Gavin Williamson must still be reeling from his recent about-turns on exam assessments and masks in schools. His head may be spinning again soon, if the courts make him backtrack on relationships and sex education.

From 1 September, “relationships education” will be compulsory in all primary schools in England, and “relationships and sex education” (RSE) will be compulsory in all secondary schools in England (both maintained and independent). At the same time, “health education” is becoming mandatory in all maintained schools in England (it is already required in independent schools). The Department for Education (DfE) told schools in June that due to Covid-19 they are being given more time to implement these changes — they must start teaching these new subjects by the summer term 2021.

A multi-faith coalition is bringing a judicial review claim to challenge this. It is concerned that these new subjects — particularly the required teaching on same-sex marriage and “LGBT content” — will convey ideological positions about the meaning of sex, sexuality and gender identity that conflict with parents’ religious and philosophical convictions, and that parents will have no (or only a limited) right to withdraw their children. In their view this risks amounting to indoctrination, a violation of their rights under Article 2 of Protocol 1 of the European Convention for Human Rights (A2P1).

The Government (through the DfE and Ofsted) takes the position that these topics are essential to prepare children for life in modern Britain, that schools must actively promote respect for all “protected characteristics” under the 2010 Equality Act and must expressly address sexual orientation and gender reassignment. The courts are being asked to rule on this clash of worldviews.

Sex education was first made compulsory for maintained secondary schools under the 1993 Education Act. Sex education was to cover “the nature of marriage and its importance for family life and the bringing up of children”, as well as AIDS, HIV and other sexually transmitted diseases. It was to be taught so as to encourage “due regard to moral considerations and the value of family life” and to ensure protection from “teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”.

Under the same Act, parents were given the right to require schools to excuse their children from sex education, save insofar as it was included in the National Curriculum. (It also stipulated that the National Curriculum would exclude “aspects of human sexual behaviour, other than biological aspects”.) This parental “right to withdraw” was unqualified: no questions asked, throughout secondary school. It also applied in those primary and independent secondary schools that chose (although they were not required) to teach sex education.

Under the new law in effect from 1 September, there is no parental “right to withdraw” from relationships education (in primary school) or health education (in primary and secondary school). As for RSE in secondary school: parents have the right to request that their children be excused from the sex education component, but the final decision is the headteacher’s. If a pupil is three terms before turning 16 and wishes to attend, the headteacher must go along with the pupil’s wish regardless of the parents’ wishes, and there is no “right to withdraw” from the relationships education component.

Campaigners say the Government fails to maintain an objective stance on LGBT issues

The Government’s initial rationale for changing the law was that children now need to be protected against a host of new threats emerging from the internet and social media. The existing government guidance on sex education (in effect since 2000) “is becoming increasingly outdated”, said Justine Greening (then Secretary of State for Education and Minister for Women and Equalities) in her March 2017 Policy Statement announcing the Government’s plans. “It fails to address risks to children that have grown in prevalence over the last 17 years, including cyber bullying, ‘sexting’ and staying safe online.”

Parliament showed the same concern when enacting this through the Children and Social Work Act 2017. The overall content and delivery of RE/RSE were specified: they must cover “(i) safety in forming and maintaining relationships, (ii) the characteristics of healthy relationships, and (iii) how relationships may affect physical and mental health and well-being”, and must be “appropriate having regard to the age and the religious background of the pupils”.

Judicial scrutiny of executive decisions is coming under question

Implementation — through regulations and guidance — was delegated to the Department for Education (DfE). By the time the DfE published its new guidance last June following a consultation process, a different emphasis had emerged: less about safety, more about relationships, in particular LGBT relationships. “Our new guidance is clear that children should leave school having learnt about LGBT relationships,” said Damian Hinds in the DfE’s June 2019 press release announcing the publication of the guidance (“Positive step for LGBT inclusion” as RSHE guidance published). “I would strongly encourage schools to discuss with children in class that there are all sorts of different, strong and loving families, including families with same-sex parents, whilst they are at primary school.” The press release included supportive quotes from Ruth Hunt, Chief Executive of Stonewall.

A2P1 states: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” This is also reflected in Clause 9 of the Education Act 1996, which requires the DfE and local authorities to “have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure”.

