The Department for Education (the "DfE") has published landmark draft statutory guidance that, for the first time, places schools' handling of gender-questioning children on a statutory footing. The consultation on this draft guidance closes on 22 April 2026.
Acting in the "best interests of the child"
Rather than publishing standalone guidance, it will incorporate new provisions into Keeping Children Safe in Education ("KCSIE"). This decision explicitly frames gender questioning as safeguarding matters, aiming to ensure that children's wellbeing and safeguarding are considered holistically and that schools and colleges can access all relevant information in one place.
At the heart of the guidance lies a fundamental principle: schools and colleges must consider what is in the "best interests of the child and other children". The guidance acknowledges that this may differ from simply following a child's stated wishes. Schools must comply with their distinct but interacting safeguarding duties and obligations under the Equality Act 2010 and Human Rights Act 1998.
Schools are also asked to consider whether pupils would be best supported by a policy on social transition.
Parental involvement as the default
The new guidance makes clear that parental involvement should be the default position when a child who questions their gender asks for support from a school or college. Schools and colleges should engage parents or carers as a matter of priority and treat their views with importance.
An exception is carved out where involving parents or carers would constitute a greater risk to the child than not doing so. In such circumstances, the school or college should involve the Designated Safeguarding Lead ("DSL") to determine what safeguarding action is needed before parents are contacted or any decisions are taken. Whilst the guidance states that such circumstances are expected to be rare, it provides no further detail on how that threshold should be assessed, leaving schools to navigate difficult judgments without a clear framework.
The introduction of mandatory parental involvement will pose particular challenges where children come from less supportive home environments, and schools may benefit from seeking legal advice when navigating such cases.
Absolute prohibitions: single-sex spaces and sport
These provisions are among the most operationally significant in the draft.
The draft establishes absolute prohibitions with no exceptions, including where a school is responding to a social transition request:
- Toilets - Schools must not allow children into toilets designated for the opposite biological sex. Separate toilet facilities must be provided for boys and girls aged eight and over.
- Changing rooms - Schools and colleges must not allow a child aged 11 or older to undress in front of a child of the opposite biological sex. A social transition request cannot include access to opposite-sex changing rooms.
- Boarding accommodation - Schools must not allow a child to share overnight accommodation with a child of the opposite biological sex.
- Sport - Where single-sex sport is organised on grounds of safety, no exceptions may be made in response to a social transition request.
While single-sex spaces must be provided in the above situations, schools should consider whether they can provide an alternative facility for a child who does not want to use the toilet designated for their biological sex.
Prohibition on informal accommodations
The draft guidance makes clear that individual members of staff should not unilaterally adopt any changes relating to social transition. This means that ad hoc or informal adjustments, such as informally agreeing to use the child's preferred pronouns, are prohibited where they are made outside the school or college's formal decision-making process.
Recording biological sex and living in stealth
Schools and colleges are legally required to record a child's biological sex accurately wherever it is recorded, and all relevant staff must be aware of it. Leaders should audit current record-keeping practices to ensure compliance.
The draft also addresses children who have fully socially transitioned and may be "living in stealth" — where peers and staff are unaware of their biological sex. The DSL should be informed in such cases and should coordinate the school's approach, including determining which staff need access to accurate information.
What schools should do before September
The consultation on this draft guidance closes on 22 April 2026. Subject to any changes arising from consultation, the updated guidance is expected to come into force in September 2026.
Schools should make the most of the window between now and September to prepare and take legal advice ahead of the new statutory guidance coming into force.
- Develop or review any gender-questioning children policy in line with the new framework.
- Audit toilets, changing rooms, and (for boarding schools) residential accommodation against the absolute prohibitions.
- Review sports and record-keeping policies.
- Identify any existing social transition arrangements and take legal advice on whether they need to be revisited.
- Review previous decisions to ensure they comply with the new guidance.
- Ensure your DSL is briefed and has sufficient capacity.
- Train all staff on their obligations, including the prohibition on informal accommodations.
- Engage your governing body or proprietor on their strategic oversight role.
- Consider responding to the consultation before 22 April 2026.
We are advising independent school clients on the implications of the draft guidance. Please contact us if you would like assistance with policy reviews, training, or individual cases.