The Keeping Children Safe In Education (KCSIE) guidance has been released and will be in force in schools from 1 September 2026. The EHRC has also released their guidance for schools which is now out for consultation. This article will look at this provisional guidance and point out what is good, bad and contradictory.
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In short, the final guidance should:
• Align fully, at least, with KCSIE 2026. It should also be in line with the EHRC’s own guidance for Services, Public Functions and Associations.
• Acknowledge that no child is born in the wrong body. The sex of the child at birth will always be that child’s sex.
• The use of pronouns, if used, will be based on that child’s sex.
• State clearly that single-sex provision e.g. girl-only schools etc. is based on biological sex and is lawful and justified.
• Remove or rewrite examples that treat sex-based rules as presumptive discrimination e.g. toilets.
• Keep sexual orientation and gender reassignment distinct.
• Provide practical decision-making frameworks that prioritise the
safety, privacy and dignity of all pupils.
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As stated in our article on KCSIE here, schools must know, record and be able to refer to each child’s biological sex and schools must not allow any child to use opposite sex toilets, changing rooms or dormitories on school trips. Gender identity doesn’t get a mention in this guidance so it should not get a mention at schools.
KCSIE fails in allowing gender-questioning children to join opposite sex sports if there are no safety concerns. Safety concerns means only physical concerns. What about the safety concerns of the mental health of girls who may lose out to the boy in physical competitions etc.? A school isn’t required to allow the boy in the races but why give wriggle room? How will this be affected by the guidance from the EHRC?
KCSIE also fails in the use of speech. KCSIE says that schools “must be conscious of the rights of pupils and staff in relation to their religion or belief”. Whilst no-one is required to affirm anyone else as the opposite sex, it also advises staff to not use the ‘incorrect’ pronoun for the child and only use their names. This is social transitioning by stealth via language control.
Why should staff and children contort their speech to support the possible beliefs of a vulnerable child? We can hear the laughter/upset in the classroom as the teacher proceeds to reel off every pronoun in the book before getting to the child’s actual name. The state should not participate in social transitioning at all.
KCSIE also talks of living in stealth whereby a child has been so good at transitioning that no one knows their true sex. The parents and child have lied to the school from the start. KCSIE rightly points out that such children will “approach puberty in a fearful and anxious state”. It says: “Schools and colleges should involve the designated safeguarding lead in these cases.” Why was it allowed to come to this in the first place? Parents who allow their child to transition at such an early age are a safeguarding issue. This should not be the school’s problem but one for social services.
Now let’s look at what the draft EHRC guidance has to say about all of this.
The EHRC (Equality and Human Rights Commission) released the new draft ‘technical guidance’ to help schools comply with their duties under the Equality Act on June 10. It’s a hefty document in both scope and effect. PLEASE respond to the consultation as a concerned parent, school staff member or concerned citizen here: EHRCGuidance.
With respect to safeguarding gender-questioning children at school it has just made life harder. The examples given in the text specifically undermine any good that has come from KCSIE.
Pronouns. Ah, these too are back again.
Para 3.124 It is likely such a policy will provide that, where a decision has been taken by the school to permit a pupil to adopt a preferred pronoun, teachers and others will be expected not to act contrary to that decision. Where beliefs are affected, practical solutions may often be available to respect the rights of all, while following the policy, such as avoiding the direct use of a pronoun.
Further, Para 3.123 in the EHRC guidance says schools should consider a policy on how staff and pupils address a trans student. It says that this language contortion “respects the rights of both trans pupils and others” – when it clearly does not. Why has the pupil’s self-id suddenly trumped everyone else’s rights?
Toilets. Yes, again with the toilets. KCSIE says the child must use the one of their biological sex. The EHRC does not as that might be “unlawful indirect gender reassignment discrimination”. The protected characteristic of gender reassignment is used to undermine child safeguarding.
Para 5.71 A secondary school is considering how to provide appropriate changing facilities for a trans pupil who identifies as a girl. The school must provide single-sex changing facilities and showers for children who do physical education at the school. It is therefore not permissible to allow the pupil to use the girls’ changing room. The school decides that the pupil must use the boys’ changing room. This is unlikely to be justified and so is likely to be unlawful indirect gender reassignment discrimination. A suitable alternative might be to allow the pupil access to a single-user, lockable changing room, which might be a staff changing room or a mixed-sex accessible bathroom.
The loss of single-sex schools? This is where things get really weird.
Para 4.69 A boys’ school does not admit girls at all. This is lawful under the Act.
Example: Para 4.70 A boys’ school admits a trans boy pupil. The admission is in line with the school’s policy for exceptional admissions. This is lawful under schedule 11, paragraph 1(3)(a) of the Act because the admission is exceptional and in line with the school’s own policy. However, the school must ensure that appropriate facilities can be made available which are suitable for the pupil’s sex.
The same school refuses to admit a female pupil who does not meet the criteria in the school’s policy for exceptional admissions. This is lawful under the Act.
The Equality Act makes clear that single-sex schools can lawfully discriminate on the basis of sex. This guidance undermines this. To consider the opposite of the above, if a single-sex girls’ school wants to accept a trans-identifying boy it simply needs to invoke an exceptional admissions policy. So much for the safeguarding of the boy and the girls. Parents specifically send their girls to a single-sex school. There are many advantages to this for the girls – academically being most prominent. How does any of this balance rights? The sex of the new student MUST be recorded as male under KCSIE. By just one admission, the school has gone from single-sex to a co-ed school. The school can no longer call itself an all-girl school.
We at LabourLGB state again that no child is born in the wrong body. This is a protected characteristic. In all of this guidance, the EHRC does not consider this fully with respect to the staff, students and parents at a school. The protected characteristic the EHRC seems to be focusing on is gender reassignment. There does not seem to be any consideration by the EHRC of the Supreme Court rulings or KCSIE.
Please fill out the consultation and stop this guidance from being released in its current form. The consultation is open until 30 September 2026. Here is that link again:
