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Our response to the consultation on Relationships Education, Relationships and Sex Education, and Health Education in EnglandConsultation detailsTitleRelationships Education, Relationships and Sex Education, and Health Education in EnglandSource of consultationDepartment for EducationDate7 November 2018For more information please contactNameLauren PayneAddressFleetbank House, 2-6 Salisbury Square, London, EC4Y 8JXTelephone number02078327869Email addressLauren.Payne@About the Equality and Human Rights CommissionThe Equality and Human Rights Commission (the Commission) is a statutory body established under the Equality Act 2006 (EA 2006). It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. We’re here to stand up for freedom, compassion and justice in our changing times. We do it by promoting and upholding equality and human rights ideals and laws across England, Scotland and Wales. Our work is driven by a simple belief; if everyone gets a fair chance in life, we all thrive.The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited at United Nations level as an ‘A status’ national human rights institution (NHRI) in recognition of its independence, powers and performance.The Commission has been given powers by Parliament to advise Government on the equality and human rights implications of laws and proposed laws, and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.Executive summaryThe Commission welcomes the opportunity to respond to the Government’s consultation on Relationships and Sex Education and to expand on our previous submission on changes to teaching of sex and relationships education, and PSHE, in December 2017. The education system plays a vital role in establishing and reinforcing the shared values that provide the foundation for a society in which all individuals are respected and have the opportunity to flourish and there are good relations between different groups. For that reason, we advocate for a human rights approach to education. Human Rights Education (HRE) is any learning that develops the knowledge, skills and values of human rights. It includes education about human rights, through human rights and for human rights. Education about human rights improves individuals’ understanding of how they should be treated and how they should treat others as part of an open, democratic society, and the legal protections they can rely on to exercise their rights. Education through human rights is about adopting a rights-based approach to the school environment. Education for human rights encourages individuals to adopt the attitudes and behaviours of respecting, protecting and promoting human rights in their daily lives.Human rights education cuts across all subject areas. Relationships and Sex Education and Health Education cover important human rights issues, and therefore a human rights approach to these subjects is of particular importance.Children’s human rights should be protected in the terms of the Regulations and content of the guidance, and in particular those rights relating to education, physical and mental health and the fundamental principles of the best interests of the child and the right of children to participate in decisions affecting them (as set out in the UN Convention on the Rights of the Child, CRC) should shape the Regulations and guidance. Given that Relationships and Relationships and Sex Education are so fundamental to the fulfilment of children’s human rights, the Commission considers that they should be part of the national curriculum.In order to ensure the success of the guidelines under review in this consultation, the Commission recommends adequate training and resources should be provided for teachers. Our key recommendations are:Human rights education, which cuts across all subject areas including Relationships and Sex Education and Health education, should be fully embedded in the curriculum. This includes education about human rights, through human rights and for human rights. In particular, children should be taught about their human rights relating to health, education, bodily integrity, etc. A ‘school-wide’ context is most effective for the teaching of Relationships Education.Parental rights to choose how their children are educated are not absolute, and any requests for withdrawal should also respect the rights of children as set out in the UN Convention on the Rights of the Child (CRC), to receive an education (CRC Article 28), to information necessary to be healthy (Articles 17 and 24), for their best interests to be a primary consideration (Article 3), and to participate in decisions that affect them (CRC Article 12). The guidance and Regulations regulating decisions to withdraw children should reflect these rights, as well as parents’ rights. Further, certain topics should be exempt from the right to withdraw, such as: consent, sexual abuse and harassment, and sexualised bullying, grooming, sexual exploitation and domestic abuse. The teaching of Relationships and Sex Education should be evidence based and not values-based.Teaching should be inclusive of children with different protected characteristics.Our consultation responseRelationships Education Question 10. Do you agree that the content of Relationships Education in paragraphs 50-57 of the guidance is age-appropriate for primary school pupils? strongly agree agreeneither agree or disagree ?disagree strongly disagree Please briefly explain why you have given this answer.The biggest risk with ‘age-appropriateness’ of RSE is that it happens too late. Pupils need to learn about their bodies and the physical changes they will experience before they start to happen so that they can make informed judgements and maintain sexual health throughout their lives. For example, 5-7 year-old girls are most at risk of FGM – and this therefore needs to be taught clearly and openly to ensure proper safeguarding. This could happen, for example, alongside ‘personal privacy’ which is raised in paragraphs 51 and 57, where children