UK: Doctor Who Refused To Use Pronoun Chosen By Transgender Patients Was Not Discriminated Against

Employment tribunal: Lack of belief in "transgenderism" is incompatible with human dignity

The Equality Act 2010 (the Act) protects employees and workers from discrimination on the basis of their religion or belief (or lack of belief). However, beliefs will not be protected if they are incompatible with human dignity or if they conflict with the fundamental rights of others.

A recent employment tribunal case has explored the potential conflict between the beliefs of an evangelical Christian and the rights and freedoms of transgender people.

Case details: Mackereth v DWP and another

Dr Mackereth is a Christian who believes that God created only males and females and that a person cannot choose their gender. He also does not believe that people should be accommodated or encouraged in what he terms their "delusional belief" of being able to change gender. He was engaged for around a month by Advanced Personnel Management Group (UK) Ltd (APM) to work as a health and disability assessor for the Department for Work and Pensions (DWP).

The DWP has a policy of addressing its transgender service users in their presented sex in order to ensure that they are treated with respect and in accordance with their right not to be discriminated against.

While undergoing induction training with APM, Dr Mackereth stated that he could not refer to someone by using a pronoun or title which did not reflect their birth gender. He stated that this was because God assigned people's gender at birth and he could not refer to individuals by a gender that was different to their God-given sex.

After Dr Mackereth began carrying out assessments, he was asked by APM's contract manager whether he would comply with the DWP policy. He made clear that he would not be able to do so. Shortly afterwards, he chose to stop working under the contract. The DWP considered whether there was any alternative role which Dr Mackereth could take to avoid having to deal face to face with transgender people. No alternative role was available. He was asked for a final time whether he would comply with the policy but he refused and this was taken as a resignation.

Dr Mackereth brought claims for harassment, direct discrimination and indirect discrimination against both the DWP and APM.

The tribunal held that Dr Mackereth's beliefs were incompatible with human dignity and conflicted with the fundamental rights of transgender individuals. They were not therefore protected under the Act. It commented that refusing to refer to a transgender person by their presenting gender, or to use relevant pronouns or titles would in itself be unlawful discrimination or harassment under the Act. The tribunal also held that its decision was compatible with the European Convention on Human Rights as the right to manifest a religion or belief is subject to the protection of the rights and freedoms of others.

The tribunal went on to dismiss all of Dr Mackereth's claims. It noted that, if the doctor's beliefs had been protected under the Act, the DWP would have been able to defend the indirect discrimination claim as a proportionate means of achieving a legitimate aim. This was because the harm to vulnerable service users of accepting Dr Mackereth's stance would have outweighed the discriminatory impact on the claimant.

The tribunal noted that transgender service users applying for disability-related benefits were proportionately more likely to be vulnerable and to have mental health conditions than members of society as a whole. It noted that any "triaging" of service users after disclosure of their trans status to avoid them coming into contact with the claimant could have violated their dignity and been detrimental to their mental health.

Wrigleys' comment

Balancing the needs of service users against the rights of employees can at times pose significant difficulties for employers. This is particularly the case for those working with vulnerable service users. While employers must ensure they do not discriminate against employees and workers on the basis of religion or belief, it is important that policies designed to protect the rights of others are not compromised in the process. As this case shows, beliefs will not be protected under the Act if they are incompatible with other people's human dignity, rights and freedoms.

Employers are advised to have in place and to communicate regularly to employees clear written policies which set out their aims of protecting people (including service users, employees and third parties) from discrimination and harassment.

In this case, the DWP was able to show that it had a clear equality and diversity policy in place which was communicated to contract workers during their induction. It was also able to show that it had acted proportionately by considering whether there was any alternative role the claimant could have taken.

Interestingly, the General Medical Council guidance on doctors' "conscientious objection" was found not to be relevant here. For example, the right of doctors to refuse to carry out an abortion was not found to be analogous as the claimant was not being asked to carry out any procedure, simply to refer to service users by their chosen pronoun or title.

Readers should note that this is a first instance decision and it may be appealed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.