A Cabinet split has emerged on trans policy after it emerged Kemi Badenoch does not believe a law change is required to ban children changing gender in schools.
In July, Attorney General Victoria Prentis said that the government would have to change the law to bring in a ban on so-called “social transitioning”, as gender reassignment is a protected characteristic under the Equality Act.
Social transitioning is where those identifying as trans expect to wear the opposite-sex uniform and demand others call them by the opposite-sex pronoun.
But the Telegraph understands that Ms Badenoch, the equalities minister, believes guidance can be given to schools without such legislation.
The issue of whether legislation is required has delayed the introduction of guidance for schools, leaving them in limbo about whether they can stop boys who identify as girls from using girls’ toilets or joining girls’ sports teams.
Rishi Sunak is even said to be considering scrapping a ban on social transitioning altogether, fearful of Tory splits on the issue being exposed in the Commons if legislation is attempted.
‘Parents are deeply concerned about social transitioning’
On Thursday night, MPs and campaign groups urged the government to go ahead and issue guidance without a change in the law.
Helen Joyce, director of advocacy at the gender-critical group Sex Matters, said: “The government does not need any new law in order to give schools simple and clear guidance based on the obvious fact that children cannot change sex.
“Any pretence in a school environment that a child has changed sex will inevitably mean that the school does not fulfil its statutory duties, in particular those relating to safeguarding.”
Tory MP Danny Kruger said: “Parents in my constituency are deeply concerned about the practice of ‘social transitioning’ - schools treating boys and girls or vice versa, without parents’ consent.
“For the sake of all the children, including those confused about their identity.
“The Government has decided not to legislate on the matter. If so, that’s fine – they don’t need to. They just need to change the guidance for schools.
“Pupils should be treated according to their biological sex. If parents are happy to treat their child differently at home, that’s up to them – they shouldn’t be able to insist the teachers and all the other children do likewise.
“I believe most parents of confused kids would be relieved about this rule. Identity is a minefield, and many children are in deep distress. But the crucial identity we need to maintain is the position of responsibility. Can the adults be adults please?”
Plans to change the law could be put off until next summer
Miriam Cates, another Conservative backbencher, said: “I continue to push for guidance that will make clear that schools do not have the authority to ‘socially transition’ children.
“I agree with Sex Matters – we should not need to change the law to produce such guidance. In fact, schools are legally obliged to recognise and record biological sex, which is essential for safeguarding. There’s no legal provision for schools to treat girls and boys.
“This is not about parental consent or ‘being kind’: it’s about whether the state, through schools, should be able to promote a contested ideology that harms and lies to kids. Protecting children from indoctrination is surely an important foundation of democratic society.”
It emerged on Thursday that plans to change the law to protect female-only spaces could be put off until next summer.
The Cabinet Office has put out a job application for a civil servant to “consider whether and how legislative changes to the Equality Act 2010 could be made”.
Campaigners say the Equality Act must be changed to make it clear that “sexual discrimination” in the law refers to biological sex rather than the gender someone may identify with.
They say this would make it easier to stop biological men being able to use women’s toilets or changing rooms, being able to join women’s rape support groups, and taking part in women’s sports.
The job advert states that the civil servant would be in charge of a “complex legislative project” and that it was not due to be completed until July 2024.
No10 unable to guarantee when trans guidance will be published
Maya Forstater, also of the group Sex Matters, said: “We are very encouraged to see the government giving the proposal serious attention and putting capacity behind it.
“It is important that they consult but this should be done with urgency. This only requires one line of change in legislation and we think it can be done before the next election if they act speedily now.”
On Thursday, Number 10 was unable to guarantee that long-awaited trans guidance for schools will be published before the election.
The Prime Minister’s official spokesman said it was still being developed because ministers need more information about “the long-term implications of a child acting as though they are the opposite sex”.
Asked whether the guidance could be published before the next election, he said: “I’m not going to put a specific timeline on it, not least because I don’t know when the next election will be.”
The comment from Downing Street raised the prospect that the whole guidance – including on issues such as whether a biological boy can use girls’ toilets or play in their sports teams – could be put off until after the election.
But another government source said it was expected that guidance on this aspect will be published in the coming weeks.
Education Secretary Gillian Keegan had originally said it would be published by the summer term.