Consultation Responses

EHRC GUIDANCE RESPONSE FROM WOMEN AND GIRLS IN SCOTLAND:

Issues we have with the EHRC approach to consulting regarding this draft school guidance:

Before addressing our points in respect to the draft school guidance itself, Women and Girls inScotland would firstly like to highlight that as soon as we received this draft guidance we wrote to the EHRC Scotland to advise that we do not consider 18 days to be a reasonable time frame in which to respond. We found important problems with this guidance, including issues in regard to how this guidance interprets the Equality Act 2010, and also that this guidance fails to uphold children’s human rights as outlined in the UNCRC and accompanying guidelines. The 18-day response time is not even nearly enough time for us to be able to provide a full comprehensive response to the problems with this guidance, even if we only responded in regard to ‘the Scottish context’ (in which school guidance must be subject to CRIAs/CRWIAs and uphold the UNCRC, more on which will be said below).  Short consultation time frames disproportionately affect unfunded grassroots groups like ours, as we have to do this work in our own personal free time. As such, we asked for an extension for all Scottish consultees, recommending a consultation period of around six weeks in order to allow all consultees to provide a full response. This request was refused.

The consultation process in England and Wales:

We are also very concerned that the process of consultation in England and Wales was not sufficient, not least because we contacted an organisation we understood to be taking on the role of checking the draft school guidance against children’s human rights (we offered them our help as our group has carried out a CRIA in this area) and we were very surprised when this organisation advised us that it was not checking this guidance against children’s human rights at all.

We recently wrote to the EHRC to ask which groups and organisations were consulted in regard to the content of this guidance, and also to ask what legal advice the EHRC was provided with that informs this guidance, in order to clarify with whom and on what basis this guidance was developed. We understand that an EQIA was carried out that should be published at the same time as the finalised guidance is published, but we believe that this whole process has to as transparent as possible, and that the groups and organisations consulted with, as well as the legal advice provided to the EHRC, should be made public.

The UNCRC and the Scottish context:

If this guidance is to be used in Scottish schools, it must uphold the UNCRC. The Children and Young People Scotland Act (2014) asserts a Ministerial duty to ensure the UNCRC is applied as far as is reasonably possible in Scotland, and the Scottish Government has committed to carrying out CRWIAs to fulfil this duty. This Act does not limit this duty to government policy, and the government *can produce CRWIAs in relation to policies it has not drawn up itself*, including policies that are implemented in Scottish schools (failure to do so would therefore be a self-imposed decision on the part of the government to refuse to do as much as it reasonably can to uphold children’s rights as far as is possible in Scotland). The Children and Young People’s Commissioner Scotland has been clear that any guidance used in Scottish schools *must uphold the UNCRC* and have been subject to CRIAs/CRWIAs before implementation (and the CYPCS has been clear that in its view the responsibility for this ultimately lies with the Scottish Government, as per the CYPSA). As such, any guidance that does not uphold the UNCRC and has not been assessed against the UNCRC is not directly implementable in the Scottish context. Furthermore, EHRC guidance that does not uphold the UNCRC will not be directly transferrable to the Scottish Government’s LGBT school guidance.

The EHRC Scotland has confirmed to our group that a CRIA has not been carried out in regard to this draft guidance, and our group has identified that this guidance infringes the human rights of girls (we have not been given enough time to cover these infringements in full, however we would direct the EHRC to our own CRIA, published on our website – wgscotland.org.uk – to further understand how this guidance potentially breaches the UNCRC beyond what we cover in this response).

If the EHRC decides to move forward with publishing guidance that potentially breaches the UNCRC and infringes the human rights of children, it must make sure to be clear at the very beginning of the finalised, published school guidance that it has not been assessed against the UNCRC/children’s human rights. The EHRC has to be upfront about this, as any failure to do so may lead to this guidance being be used in schools as is, i.e. without any human rights assessment, and could potentially cause great harm to children as a result.

Safeguarding:

There are major safeguarding issues within this guidance, the entirety of which we have been given nowhere near enough time to address, so all we can say at this point is that in failing to take safeguarding into account (as the EHRC has noted itself in this guidance), this guidance fails to provide schools with what they need in order to understand their responsibilities under the Equality Act (and fails to provide them with what they need in order to understand how to uphold children’s human rights). We think this places children in unnecessary danger, and represents a complete failure to consider the specific dangers to girls of making female only provision mixed sex. We strongly recommend rethinking this; it is a hugely important area that has been totally ignored in this draft guidance, and without clarity on this from the EHRC, schools will likely be left extremely confused and unable to understand how to protect children from harm and discrimination.

