Do we finally have a pronoun case?

Sutcliffe v Secretary of State for Education

This week the High Court of England and Wales handed down judgment in Sutcliffe v Secretary of State for Education. At first glance, this looks like a case that would provide those interested in the law relating to sex and gender identity some concrete legal rulings on preferred pronouns. Unfortunately, the nature of the legal issues to be decided by the Court in this case means that we still do not have anything explicit. There may nevertheless be important principles that we can draw out from this case.

What is this case about?

Joshua Sutcliffe is a maths teacher and evangelical Christian who preaches on the street and online. He has strongly held beliefs summarised by the High Court as follows:

1. He believes that biological sex is immutable and that people cannot self-identify as a different gender. He believes that God makes us male or female, and that what God ordains cannot be changed. He argues that it is wrong to require him or any other person to refer to a transgender person by their preferred pronouns. He regards that as a matter of conscience.

2. He believes that homosexuality is a sin that is contrary to God’s design and to nature.

3. He argues that marriage is a lifelong commitment between a man and a woman.

4. He considers that the man is the head of the household who provides for his wife and children.

5. He believes that Islam is evil and that Mohammed is a false prophet.

Sutcliffe worked at The Cherwell School in Oxfordshire before his dismissal in February 2018 and then at St Aloysius College in Islington until his resignation in November 2019.

Stucliffe was subject to several complaints of inappropriate and unprofessional conduct during his time at both schools. There was a six-day hearing into his conduct and the Teaching Regulation Agency for that his was guilty of “unacceptable professional conduct and of conduct that might bring the teaching profession into disrepute” [6]. The professional conduct panel recommended that the Secretary of State for Education should impose an order prohibiting Mr Sutcliffe from carrying out any “teaching work” as defined in the Teachers Disciplinary (England) Regulations 2012 for a minimum period of two years. She accepted this recommendation in May 2023 and Mr Sutcliffe appealed against this.

The Legal Framework

Section 141B of the Education Act 2002 provides that the Secretary of State may investigate cases where it is alleged that a teacher may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute.

Part 2 of the Teachers’ Standards: reg.4 include the following requirements:

“Teachers uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school, by:

• treating pupils with dignity, building relationships rooted in mutual respect …

• having regard for the need to safeguard pupils’ wellbeing, in accordance with statutory provisions

• showing tolerance of and respect for the rights of others

Teachers must have proper and professional regard for the ethos, policies and practices of the school in which they teach …

Teachers must have an understanding of, and always act within, the statutory frameworks which set out their professional duties and responsibilities.”

The Teaching Regulation Agency published advice for how a disciplinary panel should interpret these requirements. In particular, the panel should “draw on its own knowledge and experience of the teaching profession, particularly the personal and professional conduct elements of the Teachers’ Standards and the responsibilities and duties in relation to the safeguarding and welfare of pupils set out in statutory guidance”. In considering whether the teacher is guilty of conduct that may bring the profession into disrepute, panel members should “use their knowledge, skills and experience to take into account how the teaching profession is viewed by others, the responsibilities and duties of teachers in relation to the safeguarding and welfare of pupils, and the influence that teachers may have on pupils, parents and others in the community”. Panels should also take account of the “uniquely influential role that teachers can have in pupils’ lives and that pupils must be able to view teachers as role models in the way they behave”.

So the legal framework places heavy emphasis on the knowledge and experience of panel members, expecting them to draw upon it in deciding whether a breach of these standards has occurred. That will be relevant for a case involving an appeal to the High Court as judges can be expected to show a degree of deference and comity to the teaching profession in these kinds of decisions.

The Panel’s Decision

The panel made the following findings of fact:

First, Mr Sutcliffe had failed to use Pupil A’s preferred male pronouns on one or more occasions in the classroom while teaching maths at Cherwell.

Secondly, when appearing on “This Morning”, Mr Sutcliffe had used female pronouns on multiple occasions when referring to Pupil A.

Thirdly, in an email to Cherwell sent on 8 December 2017, Mr Sutcliffe failed to use Pupil A’s preferred male pronouns.

Fourthly, Mr Sutcliffe had told pupils in a maths lesson at Cherwell that he was against gay marriage.

Fifthly, when discussing homosexuality in a maths lesson at Cherwell, Mr Sutcliffe had told pupils about a person who had, through God, “stopped being gay” as it was “wrong”.

Sixthly, on or around 18 October 2019, Mr Sutcliffe showed pupils at St Aloysius College a video uploaded by PragerU in form time. The video, which was entitled “Make Men Masculine Again”, contained comments to the effect that:

1. The growing problem in today’s society is that men are not masculine enough.

2. When men deny their masculinity, they run away from responsibilities leaving destruction and despair in their wake.

3. Children who grow up without a father are generally more depressed than their peers who have a mother and a father. They are at far greater risk of incarceration, teen pregnancy, and poverty. 71% of High School dropouts are fatherless.

