In a highly unusual, if not unprecedented move, the President of the Employment Appeal Tribunal, has been forced to recuse two lay panel members for perceived bias on transgenderism and extreme sex education.
This morning in London, lawyers representing Christian mother Kristie Higgs made an urgent application to the court inviting a member of the panel for her hearing, Andrew Morris, to recuse himself on the grounds of apparent bias.
Former pastoral assistant, Kristie, who is being supported by the Christian Legal Centre, was sacked for raising concerns about how transgenderism and compulsory sex education was to be taught at her son’s Church of England (CofE) primary school in 2019.
Biased member of panel?
Kristie was sacked for sharing a petition opposing the introduction of Relationships and Sex Education (RSE) in primary schools and an article criticising certain books aimed a primary school aged children for promoting such ideas a ‘transgenderism’ and ‘gender fluidity’.
However, on Wednesday 15 March, it was discovered that Mr Andrew Morris was to sit on the panel for the appeal. Mr Morris is the former Assistant General Secretary of National Education Union (NEU). As one of the most senior positions in the NEU, Mr Morris held the role between September 2017 and March 2022.
During Mr Morris’ time at the NEU – which is also the time frame that government will be reviewing – the NEU consistently took a strong position in favour of making Relationships and Sex Education mandatory in primary schools and encouraged teaching primary school children about same-sex relationships and transgenderism.
Therefore, the NEU, with Mr Morris as a prominent member of its leadership, was an active participant in the societal and political debate which was central to the facts of Kristie’s case.
Lawyers argued in the recusal application today (Thursday 17 March) that Kristie made social media posts which argued the opposite views to those of the NEU, which were seen by her employer as misconduct, leading to her dismissal.
Kristie’s lawyer, Richard O’Dair, said in court: “The obvious objection that might be made is that these documents did not come directly from the lay member. He was simply a high-ranking member of the institution which produced them. That is not an objection – in a sense supports my case – he was a high-ranking member of a very substantial institution which took a very clear stance on matters on which the Claimant took a contrary view.
“A reasonable bystander might have a reasonable cause for concern that the lay member has been for some time living and working within an institution which has adopted very forcefully a particular set of ideas and has made those ideas very much the forefront of its work. That is precisely the context in which unconscious bias takes root. If one lives and works and breaths a particular set of ideas in working life it is very difficult to step outside them, and that is the difficulty the lay member faces in this case.”
Second recusal
Handing down judgment, President of the Employment Appeal Tribunal, Judge Eady agreed she would recuse Mr Morris and would have to proceed with the hearing ‘judge alone’. She said: “I allow the application to be recused. Key points: he was at the relevant time a member of an organisation where he held a senior office which campaigned on the same issues as in the post. Whether or not he agreed, as a senior officer he associated with the views expressed by NEU. Many unions express views on matters of current issues, but NEU took a particular interest in the issues in question. Difficult to see how Mr Morris as Assistant General Secretary can be dissociated from those views in the eyes of an impartial observer.”
In July 2022, Kristie’s appeal was postponed after Judge Eady, had also been forced to recuse trans activist, Edward Lord from the presiding panel. It transpired that Lord, associated with Mermaids and Stonewall, had made a series of public statements relating to key issues in Mrs Higgs’ case, including the extent to which individuals should be restricted from making comments or statements regarding LGBT ideology, especially transgenderism.
Kristie has said she is “deeply saddened” by the developments but “relieved” that the appeal will continue and will not be further postponed. She said, however: “How can we expect access to justice when this is what we keep confronting at every stage?”
Government urgent review
Last week, the government launched an urgent review into sex education in UK schools.
Prime Minister, Rishi Sunak, is said to be personally alarmed about Government guidance produced in 2019, the year of Kristie’s dismissal, that was endorsed by LGBT charity Stonewall.
Ofsted has said last week that it is “powerless” to sanction schools teaching schools as young as 12 about ‘gender unicorns’ and anal sex.
