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Christian Institute Briefing The 'General Principles' Section of the General Teaching Council for Wales' Draft Professional code Including
the full text of a legal opinion from John Bowers QC,
1. Why does the 'General Principles' section cause concern? 2. Is the General Principles section needed?
3. Summary of the legal opinion
6. 'Playing it safe' and Section 28
The General Principles section of the Draft Professional Code published by the General Teaching Council for Wales in May 2001 states that teachers,
Under the new professional code, teachers who believe that homosexuality is wrong are now required to respect homosexual behaviour. Rather than respect people as people - as all teachers should - the code talks of respecting "rights and needs" based on sexual orientation. In other words the code requires teachers who believe that homosexual practice is wrong to act against their own conscience. According
to the largest national study on sexual attitudes in Britain, 78.6%
of men in Wales believe that sex between men is wrong.(1)
This group certainly includes Christians and those of other faiths.
It also includes people who do not have any religious faith, but
who nonetheless have a moral disapproval of homosexual practice. What the code means in practice
At school level, a teacher who is a gay rights activist could use the code to argue that the sex education curriculum should be changed. He could use the threat that the school and its teachers would be being 'unprofessional' if they failed to give homosexuality equal coverage and status within sex education. Such scenarios cannot be ruled out given what has happened in other countries with similar anti-discrimination clauses, particularly the USA. Others have realised the potential for mischief. Commenting on the code, Chris Heff of the Association of Christian Teachers in Wales said:
The
wider impact But as the following legal opinion shows, bodies other than the GTCW (including schools and LEAs) will also apply the code. Employment Tribunals will also take the code into account when hearing cases of unfair dismissal. The GTCW does not control schools. Neither do they control LEAs or Employment Tribunals. Yet the GTCW's professional code will be used by all three types of body. As the legal opinion shows, this could well result in legal problems for Christian teachers. If this happens, costly legal actions in the higher courts may be their only remedy to protect their conscience. This opinion was written in relation to the draft professional code produced by the General Teaching Council for England. Clause 5 of the English code states:
This
clause raises the same issues of conscience for Christian teachers
and those of other faiths as the Welsh code does. The legal issues
involved are the same since the legal framework which allows the
GTCE to draft and enforce a professional code is almost identical
to the framework governing the GTCW. Therefore the opinion's assertions
about the application of the professional code are relevant to Wales.
When John Bowers QC argues that bodies other than the GTC will use
the code, this applies just as much to the Welsh code as it does
to its English counterpart. Those who support the General Principles section usually argue that sexual orientation has to be included because of the issue of so-called 'homophobic bullying'. Some have argued that this needs to be specially targeted. Angela Mason, Director of Stonewall, claims,
Some schools in Manchester have instituted whole school programmes where pupils are given red cards for using the word 'gay' against another pupil. Repeat offenders may be temporarily excluded from the school.(4) The legal duties on schools and teachers to prevent bullying are already extensive (see following page). This is before there is any influence from the new professional code for teachers. Section 5 of this briefing deals with the evidence from those who say that the General Principles section is needed because of homophobic bullying. Whilst there are many properly conducted studies on bullying involving representative samples and follow-up over a period of time there are none which show that pupils are bullied because they are homosexual. Indeed the very absence of such bullying is relied upon by gay rights groups when they argue for the right of adult homosexuals to adopt children. Gay rights group argue that the research shows that children adopted by homosexual couples would not face stigmatisation at school. What studies that there are consist of anecdotal accounts, small samples (usually self selected), or low response rates. Almost invariably 'homophobic bullying' is defined so widely as to include any incident where one pupil calls another a name such as 'gay' or 'lezzie'. Using this definition 'homophobic bullying' can take place without the victim actually being a homosexual or even being believed to be a homosexual by the name caller. One
of the main studies claiming that 'homophobic bullying' is rife
admits there were no homosexual pupils in the study. Another fails
to demonstrate that any of the pupils in the study were in fact
homosexual. (See Section 5 below). 1. Teachers who do not deal with cases of bullying face disciplinary action on the grounds of unprofessional conduct. In serious cases they could even risk a legal action being brought for negligence if they failed to take reasonable steps to prevent bullying. 2. Section 61(4) of the School Standards and Framework Act 1998 places a statutory duty on headteachers to prevent bullying:
