A template response letter for Schools being harassed by Mermaids

Mermaids are ignoring their own safeguarding investigation to hassle put upon head teachers with bogus legal threats

Dear Parent,

Introduction

1. Thank you for your letter of [date], the contents of which we note. We naturally take very seriously any matters of discrimination contrary to the Equality Act or safeguarding issues, both of which are raised in your letter. You will appreciate schools generally are in the difficult position of having to balance the rights of all pupils in the context of an often challenging debate around trans-identifying pupils. Our priority is to safeguard our pupils and protect them from discrimination, and also to resist attempts by third sector organisations to target schools by way of political campaigns.

2. We note that the structure, phrasing and legal approach of your letter suggest that it is a modified campaign letter originating from “Mermaids” (Charity number: 1160575) which makes such templates available at the web address https://bit.ly/47Tq05X. This entity is currently subject to a regulatory alert by the Charity Commission following serious allegations connected to safeguarding duties. We note it advertises the template letter as having been drafted by a firm of solicitors, which we find surprising given we consider that the points of law raised in the letter are partisan, misleading and an overstatement of the political position advanced by Mermaids.

Serious instances of misstatements of the law in your template letter

3. We are surprised any firm of solicitors might draft a letter which describes relying on government guidance as an instance of a school having “prematurely relied on the draft, non-statutory Department for Education guidance” or the (unjustified) opinion to the effect that “It is difficult to see how the school can therefore currently rely on it in any capacity”. The vast majority of the relevant draft guidance is based on existing statutory obligations applicable to schools and does no more than replicate and explain existing legal duties. It is therefore unusual for a firm of solicitors to encourage wholesale disregard of the guidance instead of isolating a particular passage to which objection is taken and setting out the legal basis for such an objection.

4. In context, we conclude the term “non statutory” is deployed in this template letter to undermine the draft guidance. This is disreputable and misleading because almost all government departmental guidance is issued in a non statutory form, indeed it would be unusual for guidance to take the form of a statute.

5. We note page one of the template letter references pronoun use and we therefore suspect the true intent of these campaigning letters is to mislead schools into believing that social transition is a legal obligation given the general encouragement to disregard departmental guidance. To the extent that this template letter is designed to give the impression that schools have a legal duty to facilitate social transition, we can only respond that this is flatly not the case. The draft guidance reflects the conclusions of Dr. Hilary Cass’ interim review that such measures constitute non neutral interventions and schools are under a duty to consider the rights of all pupils in this context.

Statements apt to mislead regarding the 2010 Equality Act

6. The template letter contains material regarding the Equality Act 2010 which we consider features glaring omissions relevant to schools and thus capable of misleading a reader. The protected characteristic of gender reassignment is a protection at law against various detriments on that basis, it is not a legal entitlement to be treated as the opposite sex. Following the case of Green v Secretary of State for Justice sex in law is biological sex other than where a person obtains a gender recognition certificate, such certificates are unavailable to those under 18.

7. The mention of the Equality Act provisions in this template letter should be read in the context of (i.) an example demand that the school comply with pronoun usage on page 1 and (ii.) a further example demand that a pupil participate in mixed sex sporting activities. We consider the mention of the Equality Act in these terms and in this context to be potentially misleading. The mixed sex sports example is particularly concerning given the clear requirement for single sex provision in Schools Premises Regulations at part 4 (2) onwards.

8. We note that safeguarding and data protection are mentioned briefly without any indication of how that might be relevant to the substance of the template letter.

Onerous and litigious demands contained in the heading “Action the school is expected to take”

9. We note the template letter says that it aims to “assist the school in ensuring it acts in accordance with their legal obligations”, yet nowhere in the letter are any specific legal obligations cited. We consider this unjustified, it is not open to a reputable firm of solicitors to imply that a school is failing in a legal duty without adequately identifying the legal basis for such a serious suggestion. It is further invidious for the school to speculate what possible complaint might lie behind such a suggestion, beyond the obvious campaigning objectives of this template letter.

10. We suspect the requests contained at point one and two on the fourth page of the draft letter are entirely designed to generate material from which a speculative legal action might be mounted or further campaigning correspondence advanced. These are not reasonable requests. If the school is said to be acting in a manner inconsistent with the law it is incumbent on legal representatives to identify such a basis rather than generally imply this might be the case.

Conclusion

11. Schools are under enormous pressure generally and face a challenging moment in respect of the debate around gender, they rightly look to the Department for Education for guidance on such matters. This guidance is developed alongside government lawyers and is developed such that it is consistent with statutory duties, many of which it repeats. The school will therefore follow the draft guidance until such point as campaigning template letters such as this identify a proper basis for suggesting the school is acting in a manner inconsistent with the law. Given our other duties and our available resources, we regret that Mermaids regards schools as a suitable target for campaigns such as this and encourage them to simply engage with the open consultation and ongoing Charity Commission safeguarding investigation.

    Yours Faithfully,

    The school