How not to challenge gender identity ideology in schools

We have another example of where the courts have determined that bad behaviour by a teacher at school is not rescued by either a protected belief or a 'safeguarding' motivation.

In May 2025 the Employment Tribunal has given us yet another opportunity to consider the limitations to a manifestation of a protected belief in the case of A v Nottinghamshire County Council. The ET here unanimously dismissed the teacher’s complaints of being sacked for making a protected disclosure.

The claimant was a teacher. In 2021 she was told that Child X would be in her class from September. Child X is a year 4 pupil, therefore aged 8 who wished to ‘transition’ from female to male. The teacher was concerned that her faith based objections to transgender identity were not sufficiently respected by the school who were also in her view not acting to safeguard the child in question. She formed this view by accessing information recorded about the child on the school systems, which she was not authorised to do.

She was dismissed in September 2022. Conciliation failed and she made a claim to the ET in February 2023. The ET were at pains to point out their judgment should not be seen as support for either side of the ‘sex v gender’ debate.

The facts

Findings of fact are set out from para 19. As part of her employment, the teacher was subject to various policies and procedures, including data protection and safeguarding, which detailed how and when to report concerns. In particular, the Nottinghamshire School Employee Code of Conduct required staff to ensure that

…personal beliefs are not expressed in ways which exploit pupils’ vulnerability or might lead them to act inappropriately or to break the law or the policies and procedures of the school. Staff should always show respect for the rights of others.

The teacher raised her concerns about Child X in a polite and respectful manner in the summer of 2021, concerned that she may be expected to ‘affirm’ the child’s transition, which would go against her strongly held belief, informed by her Christian faith, that this would be harmful to the child and not something she could support.

She set out her belief in this way (para 44)

I believe in the truth of the Bible, and in particular, the truth of Genesis 1:27: “So God created man in His own image; in the image of God He created him; male and female He created them.” It follows that every person is created by God as either male or female. Sex is a God-given reality which should not be conflated with ‘gender identity’. Being male or female is an immutable biological fact mandated by God, not a person’s own feeling or an identity.

The teacher and the school had a meeting on 31st August which both agreed was conducted in a respectful manner.

The teacher then instructed the Christian Legal Centre in September 2021 and sadly this seemed to shift the tone of engagement. But it is also concerning to note that the school were ‘consulting’ with Stonewall (para 35), some 3 months after the ruling of the EAT in Forstater which should have been sufficient to give any organisation cause for concern about relying on Stonewall. It is equally alarming to note the school offering a ‘multi agency approach’ to the child which included Mermaids (para 37). The teacher’s worry that the child was being harmed by affirmation appears to have very reasonable foundations.

The school’s primary concern was that the teacher would reveal personal information about the child but agreed to move Child X out of her class. On 16th September however the teacher’s representative from the CLC wrote to the school in terms noted to be ‘uncompromising’, saying that the teacher could not comply with the school’s requirements to keep the child’s situation confidential (para 42) .

[The Claimant] is uncomfortable about being required to keep confidentiality involving withholding information from other parents which may be important to them in deciding how this may affect their own child or deciding how to respond to the situation. It also potentially represents a safeguarding risk. …The requirements will compel her to withhold the truth from others, or even share any information that may help them in their own enquiry. She believes that the requirements would be harmful to the child in question, misleading to staff, to other children and their families. Fundamentally, they would require her to go against her conscience.

The teacher was then formally suspended while an investigation took place. The school asserted it remained open to finding an amicable solution and the Head Teacher thanked the teacher for her letter of 22nd September which was ‘constructive and helpful’ but reminded her that her duty of confidentiality was strict and her offer to ‘make every effort’ not to breach it fell short. A ‘return to work’ meeting was arranged but the teacher’s legal adviser was not permitted to attend.

The teacher raised concerns that the duty of confidentiality was being set very broadly and should not include a duty to tell an untruth or be any kind of barrier to safeguarding.

She then raised a grievance on 5th October 2021 with the Governors, accompanied by 387 pages of enclosures, unrelated to Child X. The teacher admitted to the tribunal that she had not read all the enclosures and the tribunal found that she submitted a lengthy document ‘primarily to daunt the Board of Governors by engulfing them with documentation’ (para 51).

Despite this a return to work meeting took place the next day and it was agreed she could go back to work and would not have any teaching or pastoral duties towards Child X. On 28th October the Chair of Governors informed the teacher that her grievance was dismissed.

