Controversial guidelines governing the inclusion of trans pupils in schools could breach as many as 15 articles of the UN Convention on the Rights of the Child, according to a new campaign for women and girls.
Many councils and schools have adopted the guidelines, without assessing the impact on other pupils, according to the group Women and Girls in Scotland (WGiS).
The report comes ahead of a public meeting in Edinburgh tomorrow (Thursday) which is being held by ForWomen.Scot, another group calling for greater protection for the rights of women and girls.
The advice to schools, written by LGBT Youth and the Scottish Trans Alliance, states that trans pupils should share overnight accommodation on school trips with pupils based on their gender identity rather than their biological sex, and should be allowed to take part in sports, and use changing rooms and toilets based on the gender they identify as.
Any pupils who have concerns about this should be asked to wait and use facilities after a trans pupil has done so and “they should be reminded of the school’s ethos of inclusion, equality and respect”. There is no need to tell parents if their child is to share accommodation with a trans peer of the opposite sex, the guidance states.
However WGiS says note of these measures have been assessed for any impact on other pupils – particularly girls, which is a legal requirement under public sector equality duties.
As a result the group has carried out its own Children’s Rights Impact Assessment using the model published by the Scottish Children’s Commissioner.
Its 51-page analysis, which is to be published online, warns that key aspects of the rights of other children are likely to be breached in schools where the guidelines are adopted. They say non-trans children will be affected, most notably girls who benefit from single sex provision in intimate settings and in sports. “The guidance sets up a conflict of interest, particularly between male-bodied transgender young people and girls” the report states.
The group says it submitted the analysis to the Children and Young People’s Commissioner for Scotland (CYPCS) in November and was promised a response within three weeks, but has yet to receive any formal feedback.
WGiS says that by failing to address concerns relating to privacy, dignity, safety or as a result of religious belief, or the impact on children who have previously suffered sexual harassment, assault or abuse, the guidance “does not clearly demonstrate respect for the views of the young people who are affected by these issues.”
For example, the group’s analysis argues: “A school environment where a victim of abuse, objecting to sharing facilities with male bodied people, is to be reminded of ‘respect’, and then excluded from her own space and peer group, is not likely to be one that is fostering her health, welfare, self-respect, dignity and autonomy or taking into account her sex-specific needs.”
In sport, there are issues of fairness for girls if male-bodied pupils are competing against them, but also in contact sports such as rugby, issues of physical safety which have not been addressed, the report adds.
The only children consulted over the guidance were a small number of trans pupils, and the group is calling for a fresh consultation allowing a wider range of young people to give their views, anonymously if necessary.
Leya Terra, spokeswoman for WGiS, said group recognised the sensitivity of the issue and added; “transgender young people must be safe and comfortable at school, but this should not come at the expense of the safety and comfort of others.”
“The guidance has been written with the intention of supporting transgender young people in schools, but there is no evidence that it has fully taken into account the needs of other protected groups of young people,” she added.
Neither have councils which have adopted the guidance, or CYPCS itself – which endorsed it – fulfilled a legal duty to carry out an impact assessment, she said. “It is our understanding that no impact assessment in regards to this guidance has been carried out by anyone.”
She said WGiS would welcome the opportunity to work with LGBT Youth Scotland to edit the guidance to ensure it upholds the rights of all pupils. Alternatively, the group is calling for an independent organisation to develop new guidance, using a children’s rights-based approach.
A spokeswoman for the Scottish children’s commissioner confirmed his office had welcomed the guidance when it was launched.
Head of Strategy for CYPCS, Máire McCormack said: “This is a complex children’s rights issue and at a global and national level there continues to be a developing understanding about gender non-conforming children and young people.
“The Government has a responsibility to ensure that there is guidance available for those working with all children and young people to help support them. We recognise that concerns have been raised about the application of the current guidance in practice and it is clear that further work must be done.”
However she said it was the responsible of the Scottish Government and councils to make sure the policy supported the rights of all pupils.
“The Government and all those responsible for education have a duty to ensure that any guidance used in schools follows international human rights standards and undertaking a Children’s Rights Impact Assessment is an important part of taking a rights-based approach and ensuring compliance with existing domestic and international law.”