Toilets, showers, changing rooms and communal sleeping accommodation: 

It is our view that these sections of the guidance misrepresent the Equality Act, and constitute a failure to uphold the UNCRC. As already outlined, we do not have nearly enough time to fully respond here, however below we have highlighted some very important problems with this part of the guidance, and how it infringes the human rights and equality of girls. Although firstly we will address what we consider to be a very serious misrepresentation made by the EHRC in this guidance in regard to blanket policies of trans preclusion and what is meant by ‘case by case basis’: The EHRC should be clear with schools that female-only provisions/blanket policies of trans preclusion *are lawful under the Equality Act* and are *often necessary to meet the needs and rights of girls*, and that whether or not girls should be provided with female-only facilities *depends entirely on the needs and rights of girls*.

What ‘case by case basis’ means, and how the EHRC is getting this wrong:

‘Case by case basis’ refers to the *specific set of circumstances* in which the single sex exceptions in the Equality Act 2010 can be applied: Fundamentally, ‘case by case basis’ refers to the fact that policies of trans preclusion from any form of single sex provision have to be objectively justified (i.e. be ‘proportionate and legitimate’) per provision. For example, providers cannot simply decide to offer provision for women and/or girls on a female-only basis without any form of justification, but rather they have to assess, per provision, whether they can objectively justify doing so. And the Equality Act 2010 makes it clear that if a provider wishes to offer a provision for women or girls on a female-only basis, justifying this *depends on the needs of women and girls in respect to that provision*.

For instance, in our correspondence with the UK Government Equality Office regarding lawful female-only provision and the meaning of ‘case by case basis’, the government said ‘case by case basis’ means that whether female-only provision can be lawful “depends on the particular circumstances of the case” and raised the example used in the Equality Act explanatory notes of a counselling group for female survivors of sexual assault to demonstrate what is meant by this. The example reads as follows:

“A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.”

The government said that this is lawful because the “particular circumstances of the case” were that “the service provider judged that inclusion would mean the women for whom the service was intended would not attend”. As such, on this basis – i.e. that women would self-exclude from a women’s provision if transwomen/male people were able to access this provision – making such a service female-only (which is, then, a blanket policy of precluding trans people who are not female) is objectively justified and thus lawful under the Equality Act.

To reiterate, whether or not a provision for women and/or girls can lawfully be offered on a female-only basis (a blanket policy) *depends on the needs of women and girls in relation to that provision*, and as such, *does not depend on the needs or particular circumstances of trans people*. This means that providers should only consider the needs and rights of women and girls in determining whether a form of provision for women and girls should be offered on a female-only basis.

However, the question of what can be objectively justified and thus lawful does not end there. Where there are forms of female-only provision because women and girls need this, providers may still act unlawfully if they fail to provide alternatives for trans people, and whether or not this would be the case is determined based on the needs and rights of trans people as well as the circumstances of the provider.

For example, a Scottish provider that offers a refuge service for women where service users live together in one building (i.e. the service cannot be split in any way) can easily objectively justify running this service on a female-only basis, because it is clear that many women are only able to access these kinds of services if they are offered on a female-only basis, and as outlined above, the Equality Act recognises such needs as a legitimate basis on which to offer female-only provision. Additionally, this provider should be able to objectively justify *only* running a female-only service, because it is not possible to run such a refuge service on a split basis, and it would also be unreasonable to expect this provider to offer a separate service for trans people when it has no other services. The Equality Act is clear that solely offering a single-sex service is permitted where offering the service on a mixed-sex basis “would not be as effective and it is not reasonably practicable to provide separate services”. Furthermore, back in June, Rape Crisis Scotland confirmed to our group that “of the 5,072 survivors who accessed support at a centre last year, 212 of these were men or boys and 7 people were trans/non-binary”, which demonstrates that there is a low trans demand for these services while there is enormous demand from women and girls (and not just in terms of the raw numbers; put to scale for respective populations, these figures mean that last year women and girls in Scotland accessed these services at almost 14 x the rate of trans people, and almost 23 x the rate of men and boys), and the Equality Act addresses that differences in need/demand justifies different levels of provision. For instance in the explanatory notes, the example of “a domestic violence support unit (set up) by a local authority for women only (with) no men-only unit because of insufficient demand” is provided to demonstrate the kinds of circumstances in which single-sex services are permitted. (The explanatory notes also state that “in each case such provision has to be justified”, again highlighting that ‘case by case basis’ refers to the specific set of circumstances *per provision*). Therefore it would quite clearly be unreasonable to argue that the existence of a female-only refuge in such circumstances would in any way be unfair or unlawful.

