Discrimination: Transgenderism and protection of religious beliefs

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Discrimination: Transgenderism and protection of religious beliefs

Published 15 julio 2022

The EAT has held that a Christian doctor’s beliefs around transgenderism are protected by discrimination legislation.  However, it upheld an employment tribunal’s decision that the doctor had not been discriminated against because of his refusal to use the preferred pronouns of transgender services users.

By contrast the employment tribunal in the Forstater v CGD Europe case found that Ms Forstater was directly discriminated against and victimised as a result of her gender-critical beliefs.  We previously reported on the EAT’s decision in the Forstater case here.

THE FACTS

Dr David Mackereth is a Christian doctor who believes that the Bible prohibits transgenderism and that this belief prohibits him from using pronouns which he sees as being inconsistent with birth gender. 

Dr Mackereth started employment with the Department for Work and Pensions as a health and disabilities assessor of benefits claimants.  In this role, he would be required to conduct face-to-face assessments of service users and then prepare a report.  During his induction, he explained that, as a Christian, he would not agree to use the preferred pronouns of transgender service users.  The DWP considered whether it could accommodate his beliefs but decided that (although he might only see a handful of transgender applicants each year) it could not do so: he could not be offered a non-customer facing role because this required 12 months’ experience, and it would not be possible to ensure that he only assessed non-transgender users as users might not identify as transgender until the assessment and they could not, at that stage, be handed over to another assessor without the risk of damage to already vulnerable service users.    

Dr Mackereth subsequently left the DWP’s employment, his view being that he had been dismissed.  He brought employment tribunal claims for religious discrimination (direct and indirect) and harassment, claiming that he had been “hauled out of a meeting”, “interrogated” and pressurised to renounce his beliefs.

The employment tribunal dismissed his claims, finding that Dr Mackereth’s beliefs did not meet all the criteria which (according to existing case law) must be met for a belief to be protected by discrimination legislation.   The criteria that were not met were: that the belief must be worthy of respect in a democratic society; and that the belief must not conflict with the fundamental rights of others.  Even if Dr Mackereth’s rights were protected, the tribunal held, he had not been less favourably treated or harassed as a result, and he had not suffered indirect discrimination. 

Dr Mackereth appealed to the EAT. 

The EAT considered another recent discrimination claim (Forstater v CGD Europe and ors), in which a claimant was found to have suffered discrimination because of her critical gender beliefs.  Approving of the tribunal’s decision in Forstater, the EAT held that this tribunal had imposed too high a threshold when considering whether the belief was worthy of respect in a democratic society: the fact that a belief may be offensive to other people does not mean that the belief is not worthy of respect in a democratic society.  The threshold must not be set so high that minority beliefs (even those that offend others) are not protected.  For a belief to be protected, it need only be established that it “does not have the effect of destroying the rights of others”.  The EAT also considered that the tribunal had wrongly believed that Dr Mackereth’s lack of a belief in transgenderism did not amount to a belief: a lack of belief (as well as a positive belief) will be protected as a belief. 

However, Dr Mackereth was still not successful in his discrimination claim.  The EAT considered that the employment tribunal had permissibly found that Dr Mackereth had not suffered the alleged acts of harassment and less favourable treatment: he was not a credible witness and the tribunal did not believe that he had been hauled out of a meeting, suspended, interrogated or put under pressure to renounce his beliefs.  Dr Mackereth’s beliefs were not the reason for the DWP’s conduct: the reason for the conduct was that the DWP wanted to treat service users in a manner of their choosing, and any assessor who was not prepared to address service users in the manner of their choosing would have been treated the same way, regardless of whether or not they shared Dr Mackereth’s belief.  The EAT considered that the tribunal had permissibly found that Dr Mackereth had not been upset by the DWP’s questions about his belief or, if he had been upset, it was not reasonable for him to be upset. 

The EAT also considered that the employment tribunal was entitled to find that Dr Mackereth had not suffered indirect discrimination.  It had been entitled to find that the DWP’s insistence that assessors use service users’ preferred pronouns and confirm a willingness to adhere to this were necessary and proportionate means of achieving the DWP’s legitimate aims – i.e. to ensure that transgender service users were treated with respect and in accordance with their rights, and to provide a service that promoted equal opportunities.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is a tricky area as employers need to balance competing protected characteristics sensitively. Employers may ask employees questions about their beliefs when assessing whether they can accommodate them as part of any consideration of alternatives to justify potential indirect discrimination, but they must be careful that the questioning is not hostile nor should they challenge the truth of employees’ beliefs.  Employees should not manifest their beliefs inappropriately, and cannot mis-gender trans persons with impunity. Dignity and respect is key. Whether actions amount to discrimination and harassment will always be fact specific but it is important managers and staff understand this emerging area and ED&I policies are up to date.

Mackereth v Department for Work and Pensions and anor

Forstater v 1) CDG Europe; 2) Centre for Global Development; 3) Maswood Ahmed

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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