The scope of the second sentence of A2P1 has been elaborated in a number of European Court of Human Rights (ECHR) cases. The 1982 case of Campbell and Cosans v United Kingdom related to a law permitting corporal punishment in state schools. The applicants — mothers of sons who attended a school that practised corporal punishment — objected to corporal punishment in principle. The ECHR found that the law violated A2P1: the possible use of corporal punishment created a regime contrary to the applicants’ philosophical convictions. The A2P1 requirement to “respect” parental rights means more than “taking into account” or “acknowledging”, the court held: it imposes a stronger obligation.

In the 1976 case of Kjeldsen v Denmark the ECHR held that, whilst a state is not prohibited from teaching material of a “directly or indirectly religious or philosophical kind”, the information must be conveyed “in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions”.

The 2011 case of Lautsi v Italy considered whether crucifixes in Italian state-school classrooms (as required under longstanding Italian law) amounted to indoctrination in breach of the applicant’s (a mother who wished to raise her children as atheists) A2P1 rights. The court found no evidence of any teaching of a religious nature and held that the crucifix was a national (rather than a religious) symbol and its mere presence in the classroom did not breach A2P1.

Campaigners say that the Government is failing to maintain an objective stance on “LGBT issues” in schools.

After parents protested against teaching materials and practices on transgender issues in Birmingham primary schools last year, the DfE issued guidelines to local authorities. “If you are aware that anti-relationships/LGBT teaching activists may be planning protests at primary schools in your area, you may want to consider what legal options are available to safeguard those schools.” Options suggested by the DfE include injunctions and Public Space Protection Orders under the Anti-social Behaviour, Crime and Policing Act 2014. Birmingham City Council obtained High Court injunctions restraining protesters at Anderton Park Primary School.

Ofsted has redefined the “fundamental British values” required to be taught

Ofsted’s zeal has increased under the new Education Inspection Framework introduced last year, Policy Exchange has found. Current Ofsted practice is that “LGBT+ matters must be taught explicitly at primary school. It is upon this point that a number of faith schools (previously rated highly under the former Framework) have failed”. Its February 2020 report noted also that “all seven Haredi [Orthodox Jewish] schools inspected since November 2019 have failed their inspections, despite most of these having been passed under the previous Framework, principally for failing to explicitly teach about sexual orientation or transgender matters, and concerns about primary schools being required to teach about these matters at primary school have also been expressed to us by Christian, Jewish and Muslim faith leaders.”

Ofsted has redefined the “fundamental British values” required to be taught in independent (including faith) schools. Taking its lead from the Prevent de-radicalisation strategy, the DfE’s set of standards for independent schools define these as “democracy, individual liberty, the rule of law and mutual respect and tolerance of those with different faiths and beliefs”. Interestingly, in its handbook for inspectors Ofsted has shortened this to “democracy, individual liberty, the rule of law and mutual respect and tolerance”, leaving out all mention of “faiths and beliefs”. So, this “fundamental British value” is changed to a more generalised “respect and tolerance”, putting a greater emphasis on the other protected characteristics under the Equality Act, including sexual orientation and gender reassignment.

In April following a judicial review challenge, the CPS withdrew the “LGBT bullying and hate crime schools pack” that it had recently issued to schools. This guidance had warned schools they could face legal action if they did not permit transgender pupils to use their preferred toilets or changing rooms. It had also listed categories of “anti-LGBT+ hate crime” that included “ostracising and excluding” children from friendship groups for “reasons of sexual orientation, perceived sexual orientation, trans identity or perceived trans identity”.

Even mandatory health education in primary school — from which there is no “right to withdraw” — is not free of this emphasis. The PSHE Association’s workplan for Key Stage 2, recommended by the DfE’s new guidance, includes the assertion that “for some people gender identity does not correspond with their biological sex”. It also includes “how babies are conceived and born, and that there are ways to prevent a baby being made”, though elsewhere the DfE’s new guidance expressly limits the topic of contraception to secondary school sex education.

This challenge to the DfE guidance comes at a time when the issue of judicial scrutiny of executive decision-making is coming under question. Following the Supreme Court’s intervention over the proroguing of Parliament last autumn, the Government has made clear its intention to subject the judicial review process in general to a thorough reconsideration, and it has appointed an expert panel to look into it. This conflict of worldviews, however, may be precisely the sort of issue that the courts are equipped to handle.