Transgender Updates: April 2024

Transgender guidance in schools

In the previous newsletter, the long-awaited guidance on policies for transgender pupils was yet to be published, following concerns that some of the guidance may be unlawful.

The draft guidance was published in December 2023, setting out that if a child wishes to change their gender identity at school, their teachers should inform the parents. Teachers can withhold information if they believe revealing those details would put a child at significant risk, and schools do not have to accept a child’s request to socially transition. Teachers are urged to take a cautious approach to a pupil’s request to socially transition and ensure parents are consulted before decisions are taken within the school environment.

The guidance has had a mixed reception, with some teachers welcoming the guidelines as they have faced difficulties in navigating the situation. Others have criticised the publication, saying it leaves too much up to the discretion of schools and could lead to young people being ‘outed’ to their parents against their will.

The guidelines will not be finalised until they have undergone a 12-week public consultation.

The Scottish Gender Reform Bill

The Scottish Gender Reform Bill was an eagerly awaited piece of legislation which would have introduced a self-identification system for those wishing to change their legal gender. The UK Government blocked the bill in January 2023, but a judicial review of this decision was due to be held in September 2023.  

The judicial review was ultimately held in early December and found that the Government’s decision to block the bill was not unlawful. This decision was met with mixed responses. Many from within the trans community felt let down and uncertain over the future of self-identification in Scotland. Others, such as the Scotland Secretary, Alister Jack, commented that the passing of the legislation would have had adverse effects on the operation of equality laws across the UK and that the Scottish ministers need to stop wasting taxpayers’ money.

Following the review, the Scottish government announced it would not appeal the veto of the bill but would look at ways to improve healthcare outcomes for transgender people.

Transgender mental health

Since our last update, mental health provision for Transgender individuals has been in the spotlight.

In September last year, an inquest was held into the death of 13-year-old Alex Dews, a transgender boy who had a history of self-harm and had expressed a desire to end his life. Alex had been found seriously injured in a park in July 2022 and had later died of his injuries. His school had been aware of the issues but had not been clear on the processes for referring Alex to CAMHS in order to receive appropriate support. The coroner called for a review into the referral procedures from schools to CAMHS, stating there were clearly issues that needed resolving.

Later that month, another inquest took place into the death of Alice Litman, a 20-year-old transgender woman who took her own life in May 2022. She had been waiting for 1,023 days for an appointment with the Tavistock Gender Identity Clinic. Alice had attempted to take her own life twice before, but had been discharged from CAMHS after turning 18, with no transition to adult mental health services. The coroner hearing the inquest concluded that mental health provision on the NHS for transgender individuals was underfunded with insufficient resources, with concerning delays in the time taken to access these services. Mental health support from the NHS for those waiting for gender affirming treatment is also lacking.

Following these conclusions, research led by the University of Manchester, the Proud Trust and the LGBT Foundation was published in the Lancet Public Health Journal earlier this year, revealing that Transgender people in England are more likely to have a long-term mental health condition. A co-author of the paper commented that widespread discrimination, gender dysphoria and long waiting times for NHS gender identity clinics may increase the risks of mental health issues amongst the trans community.

Scotland’s Hate Crime and Public Order Act

Scotland’s controversial new law came into force on 1 April, expanding pre-existing legislation that criminalised ‘stirring up hatred’ to cover hate crimes aimed at more characteristics, including transgender identity. The bill was seen as controversial as it operates at a point where women’s rights and transgender rights intersect, with some finding that the two are incompatible. A further issue includes the lack of clarity on what behaviour constitutes an offence under this new law. The law makes it an offence to behave in a manner or communicate material ‘that a reasonable person would consider to be threatening or abusive’ with an intention of stirring up hatred. Those convicted could face up to seven years in prison, a fine, or both.

This story hit the headlines recently, as there was confusion as to whether misgendering someone would be considered a crime. However, Police Scotland confirmed they would not be investigating author JK Rowling after she misgendered several trans women online, with Scottish First Minister Humza Yousaf telling the BBC that despite Rowling’s comments being “offensive, upsetting and insulting to trans people…it doesn’t mean that they meet a threshold of criminality of being threatening or abusive and intending to stir up hatred.”

The aim of the legislation is to try to strike a balance between protecting groups from hate crime, whilst maintaining the right to free speech. It will take some time before it can be established if this balance has been achieved.

The Cass Review

The Cass Review of Gender Identity Services was commissioned by NHS England to make recommendations as to how to ensure children and young people are best served by the NHS and their welfare is protected.

The Review was carried out by Dr Hilary Cass and her final report and recommendations were published on 10 April. The report begins with a forword by Dr Cass in which she states, ‘The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress’. This sense of uncertainty pervades the remainder of the report, which makes several key findings and recommendations aimed at protecting children and young people who are referred to NHS gender services.

Key findings include that experts are far from agreed over a clinical approach, with little reliable evidence as to long-term outcomes for those referred to the NHS. The fact that the treatment and care of gender-questioning children and young people is a controversial topic, with deeply held opinions on all sides of the debate, has not been helpful in ensuring the focus remains on these young people and what their care needs to achieve. The recommendations reflect these findings and seek to recentre the children and young people at the heart of this report, including that those referred to NHS gender services must receive a ‘holistic assessment of their needs’ which includes screening for neurodevelopmental conditions and a mental health assessment.

The report is already proving controversial. Dr Cass herself states in her forword to the report that some children and young people may be disappointed by the findings and recommendations, others state that the report highlights failings in the clinical approach to date. It remains to be seen what the long-term impact of the report will be, but NHS England has since stated that it intends to carry out a major review of its adult gender services and use of hormones.

Transgender patients to be banned from male- and female-only NHS wards

With the NHS drawing media attention for some of the more sensationalist headlines in relation to Transgender healthcare, the Health Secretary, Steve Barclay, announced in October last year that transgender individuals may be banned from single-sex wards. He commented that he aimed to restore ‘common sense’ to the NHS by reversing 2021 NHS Guidance that said transgender people may be placed on single-sex wards. He envisages the provision of separate rooms and areas for transgender patients.

Although the move must meet the legal threshold of the Equality Act, opponents have described the comments as disappointing, with doctors questioning the practicality of the new guidance.

Trans-Women athletes and chess players

The debate over transgender athletes continues with several developments over the last quarter. In November, British Cycling introduced new rules that meant transgender women will compete with men in an ‘open’ category and will not be allowed to enter cisgender women’s events. This has been met with a mixed response, with some saying that without clear medical evidence that transgender women have an advantage, the decision is discriminatory. Others comment that introducing a separate category for transgender women ensures that the sport remains fair and safe for everyone.

This is not the first ban to affect trans-female athletes. In 2022, World Aquatics (the governing body for world swimming) voted to stop transgender athletes from competing in races for cisgender women. In August 2023, an open category was introduced to debut at the Berlin Swimming World Cup in October. Transgender athletes may enter this category. At the time, some members of the elite swimming community saw this as a step towards inclusivity and increasing diversity. However, in January of this year, it was reported that American swimmer Lia Thomas, the first transgender athlete to win the highest US national college title, has launched a legal challenge against the ban.

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If anyone is affected by the above or needs guidance on family law, please get in touch with our family team for support and assistance.