4. Women want “real men” and the presenter did not know any woman of any age who is attracted to a passive man who looks to her to be his provider, protector and leader.

5. Passive men don’t defend, protect or provide. Passive men do not lead

Seventhly, during his employment at St Aloysius College, Mr Sutcliffe had uploaded a video to his YouTube account which included the following assertions:

1. Mohammed is a false prophet.

2. “If we look at Islam in the modern generation, we see that many people go out killing in the name of Allah.”

3. “I would suggest that Muslims have a false understanding of God because they’ve been led by a false prophet.”

4. “The Fruit of Islam is not peace, it’s division.”

5. “It’s the beginning of a great evil in this land when we’re not able to speak against Islam.”

6. “Joseph Smith is a false prophet … these are false and destructive heresies.”

Eighthly, Mr Sutcliffe had uploaded further videos to his YouTube account after his resignation from St Aloysius College entitled:

1. “What does the Bible say about LGBT?”

2. “Muhammed is a false prophet.”

3. “Muslim man threatens to knock me the f*** out.”

4. “Police telling preacher not to talk about homosexuality.”

5. “LGBT mafia member tries to intimidate preacher.”

From these facts, the Panel considered several allegations of misconduct, each of which will be set out below.

The Misgendering Allegations

The evidence accepted by the Panel was that Student A, while born female, successfully passed as male at the time of joining Cherwell. It is clear that the school was aware of A’s sex and also that it had agreed to use male pronouns. When A was moved into Mr Sutcliffe’s maths class, another teacher recounts:

“I stated very clearly that [Pupil A] was transgender and should always be referred to using male pronouns just to make Joshua aware. I also mentioned that [Pupil A] ooked male so it was unlikely that Joshua would make a mistake. Joshua replied that was, of course, fine and that he understood.”

In November 2017, Pupil A’s parent complained to the school that Mr Sutcliffe had frequently misgendered Pupil A by using language, typically pronouns, that did not reflect Pupil A’s gender identity. They also complained that he had aired personal negative views about same-sex marriage during the course of his Maths lessons.

While these complaints were being investigated, Sutcliffe appeared on national TV - ITV’s This Morning - to discuss the situation in Cherwell, effectively ‘outing’ Pupil A to other students.

The disciplinary panel concluded that in misgendering Pupil A and in the court of the ITV interview, Mr Sutcliffe failed to treat Pupil A with dignity and respect, and had failed to safeguard Pupil A’s wellbeing.

The panel also concluded that as soon a Sutcliffe realised that there was a conflict between his personal convictions and school policy, it was his professional responsibility to raise this with the school and seek to constrictively find a resolution to any conflict. The headteacher wrote to Sutcliffe raising the possibility of a conflict with his evangelical Christian faith and encouraging him to raise any issues he might have. He did not do this and proceeded without any consultation with his line managers.

The panel concluded that Mr Sutcliffe was not acting with the best interests of Pupil A in mind and that he had failed to show tolerance and respect for the rights of others. By failing to raise any issue with his line managers, in full knowledge of the school’s policy on preferred pronouns, the panel found that Mr Sutcliffe had failed in his professional obligations to the school.

The panel dismissed the third allegation that Sutcliffe’s use of female pronouns to refer to Pupil in an email to the school amounted to misconduct.

Sharing views on homosexuality

The panel made two findings, one where an allegation of misconduct was upheld and one where it was dismissed.

It dismissed an allegation of misconduct in respect of Mr Sutcliffe expressing his views on same-sex marriage because this was in direct response to a question from a pupils as to his views. The panel concluded that in answering a direct question in the way that he did, he did not fail to treat pupils with dignity and respect and that he did not fail to safeguard their wellbeing.

It upheld an allegation of misconduct in respect of Mr Sutcliffe sharing his views, unprompted, that someone he knew had stopped being gay through God because it was wrong. One pupil in the class felt that this comment implied that they were wrong and needed to be cured. The panel concluded that Sutcliffe had failed to deal with this matter professionally and in a balanced way and had therefore failed to treat pupils with dignity and respect, and had failed to safeguard their wellbeing.

The PragerU Video

The panel concluded that in sharing this video without offering any opportunity to discuss alternative views, Mr Sutcliffe had failed to provide a balanced views. The nature of the content was such that it needed to be approached with a degree of sensitivity that Sutcliffe failed to show. It concluded that Sutcliffe had failed to treat pupils with dignity and respect, particularly those with alternative views on masculinity who may have negatively response to this video. In failing to have due regard to the potential negative effect that this could have on pupils, he had failed to safeguard their wellbeing.