However, a women’s service that provides one-to-one counselling support for rape survivors, while again being able to easily objectively justify running this service on a female-only basis for the reasons already outlined, may be acting unlawfully if it *only offers this service on a female-only basis* because it may be possible for this service to also offer its services on a trans inclusive basis. For example the provider could split the service by having days/times of the week the service can be inclusive of transwomen, and other days where it is female-only. As such, there are circumstances where providers will be objectively justified in offering their service on a female-only basis, but not *solely* on a female-only basis.

This is a breakdown of how the Equality Act asserts the basis on which providers can offer female-only provision, and this breakdown makes it clear that the question of whether it can be objectively justified to offer a provision on a female-only basis is a *totally separate issue* in terms of what a provider has to consider, to whether it can be objectively justified to *only offer a provision on a female-only basis*.

It is clear that ‘case by case basis’ in respect to female-only provision simply means that in order to invoke the single sex exceptions, providers would have to *assess the specific circumstances per provision* in order to understand whether or not women and girls need that provision to be female-only (which is solely determined by the needs of women and girls), and if they do, the provider should then consider whether or not trans people should have separate provision offered where sex segregation is necessary.

What does this mean for schools?

This means that schools should assess each form of single-sex provision on the basis of whether or not girls have needs and rights which mean that provision should be offered on a female-only basis. As we outline below in our response, in regard to any form of provision that affords girls privacy from male children, girls need that provision to be female-only. Schools must understand not only that it is lawful to ensure facilities are available to girls in schools on a female-only basis, but that female-only facilities *are necessary* in order to meet the needs and rights of girls, and in order to not be discriminatory towards girls. More on which will be said below.

We are extremely disappointed that the EHRC is consistently misrepresenting what is meant by ‘case by case basis’ and has consistently ignored the basis on which the Equality Act says the single sex exceptions can be applied, as well as ignoring the reasons why these exceptions exist in the first place (i.e. to uphold the human rights and equality of women and girls).

Why schools must always make sure that girls are provided with female-only toilets, shower facilities, changing rooms and communal sleeping accommodation:

Fundamentally, schools must provide this because to fail to do so constitutes a failure to uphold the human rights and equality of girls and thus would be discriminatory, an explanation of this is addressed in the coming sections.

The rights of trans identifying children:

Firstly, we agree that schools should not expect trans identifying children to use the facilities set aside *solely* for their natal sex. Trans identifying children have the right to privacy, dignity and safety; these are human rights and upholding these rights mean that trans identifying children should be provided with alternative facilities to those solely meant for their natal sex, wherever sex segregation is necessary. As such, we both support and encourage third sets of facilities wherever there is sex segregation, and there are many examples in the Equality Act of such third provisions. We believe that the EHRC should make it clear in this guidance that *such third facilities meet the equality requirements for trans identifying children where sex segregation is necessary*.

We of course support the minimisation of any isolation of trans identifying children, as we do for all children, so for example having unisex facilities in addition to single sex facilities would be preferable to expecting a trans identifying child to use a disabled or staff facility, as would schools tailoring particular facilities to trans identifying children and their friends, as appropriate. We support the aims of this draft guidance, in that we support the aim that schools must ensure that trans identifying pupils can participate fully in school life, and appropriate third provisions where sex segregation is necessary meets this aim and upholds the Equality Act and the human rights of trans identifying children.

The rights of girls:

Again, as outlined throughout this response, we have not been given enough time to provide a full response to this draft guidance and the problems we have found therein, and as such, in relation to the need for female-only provision, we are focusing on the rights of girls to privacy and to recover from trauma, and how this guidance infringes these rights.

