Campaigners lose legal challenge over Welsh primary schools’ sex education teaching
Parents have lost a legal challenge against the teaching of young children about gender identity and sex in primary schools across Wales.
Campaigners launched a judicial review in the High Court against the Welsh Government’s new Relationships and Sexuality Education curriculum.
The curriculum was launched in September and sees the mandatory teaching of relationships and sexuality education to children from the age of seven.
The two-day legal challenge, which was heard in November at the Civil Justice Centre in Cardiff, was brought by Public Child Protection Wales, which says the new curriculum is inappropriate for primary age children.
Dismissing all aspects of the claim, Mrs Justice Steyn said: “In my judgment, for the reasons I have given, the case law and texts relied upon by the claimants do not support the existence of a fundamental common law right of excusal.
“I reject the contention that such a right exists.
“This conclusion is unsurprising, given the nature of the claimed right, which is conceptually dependent on a pre-existing obligation of school attendance, and which, as defined by the claimants, has the appearance of legislation rather than a common law right.
“In my judgment, the content of the code and the guidance is consistent with the requirement to take care to ensure that RSE teaching is conveyed in an objective critical and pluralistic manner, and does not breach the prohibition on indoctrination.
“There is nothing in the code or the guidance that authorises or positively approves teaching that advocates or promotes any particular identity or sexual lifestyle over another, or that encourages children to self-identify in a particular way.”
In written arguments ahead of the judicial review, Paul Diamond, representing the claimants, said the legal challenge centred on the “whole-school approach” of the new curriculum – and it was not subject to any rights of parental excusal.
Mr Diamond said the claimants were five parents – four mothers and one father – with children ranging in age from nine to teenagers.
Some of the children attend state schools while others have been removed due to concerns about the curriculum.
“All five claimants have moral and philosophical objections to the proposed curriculum and would wish to exercise rights of excusal on behalf of their children in relation to the provision of any such classes,” Mr Diamond said.
“The proposed teaching of Relationships and Sexuality Education in Wales is specifically constructed to be value-laden since much of the teaching, particularly that regarding LGBTQ+, will concern not facts of a scientific nature but highly contentious theories relating to moral and behavioural choices made by individuals.
“Were it to be taught as a standalone class and subject to a right of excusal, there would clearly not be any possibility of indoctrination.
“At stake in the present case is the question of whether there is any limit to what can be taught to children in schools or, ultimately, any place including the home and whether the state is to endorse the values of modern, liberal democracy or adopt instead a form of ideological totalitarianism.”
The barrister said despite what the Welsh Government maintained, the Curriculum and Assessment (Wales) Act 2021 had not removed the right to excusal.
“The purported removal of the right of excusal would in any case be contrary to parental rights under Article 2 of the First Protocol to the European Convention on Human Rights,” he said.
“The approach imposed by the code and the guidance, which involves attempts to re-orient an individual’s beliefs – whether religious or not – by coerced education, manipulation, indoctrination or improper proselytisation, breach the Article 9 European Convention on Human Rights on the rights of children subjected to the teaching of values which are contrary to those espoused by their parents, families and communities.”
Mr Diamond said the role of the state was to “assist parents in fulfilling their duty to provide religious and moral education to their children, not to supplant it.”
He added: “The rights of parents to determine the education of their children is a human and constitutional right long recognised by the common law.
“It has particular application in the context of education in matters of religion and morality, in which subjects questions relating to truth and goodness are particularly controversial.”
Mr Diamond said the claimants were seeking retention of the parental rights of excusal and that the whole-school approach was in breach of parental rights under the European Convention on Human Rights.
Jonathan Moffett KC, representing the Welsh Government, rejected the language used by the claimants.
“Such hyperbolic rhetoric, which has been a feature of the claimants’ case throughout, is unhelpful and serves only to obscure the fact that, properly understood, the claim raises conventional public law issues in relation to the principle of legality and the lawfulness of guidance, issues which do not require anything other than a conventional forensic approach on the part of the court,” he said.
Mr Moffett said the claimants had failed to identify “what allegedly unlawful teaching” the new curriculum would adopt and instead “resort to broad assertions”.
“The claimants have not pointed to any passages in the code or the guidance that authorise or positively approve teaching that advocates or promotes any particular identity or sexual lifestyle over another, or that encourage children to self-identify in a particular way,” he said.
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