The YouTube Videos

The panel noted that the videos uploaded by Sutcliffe in his private time and without any mention of the schools he worked at were protected under his right to freedom of expression and freedom of religion. He did not direct pupils to his YouTube channel and so dismissed allegations that this involved misconduct.

The Panel’s Conclusions

Taking all of this together, the panel concluded that “Mr Sutcliffe’s conduct fell significantly short of the standard of behaviour expected of a teacher and that he was guilty of unacceptable professional conduct. Further, it concluded that his actions constituted conduct that might bring the teaching profession into disrepute” [39].

The Role of the High Court

It is crucially important at this stage to make it clear what this case is not about. It is not about whether the schools policies are fair, just, or reasonable. It is an appeal to the decision of the Secretary of State to accept the recommendations made by the panel. In deciding this, the High Court is confined in what it can and cannot analyse.

At [46] the Court sets out the proper approach to appeals against a prohibition order:

1. The court should allow an appeal where the decision was wrong or unjust because of a serious procedural error or other irregularity: r.52.21(3).

2. Rule 52.21 provides that the appeal should be limited to a review of the decision unless a practice direction makes contrary provision (it doesn’t in the case of teachers) or the court considers that, in the circumstances of an individual appeal, it would be in the interests of justice to hold a rehearing.

3. Generally, the appeal should therefore proceed by way of a review rather than a rehearing for the reasons explained by Steyn J following her detailed review of the authorities in Ullmer v. Secretary of State for Education [2021] EWHC 1366 (Admin). See also the unreported case of Brittain v. Secretary of State for Education (2019), Lang J; and Jones v. Secretary of State for Education [2019] EWHC 3151 (Admin), Cavanagh J.

4. I am not satisfied that there are any particular circumstances of this appeal that require the court to conduct a rehearing.

5. Professional conduct panels have the benefit of hearing the witnesses and have the primary responsibility for deciding the disputed facts of a case. The court will not interfere with a panel’s finding of fact unless it is perverse in the sense that there is either no evidence to support the finding of fact or it is one which no reasonable panel could have reached.

6. Both the panel and the Secretary of State are expert and informed decision-makers who are well placed to assess whether the proven conduct constitutes unacceptable professional conduct or may bring the teaching profession into disrepute. The court will pay proper deference to their expertise before interfering with the exercise of their professional judgment.

7. The panel and Secretary of State are also well placed to assess whether a prohibition order is necessary in the public interest. Where unacceptable professional conduct or conduct that may bring the profession into disrepute is established, the court will again pay proper deference and only interfere with the decision to impose a prohibition order if satisfied that such decision was wrong.

The Arguments

The central attack on the decision of the Secretary of State to accept the recommendations of the panel was that the panel’s decision interfered with his Convention rights and that Pupil A had no legal right to insist on the use of preferred pronouns. Sutcliffe argued that the conduct he was being disciplined for was a manifestation of his religious beliefs and that a fair balance had not been struck between the competing interests at play here. He also argued that transgender affirming policies have not been shown to be in the best interests of gender distressed children and drew attention to the draft School’s Guidance and the Cass Review.

In response, council for the Secretary of State argued that Mr Sutcliffe’s appeal ranged over a wide ambit of issues which simply did not fall to be decided by the panel or by the Secretary of State in closing to uphold it’s recommendation. It was therefore argued that “the case was not about Convention rights; whether Pupil A had a protected characteristic under the Equality Act 2010; whether the law recognises Pupil A as male; or whether Mr Sutcliffe’s conduct was actionable under the 2010 Act. Further, the appeal is not about Mr Sutcliffe’s conscientious objection to using Pupil A’s preferred pronouns or his expression of his beliefs outside the workplace.” The central question that the panel had to decide and that this appeal concerns is whether Mr Sutcliffe was guilty of misconduct as a teacher.

The High Court’s Decision

The first thing the Court did in its analysis was set out the general legal framework regarding equality and human rights law as it relates to this case. Specifically it noted:

• Mr Sutcliffe’s religious and gender critical convictions are protected under the ECHR [54]-[55].

• Mr Sutcliffe has a general right to express and manifest these views [56].

• As clarified by Choudhury J in Forstater v CGD Europe (EAT) at [118], only a proportion of people who identify as transgender will have the protected characteristic of gender reassignment [57].

• A small number of people who identify as transgender will get a GRC. Without a GRC, “the law regards sex as an immutable and binary matter of biological fact” [58].

• “unless a transgender person has the protected characteristic of gender reassignment, equality law does not expressly protect the concept of social transitioning.” [58].

