Conservative Christian parents Sally and Nigel Rowe have again made headlines, with the announcement of their intention to bring a judicial review action against the Department of Education. The Rowes argue that the Ministry ought to have intervened to challenge the guidelines which Cornwall have provided in relation to transgender issues in schools, as they claim that the material in question is damaging, and that it should be replaced with an alternative that “protects children from partisan materials that lead them down a road of irreversible harm”.
The Rowes removed both of their sons from the state education system, because one of their sons had been in the same class as a transgender pupil at his Church of England primary school. They had claimed that their son was confused at seeing a friend who had previously been a boy identify as a girl, and feared that he would be disciplined for asking questions.
It is undeniable that the recognition and management of gender dysphoria in children and young people is a complex and sensitive area, and this latest announcement from the Rowes comes hot on the heels of a ruling by the Court of Appeal in Bell v Tavistock, overturning a decision by the High Court which had questioned the capacity of under-16s to consent to taking puberty blocking drugs. It would be helpful to remember that in English law, a young person may make independent decisions about medical treatment if they are “Gillick competent”, in order words, if they understand the implications of the choices in front of them and are able to assess the benefits and risks involved. The appeal court affirmed that this test applies to a decision on puberty blockers, as to other situations, and that doctors should be permitted to make a professional judgement as to whether a particular child had sufficient understanding to give consent.
Nevertheless, it is key to emphasize that the issues raised in Bell v Tavistock are very different from those at the heart of the Rowes’ stated concerns. Significantly, in Bell v Tavistock, the courts were addressing the capacity of young people to consent to clinical interventions with serious physiological and psychological interventions. The High Court ruling, which had linked capacity, or a probable lack thereof, to chronological age, was found to be inappropriate by the Court of Appeal, which affirmed the orthodox requirement for an individual determination to be made instead.
In stark contrast, the Rowes are challenging guidance for schools. Their worry is not that a young person might be allowed to accept drugs without fully comprehending the long-term effects, but doubt is being cast on the appropriateness of a school respecting and supporting the determination which a young person, their parents and doctors have made about their current needs and identity. Furthermore, in this mindset, the purported rights and interests of third parties are being brought into the mix, all from the explicitly stated position of gender identity being immutable, God-given and inextricably linked with biological sex.
It is worth remembering that the original complaint of the Rowes related to their son having to occupy the same social space as a transgender child, and the truth is that there was never any evidence that the school would have punished the Rowes’ son for being curious, rather than simply answering his questions in an age-appropriate way. The school had a duty to meet the needs of the other pupil, and were not in any way compromising the objective needs of the Rowes’ son, and although the situation might, in fairness, have raised some complicated questions for this couple to answer over the dinner-table, this is part and parcel of embracing beliefs and values which are distinct from those of other people in society. To put it simply, this is the inevitable consequence of living in a community, and all parents, at some time or another, have to help their children navigate interactions with those whose viewpoint, experience or values differ from their own. Families with religious convictions opposing same-sex unions cannot airbrush openly gay people out of existence, whilst vegan parents who keep hens as pets might have to help their children deal with the reality of their friends eating chicken sandwiches. Facing these conversations can be challenging, but most parents succeed in explaining the value of respect, and the possibility of being friends with others, even if they disagree with them about some things which they consider crucial.
There is medical and social debate about how best to support children and young people with questions around their own gender identity, but the assessment of what is best for an individual child has to be made by their family and any medical team involved. Of course, where there are concerns that the family are not meeting a young person’s needs, then the school must refer to appropriate statutory agencies and support, but subject to this, schools have to accept the pupils as they present themselves. The Rowes’ complaint appears to be suggesting that Cornish schools are creating a situation, rather than responding to the reality of pupils coming through their doors, and it seems that their root of their objection is accepting the existence of transgender people at all. Being this the case, it is unlikely that any policy compliant with the Human Rights Act 1998 and the Equality Act 2010 would satisfy them.
Related Articles
Isle of Wight Parents Sue Government over Trans Uniform Row Isle of Wight Radio (15/10/21)
Bell v Tavistock [2021] EWCA Civ 1363
Appeal Court Overturns UK puberty blockers ruling for under 16s The Guardian (17/9/21)
