Joshua James Sutcliffe v Secretary of State for Education

Freedom of thought, conscience, religion and expression protects a teacher’s beliefs, including gender-critical and religious views about same-sex relationships. Those are qualified rights. Professional standards requiring teachers to treat pupils with dignity and respect and safeguard their wellbeing are proportionate limits.

A school’s decision about a transgender pupil’s pronouns is not for an individual teacher to replace. A teacher may raise concerns and avoid pronouns by using the pupil’s name, but deliberate, repeated misgendering and outing can amount to misconduct even if not unlawful. Classroom statements suggesting homosexuality is wrong or curable, and presenting contested material without balanced discussion, may likewise breach professional duties. A prohibition order is lawful where necessary and proportionate in the public interest.

Joshua James Sutcliffe v Secretary of State for Education concerned an appeal against a prohibition order made by the Secretary of State following a professional conduct panel’s findings about a maths teacher’s conduct at two schools.

The panel found deliberate misgendering and outing of a transgender pupil, insensitive classroom comments about homosexuality, and the showing of an unbalanced video about masculinity. Other allegations concerning private correspondence, a direct answer about gay marriage and personal YouTube preaching were dismissed. The appeal raised issues concerning extension of time, the proper appellate standard, Articles 9 and 10, equality law, expert evidence, professional misconduct and proportionality of sanction.

The court extended time for the appeal and dismissed it on the merits.

1. The appeal had been validly issued in the King’s Bench Division because Education Act 2002 and the Teachers’ Disciplinary (England) Regulations 2012 required an appeal to the High Court but did not require issue in a particular division. The procedural error did not invalidate the step taken under the Civil Procedure Rules. In any event, the 28-day limit had to be read compatibly with Convention rights in the exceptional circumstances, since strict application would impair the essence of the statutory right of appeal.
2. An appeal against a prohibition order ordinarily proceeds by review, not rehearing. The court should not interfere with factual findings unless they are perverse. Proper deference is owed to the specialist panel and Secretary of State on professional judgment and sanction.
3. Articles 9 and 10 protected the teacher’s sincere religious beliefs and expression, but those rights were qualified. Applying the proportionality approach in Bank Mellatt v HM Treasury (No. 2) [2013] UKSC 39, the professional standards pursued sufficiently important objectives, were rationally connected to them, were no more intrusive than necessary and struck a fair balance.
4. Teachers must treat pupils with dignity and respect and safeguard their wellbeing, regardless of their personal beliefs. The school, not an individual teacher, decided how the transgender pupil should be referred. The teacher could have raised concerns or used the pupil’s name, but his deliberate and repeated misgendering in class and on television, which exposed the pupil and caused significant distress, was capable of amounting to misconduct even if it was not unlawful. The unprompted suggestion that homosexuality could be cured and the showing of the PragerU video without balanced discussion were also properly treated as misconduct. A direct answer about gay marriage and private YouTube preaching were not themselves misconduct.
5. The panel was entitled to rely on its professional knowledge and was not required to accept irrelevant theological or gender-critical evidence. Its reasons were clear and adequate, applying English v Emery Reimbold & Strick Ltd [2002] 1 W.L.R. 209 and the authorities applying that standard in the regulatory context.
6. The prohibition order was severe but necessary and proportionate. The panel had considered safeguarding, public confidence, professional standards, seriousness, mitigation, retention and whether publication alone was sufficient. The deliberate outing, harm caused and lack of sufficient insight or remorse justified the order.

1. High Court (Administrative Court): Time was extended and the appeal against the prohibition order was dismissed.
2. Secretary of State for Education: On 10 May 2023, the Secretary of State accepted the professional conduct panel’s recommendation and made a prohibition order, with review permitted after two years.
3. Teaching Regulation Agency professional conduct panel: Following a six-day hearing, the panel found unacceptable professional conduct and conduct that might bring the teaching profession into disrepute, and recommended prohibition.