Judge refuses permission for judicial review in school transgender safeguarding case
25 October 2022 Issued by: Christian ConcernToday, a Christian primary school teacher’s pursuit of a judicial review over the refusal of a local authority and governing body of a school to address serious safeguarding concerns regarding a child going through gender transition, has been refused.
Supported by the Christian Legal Centre, Hannah, who cannot be named for legal reasons, was pursuing a judicial review at a permission hearing at the Birmingham Civil and Family Justice Centre on the grounds that the local authority and school has continually failed to comply with their duties under the s.175 of the Education Act (2002).
Ahead of the new term in September 2021, the school had implemented an extreme transgender policy after a primary school aged child (Child X), who would be joining Hannah’s class, said they wished to change their gender.
The parents of Child X backed their decision and wanted no other children or parents in the school to know their real biological sex.
The policy appeared to allow any child at the school, without medical evidence, to be affirmed in whichever gender they choose.
Hannah said that in good conscience she did not think she could affirm the child through gender transition as she believed it would cause Child X serious long-term harm.
When she saw that the child was was ‘seriously distressed’ and had mental health issues, Hannah raised safeguarding concerns through all the usual procedures. But the school brushed her concerns aside, backed by the Stonewall-supporting local authority and the local Church of England diocese.
Child X was also being supported in their secret gender transition by Mermaids, who last week the Department for Education stopped recommending as a mental health and wellbeing resource for schools.
Hannah was told by the school that she had ‘no choice’ but to affirm ‘Child X’ through gender transition or face the consequences.
After being suspended, Hannah was told that she could not share her Christian beliefs in the school or her view, after detailed research, that a trans-affirming approach to gender-confusion leads to long-term harm.
After taking legal advice and sharing the safeguarding concerns she had for Child X, Hannah was sacked for gross misconduct.
She has also been reported to the Teacher Regulation Agency (TRA) and may never be allowed to work as a teacher again.
Legal submissions
During legal arguments today in Birmingham, Hannah’s barrister, Richard O’Dair, cited the Department for Education’s statutory guidance on Keeping Children Safe in Education 2022, which explicitly states that “[all] staff have responsibility to provide a safe environment in which children can learn.”
In light of this guidance, Mr O’Dair argued that: ‘Like all teachers at the Claimant’s school, she owed a safeguarding duty to Child X.’
He said that each time Hannah raised concerns and presented credible evidence to back her position, which indicated that pre-pubescent social transition can be harmful, the evidence was not properly assessed.
Mr O’Dair said in his submissions that it was irrational for the governing body and the local authority not to act on the evidence or look into the matter further. He said: “They had choices: rely on the evidence given to them, or investigate further. What they could not do was ignore the safeguarding risk and leave it unaddressed.’
Mr O’Dair said that the lack of a credible response from the local authority was ‘unlawful’.
Furthermore, he argued that transgender issues in schools are ‘highly political’, and that there are dangers that providers can use ‘education’ not to educate but to ‘indoctrinate.’
Mr O’Dair cited the political role of Stonewall in schools across the UK and specifically in this case where training was provided to teachers at the school which did not present any of the potential of the harms social transitioning can cause a primary school aged child.
Mr O’Dair also said that the expert evidence presented by Hannah fully aligned with a speech at the Policy Exchange made by the then Attorney General, Suella Braverman KC in August 2022, which has provided clarification and guidance on the law on Equality, Diversity and Inclusion in schools. Braverman said:
“The problem is that many schools and teachers believe – incorrectly – that they are under an absolute legal obligation to treat children who are gender questioning according to their preference, in all ways and all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing their parents or taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia. In my view, this approach is not supported by the law.”
Judgment
Handing down her ruling today, however, Mrs Justice Farbey refused permission, saying that: “This court will not engage with any of the advantages or disadvantages of any education policy.”
She added that she was not persuaded that a teacher has standing to bring judicial review proceedings.
Justice Farbey stated that the general ‘public is divided on the issue of transgenderism in schools and there is no consensus on the approach.
‘I make no conclusion or comments on the claimant’s motivations’, she said.
Fight for justice
Hannah will now appeal this ruling and also intends to appeal her sacking by the school next month. If the appeal is rejected it is highly likely that a full employment tribunal case will follow.
Following today’s ruling, Hannah said: “Injustice has not been done against me but against all the children in our schools.
“How else am I meant to raise the danger of the trans affirming policies in our schools which are doing such damage ?
“The role of the authorities is to protect. How can we hold them to account when they don’t have to justify their harmful actions?
