to schools, do you also consider that you have a responsibility to communicate that previously recommended “good practice” has been found to be not legal?

2. In the FOI release the position of the Scottish Government is stated as follows “The Scottish Government does not determine the resources which education authorities and schools use.  Therefore we are unable to control the use of this particular resource. Any attempt to ask LGBT Youth Scotland to withdraw the guidance would damage the reputation of the guidance.”  This suggests that it is within the Scottish Government’s powers to ask LGBT Youth Scotland to withdraw the guidance, but it is not doing so to avoid damaging the reputation of the guidance.  Is it still the Scottish Government’s position that the continued use by schools of guidance which risks excluding girls and is not legal, is preferable to damaging the reputation of this guidance?

Technical guidance for schools in Scotland regarding their duties under the Equality Act 2010 has been available from EHRC since 2014 and this has not been replaced or superseded.  There is also the national anti-bullying strategy Respect for All, which provides a comprehensive framework against bullying for all children, and specifically covers gender reassignment.  Schools could be directed towards these resources in the interim, both of which comply with the law. 

I understand that the LGBT Youth Scotland guidance was not produced by the Scottish Government and that the Scottish Government’s position is that they are “unable to control the use of this particular resource”.  However, given the extensive interventions made by the Scottish Government regarding the guidance, including seeking legal advice regarding its potential impact on children’s rights and the fact that the Scottish Government has deemed it necessary to replace it, it is very difficult to see why this level of attention and responsibility would not extend to withdrawing it, particularly when the argument made against this by the Scottish Government relates to “reputation”.

I hope you will agree that the risks to schools using guidance which is not legal, and, more importantly, the risks to girls who may potentially be excluded, are greater than the risk of any damage to the reputation of this guidance, and that you will therefore intervene and ask LGBT Youth Scotland to finally withdraw it.

Yours sincerely,

Chloe Klassen
For Women Scotland

Update 06 July 2020: We received the following reply from the Support and Wellbeing Unit:
(as a pdf)

Update 20 July 2020: We replied with the following:

Dear Mr Swinney,

Thank you for the reply although it did not provide me with the necessary reassurance that you are able to prioritise the privacy, dignity and safety of girls above the “reputation” of a document. 

I therefore have several further questions.

You say that users of the LGBT Youth Scotland guidance should be “mindful” of the Scottish Government’s position on updating this guidance until the revised guidance is published.  For Women Scotland have canvassed schools to ascertain what resources they are using in this area, and although most were aware that it was being revised, many were unaware that the LGBT Youth Scotland guidance had been found by the Scottish Government to be “not legal”.  Do you consider that local authorities still using the guidance are safe from any legal challenge if they are simply “mindful” of the fact that a replacement is planned while still following all the recommendations within the guidance?

You say that the LGBT Youth Scotland guidance should be used as part of a package of guidance on relationships and behaviour, and with the information in these guidance documents head teachers and teachers should be able to exercise their judgement to ensure that they keep young people in their schools safe.  The LGBT Youth Scotland guidance was endorsed by children’s rights experts such as Together and the Children and Young People’s Commissioner Scotland as well as most local authorities, and none of them noticed that it risked excluding girls and was not legal.  Do you consider that you have an obligation to share the specific recommendations which were found by the Scottish Government to be not legal and risk excluding girls or are you confident that head teachers and teachers will be able to determine these themselves when Together, CYPCS and most local authorities could not?

In addition, I wonder how many publicly funded organisations have approached you or Shirley Anne Somerville since her June 2019 statement, to make representations to you on behalf of girls with regard to the issue of transgender inclusion?  How many have written to you or asked to meet with you to require that you consider the specific rights and needs of girls when it comes to the new school guidance?  How many have written to you with concerns that the current guidance is still being used in schools?  How many have removed their endorsement of this guidance which risks excluding girls and is not legal?

Your government has confirmed that girls are stakeholders and rights holders when it comes to this issue, and yet there are no mainstream organisations willing to publicly represent them on this.  It is ordinary women, with jobs and families to care for and no funding whatsoever, who have seen what these organisations should have seen and done what they should have done.  It is only because of them that you are now able to recognise “the importance of privacy and the provision of safe spaces for girls within schools”.  I hope you are also able to recognise that this is a very poor state of affairs for girls who have been completely disregarded by the organisations funded to represent their interests, and that this is only compounded by a government who continues to prioritise the “reputation” of a piece of paper above their privacy, dignity and safety. 

Yours sincerely,

Chloe Klassen
For Women Scotland