Preventing foreseeable harm

The UK Attorney General lays out a safer pathway for New Zealand schools to follow

Photo by CDC on Unsplash

Disclaimer: I am not a lawyer and this article is not legal advice. Insofar as this article includes my attempts to understand some complex legal issues, its main purpose is to raise questions that need to be considered by school authorities rather than provide answers.

Many New Zealand parents are deeply concerned about the direction our Ministry of Education has recently taken. Influenced by gender activists, the Ministry is suggesting that schools facilitate the social transition of children without parental consent (social transition is treating children as if they were the opposite sex). The Ministry also recommends resources that teach students controversial and potentially harmful theories about gender identity.

In a recent keynote speech, UK Attorney General Suella Braverman strongly rejected the types of policies and instruction advocated by our Ministry of Education. She warned that UK schools may be legally liable for the medical consequences of these policies. This is a significant step forward. The UK has provided a safer pathway for our schools, and future Governments, to follow.

If you need to raise concerns about your school’s policies or instruction on gender, you can now say something like, “I think we need to take a more cautious approach, as strongly recommended in the UK Attorney General’s guidance for schools”. This may not achieve instant agreement, but it will make it very hard for your school to dismiss your concerns as baseless or fringe.

Ms Braverman’s comments follow a highly critical independent review of the UK’s gender clinic for children, which is now being closed down and sued for criminal negligence. Her comments suggest that UK schools could likewise be held legally accountable if their policies are found to have damaged the health of children.

Given the parallels between UK and New Zealand law, Ms Braverman’s comments raise an obvious question. Could New Zealand Boards of Trustees, principals, teachers, and even the Ministry of Education itself, one day be held legally responsible for the health damage caused by ‘gender affirming’ school policies?

In New Zealand, school boards and teachers are legally responsible for ensuring the health and safety of students. As law firm Rainey Collins explains:

The Board of Trustees must take all practicable steps to ensure that:

• A safe physical and emotional environment is provided for students;

• No employee harms any student by act or omission; and

• No harm is caused to staff, students or other visitors.

…

Teachers or other supervising staff can be personally liable and for their own negligence even face criminal charges. This may happen if the teacher is found to have both:

• Failed to discharge their general duty to take reasonable care; and

• Known that their action or inaction would endanger the life or safety of another person.

These legal responsibilities have been enforced, and it is wise for schools to take them seriously. For example, in one recent incident, following the death by drowning of a student, a school avoided prosecution by WorkSafe only by agreeing to an ‘enforceable undertaking’ that included significant compensation to the family and cost an estimated $266,217 to comply with.

This should worry schools that implement ‘gender affirming‘ practices. Based on what we now know, it’s reasonable to expect that these practices will lead some students to engage in breast binding, take puberty blockers and/or cross-sex hormones, and eventually seek double mastectomies. Some of these students will suffer cracked ribs, costochondritis, infertility, and chronic pain. Some of them will regret gender transition. These impacts certainly seem to fit the definition of foreseeable harm.

Unfortunately, it appears that the Ministry of Education has not sought legal advice on several key aspects of its gender affirming policies, so the legal risks they pose for schools are unclear. For example, in a recent Official Information Act response, the Ministry acknowledges that it has not sought legal advice on the question:

What is the risk of litigation to schools and teachers if they change a child’s name and pronouns or engage in other social transitioning steps, without the parents’ explicit consent?

As the Resist Gender Education website explains, since gender affirming practices are so new, New Zealand law in this area remains relatively undeveloped. We will probably not have a definitive understanding of the relevant legal risks until the first parent sues the first school. Since I’m not a lawyer, I will leave others with greater legal expertise than I have to further explore whether the legal risks of gender affirmation in New Zealand might parallel those highlighted by Ms Braverman in the UK. 

Ms Braverman suggests a practical policy that schools can implement to reduce the legal risks of facilitating social transition. She recommends that schools should only ever socially transition students with parental consent, and on the advice of a clinical professional. Given the potentially serious consequences of social transition, this seems like a reasonable minimum standard. In my view, it is safest and most ethical to avoid the social transition of children altogether, but at least these steps are likely to provide some legal protection to the school.

