Under UK laws, single-sex schools have a specific exemption in the Equality Act relating to sex, but that exemption doesn’t cover gender reassignment. Photo / 123rf
Under UK laws, single-sex schools have a specific exemption in the Equality Act relating to sex, but that exemption doesn’t cover gender reassignment. Photo / 123rf
Teachers union says it is vital the government provides clarity ‘as quickly as possible’ after Supreme Court ruling.
The government has been urged to clarify how this week’s Supreme Court ruling will affect single-sex schools as ministers were accused of “ducking the issue”.
The UK’s highest court ruled on Wednesday that the terms woman and sex in the 2010 Equality Act “refer to a biological woman and biological sex”.
This means transgender women with a gender recognition certificate (GRC) can be excluded from single-sex spaces if it is “proportionate”.
The ruling does not directly impact pupils because GRCs are available only to people aged 18 and over, but experts said it was likely to have consequences for school admissions policies.
Philip Wood, a specialist in education law at Browne Jacobson, said the ruling confirmed the laws around “direct discrimination as well as indirect discrimination, which is helpful to single-sex schools”.
Under existing laws, single-sex schools have a specific exemption in the Equality Act relating to sex, but that exemption doesn’t cover gender reassignment, according to Wood.
It has resulted in a grey area around whether an all-girls school, for example, would be able to turn down a transgender teenager who was born a boy.
Wood said while the Supreme Court decision did not directly impact single-sex school admissions, it still meant that if “a transgender male (but biologically female) pupil was seeking admission to a boys’ school but was refused”, they would be treated the same in any direct discrimination claim as “a female pupil who was not trans”.
“Assuming the reason for the school’s refusal was not about gender reassignment, but instead the sex of the pupil, we cannot see that a claim would succeed,” he said.
However, the education lawyer added it was “an untested area of law” and long-awaited government guidance would need to spell out how admissions policies would work in practice.
The Tories unveiled draft guidance in October 2023 that aimed to clear up the law around admissions policies for transgender pupils, but Labour is still deciding whether to implement it.
The proposed Department for Education (DfE) guidance said “single-sex schools … can refuse to admit pupils of the other biological sex, regardless of whether the child is questioning their gender”.
It added that “a school cannot, however, refuse to admit a child of the same biological sex on the basis that they are questioning their gender”.
Labour had been widely expected to water down the proposed guidance after Bridget Phillipson, the Education Secretary, refused to commit to implementing it.
It is unclear whether this week’s Supreme Court decision will prompt a rethink, or if it will affect the government’s promise to unveil new guidance before the summer holiday.
Laura Trott, the shadow education secretary, told the Telegraph: “Yesterday’s ruling makes it clear, biological sex matters in law. The Conservatives have always defended this principle while Labour has ducked the issue.
“The government must now stop dragging their feet and get on with delivering clear, firm guidance for schools, particularly single-sex schools, involving parents fully in decisions affecting their children and putting facts and children’s safeguarding first.”
Several private girls’ schools told the Telegraph they would be consulting lawyers over the changes when they return from the Easter holiday next week.
Tom Bennett, the government’s behaviour tsar, said it would be “interesting to see how the Supreme Court ruling yesterday impacts on schools’ policies now”.
“This is an area where clarity was badly needed and long overdue,” he wrote on X.
The proposed Department for Education guidance says “single-sex schools … can refuse to admit pupils of the other biological sex". Photo / 123rf
‘Clarity and guidance’ is needed
Patrick Roach, general secretary of the NASUWT teachers union, said the organisation “has been contacted by teachers concerned about the implications for them and for the pupils they teach” since the ruling.
“The implications of the legal judgment will need to be considered carefully, and it is vital that the government provides clarity and guidance to schools and colleges as quickly as possible,” he said.
Julie McCulloch, a director at the Association of School and College Leaders, said the union was also “seeking clarification from the DfE over whether they intend to publish new guidance for schools and colleges”.
Schools are legally required to provide sex-separated toilets for pupils aged 8 or over and suitable changing rooms and showers for those 11 or older.
However, their other legal obligations are unclear. As part of their proposed guidance for gender-questioning children, the previous Conservative government also called for a ban on pupils being taught about gender identity in schools.
Phillipson declined to answer whether she would keep or rip up the Tories’ guidance when asked about it ahead of the general election last year, and said parts of it “drifted far too much into partisan and unnecessary language”.
A government spokesman said: “This ruling brings clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs.
“It’s vital that we ensure young people, no matter their background, can access the opportunities to thrive. That’s why schools are required to comply with their safeguarding duties and make arrangements which protect the privacy, dignity and safety of all pupils.”