The Court then went on to stress that all of this misses the central point of this appeal. Limiting the manifestation of protected beliefs by requiring them to treat the pupils in their care with dignity and respect and to safeguard their wellbeing is proportionate [60]. To this, the Court added:

[61] By virtue of their immaturity and inexperience of the world, children and young people are vulnerable and many children struggle as they navigate adolescence. Whatever a teacher’s religious or philosophical beliefs about the immutability of a person’s gender or the morality of homosexuality, it is their professional obligation:

1. to treat their pupils with dignity;

2. to respect and celebrate the pupils’ personal autonomy;

3. to understand that adolescence may be particularly difficult for children who either identify as transgender or are questioning their gender identity (such as Pupil A), or who identify as gay, lesbian or bi-sexual or are questioning their sexuality (such as Pupil B); and

4. to safeguard the wellbeing of all children in their class.

[62] Just because misgendering a transgender pupil might not be unlawful does not mean that it is appropriate conduct for a teacher or that, when done repeatedly and deliberately both in class and on national television in breach of the school’s instructions and ethos such that distress is caused to the child, it cannot amount to professional misconduct.

So there is some general discussion on pronouns usage and the manifestation of protected beliefs. Specifically the Court notes that it may not be unlawful to misgender a transgender pupil but that this does not mean that reliance on protected beliefs immunise a teacher from being found to have engaged in unprofessional conduct when acting in breach of school instructions with little regard for the wellbeing of students.

The Court therefore accepted the panel’s identification of the limits on what it has been called to decide [63]:

“Broad representations were made on behalf of Mr Sutcliffe that this case related to issues of freedom of expression and speech in the abstract. It was not the function of this panel to assess such broader issues. The panel has no role in determining the veracity, reasonableness or otherwise of Mr Sutcliffe’s beliefs. This panel was concerned with the Teachers’ Standards and the distinct professional considerations which apply to the specific conduct alleged, and its findings were similarly limited …

Mr Sutcliffe contended that biological sex is immutable and cannot be changed, that Pupil A did not have the protected characteristic of gender reassignment, and that there is no legal requirement to use preferred pronouns. However, it was not the function of the panel to determine these three matters. The questions for the panel [were] not whether Mr Sutcliffe breached the Equality Act 2010, or whether Mr Sutcliffe harassed or discriminated against Pupil A. The question for the panel was whether it was more likely than not when performing his duties as a teacher he failed to treat Pupil A with dignity and respect, and failed to safeguard Pupil A’s wellbeing.”

Equally, the Court was also emphatic that “this case is not about whether Cherwell was right or wrong to accept Pupil A’s request to use his preferred pronouns.” [64]. The Court mentions the draft schools guidance which was issued after the events that this case concerns occurred. It recommends a cautious approach to social transition and affirmation of preferred pronouns. But it also stresses that, while it envisages social transition to be rare, it is ultimately down to the school in consultation with parents to decide the best course of action. As such, the Court noted:

As the draft made plain, such decisions are complex and are made by schools and not individually by each member of staff according to their own assessment of the merits of the request. Whether an individual teacher agreed with the school’s decision or considered it a dangerous transgender-affirming decision that was not in the best interests of the child is not the point. The responsibility for that decision lay with the school.

In addition to this, the Court stressed that there was evidence before the panel of the negative effect of Mr Sutcliffe’s actions on Pupil A. Mr Sutcliffe’s conduct madePupil A cry, suffer panic attacks and miss school. The redacted decision that the Court was able to see also referred to “evidence of a far more serious impact of Mr Sutcliffe’s actions on Pupil A’s health, wellbeing and safety.” [72].

So we have a case which is

• not about whether Pupil A should have been treated as transgender and referred to by preferred pronouns (such a decision being one for the school to make);

• not about what toilets or communal facilities a given pupil should use (not being a matter considered in this case);

• not about the appropriate delivery of healthcare to gender-questioning children.

Instead, this case was about a vulnerable pupil who had suffered from the serious negative impact caused by the conduct of a teacher who refused to engage with management and had no regard for the distress he was causing. The Court was itself struck that [90]

“in this appeal how, even now, Mr Sutcliffe fails to understand or accept the harm that he caused vulnerable children in his class or accept that his right to manifest and express his religious convictions might have to be balanced against his professional duties to treat children with dignity and respect and to safeguard their wellbeing. As Mr Steele put it, he failed to differentiate between teaching and preaching.”

Ultimately, the High Court concluded that the findings of professional misconduct were entirely within the scope of what the panel was entitled to find and that the decision by the Secretary of State to accept its recommendations was perfectly lawful.

That can only be the correct decision in my view.