The gaping hole in KCSIE.

The gaping hole in KCSIE.

How the Schools Guidance brought into force on 1 st September 2026 fails trans children, parents and schools.

Horrendous stories are now emerging of trans pupils who had been accepted and nourished by their schools for years being called in by head teachers this autumn to be told that their protected characteristic can no longer be accepted and accommodated, and new arrangements have to be put in place which “out” them and reduce or make impossible their participation in school life.

How can that be?

The culprit is the 2026 version of the statutory guidance ‘Keeping Children Safe in Education’ (‘KCSIE ’, often pronounced ‘Casey’) published in August 2026 by the Department for Education and brought into force on 1 September 2026. I will refer to it as ‘KCSIE26’.

Some definitions.

In this article I refer to ‘trans’ individuals. In applying that epithet, I mean individuals with the protected characteristic of gender reassignment as defined by s7 of the Equality Act 2010, which we will come to. By ‘children’ and ‘child’ I mean persons under the age of 18 and by ‘adult’ those aged 18 or over. KCSIE26 uses the term ‘gender-questioning child’.

This is nowhere defined in KCSIE26, but originates from the 2023 publication by the Department of Education ‘Gender Questioning Children’ which was a draft for consultation and had to be so in the pre ‘For Women Scotland v Scottish Ministers’ days, as however red in tooth and claw the anti-trans voices were in the dying days of the Conservative Government, this could not be got past the law officers as statutory guidance, as they, no doubt, recognised its’ horrendous consequences for trans children. It is to be noted that CQC23 is jointly signed by Kemi Badenoch, then Minister for Women and Equalities, something of an oxymoron. GQC23 includes the following:

Gender Questioning: is a broad term that might describe children and young people who are asking questions about their biological sex and perceived gender identity.

The ideological nature of GQC23 appears again and again but is clearly illustrated by the section on pronouns. It states that Primary School children should have only biological sex pronouns used about them, and before older children have gender-correct pronouns used ‘schools and colleges should exhaust all other options, such as using first names’ and ‘make sure that ‘all relevant staff’ are aware of a gender questioning child’s biological sex’. GQC23 makes several references to gender identity as a ‘contested ideology’ and a ‘contested belief’. Nowhere in GQC23 is the protected characteristic of gender reassignment referred to. It is clearly an anti-trans ideological document.

But can children have the protected characteristic of gender reassignment?

They certainly can.

The protected characteristic is defined in section 7 of the Equality Act 2010 thus: ‘A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other aspects of sex.’

And section 212 includes: ‘man’ means a male of any age. ‘woman’ means a female of any age. ‘Other aspects of sex’ (setting aside the logical difficulties created by the absurd For Women Scotland judgment) have long been taken to include matters such and name, pronoun and style of dress, hairstyle etc.

The section 212 definitions were put there to make drafting straightforward in an Act which dealt with education, sport and other areas of life where children might be expected to participate to avoid having to include ‘man includes boy’ and the like, repetitively. An important aspect of section 7 is ‘proposing, is undergoing or has undergone’. So there has to be some prior substance to the changes, or a clearly expressed intention to make them.

It will be seen this is entirely different from ‘gender questioning’. Many trans people (of whatever age) go through a period of questioning their gender and then come to a decision to proceed with reassignment. That is also true of some children, and in some cases from an early age.

So, back to KCSIE26.

The only reference to gender reassignment is in a list of protected characteristics in the general section on the Equality Act 2010 (paras 90 to 92). There is no mention that children can have the protected characteristic, and, as a likely echo from GQC23, KCSIE26 uses the term ‘gender-questioning child’ (e.g., paragraphs 109 and 115).

Fortunately, the horrendous section on pronouns has not been carried forward from GQC23 but, arguably, there is no guidance in KCSIE26 on when a child has the protected characteristic of gender reassignment and how to accommodate their needs, rather than how to exclude them.

Take the pronoun example. Singling out a trans child to refer to them only by a first name, or to use the rejected pronoun, would almost certainly, if it were done repeatedly or deliberately, be unlawful discrimination.

Why is that guidance not given in KCSIE26?

If trans pupils are to be excluded from changing rooms and toilets, how is their dignity, safety and privacy to be protected?

It will be interesting to see what litigation flows hereafter. Whether this failing comes from a continuation of the previous administration’s active anti-trans stance, or through political cowardice, matters not. The result is the same. The present Labour administration could do so much to right this wrong and is not doing so.

Robin Moira White
8 October 2026.