are taught about bodily integrity and consent.The guidance should clarify how pupils should be taught to ‘recognise any less positive relationships when they encounter them’, rather than just teaching about positive relationships.Question 11. Do you agree that the content of Relationships Education as set out in paragraphs 50-57 of the guidance will provide primary school pupils with sufficient knowledge to help them have positive relationships? strongly agree agree neither agree or disagree ?disagree strongly disagree Please briefly explain why you have given this answer.Teaching about families should explicitly acknowledge different types of families to include LGBT, single parents, fostering/adoption, etc. It should also address situations where families might not be ‘safe’; i.e. issues with crime, addiction, gang membership. It should also include non-discrimination and tolerance for other people and different viewpoints.We agree with the principle that positive relationships apply as much online as they do offline and that teaching on relationships needs to address this. We support the view that ‘digital citizenship […] is critical in order to prepare children effectively for their lives online.’ The Commission considers that high-quality RelEd and RSE should include comprehensive coverage of relevant equality and human rights considerations wherever they occur, including in the online sphere. This should include what to do if they see unhealthy relationships online and offline, and how to cope with that. This as an important way for schools to advance the aims under the Public Sector Equality Duty, particularly in terms of advancing good relations between different groups of people.The Commission has recently developed resources for school leaders and teaching staff to raise their awareness of the scale and impact of bullying, especially prejudice-based bullying, and to support schools in gathering, analysing and using data to evaluate the effectiveness of their anti-bullying policies and procedures. Adoption of this approach will enable schools to better understand which groups of pupils are at risk and tailor their RelEd and RSE content accordingly.The Commission believes that the notion of “virtue”, which is values-driven, should be replaced by human rights principles such as equality, peace, tolerance, dignity and respect – both for oneself and for others. We support the view that a ‘school-wide’ approach is most effective for the teaching of Relationships Education and consider that schools should take a rights-based approach to the whole-school environment. We recommend Government should refer to Unicef’s Rights Respecting Schools Award as a way to achieve this, which provides a framework to ensure respect for human rights is embedded in school teaching and ethos in order to prevent discrimination, abuse and harassment, to foster healthy and respectful relationships, and to enable recognition and safe challenge of less positive relationships behaviours. We also welcome the reference to social action and citizenship which fits with our model of HRE: about, through and for human rights.We are concerned about the significance placed on ‘resilience’ in paragraph 56 and would encourage the Government to explore what this might mean for children and young people’s mental health and wellbeing.The Commission recommends that explicit reference is made in the RelEd curriculum to the protected characteristics and the Public Sector Equality Duty set out in the Equality Act 2010. Regarding the section on ‘differences between appropriate and inappropriate or unsafe physical, and other, contact’ (the textbox after para 57) a definition is needed for what constitutes (in)appropriate.Question 12. Do you agree that paragraphs 61-64 clearly set out the requirements on primary schools who choose to teach sex education? strongly agree agree neither agree or disagree ?disagree strongly disagreePlease briefly explain why you have given this answer. Clarification is needed on the meaning of ‘a graduated, age-appropriate programme of sex education’. We agree that consultation with parents may be required, but the rights of parents need to be balanced with the rights of the child. Ultimately, the best interests of the child must always be a primary consideration. Parental rights to choose how their children are educated are not absolute, and any requests for withdrawal should also respect the rights of children as set out in the UN Convention on the Rights of the Child (CRC), to receive an education (CRC Article 28), to information necessary to be healthy (Articles 17 and 24), for their best interests to be a primary consideration (Article 3), and to participate in decisions that affect them (CRC Article 12). Please refer to our previous submission for further information on this. CRC Article 5 provides that the responsibilities, rights and duties of the parents must be acknowledged in a way that recognises the child’s evolving capacities to make his/her own choices. The draft guidance states that schools are free to determine how they address LGBT specific content. However, the UN CRC has stated in its Concluding Observations on the UK that: ‘such education should provide age-appropriate information on […] sexuality, including that of lesbian, gay, bisexual, transgender and intersex children’. The guidance should make clear that all teaching must be LGBT-inclusive, and how this can be done. Specific guidance needs to be given on how schools should address trans issues, which are distinct from sexual orientation.Relationships and Sex Education (RSE) Question 13. Do you agree that the content of RSE in paragraphs 65-77 of the guidance is age-appropriate for secondary school pupils? strongly agree agreeneither agree or disagree ?disagree strongly disagreePlease briefly explain why you have given this answer. The biggest risk with ‘age-appropriateness’ of RSE is that it happens too late. Pupils need to learn about their bodies and the physical changes they will experience before they start