3. Section 28 of the 1988 Local Government Act prevents local authorities from promoting homosexuality in schools. It does not prevent the objective discussion of homosexuality in the classroom nor the counselling of pupils. Section 28 has now been further amended to make clear that it in no way prevents headteachers and governing bodies dealing with any form of bullying. 4. Guidance from the National Assembly in the form of Circular 3/99 (Pupil Support and Social Inclusion) reiterates the fact that head teachers have a legal duty to take measures to prevent all forms of bullying among pupils.(5) Official guidance does not have force of law, but a court would be entitled to take it into account if there was a case before it. The circular makes a strong call for an organised response within schools to the problem of bullying:
Top This does not cover bullying on some very common grounds. Children are often picked on by other children because of physical characteristics such as being fat, short or having blemishes on their face. They suffer for being clumsy, intelligent or having an unusual name. There are also large numbers of children who are slow learners but who have not been classified as having special needs. Such children can be mocked for being stupid. In reality the General Principles section does not add to the existing legal duties already placed on schools to prevent bullying. Taken together these are sufficient, but if the GTCW believes the General Principles section is essential they must considerably extend the list of grounds covered. Keeping the General Principles section as it is presents considerable difficulties for Christian teachers and those of other faiths who are perfectly prepared to respect people as people, but who will be forced to go against their conscience to respect behaviour their faith regards as immoral. 'Homophobic bullying' is not the number one form of bullying in schools. In fact there is no evidence that 'homophobic bullying' is a particular problem in schools. That is not to say it never occurs, merely that there is no evidence from research where the usual requirements for academic rigour have been applied. Just because pupils use 'gay' in name-calling does not constitute evidence that 'homophobic bullying' is rife. If it did the common use of the word 'slag' would constitute evidence that the bullying of sexually promiscuous girls was also rife. Of one thing there can be absolutely no doubt, there is a serious problem with bullying in our schools. Whilst bullying will never be eliminated there are undoubtedly serious problems of indiscipline in schools that can be tackled. A lack of order and boundaries for pupil's behaviour is not only disruptive of children's education it also creates an environment in which bullying can flourish. It
is in the leadership and management of schools where the solutions
must be found. Part
2 Use of the code by other bodies
Top
Simon
Calvert Top
OPINION IN THE MATTER OF CLAUSE 5 OF THE GENERAL TEACHING COUNCIL'S
PROPOSED PROFESSIONAL CODE FOR TEACHERS 3.
At present it is the Government's intention that the GTC will be
able to take the Code into account when it is enacted in considering
disciplinary proceedings against a teacher who has been dismissed
from his post. Paragraph 29 of the General Teaching Council for
England (Disciplinary Functions) Regulation 2001 imposes a requirement
on a school to inform the GTC if it dismisses any teacher on the
grounds of incompetence. The GTC can then consider whether that
teacher should be removed from its register and consequently no
longer be allowed to teach in a state school. However, as will be
seen below, we believe that the Code will have a much wider application. 7. The draft Professional Code issued for consultation in May 2001 sets out what the General Teaching Council considers to be "the high standards of the teaching profession". Clause 5 of that Code states the following:
8.
The clause is divided into three parts. On its own the first sentence
appears anodyne. Everybody recognises that there is diversity in
life. The second part of the sentence appears to require teachers
to work to ensure the right of individuals to develop as they wish.
However it is the second sentence that provides the reference point
to the first sentence so that teachers are required to recognise
diversity ("differences") in the context of gender, marital
status, religion, colour, race, ethnicity, sexual orientation and
disability. 14.
We do not think it likely that clause 5 on its own would constitute
a breach of the European Convention on Human Rights although its
application in particular factual situations as outlined above might
result in a breach of rights of freedom of thought, conscience and
religion (Article 9) and freedom of expression (Article 10) when
read together with the anti-discrimination provision of Article
14. 1st August 2001 JOHN BOWERS QC Littleton
Chambers MARK L.R. MULLINS 1
Harcourt Buildings Top It is clear that gay rights groups believe that the professional code will be useful in countering 'homophobic bullying'. All bullying is wrong. Children are taunted by other children because of their physical appearance, a disability, their height, their home background. Some are picked on for being intelligent. There is never any justification for bullying. It must be dealt with firmly by schools no matter what type of bullying it is. There is a serious problem of bullying in many schools, primarily related to a lack of consistent discipline and order. Christians believe in the inherent worth and dignity of every person. Christ taught that hatred is always wrong and must be restrained and replaced with love, even for those with whom we disagree or who are our enemies.(6) Bullying
is evil and any approach to dealing with it needs to confront and
