The very fact that there is uncertainty about whether it is lawful for schools to uphold the reality of biological sex indicates how complex — and ripe for reform — the tangled web of UK equalities and human rights legislation has become. But it also demonstrates how unfair it is for schools to bear the responsibility for interpreting the law in such a contested area. The buck must stop with the DfE.
And while government lawyers argue in private about the likelihood of guidance facing legal challenge, children are being harmed. It is surely the DfE’s duty to publish clear guidance without any further delay, and if this is followed by a Judicial Review then so be it.
In fact, there are potential advantages to such a legal challenge.