Evidence
As part of the recusal application this morning, Kristie’s lawyers have relied on the following material published by the NEU at the relevant time:
(1) NEU response to Relationships and Sex Education Guidance, 27 February 2019
Published one day after the Mrs Higgs’ employer rejected her appeal against her dismissal, in response to the government’s act which the petition which Mrs Higgs had shared sought to oppose. The document states:
“The NEU welcomes the Government’s new statutory guidance for relationships and sex education in schools. This is a huge step in the right direction to ensure all children and young people have access to age-appropriate, inclusive and high quality RSE.
“There is consensus within the profession that RSE is vital to ensure that children can stay safe and develop healthy, equal and enjoyable relationships. The new guidance brings RSE into the 21st century to better reflect the complexity of children and young people’s lives today, including how to navigate the online world.
“We know that many schools are delivering excellent RSE but there are key areas that children and young people say they want to learn more about including LGBT+ relationships, sexism and sexual harassment and healthy and unhealthy relationships. That is why we are pleased to see content in the guidance stating that RSE should be LGBT+ inclusive.”
(2) LGBT+ inclusion update published on 23 July 2019
The update shows NEU’s strong support to the ‘Pride’ movement and participation in numerous ‘Pride’ events in 2019, including such events at schools. It then states:
“However, Pride season 2019 has taken place against an unsettling backdrop. The consequences of rising intolerance and division have made headlines all year. Hate crimes continue to increase with homo, bi and transphobic hate crime doubling in the last 5 years. The well-resourced anti-LGBT+ education lobby have made headlines this spring and summer, with their actions seriously damaging teacher mental health, spreading misinformation and negatively affecting pupils’ self-esteem and access to education.” (Emphasis added).
The phrase “well-resourced anti-LGBT+ education lobby” is hyperlinked to the BBC report about the 2019 protests in Birmingham against teaching primary school children about same-sex relationship and transgenderism. The concerns of the protestors attacked by NEU in those terms appear to be very similar to those articulated in the Mrs Higgs’ Facebook posts.
The ’update’ further states that:
- “The NEU’s national conference in April selected an Urgency Motion on LGBT+ inclusion for debate, putting this at the heart of policy and campaigning work.”
- “In July, the joint General Secretaries wrote to Ministers demanding they clarify that all education settings must be LGBT+ inclusive”
(3) Every child, every family. Building LGBT+ inclusion through reading, 31 January 2020
This is an annotated catalogue of books about same-sex relationships and/or transgenderism aimed at primary school aged children. The foreword by NEU Joint General Secretaries states:
“This resource will help you to promote LGBT+ inclusion through reading. […]
“Order these books for your school or classroom. Share this resource with colleagues and table it on an INSET agenda. […]
“Using these books, and the teaching notes for each title, will open up straightforward ways to talk with children about different kinds of families and relationships. […]
“We haven’t specified which key stage these books relate to as you should feel free to use them flexibly across age groups. The law requires primary schools to advance LGBT+ equality but the impetus behind this area of teaching should surely be values-based. […] Relationships and sex education is of course one part of the curriculum which needs to be inclusive of LGBT+ families. But this guide will help you to think about how your school can use books and reading across the whole of your curriculum, and bring to life your values of inclusion to life.”
(4) Relationships Education and Relationships and Sex Education (RSE). NEU Guidance for members in England, published at NEU web-site
The Guidance states the NEU position that:
- “The NEU recommends that all primary schools teach sex education” (emphasis in the original) despite that being not required by law – p. 4.
- “The NEU believes all Relationships Education and RSE should be LGBT+ inclusive, promote gender equality and actively challenge all forms of abuse and discrimination” – p. 7.
- “The RSE guidance states that all schools should teach their pupils about LGBT+ people when they consider it appropriate to do so. The NEU believes it is appropriate to do so in every school and that Relationships Education and RSE should be LGBT+ inclusive at every key stage.” – p. 9 (emphasis in the original).
The hearing continues.
Find out more about Kristie Higgs
