Christian teacher who deliberately misgendered pupil loses appeal against order banning him from teaching

In Sutcliffe v Secretary of State for Education, an evangelical Christian teacher asked the High Court to overturn a prohibition order preventing him from teaching that had been imposed after he expressed views that conflicted with his professional duties to the children in his class.

Facts

Mr Sutcliffe taught maths at Cherwell School. He has strong and sincerely held views rooted in his faith about gender identity, homosexuality, the sanctity of marriage, the role of men and women in society and Islam.  

This blog focuses on Mr Sutcliffe's objection to using pronouns that don't reflect a person's biological sex rather than his wider views (although the manner in which he expressed his wider views formed part of the case against him which led to him being barred from teaching). 

Pupil A had been born female but identified as a male. They had transferred to Cherwell due to problems at their previous school after they began to socially transition. They had a male appearance and very few people knew or suspected they were transgender. The school had agreed to use their new name and male pronouns in line with its policy on transgender pupils. 

Pupil A was transferred into Mr Sutcliffe's class and he was told about their background. Pupil A's parents complained that he had repeatedly misgendered their child and had made negative comments about same sex marriage. The school investigated those complaints and whilst that process was on-going Mr Sutcliffe appeared on ITV's ‘This Morning’ to discuss the situation at Cherwell. This, effectively, outed Pupil A.

Mr Sutcliffe was dismissed from Cherwell and he resigned from another teaching job following other complaints about his views. 

He was referred to the Teaching Regulation Agency. It made a number of findings against him including that he had failed to treat Pupil A with dignity and respect, protect their wellbeing or show tolerance of others. It said that once he realised that his personal convictions might conflict with Pupil A's wellbeing, he had a professional responsibility to raise it with the school and to agree an appropriate response. One option would have been to refer to Pupil A by name and avoid using pronouns altogether.  

It concluded that Mr Sutcliffe's actions were deliberate. His conduct fell significantly short of the standards expected and he was guilty of unacceptable professional conduct and conduct that might bring the teaching profession into disrepute. It also recommended that Mr Sutcliffe should be prohibited from teaching.  

The Secretary of State accepted the panel's recommendation and issued a prohibition order which Mr Sutcliffe asked the High Court to overturn.

Legal framework

The Secretary of State is responsible for regulating teachers' conduct and for holding a list of teachers who have been prohibited from teaching. 

The legal framework governing the regulation of teachers is contained in Part 8 of the Education Act 2002 and the Teachers' Disciplinary (England) Regulations 2012. S141B of the Education Act 2002 gives the Secretary of State discretion to investigate a case where a person is guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute.

When considering a case, the Secretary of State may take into account the personal and professional standards set out in the Teaching Standards including the requirement that teachers:

• Uphold public trust in the profession and maintain high standards of ethnics and behaviour by treating pupils with dignity and respect, safeguarding their wellbeing and showing tolerance and respect for others
• Have proper regard for the ethos, policies and practices of the school; and 
• Always act within the statutory frameworks which set out their professional duties

The High Court could only set aside the prohibition order if the decision was wrong or unjust because the Teaching Regulation Agency and/or Secretary of State had made a serious procedural error or other irregularities. 

Grounds of appeal

Mr Sutcliffe argued that the decision infringed his Convention rights (Articles 9 and 10); Pupil A had no legal right to insist on the use of their preferred pronouns; the conduct for which he was dismissed was a manifestation of his beliefs (and, therefore, was protected); and the panel had not struck a proper balance between competing interests. Even though the decision pre-dated draft government guidance on gender questioning children and the Cass report, he argued that these demonstrated that transgender-affirming policies ‘harm the vast majority of children’.

Decision

The High Court rejected Mr Sutcliffe's appeal. 

It made the well-rehearsed point that the right to manifest one's religion and beliefs are qualified not absolute rights. It accepted that Mr Sutcliffe's rights were restricted by the Teacher's Standards but said that this was necessary to ensure that children were treated with dignity and respect and their wellbeing was safeguarded. There was no less intrusive way to achieve this and that objective outweighed any impact on Mr Sutcliffe's rights. 

Teachers must understand that adolescence may be particularly difficult for children who are transgender or are questioning their identity or sexuality. It said that even if misgendering a pupil was not unlawful - it didn't follow that misgendering them was appropriate. And, if done repeatedly and deliberately (here both in class and on national television) it could amount to professional misconduct.

The panel did not have decide whether Mr Sutcliffe had breached the Equality Act 2010 or had harassed or discriminated against Pupil A. Its job was to determine if his behaviour towards Pupil A complied with Teacher Standards. It decided it had not and its reasons for reaching that decision had been properly reached. It had heard evidence that Mr Sutcliffe's behaviour had caused Pupil A ‘very significant harm’ and that he lacked the insight or remorse for the panel to be satisfied that, if faced with a similar set of circumstances, he wouldn't do the same again. Essentially, he failed to ‘differentiate between teaching and preaching’. Accordingly, the prohibition order was necessary and proportionate.

Lessons for schools and colleges

This case was not about whether the school's policies were fair, just or reasonable. Nor is it about a teacher who accidentally failed to follow a school's policy of referring to a transgender pupil by their chosen pronouns, or one who reconciled his religious convictions by using the child's name, thereby avoiding using pronouns altogether. Neither the High Court, or the panel had to determine these issues, and we will need other cases to clarify the law in that regard.

What is clear:

1. If you have a policy in place, your staff should follow it (subject to what we say below). 
2. The policy should make it clear that if any member of staff has concerns about the approach you have adopted, they should ask for advice from the senior leadership team (or whomever is best to decide this).  
3. If the policy impinges on their protected beliefs, you should consider how you can accommodate their beliefs without compromising your overriding duty towards the children in your care. We do not recommend that you compel staff to use a pupil's preferred pronouns if they do not reflect their biological sex as there are ways to avoid using pronouns altogether.
4. Draft guidance on gender questioning children issued by the government in December 2023 considers the proper approach for schools and colleges to take when dealing with children who wish to socially transition. That includes guidance on requests to change names and pronouns. It makes it clear that members of staff should not unilaterally decide on how to refer to a gender questioning child and must follow the approach agreed by the school or college. That guidance was subject to a consultation (which has now ended). We don't yet know whether the new government will recommend the same approach.

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