New Policy Analysis Paper Protect and Teach CIC – Policy Analysis Paper No. 3
The Equality and Human Rights Commission’s Draft Technical Guidance for Schools (England): A Critical Policy and Legal Analysis
Protect and Teach’s Response to the Equality and Human Rights Commission’s 2026 Public Consultation
Category: Publications | Policy Analysis Paper | Position Statement
Published: July 2026
Overview
Protect and Teach CIC has published a detailed independent legal and policy analysis of the Equality and Human Rights Commission’s draft Technical Guidance for Schools in England.
The paper examines whether the draft accurately reflects the Equality Act 2010 (as clarified by the Supreme Court in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16), the School Premises (England) Regulations 2012, and the statutory safeguarding duties in Keeping Children Safe in Education (2026).
Key Points
- The draft correctly states that sex means biological sex and that single-sex sleeping accommodation is required. These strengths should be retained.
- Several practical examples currently frame ordinary sex-based rules on facilities, uniform, admissions and boarding as potentially unlawful gender-reassignment discrimination.
- Sexual orientation and gender reassignment are repeatedly conflated.
- The guidance does not yet give clear enough advice on balancing competing protected characteristics under the Public Sector Equality Duty or on aligning with KCSIE 2026’s cautious, parent-involved approach to social transition.
- Accurate recording of biological sex is essential for safeguarding and must be explicitly supported.
Our Recommendations
The final guidance should:
- State clearly that single-sex provision based on biological sex is lawful and justified
- Remove or rewrite examples that treat sex-based rules as presumptive discrimination
- Keep sexual orientation and gender reassignment distinct
- Align fully with KCSIE 2026
- Provide practical decision-making frameworks that prioritise the safety, privacy and dignity of all pupils
The paper also includes ready-to-adapt model answers for the main free-text consultation questions to assist other respondents.
Protect and Teach’s Position
Protect and Teach considers that schools must be able to protect pupils on the basis of biological sex where sex-based provision is lawful, justified and necessary to protect privacy, dignity, safeguarding and the proper functioning of education.
Protect and Teach does not consider that protection from discrimination because of gender reassignment automatically requires schools to provide access to facilities, accommodation, admissions arrangements, sports categories or other provision based on gender identity rather than biological sex.
Protect and Teach further considers that sexual orientation and gender reassignment are distinct protected characteristics and should not be conflated in school policies, examples of positive action, anti-bullying approaches or external educational provision.
The purpose of this paper is not to prescribe a single operational policy for every school. It is to explain Protect and Teach’s analysis of the EHRC draft guidance and to identify areas where the organisation considers that the final guidance should be clearer, more legally coherent and more protective of all pupils.
Respond to the consultation (closes 11:59 pm on 30 September 2026)
Official consultation page:
https://www.equalityhumanrights.com/guidance/technical-guidance-schools-consultation
England-specific survey and guidance:
https://www.equalityhumanrights.com/guidance/technical-guidance-schools-consultation/schools-england-technical-guidance-consultation
Chapter 6 (of The Full Paper): Protect and Teach Recommendations: A Practical Guide for Consultation Respondents
Ready-to-adapt Model Answers:
Note to readers
The recommendations and model answers in this paper are offered as constructive suggestions only. We strongly encourage everyone to read the full draft guidance themselves and submit their own evidence-based responses.
Protect and Teach CIC
Guardians at the Gate
Company Number: 17355556