Below, I contrast the UK Attorney General’s guidance with the recommendations provided directly or indirectly by our Ministry of Education. Some of these recommendations are contained in the booklet Creating rainbow-inclusive school policies and procedures. This booklet was written by the activist group InsideOut, but is currently recommended to schools on the Ministry of Education website. Of these guidelines, in my view the UK Attorney General’s recommendations are by far the most ethical and prudent. They are also a sign of the types of policies we can perhaps expect from future governments that are less in thrall to gender ideology.

Here’s what these guidelines have to say on selected topics, along with additional information where especially relevant.

Facilitating the social transition of children

InsideOut

Students can have various reasons for using a name and/or pronoun that differs from those assigned to them at birth. For some trans and gender diverse students, changing their name or pronoun is an important part of their transition. 

Using a student’s chosen name and pronouns shows respect for and acknowledges their self-determination... Legally, there is no minimum age at which a young person can request to change their personal information... The school’s primary responsibility is student safety, which includes affirming their gender and supporting them to make informed decisions.

UK Attorney General

Yes, it can be lawful for schools to refuse to use the preferred opposite-sex pronouns of a child... As set out in the interim Cass report, this is ‘social transitioning’ and is not a neutral act. It is a serious intervention and should only be done upon the advice of an independent medical practitioner. Furthermore, schools and teachers who socially transition a child without the knowledge or consent of parents or without medical advice increase their exposure to a negligence claim for breach of their duty of care to that child.

A note on false justifications for social transition 

As noted above, the InsideOut booklet asserts that “student safety… includes affirming their gender”. This assertion is based on the false and manipulative claim that gender transition is necessary to prevent child suicide. In reality, two recent high-quality studies have found that social transition has no significant mental health benefits. There is very little evidence that even medical gender transition reduces long-term suicide risk. Moreover, it is incorrect to imply that gender-questioning children have a fixed gender identity that needs to be affirmed, since most will grow comfortable with their natal sex over time if left alone by activists. In line with this evidence, the UK National Health Service recently drafted new guidelines that discourage the social transition of children.

Facilitating social transition without parental consent

InsideOut

Regardless of which kind of change a student would like to make, it’s essential that schools check with the student whether they have told their parents/whānau about their change of name, pronoun, or gender marker. This is an issue of safety because the student may not have support at home for such changes to be made... As such, where a student has specifically requested that their personal information, in this case their self-determined name, pronouns and/or gender, is not disclosed to their parents/whānau, then the school should respect the student’s request.

UK Attorney General

Schools have a duty of care in relation to the health, safety and welfare of their children and they risk breaching this duty when they encourage and facilitate a child’s social transition as a blanket policy; or take the decision to do so without medical advice. Given the emerging nature of the evidence and the fact that even clinical professionals find it challenging to know whether transition is the right path for a child, it is not reasonable or fair for teachers to have to make this onerous decision alone. This is a decision that can have lifelong and profound consequences for the child.

This is particularly so when the child is harmed as a consequence, especially if social transition were to lead subsequently to binding, or medical or surgical procedures, and even more so if done without the knowledge or consent of the child’s parents.

To emphasise again, before going ahead with social transition, schools should get the best multi-disciplinary team around the table – including clinical professionals – and parents. In children’s healthcare the legal presumption is that parents act in the best interests of their children, until and unless there are strong grounds to suggest otherwise. There is no other situation where a school would make a significant life changing decision about a child without involving the parents – these children should not be treated any differently.

Your legal rights in New Zealand 

The Resist Gender Education website says they have received advice that New Zealand schools do have a legal right to inform parents that a child wishes to socially transition:

When schools endorse social transition without explicit parental consent, they are depriving parents of the opportunity to fulfil their responsibilities under the Care of Children Act 2004 to determine the medical treatment of their child. 

We have received legal advice that confirms that, under the Education Act, principals are expected to inform parents of any matters that in the principal’s opinion “are preventing or slowing the student’s progress... (or) harming the student’s relationships with teachers or other students.”