As said above in relation to trans identifying children, what is necessary to uphold their human rights to privacy, dignity and in some cases safety, is to ensure that trans identifying children do not have to share facilities specifically set aside solely for their natal sex. And in order to uphold these human rights in relation to girls, male-free facilities need to be provided for girls, regardless of how males identify, i.e. girls’ rights to privacy, dignity and safety are on the basis of their sex.

It is very important that it is understood that rights to privacy, dignity and safety are upheld by ensuring particular groups *do not have to share with or be considered alongside other particular groups*; these rights are *not met* by forcing any particular group to share with or be considered alongside any other particular group, and in fact these rights can potentially be infringed by any such action. It is also important to note that the needs of any particular group are solely determined by that group: So it’s the needs of girls that determine who they should not be forced to share with/be considered alongside, just as it’s the needs of trans people that determine who they should not be forced to share with/be considered alongside. So when schools consider how to uphold these human rights in relation to those with the protected characteristic of sex and those with the protected characteristic of gender reassignment, the question should be *where do girls and boys need their own provisions to uphold these rights, and where do trans identifying children need their own provisions to uphold these rights*. However the guidance does not acknowledge this, and instead takes the position that mixed sex facilities should be the default, and girls should only have their own provisions in exceptional circumstances. This is clearly neither a human rights nor equality based approach, and nor is it an approach that considers the welfare of girls.

Girls also have human rights on the basis of being able to recover from trauma, and the Equality Act provides single sex exceptions that allow for female-only provision on the basis of trauma, and wherever these rights are not upheld, schools would be discriminating against girls who need such provision for reasons of recovery from trauma, yet the guidance completely ignores this.

The right of girls to recover from trauma:

Indeed the area that highlights the seriousness of the failure of this draft guidance to address the rights of girls, is in regard to a girl’s human right to recover from trauma, and trauma as a basis on which the single sex exceptions in the Equality Act can (and should) be applied. Article 39 of the UNCRC states “Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs”. Furthermore, “The Committee (on the Rights of the Child) has noted the importance of respect for the child victim’s right to privacy, in particular in cases involving abuse”.

The extent of sexual violence and trauma faced by girls:

It has been established that sexual violence against girls is endemic in schools. In our CRIA we detail the following: almost a third (29%) of girls aged 16-18 have said they experienced some form of unwanted sexual touching at schools, and one rape a day is committed against girls in UK schools. “There is ample evidence from a wide variety of sources now available which shows endemic levels of abuse and harassment of girls in schools” according to the written submission from the End Violence Against Women Coalition to the Sexual Harassment and Sexual Violence in Schools Enquiry. As well as being subject to violence in schools, two thirds of girls have said they experienced unwanted sexual attention in public, with girls as young as eight describing witnessing or experiencing harassment. Girl Guiding UK found that 75% of girls and young women said anxiety about potentially experiencing sexual harassment affects their lives in some way. 59% of girls and young women aged 13–21 have said they faced some form of sexual harassment at school or college. 41% of UK girls aged 14 to 17 reported experiencing some form of sexual violence from their partner. (Please see the CRIA on our website for links to these statistics if required). It is thus very clear that a substantial proportion of girls in Scottish schools will be recovering from various forms of trauma due to male physical and sexual violence, as well as due to abuse and sexual harassment. It is also clear that girls live in a climate of male violence, harassment and abuse.

The failure of this draft guidance to acknowledge the sex-specific trauma of girls:

This draft guidance does not acknowledge any sex-specific needs that girls, including those who have been victims of abuse and assault, may have with regard to ‘trans inclusion’. We are extremely concerned that despite the EHRC stating that this guidance was produced to address both the protected characteristics of sex and gender reassignment, that it has failed to consider the needs and rights of girls at all, and has instead framed this guidance in such a way that it does not recognise the needs and rights of girls in regard to female-only provision.

Even the framing in this guidance of the loss of female-only provision as ‘inclusive’ is particularly concerning; we would contest that there is any context in which this framing is fair or helpful in respect to a girl who is uncomfortable or distressed at undressing in front of a male-bodied person, let alone in respect to a girl who has been a victim of abuse and/or assault and feels this way. We would also contest that policies which may adversely impact the participation of girls can be considered ‘inclusive’. Indeed the idea that a solution to a girl’s distress could ever be that she has to use a private changing area, or get changed after the trans identifying young person is finished changing, isolating her and excluding her from her own changing room/facility and peer group while making her a potential target for bullying, harassment and abuse (on the basis of not being ‘inclusive’ and therefore ‘transphobic’) should be completely unacceptable. Any such school environment where a victim of abuse could be treated like this is not an environment that is fostering her health, welfare, self-respect, dignity, autonomy, or indeed her inclusion, or taking into account her sex-specific needs.

