Gender Identity Issues

NOTE

This chapter gives general guidance. If you have concerns about a particular case, you must follow the Contacts and Referrals Procedure. Legal advice should be sought as appropriate in relation to individual cases.

See also Section 6, Further Information for some sources of guidance on practical issues.

This chapter was added to the manual in October 2023.

1. Introduction

Issues around gender identity are coming to increasing public prominence, with a corresponding increase in the number of children and young people coming forward with issues relating to their gender development and identity.

Referrals to GIDS (the NHS Gender Identity Service for under-18s, provided nationally by the Tavistock and Portman NHS Foundation Trust) have increased by 50 per cent a year in recent years. Whilst the majority of referrals involve young people aged between 14 and 16, the service is seeing a marked increase in the number of younger (pre-pubertal) children being referred, as young as four. It is estimated that a school of 1,000 pupils should expect around 10 to be gender variant to some degree.

Current thinking is that gender can be ‘fluid’/a spectrum. It is not possible with any certainty to predict the outcome of gender identity development, and the evidence available suggests that for the majority of prepubertal children their gender dysphoria does not persist into adulthood. It is important that children and young people are not placed at risk of adverse outcomes as a result of a failure to deal appropriately with their gender identity issues. They should, in general, be given space to develop their own gender identity and be protected from adverse effects such as bullying and discrimination.

2. Definitions

‘Trans’ is an umbrella term widely used to cover a variety of issues relating to gender identity. The terms discussed here apply widely in the UK. They may not cover all situations. (Note: Gender is different from sexual orientation. Transgender people can be of any sexuality).

Intersex: a person with a combination of sex characteristics - chromosomes, genitals or reproductive organs - neither solely male nor female. Until recently they would usually undergo genital surgery at a young age to given them characteristics which are clearly either male or female. Medical professionals are now more likely to advise waiting until the child is older and able to provide informed consent to surgery, because of the implications surgery can have on future health and function.

Non-binary/non-gender: a person who does not identify as ‘male’ or ‘female’.

Assigned gender: the sex (male or female) assigned at birth based on physical characteristics.

Gender identity: the gender with which a person associates themselves.

Gender presentation: how a person outwardly shows their gender, e.g. clothing, personal grooming

Gender dysphoria: a diagnosis used by health professionals, which is defined as the experiencing of discomfort or distress because there is a mismatch between one’s biological sex and one’s gender identity. A medical condition which describes the symptoms of being transgender.

Transgender: having a gender identity which differs from assigned gender. This is often shortened to ‘trans’.

Trans+ (“trans plus”) is often used nowadays to indicate a broad gender conflict, and is perceived as being a positive term that includes not only transgender people but also those who identify as non-binary or as being physically intersex.

Transsexual: a term used by some people who permanently change their bodies, usually, but not always, using hormones or surgery. The term ‘transgender’ is now in more common usage and is generally to be preferred.

Transitioning: a person changing their gender presentation to bring it into alignment with their gender identity. Transitioning may involve various types of medical treatment, to bring a person’s physical characteristics more into conformity with their gender identity and presentation. This is also known as ‘gender confirmation’ or (now less commonly) ‘gender reassignment’. Transitioning need not involve any form of medical intervention.

Acquired gender/Affirmed gender: a person’s gender after transitioning.

Cisgender: a person who is not transgender. For instance, someone who is named a boy at birth and continues to live as a man would be cisgender. This covers the majority of the population.

Cross-dresser: a person who wears the clothes usually associated with the ‘opposite’ sex. This is seen as a form of gender expression. The word ‘transvestite’ is not used much these days. The expressions ‘drag queen’ and ‘drag king’ are different, and refer to men or women who cross-dress for purposes of entertainment or performance-art.

3. Good Practice

3.1 Supporting Children and Young People

The House of Commons Select Committee report 'Transgender Equality' (14th January 2016) found that gender-variant young people and their families face particular challenges at school. They found that schools often do not know how to deal with matters such as:

Considering the emotional impact and supporting young people;
How to respond to young people telling you this;
Recording a change of name and gender;
Bullying;
Inclusion in sport; and
Access to toilets.

Equality and Human Rights Commission research indicates that 91% of trans boys and 66% of trans girls experience harassment or bullying at school, often leading to depression, isolation and a desire to leave education as early as possible. This is a higher rate of discrimination than that faced by young lesbian and gay students. This can have a knock-on effect on their mental health, attendance and ability to learn. Many gender-variant children report hiding their identity, to the detriment of their self-esteem, and leaving school as soon as possible to escape the bullying and harassment that they faced.

The Equality Act 2010 legally protects people, of all ages, from discrimination on the basis of (inter alia) their sex, sexual orientation or being or becoming, or growing up to be, a transgender person. Discrimination can be direct or indirect. Indirect discrimination occurs when a provision, criterion or practice applies to everyone but puts a person at a particular disadvantage, and it can’t be justified as a proportionate means of meeting a legitimate aim. Examples might be an inflexible school uniform rule which offers no ‘unisex’ options, or excluding children/young people from activities such as sport, swimming lessons or overnight trips because “we don’t have the right facilities for them.”