“This is not the end of my case.
“I was given a choice – go against your conscience and do what you believe would cause a vulnerable child long term damage, or face losing your career.
“I could not, based on scientific evidence, my Christian beliefs, and the heart-breaking stories of detransitioners, knowingly participate in harming a child.
“It is because I care so much about children that I am taking this action. This isn’t about me proving that I am right, but about the safety of a seriously distressed child.
“Teachers are being discouraged from questioning trans affirming policies when evidence shows that the actual result of the approach is to put the welfare of children at serious risk.
“More must be done to protect vulnerable children across the country from long-term mental, emotional and irreversible physical damage inflicted upon them by this dangerous ideology.
“Teachers are being coerced into teaching children lies. It’s not just dressing up or pretending; gender confused children believe their body does not match their identity. As they get older, they have to work harder at maintaining their appearance which leads to resorting to chest binders, puberty blockers and other physically damaging measures.
“I believe we are fearfully and wonderfully made. We should be encouraging children how amazing their bodies are not leading them down a path of irreversible damage.
“Seeing the impact on the child makes you cry. I miss the children; I didn’t get to say goodbye to my class. I had to be escorted through the school and now face losing the career that I love.”
Well-being of a child
Andrea Williams, chief executive of the Christian Legal Centre, said: “If ever there were a matter of public law consideration it is the momentous issues in this case. They go to the heart of how we look after primary aged gender confused children in our state schools.
“The case does not end here. Our client is motivated by compassion and care and will continue for as long as it takes to see that children are kept safe in schools.
“We are disappointed by this decision but are resolved to keep standing up for the well-being of children.
“Hannah cared only about the safety of the children, whereas the school was ideologically driven in tandem with Stonewall to be gender affirming and permitted no possible dissent.
“This case represents another line in the sand. A brilliant, servant -hearted teacher had genuine concerns about the well-being of a child in her year group. The child was exhibiting distressing behaviour and Hannah wanted to do all she could to help the child.
“A kind teacher who acted in a kind way to raise concerns about a troubled child through the proper safeguarding procedures has been scapegoated and silenced.
“This has happened because her concerns expose the damage affirming trans ideology does to our young children in schools.
“Socially transitioning gender is no small thing for a child – it leads to much worse outcomes than waiting and seeing. Schools cannot simply take a child or their parents’ views at face value –they should always seek proper psychological assessment before allowing transition.
“This story exposes the confusion and untruths being embedded in primary schools which are developing into a public health crisis.
“Leading experts in the area of psychiatry and paediatrics argue that abundant scientific evidence exists showing that transgender affirming policies do none of the children they are meant to serve any real or lasting good; that it harms the vast majority of them; and that it leads to catastrophic outcomes for many such afflicted children.
“Vulnerable children are being used as pawns by Stonewall and Mermaids activists and will continue to be harmed the most.”
Story background
Ahead of the new term in September 2021, the school had implemented an extreme transgender policy after a primary school aged child, who would be joining Hannah’s class, had said they wished to change their gender.
The parents of Child X backed their decision and wanted no other children or parents in the school to know their real biology.
The policy appeared to allow any child at the school, without medical evidence, to be affirmed in whichever gender they choose.
Partisan literature had been distributed to parents under the direction of a Stonewall Champion working at the local authority, which did not include any detail on the risks a ‘trans affirming’ approach has to children.
Under the policy, Hannah was told that the child joining their class must be treated as ‘transgender’, be ‘affirmed’ in the belief that he/she was ‘born in a wrong body’ and be allowed to use toilets and changing room facilities for their opposite sex.
The school’s approach goes against official government guidance which cautions schools against relying on: “Materials which suggest that non-conformity to gender stereotypes should be seen as synonymous with having a different gender identity should not be used and you should not work with external agencies or organisations that produce such material.”
This guidance was not provided as part of the training given by the local authority to the school and parents.
Instead, in presentation materials saturated with ‘gender identity theory’, school staff were provided with guidance by the local authority which told them, for example, that gender confused children can be born in the wrong body, 80% of transgender children realise they are transgender before they leave primary school, and that the average age of ‘self-realisation’ takes place at 5 years-old.
Controversial and discredited transgender group Mermaids were also cited as a go-to authority on the issue for parents and carers.
Concerned, Hannah emailed school bosses asking what was expected of her. She was told by a senior member of the school that she had no choice but to respect the wishes of the child’s parents.
Hannah responded that she believed she did have a choice. However, she was told that if she followed through with that choice she would be suspended.