condemn the spiteful motivation behind it. Children have always found ways of isolating and ridiculing one another. Those who are strong, either physically or socially, have always picked on the weak. Name-calling has always been a main technique of bullying. Different epithets have waxed and waned in popularity. If one insult becomes outdated, another soon takes its place. In the context of schools, it is of course very common indeed for children to mock slow learners. The General Principles section does cover "special needs" but the difficulties of many slow-learners would not be severe enough to fall within that categorisation and so the particular form of bullying which they face is not covered. Words which mock the victim's appearance have always been popular 'put-downs'. Children may be fat or thin, poor at sport, have unusual hobbies, support football teams or pop groups that are out of fashion. All of these can provide a basis for name calling. Sometimes certain Christian names or surnames become known as insults - often the names of odd or unlikeable characters in soaps or sit-coms. Children who actually have names that gain currency as insults often face a miserable time at school merely due to an accident of birth. If
the General Principles section is about bullying, then comparatively
few forms of bullying are covered. Gay
rights groups argue both ways But in a different context - arguing for the right of lesbians and gays to adopt children - Stonewall say that concern that children of lesbian and gay parents will be subject to increased incidence of bullying at school is misplaced because "a study by Green et al ('Lesbian Mothers and their children', Archives of Sexual Behaviour, 1986) indicated that no group differences were found for children's perception of their popularity with peers."(8) Similarly in dealing with adoption the American Civil Liberties Union argue that the bullying of children with homosexual parents is a myth. They state in their factsheet:
How can 'homophobic bullying' be 'widespread in schools' and yet it be a myth that children who have homosexual parents are bullied? How can there be rampant 'homophobia' and yet such children be just as popular as other children? Gay rights groups cannot have it both ways, either there is intolerable 'homophobia' in schools or there is not. Leaving
aside the contradictions in the claims of gay rights groups, it
is worth considering the issues relating to the general prevalence
of bullying and then the specific claims made by researchers into
'homophobic bullying'. Bullies and Victims in Schools by Valerie Besag is generally considered to be a classic study of bullying in schools. Besag quotes one 1986 study of 4,000 children, which found that,
Besag reports that some children even commit suicide because they feel unable to cope with being bullied.(11) Bullying can often be a cause of truancy. The National Assembly guidance states:
A February 1999 opinion poll survey by NOP Research Group found that:
The problem of bullying is certainly very serious, yet the mainstream research does not throw up concerns about 'homophobic bullying'. Besag, the seminal textbook on bullying, also gives no special treatment to the subject.(14) The
evidence that has been published will now be considered. Anecdotal
studies Researchers from the London Institute of Education were commissioned by Stonewall and the Terrence Higgins Trust to carry out a study into 'homophobic bullying'. The report which emerged from the research 'Playing it Safe' was published in November 1997. It argued that there is a serious problem of 'homophobic bullying', but admitted that: "To date there has been no systematic survey of the experiences of young lesbian, gay men and bisexuals in relation to homophobic bullying (or hate crimes)." (15) This is still the case. Playing it safe received 307 completed questionnaires from teachers after distribution to 1,000 secondary schools. This was a 31% response rate. The researchers admit this is low and whilst no claims are made that this was a representative sample it is said that "some extrapolation of findings is possible" since the schools profile of the respondents was "similar" to that in Wales and England.(16) The claim to be "similar" appears to be based upon a comparison between the survey responses and national proportions for schools on "five key criteria" (funding source, religious affiliation, sex intake, sixth form attached, main catchment area type). In fact the researchers do not appear to know the proportion of schools in Wales and England which are urban, suburban or rural. This would have been necessary to check the sample on the fifth criteria. In any case no attempt appears to have been made to classify schools by catchment area on an objective basis. If the teacher responding to the questionnaire says the school is 'urban' then it is 'urban' for the purposes of the Stonewall study. This information does not appear to have been checked by the researchers. The claim that "some extrapolation of findings is possible" is not supported by evidence from any statistical tests. Some of the claims made by this report will be considered in greater detail below, but before even the questions are looked at there are clearly problems with the sample of this study. Studies which asked pupils their views of homophobic bullying invariably have small unrepresentative samples of pupils. Entire studies are based on a series of anecdotes. By contrast the mainstream studies on bullying have involved hundreds or thousands of children. One study involved 10,000 pupils another used a survey sample drawn from 85% of all Norwegian primary and junior high schools.