Girls cannot be expected to disclose their trauma:

A girl’s human right to be able to recover from trauma involves the right to privacy, which means she has a right to female-only provision at school as well as to privacy in regard to what she has been through. It must be made *very clear* to schools that girls should never have to disclose their trauma in order to have access to female-only provision (or for any reason).

Placing girls in the position where they have to single themselves out if they are distressed at being expected to forgo their rights and boundaries and use mixed sex facilities, while at the same time issuing a directive that such changes to female facilities are based on an ethos of ‘inclusion’, fosters a hostile and unfriendly environment that in addition to potentially leading to girls being subjected to exclusion, distress, bullying, harassment, abuse and trauma, also means that girls are *not supported to make their needs known*. As such, we would argue that the idea schools could use this kind of guidance and consult with pupils in order to determine their needs is not going to work; this guidance works against creating a school environment where girls will feel safe or supported to articulate their needs in the event that they need female-only provision.

We would also argue that it should be clear there is no form of consultation with girls regarding their need for female-only provision that could be sure not to in any way involve re-traumatising girls who need female-only provision for reasons of trauma. Even having to think about and reflect on trauma in relation to the question of male inclusion in female provision, can be very distressing for victims of abuse and assault, especially if they feel any pressure to answer in a particular way, and it is inarguable that there is currently heavy pressure on girls not to challenge policies that change single sex provision to mixed sex provision on the basis of being ‘inclusive’. It is also inarguable that this guidance itself would contribute to that pressure, for the reasons already outlined. And there is no way a school can know that a girl needs such provision for reasons of trauma unless she discloses it.

Therefore the idea that schools simply have to consult with children in order to weigh up whether or not a trans identifying child should be able to access an opposite sex provision, is neither correct nor workable in a human rights or equality context. A school cannot weigh up the needs of girls recovering from trauma unless it knows there are girls in the group being consulted with/addressed who are recovering from trauma, and it is not acceptable for any school to in any way require this information or subject girls to any form of process where they would have to revisit this trauma in any way. Furthermore, schools should not implement guidance that may lead to girls/their parents/carers feeling that they have to disclose this kind of information in order to justify the ‘exclusionary’ needs of a girl who is recovering from trauma and requires female-only facilities.

We would compare any form of policy that functions as any kind of requirement or pressure on girls to process and/or disclose trauma in order to have their needs and rights met, with the rape clause. Both depend on re-traumatising processes in order for female people to access provisions they have a right to.

Because schools cannot expect such disclosures and should also protect pupils from feeling they have to make such disclosures and indeed from having to in any way revisit such trauma, schools cannot rely on consultation with female pupils to gauge the totality of the needs of female pupils; it is incumbent on schools to understand there are needs they will not be able to gauge via consultation that they nonetheless have to always address, and it is also incumbent on schools to understand what those needs are and how they must address them.

Schools can only respond to the needs and rights of girls recovering from trauma by *always assuming they are part of the group of children being addressed* (and again the stats bear out that all schools will have high numbers of girls who are recovering from trauma, and it is also very easy for schools to access research that demonstrates girls need single sex provision for reasons of trauma, and indeed we would have expected the EHRC to have addressed this as part of its EQIA process).  This means that schools have to provide female-only facilities, and this is the case regardless of the other facilities on offer for children. The needs of any particular trans identifying child does not erase the needs and rights of girls, and nor are the needs or circumstances of trans identifying children relevant to the consideration of whether or not girls should be offered female-only facilities (as covered above). Additionally, meeting the needs and rights of trans identifying children does not prevent schools from meeting the needs and rights of girls in relation to female-only facilities.

