Doctor who refused to use transgender service users' pronouns was not discriminated against


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The Employment Appeal Tribunal (EAT) has held in Mackereth v Department for Work and Pensions and anor that a Christian doctor's belief that a person cannot change their sex/gender at will, and his lack of belief in "transgenderism" were protected under the Equality Act 2010 (EqA 2010).

Mr Mackereth, a Christian doctor, started employment with the DWP as a health and disabilities assessor of benefits claimants. This required him to conduct face-to-face assessments and then prepare a report. He explained during his induction training that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users, as required by the DWP's policies. The DWP decided it could not offer him a non-customer facing role as this required at least 12 months' experience, and that it would not be possible to ensure he only assessed non-transgender service users as they may not present as transgender until the assessment. Mr Mackereth left the DWP's employment and brought employment tribunal claims for direct discrimination, harassment and indirect discrimination, relying on the protected characteristic of religion or belief. His lack of belief in "transgenderism" meant that he did not believe that it is possible for a person to change their sex/gender; that impersonating the opposite sex may be beneficial for an individual's welfare; and that society should accommodate and/or encourage anyone's impersonation of the opposite sex.

The tribunal rejected his claim, finding that his beliefs did not satisfy one or more of the criteria set out in Grainger plc and ors v Nicholson, including that the belief must be worthy of respect in a democratic society and not conflict with the fundamental rights of others, and so could not be protected under the EqA 2010. Even had his beliefs been protected, he had not been less favourably treated as result. Although group disadvantage had been made out for the purposes of his indirect discrimination claim, the DWP's provision, criterion or practice (PCP) that assessors had to use service users' preferred pronouns was a necessary and proportionate means of achieving the DWP's legitimate aims of ensuring that transgender service users were treated with respect, and in accordance with their rights under the EqA 2010, and to provide a service that promoted equal opportunities.

On appeal the EAT held that it was clear from the decision in Forstater v CGD Europe and ors that, in order for a belief to qualify for protection, it need only be established that "it does not have the effect of destroying the rights of others". The fact that Mr Mackereth's beliefs were "likely to cause offence" did not warrant their exclusion from protection. Although the EAT found that Mr Mackereth's biblical belief and lack of belief in transgenderism were protected under the EqA 2010 it held that he had not suffered discrimination as a result. He was not put under pressure to renounce his beliefs and the DWP had not made the final decision to dismiss when he decided to leave, but was still at the information gathering stage. The EAT agreed with the tribunal's assessment when looking at the indirect discrimination claim, that the DWP was entitled to find that there were particular sensitivities arising from face-to-face interactions that Mr Mackereth would have with service users. Although the PCP did have a potential impact on him, the tribunal had taken the limited nature of the intrusion on him into consideration; there had been no penalty applied to him, and the DWP had still been seeking to accommodate him when he left his employment.

Take note: It's clear from this decision that, although Mr Mackereth's belief was capable of protection, it did not give him the right to treat people in a way that conflicted with the DWP's legitimate requirements. This may not be the final word on this one though as Mr Mackereth has declared his intention to appeal.

 

 
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