(17) A recent report claiming to lend credence to a crisis of 'homophobic bullying' (18) simply involved interviews with just 59 schoolchildren in two primary schools. (19) One of the most prominent researchers into this area is Dr Ian Rivers. His 1995 study (20) relied on just 44 questionnaire responses, solicited through an advert in the Pink Paper. The average age of respondents (who were recalling incidents from their school days) was 31. Most of the examples which respondents gave were typical of the bullying that, sadly, takes place in many inner city schools for all kinds of reasons. Dr Rivers provides his own reasons as to why anecdotal evidence can be so unreliable. His recent study looked at questionnaire responses from 60 homosexual or bi-sexual people who claimed to have experienced sustained bullying at school. It took three years to distribute the questionnaires. There was a 46.5% response rate. The 60 were a sub-sample of 216 who responded. The 60 people were asked about their experiences on two occasions separated by 12-14 months. The study found an "unexpectedly high degree of variability in recall shown in participants' responses on the majority of items". He concedes that "the amount of detail recalled will decrease with the passage of time" and that such studies are not an alternative to proper longitudinal research. (21) Another example of the sort of anecdotal evidence relied upon is found in the book Sexual Bullying by Neil Duncan. Duncan looked at pupils in a handful of urban schools. It was not a statistical sample. Duncan himself talks of working within "the logistical constraints of a very minor piece of research".(22) The politicised preconceptions which some researchers bring to their work is well illustrated by a recent paper presented by Emma Renold, of Cardiff University, to the 5th Conference of the European Sociological Association in Helsinki. In her introduction the author refers to 'compulsory heterosexuality' which restricts children's true masculinity and femininity.(23) The author claims her research is from the children's standpoint. She interviewed 59 ten and eleven year-olds six times over the course of a year. The children came from two primary schools in the East of England, which contained children from white working class and middle class families.(24) It is therefore simply another anecdotal study. Use of the word 'gay' is given as an example of 'homophobic bullying'. Boys and girls whose masculinity and femininity were not 'hegemonic' (25) were also said to suffer from the 'heterosexism' of other pupils and from the reinforcement of dominant masculinity and passive subordinate femininity and maintained heterosexual hierarchies.(26) Dr Renold believes these issues need to be addressed in primary schools, claiming, "There are a lot of ways of introducing these issues in the classroom."(27) The re-definition of 'homophobic bullying' Leaving aside all the concerns about unrepresentative small samples, by far the most serious error is the complete redefinition of 'homophobic bullying' in the prominent studies. Under this new definition the vast bulk of 'homophobic bullying' occurs in circumstances where both the victim and the bully are heterosexual. Stonewall claimed that the Playing it safe research they commissioned showed that:
The questionnaire used for the research asked about instances of "general verbal and physical bullying" in school.(29) What teachers describe as name-calling is redefined as "homophobic bullying" by the researchers. The report clearly states on the first page that:
So the 82% of teachers who were "aware of homophobic bullying" were actually those who had ever heard pupils abuse one another using the words "lesbian, gay, queer or lezzie". Such words are used by children as terms of abuse along with other unpleasant words such words as "spastic", "divvy", "fatso", "swot", "moron" and sexually rude words. Children can be cruel and they use words that they think will hurt. That the researchers have discovered that "lesbian, gay, queer or lezzie" are particularly popular terms of abuse, sadly, should surprise no one. That these cruel children also hit other children whilst using these terms of abuse is also no surprise. Are
any of the children homosexual?
But what the researchers completely failed to prove is that any of the children on the receiving end of the abuse were actually "individuals who identify as lesbian, gay or bisexual". Some of them may have been. But that is not what the study shows. All the researchers uncovered is that teachers had heard children using slang words for "homosexual" as a term of abuse. It does not prove rampant "homophobic bullying". In fact the comments from some of the respondents make this clear:
It is therefore dishonest for gay rights campaigners to use this study to argue that homophobic bullying is rife. The authors of this briefing were themselves bullied at school in numerous ways, including by being called 'gay' or 'queer' on countless occasions. Yet they would not consider themselves victims of 'homophobic bullying'. Playing it safe was produced to support the claim that Section 28 prevents teachers from tackling 'homophobic bullying'. Professor Kevin Glazebrook has pointed out that the report completely fails to demonstrate this. He has described the report as "statistically shoddy" [See section 6]. In Sexual Bullying, Neil Duncan dedicates a whole chapter to "homophobias" (33) and concludes that all bullying is based on misogyny or on homophobia. (34) However, in the interviews which he conducted to form the basis of the book he did not come across a single homosexual pupil - or even a pupil who had a one-off homosexual encounter - in any of the schools involved. (35) Indeed, none of the children interviewed even knew of any fellow pupils who were homosexual. (36) They were incredulous when Duncan suggested one in ten of their classmates might be homosexual. (37) Nor can this be put down to the 'homophobia' of the interviewees forcing their gay friends to keep silent since even the girls who said they would feel more positive towards a boy if he was homosexual did not know any homosexual pupils.(38) Not surprisingly Duncan concludes that the use of words connected with homosexuality as insults has little to do with the sexual preferences of the victim. (39) According