A meeting was arranged where Hannah raised her safeguarding concerns for the child and reiterated that, based on scientific evidence and their Christian beliefs, she could not in good conscience endorse a pre-pubescent child transitioning gender.
The teacher provided expert evidence detailing the ‘catastrophic’ consequences an affirmative approach has for gender confused children.
Hannah said that she did not want to cause the child distress but had to question whether the school’s approach was harmful.
Following the meeting, Hannah was told not to come into the school and was then informed by email that the school had contacted the ‘emerging threats to children’ team at the local authority. The school said:
‘We have spent the last few days working together and consulting with Stonewall, HR, the Local Authority Designated Officer (LADO) and the Legal department at the LA. The LA have sought guidance from the Diocese and Stonewall, and I wish to assure you that no names of individuals or the school have been provided to them.
A meeting was arranged in which we would discuss accommodation on the following terms:
• When interacting with the child or any other gender questioning pupil, you must use the name and pronouns the family have requested.
• You need to act professionally and within the school’s code of conduct and Equalities Policy and comply with GDPR.
• You should try to avoid contact or interaction with the child as much as possible, where such interaction would require you to use names or pronouns.
• We respect your own views, however these must not be discussed with children or staff.
• When answering questions the pupils may have, you must not breach confidentiality.
• When talking to parents, you must not talk about any other pupil and your response should be that it is not appropriate for you to discuss other pupils.’
The Church of England’s ‘Valuing All God’s Children’ guidance on ‘transphobic’ bullying was used to discredit Christian beliefs on the issues.
A meeting was arranged to discuss how Hannah’s beliefs could be accommodated, and until then, she was told to remain at home.
Following the meeting to discuss accommodation, Hannah stated that she still could not comply due to the biased influence of campaigning organisations who were shaping the school’s policy and putting children across the school at risk.
However, the following week in September 2021, Hannah was officially suspended for failure to comply with a reasonable request, but the following month the suspension was lifted.
Still without any guidance, in October 2021, Hannah raised a formal safeguarding concern with the school’s governors, but this was dismissed and the evidence she presented not properly engaged with.
Hannah appealed this decision, but again the governors dismissed the concern after consulting the local authority.
In February 2022, Hannah raised her concerns with the local authority and flagged that the officer advising the school on transgender policies was a Stonewall champion.
Minutes from a meeting between this local authority officer, the parents and Child X have revealed them telling Child X, who admitted to still being conflicted about whether they were the opposite gender, that their feelings were ‘perfectly natural’ and that their transition was like a bus journey ‘which we can get off at any point.’
The child had openly stated that they could not wait to take puberty blockers, but also raised fears about using the changing rooms of children of the opposite sex and seeing them naked.
Responding to Hannah’s concerns, the local authority said that it fully endorsed the School’s approach. It added that it was for the School to determine its approach to a particular gender questioning child based on the school’s own interpretation of relevant legislation, the parents’ wishes and advice from expert agencies and professional advisors.
Hannah’s subsequent appeal was also dismissed.
Silenced, ignored, and without clarification as to how a teacher who is opposed to transgender affirmation can function in the classroom, Hannah faced no alternative but to get legal advice and pursue legal action.
For accessing and sharing information about Child X as part of receiving legal advice and raising serious safeguarding concerns, Hannah was investigated and brought before a governors disciplinary panel.
They concluded that she would be sacked for gross misconduct and: ‘Due to the serious professional concerns about your conduct it is appropriate to refer this case to the DBS and TRA for their consideration.’
Legal case
The teacher’s lawyers are calling on the school to reassess whether the transition of a primary school aged child is safe and in their best interests, and whether the affirmation to changing their identity is based on appropriate objective evidence and appropriate impartial advice.
Lawyers are also calling on the Local Authority to re-consider its response to the safeguarding concerns raised by the teacher with its duties under s. 175(1) of the Education Act 2002 and s. 47 of the Children Act 1989.
As part of the application for judicial review, it is argued that the teacher’s claim that the belief that sex is assigned at birth and that a man cannot be a real woman is a protected belief under the Equality Act 2010 and the Human Rights Act 1998.
Legal precedents recognising the right not to believe in gender identity belief have also been established, with the courts in no uncertain terms upholding that the legal protections afforded to gender reassignment do not apply to pre-pubescent children.
Therefore, lawyers will argue that the school and local authority, by requiring a teacher to be an active participant in the school’s transgender affirming approach to the child in question, whether she wishes to be or not, is ultra vires to the law and potentially in breach of both the Equality Act 2010 and the Human Rights Act 1998 relating to religion or belief.
