Trans Youth are Rights Bearers, Too—and The UK’s New Guidance on Their Education Flies in the Face of Medical and Social Science and International Human Rights Law
The United Kingdom’s Department of Education recently released new guidelines on the treatment of transgender[1] students, essentially banning social transition in schools absent direct parental permission.[2] The guidance requires schools to use students’ given names rather than their chosen names and prohibits the use of pronouns which do not align with a student’s sex assigned at birth unless parents request that the school do so.[3] These guidelines also police gendered expression such that hairstyles and clothing outside of expressive norms for the student’s sex assigned at birth may be banned, and do not allow transgender students to participate in sports or use accommodations based on gender rather than assigned sex.[4] In other words, this guidance forces transgender youth, especially those with unsupportive family members, to choose between their safety and their authenticity. These guidelines were released only one day before the conviction of two sixteen-year-olds for the murder of transgender teenager Brianna Ghey; her murderers “frequently used dehumanizing language about [her] gender and anatomy.”[5] This cruel irony underscores the importance of keeping transgender youth safe, beginning with acknowledging them as the rights bearers that they are.
Alarmingly, the guidance displays a flagrant disregard for medical and social science. It relies heavily on ideas that have become popular among right-wing politicians in recent years but have no true basis in medical science, such as social contagion theory.[6] In a legal sense, this new guidance violates the UK’s treaty obligations through the Universal Declaration on Human Rights,[7] European Convention on Human Rights (“ECHR”),[8] International Covenant on Civil and Political Rights (“ICCPR”),[9] and International Covenant on Economic, Social, and Cultural Rights,[10] namely: expression, self-determination, privacy, non-discrimination, health, and education.[11] This post will focus on the rights to expression, self-determination, and education in the ECHR and ICCPR.
All human beings have the right to free expression, and restrictions on expression are rare and only permitted in highly specific circumstances.[12] Under the ECHR, the right to expression allows for some “conditions, restrictions or penalties as… are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”[13] The UK’s new guideline limits not only physical expression such as hair styles or clothing, but also relative expression, that is, how individuals relate and refer to themselves and each other using names and pronouns.[14] Gender-based expression may actually be an excellent example of the kind of expression the ECHR would consider “information received in confidence” and therefore ripe for limitation.[15] Rather than permitting the silencing of transgender youth, the ECHR instead suggests that expression should be limited when handling sensitive information to protect those who may be made vulnerable or unsafe should that information be disclosed to certain parties.[16] This is particularly important given the rates of abuse and lack of acceptance among transgender youth, implicating public safety, protection of health, and protection of the rights of others.[17]
Expression and self-determination go hand in hand. The ICCPR guarantees the right of self-determination, defined in part as the free pursuit of one’s social and cultural development.[18] For a trans minor to choose one’s own name, to decide how they would like to be addressed, is the ultimate act of self-determination.[19] It is how they situate themselves within their community, directly linked to their social and cultural development.
The UK’s new guidance on treatment of transgender students is violative of numerous human rights and will land them squarely on the wrong side of history. Other nations considering similar guidance or legislation—including the United States—should watch carefully and heed warnings from human rights defenders about the disastrous consequences of anti-transgender policies.
August E. Naston is a staff member of Fordham International Law Journal Volume XLVII.
[1] “Transgender” means individuals who identify as a gender different from their sex assigned at birth.
[2] See United Kingdom Department of Education, Gender Questioning Children: Non-statutory guidance for schools and colleges in England (Draft for consultation), Dec. 2023.
[3] Id. at 3.
[4] Id. at 10.
[5] The guidance was published on December 19, 2023, and the verdict in Ms. Ghey’s case was handed down on December 20, 2023. The case has received extensive media coverage since her murder in early 2023. See Lauren Moss, Transgender guidance: Schools to keep parents informed, BBC, Dec. 19, 2023, https://www.bbc.com/news/uk-67754359. See also Samantha Riedel, “Two 16-Year-Olds Found Guilty of Murdering Trans Teen Brianna Ghey,” Them, Dec. 20, 2023, https://www.them.us/story/brianna-ghey-murder-trial-teen-defendants-found-guilty.
[6] See United Kingdom Department of Education, supra note 2 at 10. Social contagion, sometimes called “Rapid Onset Gender Dysphoria” (ROGD), has no scientific basis. See Melissa Jenco, Study finds no evidence of social contagion among transgender youths, American Academy of Pediatrics (AAP) News, Aug. 3, 2022, https://publications.aap.org/aapnews/news/21888/Study-finds-no-evidence-of-social-contagion-among?autologincheck=redirected.
[7] UN General Assembly, Universal Declaration on Human Rights, 217 A (III) (Dec. 10, 1948).
[8] European Court of Human Rights, European Convention on Human Rights, Europ.T.S. No. 5; 213 U.N.T.S. 221 (hereinafter “ECHR”).
[9] UN General Assembly, International Covenant on Civil and Political Rights, 999 U.N. T.S. 171 (Dec. 16, 1966) (hereinafter “ICCPR”).
[10] UN General Assembly, International Covenant on Economic, Social, and Cultural Rights, 993 U.N. T.S. 3 (Dec. 16, 1966).
[11] See Ministry of Justice, Human Rights: The UK’s international human rights obligations, Mar. 30, 2022, https://www.gov.uk/government/collections/human-rights-the-uks-international-human-rights-obligations. Notably, the United Kingdom is not a party to the Convention on the Rights of the Child.
[12] See Amnesty International, Freedom of Expression, https://www.amnesty.org/en/what-we-do/freedom-of-expression/ (last visited Jan. 7, 2024).
[13] ECHR, Art. 10.2
[14] See United Kingdom Department of Education, supra notes 2–4.
[15] “Children and young people may choose to [transition] in different ways and at different sages depending on what they feel comfortable with. Some young people may choose to this privately…” See NSPCC, What is gender identity?, https://www.nspcc.org.uk/keeping-children-safe/sex-relationships/gender-identity/ (last visited Jan. 7, 2024). See also Russell B. Toomey, Alexa Martin-Storey, Sharla Biefeld, T. Evan Smith, Supporting Trans and Non-Binary Adolescents: What Research Tells Us About Promoting Healthy Development, Society for Research on Adolescence, https://www.s-r-a.org/supporting-trans-and-non-binary-adolescents (last visited Jan. 7, 2024).
[16] “Disclosure by others (rather than the trans or non-binary adolescent) to family members may result in rejection, violence, and homelessness. Family rejection is associated with increased risk for suicidality, substance use, and depressive and anxiety symptoms.” See Russell B. Toomey et al., supra note 15.
[17] See, e.g., Andrew M. Seaman, For trans people, family rejection tied to suicide attempts, substance abuse, Reuters, May 17, 2016, https://www.reuters.com/article/idUSKCN0YI22S/. “Among the challenges faced by transgender individuals…are poverty, violence, incarceration and discrimination in housing, employment, and healthcare.” Id. Additionally, “Many (30-50%) trans and non-binary adolescents do not have supportive family members at initial disclosure.” See Russell B. Toomey et al., supra note 15.
[18] ICCPR, Art. 1.
[19] See generally, Eric A. Stanley, Gender Self-Determination, 1 TSQ: Transgender Studies Quarterly 89 (May 1, 2014). “Gender self-determination opens up space for multiple embodiments and their expressions by collectivizing the struggle against both interpersonal and state violence.” Id. at 91.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.