The teacher then began accessing the school’s Child Protection Online Management System [CPOMS] which is used to log welfare or safeguarding incidents. All staff were warned that unauthorised use of the system could lead to disciplinary action.

The teacher admitted in cross examination that her access of the system over about 5 months was wrong on every occasion that she did so (para 58). From January 2022 she began to transcribe data about Child X onto her own personal computer. She then attempted to make a referral under the school’s Confidential Reporting and Whistleblowing Policy, repeating these concerns in February 2022 and stating that the school was ‘disregarding’ its duty of care re Child X, asserting that Child X was ‘suffering serious mental health problems’.

The Governors responded (para 68)

Despite the fact that you are not involved with the child directly, the child’s parents or family, nor are you medically qualified or responsible for providing professional help/guidance on the matter of mental health to the family and child concerned, you continued to raise this as a safeguarding issue. You are also stating that as a consequence of the School response that you are going to consider “External remedies under the Public Disclosure Provisions of the Employment Rights Act”. We wish to point out that we have already had to remind you of your professional obligations with regard to confidentiality and wish to advise you that if any such disclosures do not amount to a qualifying/protected disclosure and/or breach of data protection and/or professional obligations we will have no option but to take any action deemed necessary.

The teacher tried to get the Local Authority Designated Officer interested, sending a 9 page letter with 387 pages of enclosures, including academic journal articles and expert reports drafted with regard to unrelated litigation. LADO responded to say the school were taking appropriate action.

So in April 2022 the teacher sent a pre action letter regarding a proposed application for judicial review, asserting the school had failed to address safeguarding concerns with regard to this particular child, and failed to examine their ‘trans affirming’ policies more generally. The school then became aware the teacher had been accessing CPOMS and made a report to the Information Commissioners Office. The teacher was again suspended in May 2022 and then sacked on 21st September for gross misconduct.

She appealed in October and was given a rehearing. It was noted that she had been accessing Child X’s CPOMs records for months and did not raise safeguarding concerns at the time. Her motivation was felt to be accessing information to support an application in judicial review (para 96). Her appeal failed.

The law

This is considered from para 103. There is a lot of it and much beyond my paygrade, so consider this a short precis only.

If the reason the teacher was sacked arose from the manifestation of her beliefs, the tribunal had to ask if the manifestation was the reason for her being sacked or was it the way in which she chose to manifest those beliefs. (para 112). The Tribunal referred to Eady J’s guidance at the EAT in Higgs v Farmor’s School EAT 89, which stress the importance of the ‘foundational rights’ of freedom of belief and speech but that these rights can be restricted when it is proportionate to do so. I discuss that guidance more fully in the appendix to this post.

At para 135 the Tribunal considered the guidance about the correct approach when considering claims of victimisation after making protected disclosures. The case law recognises that it may be necessary to decide whether the cause of the treatment is the conduct or some ‘properly separable feature’ of it. The court is therefore concerned with a motivation based not on the possession of the protected characteristic but on particular conduct by the employee. For example, if the disclosure was made in an offensive/abusive manner or involved irresponsible conduct, such as hacking into a computer system. The point in making such a distinction was to avoid giving ‘whistleblowers’ immunity for bad conduct.

In terms of the decision to dismiss (para 142) the Tribunal must consider if the employer’s decision fell ‘within the band of reasonable responses that a reasonable employer in those circumstances might have adopted’.

Decision

The Tribunal decided as the teacher had received a detailed and considered response from the Governor in October 2021, it was not objectively reasonable for her to believe that disclosure of information about Child X after this was in the public interest. The teacher was simply mistaken to claim that the school adopted a ‘blanket affirmation approach’, instead the school showed it carefully considered the interests of each child.

Accessing information via CPOMS was additionally not a ‘disclosure’ and not protected by whistleblowing legislation (para 159). She said she accessed the information because she was ‘professionally curious’ and it was clear to the Tribunal that she only accessed CPOMS to view and externally record information about Child X and this was unauthorised.

Commentary

Safeguarding is everyone’s responsibility. But no single person can have a full picture of a child’s needs and circumstances. Safeguarding is about identifying concerns, sharing information and taking prompt action. It seems to me overwhelmingly clear in this case that the teacher was using an individual child to make a much broader challenge to the whole edifice of gender ideology and attempting to justify this by cherry picking parts of school records about the child, which she had no good reason to access, no relevant qualifications to properly assess and she did not report promptly.

Despite reasonable efforts by the school to accommodate her belief, she could not reassure the school that she would keep information about the child private.