…

In the absence of case law, whether or not you will be informed about your child socially transitioning at school wholly depends on the principal’s ideological view and the age of your child. If the principal is fully supportive of organisations like InsideOUT and follows its advice, you will not be informed. InsideOUT incorrectly asserts that schools are obliged by the Privacy Act not to tell parents…

Instructing children on gender identity

Ministry of Education & Family Planning 

The Ministry document RELATIONSHIPS AND SEXUALITY EDUCATION: A GUIDE FOR TEACHERS, LEADERS, AND BOARDS OF TRUSTEES YEARS 1–8 suggests that at curriculum Level Two (approximately Years 3 and 4), a key learning objective should be for students to:

Understand the difference between gender and sex, and know that there are diverse gender and sexual identities in society.

This learning objective may sound relatively benign, but unfortunately much of the currently-available teaching material on these topics is very worrying. For example, as I recently documented, the Ministry directly recommends an instructional video called Trans 101 that teaches students that feeling uncomfortable with sex stereotypes is a sign of being transgender. Similarly, a popular Relationships and Sexuality Education resource supplied by Family Planning recommends a book for young children called Who are you? This book includes a movable wheel that invites children to choose from a long list of gender identity options, including “trans”, “genderqueer”, “transgender”, “neutrois”, and “sometimes a girl and sometimes a boy”.

UK Attorney General

In my view, a primary school where they are teaching Year 4 pupils, aged eight and nine, ‘key words’ such as transgender, pansexual, asexual, gender expression, intersex, gender fluid, gender dysphoria, questioning or queer, would be falling foul of government guidance. Nor is it age-appropriate to teach 4 year olds that people can change sex or gender...

In these instances, schools – who may be well-intentioned but misinformed – are breaching their duty of impartiality and indoctrinating children into a one-sided and controversial view of gender. Age appropriateness is the critical factor, the younger the child and the more simplified the explanation, the greater the risk that schools won’t achieve the right balance.

Further, no child should be made to fear punishment or disadvantage for questioning what they are being taught, or refusing to adopt a preferred pronoun for a gender questioning child, or complaining about a gender questioning child using their toilets or changing rooms, or refusing to take part in activities promoted by Stonewall or other such organisations. The right to freedom of belief, thought, conscience and speech must be protected.

Ms Braverman’s words deserve to be heard, or read, by every school board and principal in this country.

What can I do about this issue?

New Zealand schools operate with considerable autonomy, and your school’s Board and teachers have significant power to choose what approach to take to gender instruction. The Ministry’s guidance for schools states (emphasis added):

RSE is situated in the New Zealand Curriculum within health education, in the Health and Physical Education learning area. This means that it is mandatory for schools to deliver RSE until the end of year 10. The New Zealand Curriculum is a flexible, non-prescribed curriculum. This means that schools are free to use resources and contexts to enact the curriculum in a way that suits their local context. Across years 1–10, ākonga should have the opportunity to experience learning across the key areas of learning (of which “sexuality education” is one) and the achievement objectives that comprise Health and Physical Education. The key learning tables in the RSE guide provide ideas for possible learning at each curriculum level.

Additionally, the guidance mandates that a school Board of Trustees must consult with the school community about the RSE curriculum at least once every two years (emphasis added):

The purpose of the consultation is to inform the school community about the content of the health curriculum; and ascertain the wishes of the school community regarding the way in which the health curriculum should be implemented given the views, beliefs, and customs of the members of that community; and determine, in broad terms, the health education needs of the students at the school.

These statements make it clear that while RSE is compulsory, your school has a responsibility to deliver that instruction in a way that responds to the needs of your school community. Your school community therefore has the right to insist that its RSE programme is science-based and avoids putting children at unnecessary risk. This means rejecting books and resources that teach gender identity theory or promote medical transition.

The most egregious cases of damaging practices at schools are often driven by a few activist teachers. You can stop this from happening if you monitor what’s happening in your school and take action if needed. By getting involved in your children’s school, and encouraging other moderate parents to do the same, you have the opportunity to guide your school board, principal, and teachers towards a better, safer path.

New Zealand parents can find information on how to ask schools to exempt their children from lessons that encourage trans identification here.

Ms Braverman’s comments are summarised by science teacher and trans woman Debbie Hayton in an article subtitled, “The Attorney General has sent a powerful warning to schools”, which is well worth reading and sharing.