to happen so that they can make informed judgements and maintain sexual health throughout their lives. For instance, a Sex Education Forum survey recently found that 24% of girls started their periods before learning about menstruation at school. Similarly, children and young people need to know about consent and coercion in relationships before they experience these things themselves. The language around ‘understanding the reasons for delaying sexual activity’ potentially enhances stigmatisation of those who are sexually active (especially young women). Secondary school aged pupils include 16 year olds who may legally have sex so it is not clear that this guidance is indeed ‘age-appropriate’. The Commission is also concerned that the use of the language on ‘virtues’ is subjective and values-driven, which risks misinterpretation.Question 14. Do you agree that the content of RSE as set out in paragraphs 65-77 of the guidance will provide secondary school pupils with sufficient knowledge to help them have positive relationships? strongly agree agree neither agree or disagree disagree ?strongly disagreePlease briefly explain why you have given this answer. As mentioned above the Commission recommends adopting human rights principles such as equality, dignity and respect, in preference to the language of ‘virtues’.We welcome the reference to ‘equal opportunity to explore the features of stable and healthy same-sex relationships’ and strongly recommend that this is retained. It may also be helpful to specify that this includes intimate same-sex relationships, marriage and civil partnership to prevent schools from only teaching about same-sex friendships, for example.It is not sufficient to say that schools ‘may’ want to address FGM – this is extremely important and must be an obligation as is addressing other harmful practices such as forced marriage. This needs to be done in a sensitive way that does not stigmatise some ethnic minorities. The guidance in paragraph 75 (referring to FGM as well as grooming, sexual exploitation and domestic abuse) should be more prescriptive and less open to interpretation. Government guidance on FGM includes withdrawal from PSHE education or its equivalent as an indicator of risk. In this context, the Commission recommends that certain topics – including consent, sexual abuse and harassment, sexualised bullying, grooming, sexual exploitation and domestic abuse – be exempt from the right to withdraw.More emphasis should be placed on the importance of online safety and how risks may be presented in different forms for example: sexting and revenge porn as well as new types of technology, given clear evidence of the risks of these trends.Teaching about pornography should also be included and not just in the context of the law as outlined in paragraph 79. It should include the distinction between what they might see in pornography and real-life, healthy relationships. There is no evidence collected on the number of young people accessing pornography in the UK, however, we can assume that with the ubiquity of smartphones young people are now far more likely to be exposed to pornography (either accidental or intentional) and therefore more detailed content is needed in the guidance. Question 15. Do you agree that paragraphs 36-46 on the right to withdraw provide sufficient clarity and advice to schools in order for them to meet the legal requirements? strongly agree agree neither agree or disagree ?disagree strongly disagree Please briefly explain why you have given this answer.We disagree with paragraph 45 which requires head teachers to automatically grant a request for a pupil to withdraw from any sex education delivered in primary schools (other than as part of the science curriculum). It is especially important that primary-aged pupils receive sex education because withdrawal from such education is a proven safeguarding risk. Therefore, the Commission recommends that, when faced with requests to withdraw, schools should be required to ask parents to state in writing their reasons for wishing to withdraw their child. The Commission considers that this could be an effective way of opening dialogue with parents and pupils, to see if their concerns can be allayed. Teachers should receive training so that they feel confident to respond to questions and reassure parents where appropriate.Withdrawal decisions should take into consideration the best interests of the child, determined in the light of the child’s wishes in line with Articles 3 and 12 of the CRC. Paragraph 41 outlines an example of best practice where the headteacher would discuss the right to withdraw with the parents and separately with the pupil, however the Commission recommends that this should be an obligation and not an example of ‘best practice’. The Government should clarify what the ‘exceptional circumstances’ are as referred to in para 43 that would allow for a school to refuse a parent’s request to withdraw the child and must keep the child’s best interests and views in mind when making a decision.DfE should require schools to gather figures on the numbers of children withdrawn (subject to Freedom of Information requirements at local and national level). Teachers should be provided with sufficient training on recognising abuse, and the risk of FGM and other harmful practices. In our most recent submission to CEDAW, we recommended that all public sector professionals receive mandatory training on how to identify and support women and girls affected by harmful practices. The Commission agrees with paragraph 44 which states that for the vast majority of pupils with SEND, their SEND should not be a consideration when deciding whether to grant a parental request for withdrawal, but in some circumstances this may be appropriate. Physical Health and Wellbeing Question 16. Do you agree that the content of physical health and wellbeing education in paragraphs 86-92 of the guidance is age-appropriate for primary schools pupils? strongly agree agree ?neither agree or disagree disagree strongly