She clearly had very valid reasons to be worried about this child. The school were taking advice from Stonewall and Mermaids, the child was 8 years old and could not realistically be competent to understand the implications of gender re-assignment. There is of course a lack of evidence about the benefits of social transition - but the school had not yet had the benefit of the final report of the Cass Review which was not published until April 2024.

But the grievance raised on 5th October 2021 and what then followed, shows very clearly the dangers of mounting a broad challenge to an ideology by using an individual child as an excuse. Inevitably, the welfare of that child becomes subsumed by the challenge to the ideology, which is not a happy place for any teacher to be in. The teacher was clear that she was on a crusade (para 88) You get to the point where, having done all you can and failed to persuade people to seriously consider whether the affirmative approach is harmful or harmless, you end up debating it in Court.” (page 1260).

Having accessed information about Child X over many months and yet making no prompt referral about safeguarding concerns - the conclusion is irresistible that this information was being harvested to support the teacher’s application for judicial review.

The Tribunal found at para 160

We also find that the Claimant’s actions and alleged motivation for accessing Child X’s data are not credible. In November 2021, the Claimant apparently uncovered “red flag information” regarding Child X. (page 1257 of the bundle). Despite that, the Claimant did nothing with that information. She did not create an entry on CPOMS or approach any of the Safeguarding Leads. Instead she proceeded to access and collect more of Child X’s data. Under cross-examination, the Claimant said the reason she did not act upon the red flag information was because the Head also had access to CPOMS. That is an inadequate explanation and we accept the Respondent’s submission that it cannot be a discharge of the Claimant’s professional obligations to assume that someone else was aware in respect of welfare issues. To do so would run counter to the KCISE policy.

Therefore, in my view the teacher was rightfully sacked. She had made the mistake of allowing a general challenge to a dangerous ideology to lead her into harmful conduct where the welfare of the actual child was subsumed into evidence gathering for a legal action.

But there is part of the judgment which is very concerning, where the Tribunal dealt with the anonymity issue (para 235 onward). To protect the identity of Child X being discovered the Tribunal made an anonymity order that covered the teacher and the school, to prevent jigsaw identification of the child. The teacher wished to vary the anonymity order to reveal her name but the Tribunal held that her rights under article 10 to speak publicly about the case did not outweigh the child’s right to privacy under article 8.

An anonymity order was made on an indefinite basis, and at para 260 it was stated

In short, the right for X to live a life in their chosen gender identity for the rest of their life prevails over the Claimant’s Article 6 and 10 rights. If we were to place a restriction on the duration of the restricted reporting order, there is a risk that the biological sex of Child X could become known in the future. This could result in Child X’s biological sex becoming aware to groups of people including for example their future classmates, employers, partners, friends and indeed, in time, their own children. Child X has a right to privacy regarding their biological sex for the remainder of their life. Through the process of jigsaw identification, there is a substantial risk that Child X’s identity and biological sex would become known if the Claimant’s name were made public. We therefore conclude that the indefinite time duration is justified given the substantial interference with Child X’s Article 8 rights in this matter.

With not much respect to the Tribunal, this is insane. Child X had already disclosed her sex to some of her class mates. The assumption that it would be possible for Child X to keep her sex a secret from even her ‘partners’ in the future is surely magical thinking at its most dangerous. Not only would it be impossible to achieve this, with regard to a sexual partner it is a potential criminal offence.

The Family Court has also ruled in the McConnell case in 2019 that children have a right to know who is their mother and who is their father. McConnell as a trans identifying female, could not name herself ‘father’ on her child’s birth certificate. McConnell is not listed at para 139 as among the authorities cited, so the Tribunal may have simply been ignorant of that decision, along with the CPS guidance on sex by deception.

But whether the Tribunal knew the law or not, to claim that a trans person has a right to lie to their partner about what sex they are or to their own child about whether or not they are a mother or a father, should not need a court decision to be revealed as yet more ideologically programmed and unjustifiable primacy being given to one minority group against all others.

So I have sympathy with the teacher. Even in 2025, even after the Cass Review, Keira Bell’s challenge to the Tavistock, the banning of puberty blockers and the Supreme Court decision, it is clear that the ideology of gender identity has deep roots and sharp claws indeed. We are not yet out of the woods.

But if you are a member of a regulated profession and you wish to challenge gender identity ideology, remember to do so in a way that is congruent with the law and your own obligations to the welfare of children.