Teacher banned over misgendering pupil ‘had free speech right infringed’

A decision to ban a Christian maths teacher after he misgendered a pupil featured an “unjustified interference” with his rights to freedom of speech and religion, the High Court has been told.

Joshua Sutcliffe is pursuing an appeal against a May 2023 prohibition order issued after a regulator found him guilty of “unacceptable professional conduct” while working at The Cherwell School in Oxford between 2015 and 2018.

A Teaching Regulation Agency (TRA) panel concluded he did not treat a transgender student with “dignity and respect” by failing to use his “preferred pronoun” in class and while appearing on ITV’s This Morning.

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Joshua Sutcliffe’s bid to appeal against his ban was heard at the Royal Courts of Justice in London (Andrew Matthews/PA)

The panel also concluded he did not provide a balanced view to a video played in form class about men being “not masculine enough” while at St Aloysius’ College in Islington, north London, in 2018.

At a hearing in London, Mr Sutcliffe’s lawyers argued the decision to ban him, which may be reviewed after two years, was “unsafe” and included “perverse” findings.

They told the court on Wednesday that there is “no legal requirement to use preferred pronouns” and that Mr Sutcliffe had a right “not to believe gender identity belief”.

The Department for Education (DfE), which accepted the TRA’s recommendation to ban Mr Sutcliffe, opposes the appeal bid, arguing it has been brought too late and has “no merit”.

Government lawyers said the banned teacher had failed “to distinguish between his role as a teacher and his activities as a preacher”.

Michael Phillips, representing Mr Sutcliffe, said in written arguments that the teacher believed that “one’s biological sex is an immutable and essential aspect of one’s personhood and to tamper with it is a denial of something sacred”.

Such a belief was legally protected, as was “the conviction that marriage is a lifelong union between a man and a woman, and opposition to homosexual unions”, the court was told.

Mr Phillips said it was a breach of Mr Sutcliffe’s rights to find that he was required to use “preferred pronouns” and was not allowed to talk about “the protected characteristic of ‘ex-homosexual’” nor show the video on masculinity without debate.

He said teachers had a discretion over what to teach in form time but there was no obligation to hold debate on alternative views.

Mr Phillips added that there was no evidence of any harm to pupils over the video incident, and that there was an obligation “to expose pupils to ideas that they might not agree with in order to equip them for life”.

The barrister said the transgender student’s alleged “adverse mental health” was not solely due to the use of pronouns, with the TRA being “wrong” to find using “preferred pronouns” was in his “best interests”.

Mr Sutcliffe was found not to have acted “maliciously”, was a “competent” teacher and showed “high standards” in his personal life, the court was told.

A judge heard he had previously adopted a “compromise” of referring to students by their name.

The TRA wrongly analysed his case and refused to recognise his “conscientious objection” to “compelled transgender pronoun use” which meant “his only recourse was to change his job”, Mr Phillips said, later telling the court the TRA had taken an “extreme ideological” position.

Iain Steele, for the DfE, said in written arguments that the TRA had “correctly considered” Mr Sutcliffe’s case, with the appeal bid raising issues the panel did not have to determine.

“He seeks to make this a case about freedom of religion and freedom of expression, but in truth it is a case about a serious failure to treat pupils with dignity and respect and to safeguard their wellbeing,” he said.

The TRA found the incidents at the Oxford school had an “adverse effect” on the transgender pupil’s health and attendance and Mr Sutcliffe “failed even to consider what was in the best interests” of the student, the court was told.

Mr Steele said: “There is no issue of ‘compelled’ use of preferred pronouns or violation of ‘conscientious objection’ to using them.”

On the masculinity video, Mr Steele said Mr Sutcliffe was not banned from expressing his views “but needed to have regard to the potential negative impact on pupils and take steps to mitigate this”.

“The appellant failed to provide any opportunity for discussion or the sharing of differing views or perspectives,” he added.

The lawyer said Mr Sutcliffe’s “level of insight and remorse was at best limited”, with the panel being “entitled to find that there was a serious risk of the appellant repeating the same type of misconduct”.

He later told the hearing the panel’s decision was “consistent” with the Government’s draft under-consultation transgender guidance for schools which says teachers should not be compelled to use “preferred pronouns”.

Mr Steele said the Oxford school case was among the “exceptional” ones where safeguarding requires that teachers may have to use “preferred pronouns” against their wishes.

The hearing before Mr Justice Pepperall concluded on Wednesday, with the judge due to issue his written ruling at a later date.

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