disagree Please briefly explain why you have given this answer. No further comment.Question 17. Do you agree that the content of physical health and wellbeing education as set out in paragraphs 86-92 of the guidance will provide primary school pupils with sufficient knowledge to help them lead a healthy lifestyle?strongly agree agreeneither agree or disagree disagree ?strongly disagree Please briefly explain why you have given this answer.The guidance should be viewed through a human rights lens and teaching should make direct reference to relevant rights of the child, including the right to the highest attainable standard of physical and mental health, the right to education, the right to information in relation to health, the right to physical integrity, etc.The guidance should also complement the RSE curriculum on consent, teaching pupils about their right to privacy and bodily integrity, in order to equip them with the information they need to identify abuse and get help. It could also benefit from clearer teaching about menstruation and human reproduction.Question 18. Do you agree that the content of physical health and wellbeing education in paragraphs 93-99 of the guidance is age-appropriate for secondary school pupils? strongly agree agree neither agree or disagree ?disagree strongly disagree Please briefly explain why you have given this answer.A clearer definition of ‘at appropriate points’ is needed, based on the evidence of when young people are likely to be affected by particular physical health and mental wellbeing issues, and ensuring that the teaching happens early enough to be effective. Question 19. Do you agree that the content of physical health and wellbeing education as set out in paragraphs 93-99 of the guidance will provide secondary school pupils with sufficient knowledge to help them lead a healthy lifestyle? strongly agree agree neither agree or disagree ?disagreestrongly disagree Please briefly explain why you have given this answer.The Commission considers that prejudice-based bullying should be mentioned explicitly. Certain groups of children are particularly vulnerable to being bullied, especially children with SEND. 75% of students with Autism / Asperger’s and 70% of those with a physical disability say they have been bullied compared with 50% of students with no disability. Children with SEN in England are twice as likely as other children to experience bullying all of the time. Similarly, nearly half of LGBT pupils are bullied for being LGBT at school while almost 1 in10 trans pupils are subjected to death threats at school.Para 96 should explicitly acknowledge that bullying (as a prevalent type of unhealthy relationship) if not tackled quite often leads to the self-focused and isolating lifestyles that give rise to unhappiness and disconnection from society. Para 97 should explicitly acknowledge the prevalence, characteristics and impact of bullying (especially prejudice-based bullying) alongside ‘more serious mental and physical health conditions, drugs and alcohol’. This is also an opportunity for teachers, as part of a whole-school approach, to reinforce the school’s anti-bullying policy and the value of the anti-bullying interventions that the school adopt. Para 98 should also add that details should include schools’ anti-bullying programmes and reporting mechanisms. Again as part of a whole-school approach.While the effects of bullying are covered to some degree in the expected content at primary school (para 92) this is less well covered in the expected content at secondary school. The characteristics of bullying in secondary school and young adulthood are quite different to those in primary school.Engaging with parents and the wider community Question 20. Do you agree with the approach outlined in paragraphs 36-46 on how schools should engage with parents on the subjects? strongly agree agree neither agree or disagree ?disagree strongly disagree Please briefly explain why you have given this answer. Schools must comply with the Public Sector Equality Duty when consulting with, and analysing, responses to their consultations and engagement with parents and pupils. This is to ensure that schools’ considerations take account of the diversity of the school population and does not exclude the views of groups with particular protected characteristics.Again, the right of the child to participate in decision making that affects them is important here (Article 12 of the CRC).Delivery and teaching strategies Question 21. Paragraphs 108-109 in the guidance describe the flexibility that schools would have to determine how they teach the content of their Relationships Education/RSE/Health Education. Do you agree with the outlined approach? strongly agree agreeneither agree or disagreedisagreestrongly disagree ?Please briefly explain why you have given this answer.The Commission considers that the guidance offers too much flexibility on matters where there ought to be general standards on what is considered age appropriate, set out by key stage. The guidance should also specify that the needs of children with protected characteristics should be taken into account.Whilst we agree that some flexibility may be required to meet the needs of a local community, there is a risk that this flexibility could be exploited to avoid teaching on issues or to rely heavily on one perspective – all teaching should be balanced with other considerations. Ultimately, the best interests of the child must be the priority.In addition, we would strongly argue that the ‘whole-school approach’ set out in paragraphs 106-107 would greatly benefit from being founded in the principles of HRE (education about, through and for human rights). HRE has potential benefits in terms of behaviour, inclusion, equality and diversity, and many of the other goals set out in the guidelines.SEND Question 22. Do you agree that paragraph 44 of the guidance provides clear advice on how head teachers in the exceptional circumstances will want to take the child’s SEND into account when making this