Teachers fear legal action over transgender pupil advice

SSTA bosses said the motion had a good chance of being passed but stressed they were supportive of LGBT+ rights and wanted to assist those who are transitioning to another gender.

The move comes after the Scottish Government last month published guidance outlining how schools should respond to transgender pupils and ensure they are safe and included - both within and outside the classroom. Its recommendations include not forcing a transgender individual to use a specific toilet, trying to make social dancing events less gender-specific, and using the name and pronouns requested by a child or young person.

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The document also says being transgender is “not a child protection issue in itself”, indicating it would not necessarily trigger procedures for recording and acting on safety concerns.

The guidance states: “A transgender young person may not have told their family about their gender identity. Inadvertent disclosure could cause needless stress for the young person or could put them at risk and breach legal requirements. Therefore, it is best to not share information with parents or carers without considering and respecting the young person’s views and rights.”

SSTA concerns focus largely on what happens to details disclosed by a pupil and whether these can be passed on without their consent. Its leaders said there were deepening fears over the professional and legal risks for teachers who are recipients of such information.

The SSTA motion states: “In view of the recently published document ‘Supporting Transgender Pupils in Schools - Guidance for Scottish Schools’ (August 2021), this Congress is greatly concerned over safeguarding and other issues, including: the potential excluding of parents/carers from the process of children under 16 transitioning to another gender; implying that teachers may not pass on information that may be revealed to them by a child without the child’s consent; the potential for professional harm to staff involved in withholding information from parents/carers, including future legal action; that the identified ‘best practice’ has not been rigorously examined for its legal implications nor risk assessed for potential harm it may cause others in the school community, including those with protected characteristics.”

SSTA general secretary Seamus Searson said teacher training would be vitally important.

It concludes: “Congress believes it is unacceptable for the government to seek to make such consequential changes without legal underpinning. Congress therefore calls on the guidance to be withdrawn until appropriate legislation has been enacted which can then inform the guidance to be disseminated to schools.”

Seamus Searson, SSTA general secretary, told The Herald that no-one was “disputing the direction of travel” regarding better in-school support for trans pupils. However, he said it was important not to rush and stressed that robust professional learning for all staff would be vital.

“Teachers work with parents a lot and they can’t suddenly have secrets from parents,” he added. “As much as the youngster might not wish the parents to know about it, it does put the teachers in a difficult position – and that’s the concern for us.

“Many teachers, at this moment, haven’t discussed this, worked through it, understood it within the school setting in terms of what the processes are.”

Mr Searson stressed that those teachers in whom a child or young person confides could find themselves in an extremely vulnerable position. He said: “If a child takes some serious action against themselves, hurts themselves or goes to suicide, it’s all going to come back on the teacher and the teacher will be told, ‘well, why didn’t you do something about this or did you not pass this information on?’

“A teacher shouldn’t be left in that position where it’s a case of saying to a pupil, ‘I need to talk to your parents, I need to talk to the depute in the school, I need to talk to other people and share this information’, and the youngster says, ‘no, you can’t’. And the child then says [later if the information has been disclosed], ‘you broke my confidence’.”

READ MORE: Teachers 'fear being struck off' over trans pupil concerns

Mr Searson added: “If teachers make a mistake and they do the wrong thing, they lay themselves open to [the charge of] not acting in a professional manner and that could end up in a very serious situation.”

He said dismissal, loss of registration with the General Teaching Council for Scotland and potential legal action from parents or pupils were all among the risks faced by staff.

“At the moment, I don’t think teachers have been prepared for this,” he added. “Some schools might be ready for it but others won’t. And that’s the ones I’m worried about – the schools that won’t have discussed this for all sorts of reasons.”

Concerns from the SSTA come after the EIS, Scotland’s largest teaching union, insisted previously that there was a major need for educators to be provided with LGBT+ training. It said budget cuts and teacher shortages would have to be addressed to improve the situation and ensure transgender learners get the best possible support.

The remarks were made as part of a consultation on planned gender recognition reforms. Underlining concern among teachers about doing or saying “the wrong thing”, the EIS submission said an extensive programme of professional learning would be necessary. It also highlighted a 2018 survey that revealed opportunities to take part in LGBT+ training were provided “regularly” (ie at least once a year) for only eight per cent of members. Such training was offered “rarely” for 16% and “never” for 26%.

New guidance is aimed at boosting support for Scotland's transgender pupils.

A Scottish Government spokesman said: “The guidance was published as a result of concerns that transgender young people in Scotland experience barriers to their learning.

“It is recognised this can be a very difficult time for young people and their families, and it is important schools are able to provide appropriate pastoral care and support for young people in these circumstances.”

He added: “The guidance offers education authorities and schools non-statutory guidance on legislation, policy and practice to inform their approaches to this support, including the matters raised within the motion.”