Providing female-only facilities on the basis that it is understood that girls need this, is not only lawful under the Equality Act so long as third provisions are made for trans identifying pupils, but this would mean that the human rights of both groups of children are upheld and that schools are not discriminating against either group of children. However failure to provide girls with female-only facilities infringes on the welfare, rights and equality of girls and is thus discriminatory and unacceptable. Furthermore, failure to provide female-only facilities for girls *would also require a girl to disclose her trauma in order for her to be able to take action in regard to discrimination against her school* and we hope it is clear that it is entirely unacceptable to put girls in this kind of position.

We advise that this guidance should be altered to make it clear that female-only toilets, shower facilities, changing rooms and communal sleeping accommodation are a requirement, in addition to appropriate facilities for trans identifying pupils where there is sex segregation, in order for schools to meet the needs and rights of both groups of children and to protect them from discrimination. We would expect legal challenge against the EHRC if this does not happen, and indeed we would expect legal challenge against the Scottish Government if it follows this guidance.

Re Sports:

Again, we would contest that blanket policies are not permissible under the Equality Act, and we would assert that they should be applied in regard to sports wherever it is possible that male children have a possible advantage at all, and/or where it is helpful for girls to have female single sex sports in order to increase female participation.

For example, by the time children are of high school age, schools can be certain that all natal male children will have a physical advantage over all natal female children to some degree, regardless of the individual children involved, and can also be sure that in any form of contact sports the increased strength of males over females will present a potential physical danger. As such, schools can objectively justify a blanket policy of retaining a female category in any sports where natal males would, as a sex class, have a physical advantage and also where they would additionally pose a potential safety threat. And where there are female categories, schools also have alternatives, for example schools could make the ‘male’ category an ‘open’ category to allow trans identifying children to participate in a way that is not distressing to their identity (although schools would still have to consider safety in regard to any natal female children competing in this category). This would meet the requirements of the Equality Act and schools should be made aware of that. And the guidance should also make it clear that if schools fail to provide fair and safe competition for girls, this is discriminatory and harmful.

We also know that girls’ participation in PE and sport is a national concern, and that there is a great deal of evidence regarding the importance of single-sex opportunities in sport. For example, there are sex-specific programmes such as Fit for Girls, set up specifically to promote physical activity among girls in recognition of this issue. Fit for Girls has highlighted the importance of single sex sports for girls: “Some of the most positive aspects of the programme include improved consultation with girls, increased numbers of girls-only activities, and increased perceptions of health, fitness and physical activity levels among girls”. And the Scottish Government has also recognised the need for specific interventions in relation to girls’ participation in sport, for example the previous SNP Minister for Public Health and Sport, Aileen Campbell, stated “many women and girls still face additional barriers when it comes to getting involved in sport. As a government, we recognise that further action is required”. 

This draft guidance has given no consideration to the needs of girls around PE and sport, or that schools should not only consider the needs of trans children but should also give due consideration to the needs of girls to have their own PE and sport activities on the basis of their sex specific needs, i.e. outside of concerns solely based on fairness and safety. Indeed for girls, sports is also an inclusion issue, and this has been completely ignored by the guidance.

It is our position that much more work needs to be done to understand how to meet the needs of girls in regard to PE and sports, and we would urge the Scottish Government to carry out this work, and to provide an evidence base for schools in regard to how to meet the needs for girls in PE and sport, and that this should involve broad consultation. At this point we would advise the EHRC to make sure it correctly represents the Equality Act and that the guidance makes it clear that blanket policies in regard to female-only PE and sport activities are not only objectively justified in certain circumstances, but are also necessary to meet the sex specific needs of girls in certain circumstances, and that female-only PE and sports can also be justified on the basis of meeting the needs of girls and increasing the participation of girls in PE and sport.

Gender Stereotypes:

This draft guidance mentions gender and gender stereotypes in a few places, including in the Glossary of Terms, and unfortunately the way this draft guidance defines these terms is not only incoherent and inconsistent within the guidance itself, but would lead to the further entrenching of gender stereotypes as definitive of what it means to be a girl or a boy, and this will be harmful to all children.

For example, the guidance refers to gender as an imposed social system and says that teachers should reject gender stereotypes, which we would entirely support, but then also refers to children transitioning ‘to a different gender’ and also states that ‘someone’s legal sex does not necessarily determine their gender’. Gender cannot at once be an imposed social system of stereotypes that we should reject as definitive of what it means to be a girl or a boy, and at the same time be the very factor that defines what it means to be a girl or a boy (!), and yet that is the position this draft guidance has taken.