Transgender Guidance for Schools (Intercom Trust, Devon and Cornwall Police, Cornwall Council) provides useful guidance on supporting children and young people, including guidance on practical considerations such as sports and physical education, toilets and changing facilities, and issues that may be important in the context of school trips. Whilst this guidance is primarily written for schools, it is of interest to other situations such as residential children’s homes.

The guiding principle should be to listen to, respect and act upon the expressed wishes of the child/young person.

3.2 Forms of Address - "He" or "she"?

Pronouns are used in sentences where a person’s name would otherwise go. ‘He’ for male, ‘she’ for female, and ‘they’ is gender-neutral. There are specially-coined gender neutral pronouns which can be used, such as 'xe', or 'ze', but these are not universally widely known.

Using the appropriate pronouns when talking to someone who is transgender works on the basis of respect for the individual. Generally the name the person chooses to use indicates their gender preference. So, a transgender child/young person called Steve may be referred to as "he", while another called Rachel may well prefer to be "she". But if you are unsure, it's best to ask the child/young person politely how they wish to be known, and to respect their choice.

This is especially so if you suspect someone identifies as non-binary, in which case a gender-neutral term like "they" may be more appropriate.

3.3 Change of Name/Gender Identity

Whilst a person under the age of 18 cannot legally change their name without the consent of those with Parental Responsibility, a child/young person may wish to be known by a different name and/or gender, and their wishes should be accommodated and respected.

Transgender Guidance for Schools (Intercom Trust, Devon and Cornwall Police, Cornwall Council) provides useful guidance for schools on internal school procedures, changing names and gender markers, and Exam Certificates. It has been adopted as national good practice by the Department for Education.

The Court of Appeal in Bell and A -v- Tavistock and Portman NHS Trust and Others [2021] EWCA Civ 1363 held that, in relation to the use of medication to suppress puberty, children under 16 can consent provided that their treating clinician considers them to be competent to do so in accordance with the usual Gillick competency principles. (This reversed a High Court judgement which had held that it was highly unlikely that a child under 13 could give informed consent to the treatment, and very doubtful that a child aged 14 or 15 could).

Clinicians will need to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment.

The Court of Appeal recognised that applications to the court may well be appropriate in specific difficult cases, but holding that it was not appropriate to give guidance as to when such circumstances might arise.

5. Safeguarding Implications

The fact that a child has gender identity issues is not, of itself, a safeguarding issue. Such children may, however, be subject to prejudice, discrimination and misunderstanding, which can have a detrimental effect upon quality of life, and physical and mental health. In UK surveys of trans people, about half of young people report that they have attempted suicide.

Whilst gender identity issues would not generally, in isolation, necessitate safeguarding intervention, neither should they be a barrier to such intervention.

In the case of Re J (a minor) [2016] EWHC 2430 (Fam), the High Court found that a mother had caused her son ‘significant emotional harm’ in her determination that he should be a girl. The local authority considered that the case did not meet the threshold for further intervention.

Hayden J found that, during the court proceedings, ‘there developed a prevailing orthodoxy that the child identified as a girl’, despite there being no independent or supportive evidence that J identified as a girl at all. ‘It is striking that the Local Authority had moved into wholesale acceptance that J should be regarded as a girl’.

His judgment continued:

‘Transgender equality has received a great deal of attention in recent times. I believe that in this case the profile and sensitivity of the matters raised by the mother blinded a number of professionals from applying their training, skills and, it has to be said, common sense. They failed properly to investigate M's assertions, in part I suspect, because they did not wish to appear to be challenging an emerging orthodoxy in such a high profile issue……..This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm…..I am bound to say that had their concerns been given the weight that they plainly should have, it is difficult to resist the conclusion that J could have been spared a great deal of emotional harm’.

The key question in this case was whether signs of possible gender conflict genuinely originated from the child, or were solely the perception of its mother; and this underlines that where the child’s views and perceptions are at variance with the parents’ views and perceptions, the presumption has to be that the child’s own views and perceptions must always be listened to with respect and given their full weight.

Different cultures may take widely differing views of gender identity issues. Whilst some countries provide legal recognitions for a ‘third gender’, more conservative cultures may dismiss, refuse to accept or even outlaw issues related to gender identity. Children may be prevented from expressing their gender preferences, which may be detrimental to their emotional wellbeing, and may suffer discrimination, bullying and abuse. Intersex children may have unmet medical needs. In some cultures, children with gender identity issues may be ostracised from society and denied of basic human rights. In extreme cases, some, such as intersex people, may be denied the right to ‘legally exist’, for example being denied the right to a birth certificate, which in turn denies them rights to education, employment and healthcare.

Where there is a suspicion that a child may be suffering significant harm as a result of gender identity issues, then the Contacts and Referrals Procedure should be followed.