decision? strongly agreeagree neither agree or disagree disagree strongly disagree ? Please briefly explain why you have given this answer. The Commission strongly disagrees that paragraph 44 provides clear guidance, there is only a reference to ‘exceptional circumstances’ with no definition, the Government should set out what these exceptional circumstance would include in an indicative list of examples.In making a decision about ‘exceptional circumstances’ under para 44, the headteacher could usefully be guided by UNCRPD 24 (to quote article 24: States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; (b) The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential; (c) Enabling persons with disabilities to participate effectively in a free society.Question 23. Do you agree that paragraphs 30-32 of the guidance provide sufficient detail about how schools can adapt the teaching and design of the subjects to make them accessible for those with SEND? strongly agree agreeneither agree or disagree ?disagree strongly disagree Please briefly explain why you have given this answer. The Commission agrees in principle with the guidance on teaching and designing subjects to make them accessible for those with SEND, however more detail is needed. Some examples would also help to illustrate this further. Evidence from across the UK indicates that disabled adult women experience a number of barriers to accessing sexual and reproductive health and information. For example, few services offer support and information about sex and relationships for people with a learning disability. Inclusion in the curriculum may go some way to addressing this gap in provision. Women and girls with learning disabilities are also disproportionately subjected to sexual violence.The Commission is concerned that the specific requirements of children with special educational needs and disabilities (SEND) are not being adequately met, as research suggests that SEND children are often left out of RelEd teaching entirely.Additionally, we are concerned that paragraph 60 should not be used to justify a failure to teach pupils with SEND. This is particularly important given that SEND pupils are much more likely to experience abuse. We agree that teaching methods should take account of developmental differences but the guidance should explicitly state that pupils with SEND should still ultimately receive the same information as all other pupils.In addressing the question of how schools can adapt the teaching and design of subjects to make them accessible for those with SEND, regard should be had to the Commission’s Technical Guidance for Schools and particularly chapter 6 which deals with the anticipatory duty to make reasonable adjustments.Statutory Guidance Question 24. Do you have any further views on the draft statutory guidance that you would like to share with the department? Do you think that the expectations of schools are clear? Please include this information in the text box below. No further comment.Draft Regulations Question 28. Do you agree that the draft regulations clearly set out the requirements on schools to teach the new subjects of Relationships Education, RSE and Health Education? strongly agreeagreeneither agree or disagree ?disagree strongly disagree Please briefly explain why you have given this answer. No further comment.Question 28 [seems to be an error with question numbering]. We are required to set out in the regulations the circumstances in which a pupil (or a pupil below a specified age) is to be excused from receiving RSE or specified elements of it. The draft regulations provide that parents have a right to request that their child be withdrawn from sex education in RSE and that this request should be granted unless, or to the extent that the headteacher considers that it should not be. Taking into account the advice to schools on how headteachers should take this decision, in paragraphs 41-46 of the guidance, do you agree that this is an appropriate and workable option? strongly agreeagree neither agree or disagree ?disagree strongly disagreePlease briefly explain why you have given this answer.Ultimately, the best interests of the child must come first. Parental rights to choose how their children are educated are not absolute, and any requests for withdrawal should also respect the rights of children (including their rights to receive an education, and their rights to participate in decisions that affect then).It is also important to note that requests for withdrawal could present a safeguarding issue, as RelEd/RSE may lead to disclosure of abuse in the home or community. Government guidance on FGM includes withdrawal from PSHE education or its equivalent as an indicator of risk. Question 29. Do you have any other views on the draft regulations that you would like to share with the department? Please include this information in the text box below.The draft regulation should refer to civil partnership, alongside marriage.Regulatory Impact Assessment Question 32. Please state in the text box below if you have any further comments on the regulatory impact assessment.The Commission considers that there is a lack of clarity about the assessment procedure for monitoring schools’ implementation of the guidelines under consideration in this consultation. If there are underlying concerns about the quality of current teaching then there is a strong case for an assessment process for schools i.e. the teaching of these subjects needs to be monitored by Ofsted and should count towards a school’s overall rating.The proposals are of particular relevance to equality of opportunity as well as good relations for pupils sharing different protected characteristics; in particular sex, sexual orientation, gender reassignment, disability, race and religion/belief. The Department has a statutory duty to consider the impact of its proposals on these group and therefore we consider that this should be included in the impact assessment. ................
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