The EHRC should not be providing guidance to schools that conflates sex and gender at all, because any such conflation is a conflation of *sex and stereotypes*. Sex refers to natal sex, gender IS stereotypes – i.e. gender refers to the feminine and masculine norms socially imposed on females and males respectively. Therefore sex never ‘determines gender’, because gender is an *externally imposed system of socialisation*.

The EHRC has to come to a position where it has one single definition of gender in the guidance: If gender is an imposed social system of feminine and masculine norms/sex roles/stereotypes and schools should do what they can to break down such norms/sex roles/stereotypes, then the EHRC should not be providing guidance that presents gender norms/sex roles/stereotypes as something that is integral to sex in any way, or definitive of what it means to be a girl or a boy, as this would be saying stereotypes define girlhood and boyhood.

We recommend that the Glossary of Terms appear right at the start of the guidance, and that throughout the guidance any references to a child transitioning ‘to a different gender’ be removed, unless the EHRC wishes to claim that gender stereotypes define what it means to be a girl or a boy, in which case the EHRC should be upfront about this, rather than provide incoherent and inconsistent definitions that will only confuse schools and potentially lead to schools entrenching stereotypes rather than challenging them.

We also recommend that all references to gender norms/sex roles/stereotypes as any way integral to sex and definitive of what it means to be a girl or a boy be removed, and that the line regarding sex not always determining gender be removed as well, as again this would be an assertion of stereotypes generally being integral to sex and to what it means to be a girl or a boy. 

We further recommend that in the Glossary of Terms it is made clear that ‘gender’ refers to *feminine and masculine* norms/sex roles/stereotypes that are *socially and coercively imposed*; it is indefensible that any definition of gender should exclude the terms ‘femininity’ and ‘masculinity’, as this is literally what gender is, and it is also an injustice to women and girls for any definition of gender to fail to recognise that women and girls have the *feminine gender imposed on us* as a sex role, and that this is a social role that also functions to subjugate us.

Lastly, we recommend language that would encourage schools to become truly inclusive environments where all pupils can develop and thrive without gendered expectations or stereotypes limiting how they are understood and indeed the possibilities open to them.

We would like to note that we have previously tried to engage with the EHRC Scotland regarding this matter of incoherent definitions and while we were engaged with and are grateful for that, the responses did not actually deal with the points we made. The EHRC can provide guidance that recognises gender identity as how a child identifies with gender stereotypes without making assertions/providing definitions that would in any way assert that gender norms/sex roles/stereotypes define what it is to be a girl or a boy. However, the guidance should also be very clear that it cannot be assumed that all trans identifying children consider themselves as having a gender identity, i.e. there are trans people who reject the ideology of gender identity and instead assert a trans identity on the basis of dysphoria.

We will be aiming to engage much more fully with the Scottish Government on this matter, but we do consider it a major failing on the part of the EHRC that it offers conflicting definitions of terms that hold a great deal of significance and that could lead to the further entrenching of stereotyping in schools. The only way to confirm that the EHRC’s finalised school guidance won’t work to entrench stereotypes, is if it can stand up to the test that it *does not in any way conflate sex and gender*, and is thereby *not reducing any children to a set of stereotypes*.

Conclusion:

We feel that even in the limited response we have been able to provide here, we have made it clear that the EHRC draft school guidance needs to be revised, and that the sex specific needs and rights of girls have to be addressed, as well as safeguarding, because as it stands this guidance would infringe the human rights, equality protections and welfare of girls, and would lead to harm and discrimination. In addition to the recommendations we have made throughout our response, we also recommend that the EHRC carries out a CRIA/CRWIA, in order to ensure that this guidance upholds children’s human rights, because without this, the EHRC school guidance cannot claim to have adequately addressed the rights of children, or indeed the question of what is discriminatory. We would also like to raise that the EHRC should ensure to always take a rights and equality based approach to any form of guidance it produces, and should never produce guidance that is one-sided and which fails to consider the needs and rights of particular groups of stakeholders. Lastly, we recommend that the EHRC lists women’s groups working in this area in the section of the guidance providing schools with details of organisations to contact should they need further support or advice. This guidance is meant to address both sex and gender reassignment as protected characteristics, and any such recommendations should therefore recognise girls as stakeholders and thus as also deserving of further representation and consideration wherever further clarity is sought.