No more ‘Old Skool’

Those of us who have represented children often in the Family courts are used to the phrase “gillick competent , which of course refers to any under 16 year-old who has the capacity to make a relevant decision (‘subject matter competence’). Children of course (not just adults) have Article 8 ECHR Human Rights ( a right to a private and  family life) that need to be purposefully promoted by the state.

The Council of Europe has recently published its own guidance on protecting the human rights of transgender persons. It recognises that it is not a settled issue amongst member states and that there are many different approaches (e.g. the age of consent to surgery without parental involvement differs widely). In most cases, the process to obtain legal gender recognition is described as a combination of complicated legal and medical requirements, where the borderline is often blurred. A clear trend has also been observed amongst European states (such as Denmark, Malta, Ireland) towards no longer requiring a psychiatric (i.e. medical) or psychological diagnosis for a person to obtain legal recognition.

The Council’s report notes that recognition of transgender children remains a significant hurdle in most countries, and that there needs to be more progress on how children’s views are considered. It concludes that member states need to ensure that any recognition process should be quick, transparent and accessible, as otherwise it may be a breach of a person’s Article 8 rights.

And so it is from this wider legal perspective that one looks at the recent wranglings in the British cabinet over the much-anticipated non-statutory guidance, for state schools, on how to deal with children who wish to be called by a different name, a different pronoun, a different sex. It has been promised for over five years.

The result is in many respects (as it is often is in the world of politics and law) catching up with the times. The reality being no doubt that if ‘Charles’ has been coming to school consistently wanting to be called ‘Charlie’ and wear the school uniform for girls or something in between, s/he/they must not be shunned but accepted and respected .

Schools are not responsible for any medical decisions but rather they are the places, one hopes, of education and sanctuary for children , where friendships are formed and identities confirmed. It is with this in mind that the guidance will allow children of school age to ‘socially transition’ and to change to their preferred names, pronouns and uniforms. However, it is also expected to advise ‘a presumption against’ such transition.

The long awaited guidance follows a survey earlier this year that found that 75% of secondary school teachers in England had taught pupils who had identified as non-binary or who had come out as transgender. Schools have had to navigate this highly sensitive area with little support and state guidance on the subject whilst ensuring that any decision made is compatible with the Equality Act 2010, which prohibits discrimination against transgender children under the protected characteristic of gender reassignment.

The Gender Recognition Act 2004 only allows a person to obtain a Gender Recognition Certificate, which corrects their original birth certificate to match their true gender, at the age of 18. However, if they are diagnosed with gender dysphoria, children can identify as different to their biological, (i.e. born) gender long before 18 and before they undergo medical treatment, (the latter of which is permanent and therefore requires a ‘competent’ and informed decision  maker). The UK’s approach towards transgender children mirrors wider sensitivities on this topic across Europe. While the Netherlands (2013), Ireland (2015), Sweden (2016) and Norway (2016) explicitly allow certain minors to obtain gender recognition, age limits still apply.

In England, the courts have increasingly had to intervene on transgender issues but thus far mostly from the adult perspective. Recent cases include whether a transgender father should have contact with his children (Re M 2017), whether a transgender man who had given birth to a child should be registered as the mother on the birth certificate (R (McConnell and YY) 2020), parents consenting to medical treatment for their children (Bell v Tavistock 2021) and legal challenges to local authority guidance on transgender children (R (L) v HCC 2022).

The Family Court is increasingly encountering cases where there are disagreements between separated parents on how to approach this area. The court can make orders which allow or prohibit a change of name or medical treatment for a child. When reaching a decision, the court will consider what is in the child’s best welfare interests, which will include the wishes and feelings of the child, the child’s commitment to and consistency in their gender identity and any risk of emotional harm to the child.

Overall, this topic raises difficult issues for parents and their children and although an awareness of transgender issues is gradually increasing in the Family Court, the law is evolving too slowly and more work needs to be done to achieve clarity and parity. What is yet to be grappled with fully in the Family Courts is the children’s own competence and wish to have surgery before they reach 16/17 and no doubt a personal history of gender dysphoria and social transitioning at school will pave the way for the establishment of such a test case. In the meantime it is sincerely hoped that teachers, parents and students will know where they stand on this very modern issue, after this guidance has been circulated.