A teacher to appeal the High Court’s refusal to allow a judicial review application over the school’s policy on transitioning pupils

The High Court has refused a teacher leave to challenge a judicial review in which she planned to argue that a local authority and her school had breached the Education Act 2002, the Equality Act 2010 and the Human Rights Act 1998 after requiring her to ‘confirm’ a school-aged child through her gender transition.

The teacher, who is backed by religious campaign group Christian Concern, had her claim dismissed earlier this week (October 25) after Madam Justice Farbey ruled the claimant lacked standing to bring proceedings for judicial review.

The dispute in AB, R (at the request of) against a county council and Anor [2022] EWHC 2707 (Admin) revolves around implementing a school policy that dictates how the teacher should interact with a transitioning child ready to join their class.

After raising new safeguard concerns with principals and then the board, who were each removed from their jobs, the teacher sought legal advice.

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According to Christian Concern, its application for judicial review argued that the school and the local authority, by requiring a teacher to actively participate in the school’s trans-affirming approach to the child, that it like it or not, is ultra vires the law and potentially in breach of both the Equality Act 2010 and the Human Rights Act 1998 relating to religion or belief.

Her lawyers were also asking the school to reconsider its response to the safeguard concerns raised by the teacher with its duties under section 175(1) of the Education Act 2002 and section 47 of the Children’s Act 1989.

Madam Justice Farbey noted that the applicant did not teach the child (child X). “In the past, she had a personal dispute with the school about how she could or should treat Child X, but that has been resolved. By initiating this process, she seeks to express what she calls “substantive safeguard issues” about Child X. In doing so, she does not claim to represent Child X. Under the law, she cannot represent the interests of Child X because she does not didn’t ask the court’s permission to do so.

The judge dismissed the teacher’s appeal to the government’s statutory guidelines, Keeping Children Safe in Education 2022which stipulates that all school personnel “have a responsibility to provide a safe environment in which children can learn”.

Madam Justice Farbey concluded that: “Removing this isolated, irrelevant phrase does not advance the plaintiff’s case for standing to bring these proceedings.

“There is a difference between the general duty of teachers to provide a safe environment and the right of any teacher to go to court when they disagree with a decision made by a school. I do not regard the passage on which the applicant relies as giving it standing to bring this action – even arguably. »

The judge also rejected an argument that the plaintiff should be able to press charges because she was acting in the public interest and as a whistleblower.

The judge wrote: “She has no particular role in challenging the public interest. She does not represent, for example, a lobby group, charity or NGO specializing in gender issues or in If the mere assertion that she represents the public interest were sufficient to give her standing, it would mean that the courts would have no means of distinguishing between a person with a truly sufficient interest and the others. It is not the law.

She added: “In my view, the applicant has not established that she herself had a reasonable concern for the welfare of child X, as opposed to others involved in the care, upbringing and the development of child X. I am not persuaded that she has standing or even that it can be argued that she has standing.

The judge said that because the plaintiff lacked standing, “even without doubt”, the renewed claim must fail.

In these circumstances, Justice Farbey only briefly addressed other issues raised by the application in light of the importance of the issues.

It considered that the request had been submitted late, the contested decision concerning the school having been taken in October 2021, more than three months before the submission of the request.

Madam Justice Farbey also pointed out how, in an application for leave to seek judicial review, the applicant must satisfy the court that their grounds for judicial review were arguable with a reasonable prospect of success.

The judge said the formation and implementation of gender policies in schools involved complex social policy issues. She drew attention to the “long-established principle of the law of judicial review” that, with respect to social policy issues that raise multifactorial considerations for decision makers, “courts will be slow to intervene.”

Madam Justice Farbey said that in her judgment the plaintiff was “using the banner of the law in an attempt to persuade the court to enter into a political debate which is not amenable to judicial review”.

The judge added that the reasons did not raise any arguable public law issue and noted that even if she had not found that the plaintiff lacked standing to seek judicial review, leave would have been denied on the merits. motifs.

The teacher agreed to appeal the decision.

Responding to the High Court’s refusal to grant leave, Andrea Williams, chief executive of the Christian Legal Centre, said: “If there ever was a question of public law, these are the central issues in this case. They go to the heart of how we deal with confused elementary-aged children in our public schools.”

She added: “It doesn’t end there. Our client is driven by compassion and care and will continue for as long as it takes to keep children safe in schools.

“We are disappointed by this decision but are determined to continue to defend the well-being of children.”

Along with the application for judicial review, the teacher is also in the process of appealing the board’s subsequent decision to fire her for viewing and sharing information about the student while pursuing the legal challenge. Christian Concern said that if the school rejects its appeal it is highly likely that it will take action in an employment tribunal.

Adam Carey