Sector bodies have sounded the alarm in their responses to a consultation on the government’s , which closed this week. Concerns included that guidance breaks the law, does not align with safeguarding duties, conflicts with the responsibility on leaders to act in a child鈥檚 best interests and does not help staff deal with practical issues. Here’s our round up of everything you need to know. Schools need legal backing As revealed by Schools Week, the government鈥檚 own lawyers said schools faced a 鈥渉igh risk鈥 of successful legal challenges if they followed several elements of the . Trans guidance: DfE lawyers said schools face ‘high risk’ of being sued The NASUWT teachers鈥 union, , said trust in the 鈥渓egality of the draft guidance will remain low鈥 until ministers can 鈥減rovide more convincing evidence that it reflects the best possible understanding of the legal position鈥. As the proposed guidance is non-statutory, NASUWT added it 鈥渄oes not provide protection鈥 from legal cases against those 鈥渨ho believe that their statutory or regulatory rights have been breached鈥. NASUWT, the Association of School and College Leaders (ASCL) and the school leaders鈥 union NAHT, also said the guidance does not fully align with equalities legislation and the Keeping Children Safe in Education safeguarding duties that schools must follow. Julie McCulloch, ASCL’s director of policy, said if government 鈥渃annot provide assurance that schools and colleges will not be leaving themselves open to legal challenge by following this guidance, then the government itself must commit to taking on any legal challenges that arise against schools.鈥 In child鈥檚 best interests? Leora Cruddas, chief executive of the Confederation of School Trusts, said the guidance covered a 鈥渟ensitive area, and it is important that we get it right so that our young people are safe and well-supported鈥. But the body is in talks with the Department for Education about 鈥渢he relationship of this draft guidance with statutory guidance, most crucially on safeguarding. 鈥淲e feel it is important that a child-centred approach based on individual circumstances is put at the centre of decision-making.” NASUWT added the need for schools to act in the best interest of children 鈥渦nderpins some of the most important legal obligations place on them, particularly those related to child protection and safeguarding鈥 鈥 but said the guidance conflicts with those. The NAHT, which added it was a 鈥渟ignificant oversight for consideration of the mental health and well-being of children and young people, not to be one of the overarching principles鈥. ASCL, , also highlighted 鈥渃onfusion and concern鈥 around how the guidance applies to youngsters of different ages. For instance, the union pointed out guidance said requests to transition from primary school pupils 鈥渟hould be treated with greater caution鈥, but then adds such children 鈥渟hould not have different pronouns鈥 used 鈥 which implies 鈥渢his key aspect of social transitioning should never be permitted鈥. Doesn鈥檛 help with practical issues Dr Patrick Roach, general secretary of NASUWT, added the guidance 鈥渇ails to provide effective support on practical issues that schools and colleges may face, including on working with children who have already transitioned with the support of their families鈥. Both ASCL and NASUWT highlighted that the guidance does not provide support for children who have already transitioned. Dr Patrick Roach Concerns were also raised about the proposed notion of 鈥渨atchful waiting鈥 in cases where schools may wish to accommodate 鈥渄egrees of social transition鈥. NASUWT said this would “appear to be of little practical assistance in supporting decision-making”. “Specifically, the guidance does not set out what schools and colleges should watch for, nor does it help them to determine a reasonable duration within which they should watch and wait in particular cases.” ASCL also highlighted the expectation put on schools to 鈥渕ake decisions before a pupil is permitted to socially transition which, in our view, require clinical expertise鈥. Meanwhile on parents, NASUWT added: 鈥淭he guidance is silent on the most effective ways of working with parents who are supportive of their child鈥檚 decisions.鈥 So what should happen now? Unions agreed that having guidance was a helpful step. But the NAHT said it was 鈥essential鈥 government 鈥渞elease any legal review they receive on the final guidance, and be explicit throughout the guidance, any areas which may, despite best efforts for clarity, remain legally ambiguous, and which may pose a legal risk to schools, in order that they can obtain their own legal advice鈥. Roach said he wanted the draft guidance withdrawn and replaced with guidance that allowed schools to 鈥渁ct with confidence in what is a complex and sensitive aspect of their work鈥. Any revisions should be made after 鈥渇ull consultation鈥 with the sector. The NAHT added the final guidance must be 鈥渇ocused solely on clarifying operational and practical issues, such as access to single-sex spaces and admissions registers鈥, which is at the minute lacking. Guidance should also be accompanied by training, support and resources for schools. ASCL acknowledged the guidance was an 鈥渋mportant and necessary piece of work on a sensitive, complex and contentious issue鈥. But the union flagged 鈥渋ncreasing concern鈥 on a wider issue of 鈥済overnment by expectation”. “Across a wide range of issues, the government now sets expectations for action by schools and colleges through non-statutory guidance, rather than clarifying and codifying the changes they wish to see in legislation. 鈥淭his is creating significant confusion, unhelpfully blurring the lines between what schools and colleges are legally required to do, and what the government of the day would simply like them to do鈥 More clarity on this is required.鈥