Sutcliffe v Secretary of State for Education – Teaching ban upheld for teacher who deliberately misgendered a transgender pupil and outed him on national television.
The case of Sutcliffe v Secretary of State for Education derives from the outcome of a professional conduct panel held by the Teaching Regulation Agency. The High Court of Justice held that a teacher’s rights under Articles 9 and 10 of the European Convention on Human Rights (ECHR) must be balanced against professional responsibility.
Facts of the case
The appellant was a teacher and evangelical Christian. He held strong views rooted in his faith about gender identity and homosexuality. The appellant taught a pupil whose assigned sex at birth was female but who presented as male and used the pronouns “he/him”, and who had only ever been known as male at the school. The allegations found proven by the professional conduct panel included deliberately using female pronouns to refer to the transgender male pupil, both in the classroom and on the television breakfast show ‘This Morning’, without regard to the pupil who suffered serious distress. He also told his class that homosexuality was a sin, showing no regard for gay and lesbian children in his class.
The Teaching Regulation Agency subsequently held that the appellant had failed to comply with Teachers’ Standards. The professional conduct panel found that the appellant had failed to treat the pupil with dignity and respect. The appellant was found guilty of unacceptable professional conduct. It was recommended to the Secretary of State that the appellant should be prohibited from teaching for a minimum of two years.
The High Court’s decision
The High Court rejected the appellant’s appeal, in which he claimed the prohibition was an unjustified interference of his ECHR rights. No fault was found in the professional conduct panel’s findings, including that a prohibition order was necessary and proportionate.
The High Court observed that the appellant’s freedom of thought, conscience and religion was protected by Article 9 of the ECHR, and his right to express his opinions by Article 10. However, these were qualified rights, which require a balance between the rights of the individual and the needs of another or the wider community. Teachers should not only educate, but at all times treat children in their care with dignity, respect and safeguard their wellbeing. Regardless of a teacher’s beliefs, treating pupils with dignity, respect and celebrating their personal autonomy is a professional obligation. Misgendering a transgender pupil is not unlawful but that does not mean that it could not constitute professional misconduct.
Gender questioning children guidance
Schools should also note the Government’s draft Gender Questioning Children guidance, which was published during the Conservatives’ time in office, provides some useful insight and additional detail on what might happen in less severe circumstances than the above. In accordance with sections 6.2 and 6.3 of the guidance it is understood that no teacher will be compelled to use a pupil’s preferred pronouns and the accidental use of a wrong name or misgendering a pupil would not amount to such an extreme outcome. Although a pupil’s dignity and the school’s safeguarding and legal duties should remain paramount.
The new Labour government are yet to comment on the future of the draft Gender Questioning Children guidance. However, for the time being, schools would be well advised to follow the principles set out in this draft guidance
Takeaway points from the case
This case concerns the manifestation of an individual’s belief within the context of an education institution. It highlights the complexity between a teacher’s right to hold and express their own religious beliefs, which is itself a protected characteristic under the Equality Act 2010, and the duty to respect the dignity and welfare of pupils. We see a theme has arisen in that employees are free to hold religious beliefs and cannot be discriminated against for holding those beliefs. However, they are very unlikely to be protected if the manifestation of those beliefs discriminates against others.
How can Moore Barlow help
There is an immense challenge for teachers in balancing their own beliefs, which may be protected characteristics, with their professional responsibilities to protect the rights and dignity of children in their care. This could cause potential issues for independent schools. We can advise on all aspects of Safeguarding at independent schools.
Please get in touch with our Independent schools team for assistance.