to Duncan, calling another pupil 'gay' usually simply means they
regard them as displaying weakness or some form of behaviour which
is seen as caring or sympathetic.(40) So, for
example, one of the ways in which Christian or Jewish children may
be bullied, is by being called 'gay' simply for showing charity
and concern for another pupil. The language chosen usually has nothing
to do with homosexuality and everything to do with the meanness
of children who have simply settled on the words as a mutually understood
form of derision. One
of the strongest claims behind the current calls for more pro-homosexual
teaching in schools is that there are large numbers of pupils who
are homosexual, many of whom are being bullied as a result. These
claims may inject much energy into the campaign and attract much
sympathy (or guilt) from policymakers. But these claims are false. It is noted above that 'spastic' or 'spaz' are also commonly used as insults. Able-bodied children have long been labelled with this word simply as a means of derision. The use of the word shows spite and a disregard for the difficulties faced by those with physical disabilities. Bullies also commonly used the word 'slag' to insult girls. The Concise Oxford Dictionary defines the word as "a sexually promiscuous woman". Again, the use of the word usually has little to do with the perceived sexual activities of the victim. That the users of this particular insult are unconcerned as to how relevant the insult is to the victim's behaviour, is illustrated by one of the conversations recorded by Neil Duncan. When asked what the word 'slag' meant, a boy replies:
It is a nasty insult. There are probably a huge number of girls who have suffered the indignity of being labelled in this way. Not just 1%, not even 10% but 50% of all pupils are girls and therefore susceptible to this epithet. Yet no-one would suggest that the answer is to promote the acceptability of sexual promiscuity. It would be absurd for the professional code for teachers to require respect for 'differences of sexual morality' and for teachers to teach that everyone has a human right to express their sexuality in whatever way they please - including promiscuity. Any schoolgirl who chooses to have multiple sexual partners is doing something seriously wrong. There are moral (and health) considerations which need to be made clear to her. The parents and the school should discourage the behaviour. It should certainly not be held up to other pupils merely as an example of 'difference'. But
at the same time, she should be protected from the insults. Two
wrongs do not make a right. Bullying and other forms of nasty behaviour
between pupils must be dealt with in their own right, without having
to defend - or even discuss - the behaviour of the victim. Even though the number of schoolchildren who are bullied for actually being homosexual must be very small indeed, the main point is this: all bullying is wrong and should be dealt with in the same way no matter who the victim is. It is grossly unprofessional for a teacher to ignore the bullying of any pupil. This is a straightforward matter of what constitutes professional conduct. Good teachers stop bullies. It
is also a straightforward matter of common sense that no-one will
stop bullying by promoting homosexuality or by forcing teachers
to respect what they believe to be morally wrong. 6. 'Playing it safe' and Section 28 Professor Kevin Glazebrook (Professor of Applied Probability at the Department of Statistics at Newcastle University) has commented in a private capacity on the claims made in Playing it safe about the effect of Section 28 on 'homophobic bullying':
Insofar as this claim is based upon the report 'Playing It Safe' commissioned by Stonewall and the Terrence Higgins Trust, it simply cannot be sustained. That report discusses its findings under seven heads, one of which is 'Bullying' (pp 22-28) and another of which is 'Section 28 of the Local Government Act 1988' (pp 31-36). In the section on bullying, Section 28 is simply not mentioned. In what is manifestly the most critical question of the survey, respondents were asked to identify 'Factors Perceived as Hindering Targeting Homophobic Bullying' (reported in Chart 2.3, p.27). There is no record in the report that Section 28 figured in ANY of the 607 responses (multiple responses were possible) to this question. The most commonly cited factor was 'parental disapproval' (mentioned by 19.7% of respondents) followed by 'a lack of experienced staff' (17.4%). It is not obvious from the report whether there was clear opportunity to state that there were no factors hindering staff. It is extraordinary that the responses to this central question play almost no part in the subsequent analysis. The section of the survey findings concerning 'Section 28' itself is statistically shoddy. Of 303 respondents, 25% (or 76) claim no awareness of Section 28. It is quite extraordinary that in the subsequent questions concerning the beliefs of respondents about the provisions of the Section, some of this 25% continue to give answers. In particular, I calculate that at least 26 (and perhaps many more) of the responses to the enquiry concerning 'Difficulty in Meeting the Needs of LGB Pupils Following Concerns About the Provisions of Section 28' were from people who were unaware of the Section's existence. More importantly, no question in the 'Section 28' part of the report even mentions bullying and can shed no direct light on the matter. In
short the survey upon which the report is based barely explores
the relationship between Section 28 and homophobic bullying. When
it does pose a question concerning obstacles to the tackling of
such bullying, Section 28 is not cited by respondents."(43)
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