Doctor who refuses to use trans names loses discrimination case

Christian Doctor David Mackereth’s beliefs that reject transgenderism are “incompatible with human dignity” a British employment tribunal found last week. He had lodged a claim on the grounds that he had been discriminated against as a Christian.

However an Employment Tribunal panel, headed by an employment judge found that Mackereth had not been discriminated against.

Mackereth had taken the UK Department for Work and Pensions to an Employment Tribunal in Birmingham, after the Department and an employment contractor had insisted that he had to follow rules about referring to clients by their preferred name and pronoun. After a career mostly working in accident and emergency departments, Mackereth was seeking a job as a Health and Disability Assessor undertaking assessments of “service users”.

The nature of this job meant that service uses could not be screened to prevent Mackereth seeing transgender clients, the Department said. Mackereth agreed it was likely that it would only become apparent that a client was transgender during the course of an assessment, but he suggested he would then hand that person over to another assessor.

A Department witness told the tribunal that “in his experience transgender individuals were often unhappy about the way society had treated them and were easily offended.” The Tribunal found it was his view that if an assessor sought to pass on a customer having discovered that person was transgender that, however sensitively this was handled, the customer would be offended. This was because the transgender person would see this as the assessor treating the transgender person with the same lack of understanding with which he, she (or by whichever pronoun by which that individual wished to be described), felt they had been treated by society.

Mackereth’s case

Mackereth asserted that he is a Christian, which is a protected characteristic under UK and European law.

In addition he outlined his belief in Genesis 1:27: “So God created man in His own image; in the image of God He created him; male and female He created them.”

Mackereth added,” A person cannot change their sex/gender at will. Any attempt at, or pretence of, doing so, is pointless, self-destructive, and sinful.” As a result, he asserted, “it would be irresponsible and dishonest for, for example, a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex”.

Mackereth submitted documents from the Evangelical Alliance and the Christian Medical Fellowship as part of his case.

The department’s case

While both sides of the case accepted that Christianity is a protected characteristic, the Department and its employment agency did not accept that his belief about transgender persons was also protected.

The Department’s provisions, criteria and practices (PCP) include:
“a. The DWP requires all Health and Disability Assessors to use such pronouns as may be preferred by a particular client, regardless of that client’s biological sex.
b. In the event of doubt, the DWP requires a Health and Disability Assessor to confirm his or her adherence to the said PCP (1) at an early stage of their training and without any such issue arising in practical work.
c. The penalty for employee’s/worker’s non-compliance with the said PCPs (1) and/or (2) is a suspension and/or dismissal.”

The Department noted the General Medical Council’s code of conduct requires:

“47. You must treat patients as individuals and respect their dignity and privacy.
“48. You must treat patients fairly whatever their life choices and beliefs.

“54. You must not express your personal beliefs (including political, religious and moral beliefs) to patients in way s that exploit their vulnerability or are likely to cause them distress.

“59. You must not unfairly discriminate against patients or colleagues by allowing your personal views to affect your professional relationships or the treatment you provide or arrange…”

The Department argued that Mackereth’s conduct was inconsistent with both their PCPs and the General Medical Council’s Code of conduct.

The tribunal’s judgement

The judgement described the claimant’s case as: “Dr Mackereth told us, and we find, that he became a Christian in 1982 whilst in his first year at medical school. Having qualified in Medicine in 1988 he trained for the Christian ministry from 1990-92 and thereafter worked as a full time evangelist for two years between 1992 and 1994 when he returned to the medical professional where he has worked thereafter, albeit he told us he undertakes extensive evangelistic work in his spare time especially in Scotland.

In essence Dr Mackereth told us , and we find, that he holds to the principles of the Great Reformation of the 16th Century including a commitment to the supremacy of the Bible as the infallible, inerrant word of God as his final authority in all matters of faith and practice.”

Mackereth went on to describe how his beliefs about transgenderism are derived from Genesis 1:27, and Deuteronomy 22:5 ‘The woman shall not wear that which pertaineth unto a man, neither shall a man put on a woman’s garment: for all that do so are abomination unto the LORD thy God.’ From the Judgement it appears that Mackereth used the King James version at the hearing.”

As Eternity reads it, the case hinged on whether Mackereth’s beliefs about transgenderism formed part of his Christian religion.

While the European Convention for the Protection of Human Rights and Fundamental Freedoms protects religious freedom, it also states that, “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The tribunal relied on a case – Granger v Nicholson – to limit “philosophic beliefs”, establishing among other criteria, which stated: “It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.”

While accepting that Christianity is protected by the European Convention, the tribunal ruled that “belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are in compatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals.”

The tribunal separated the question of Mackereth’s beliefs about transgenderism from his religion, Christianity, which they held to be protected. Mackereth accepted that not all Christians accepted his stance on treatment of transgender people, including that of the Christian Medical Fellowship expressed in a document he submitted into evidence. But the tribunal also asserted that if they formed part of his “his wider faith, his wider faith also does not satisfy [the] Grainger [test].”

In a footnote the tribunal noted, “It is important, given the public interest in this case, that we make clear this case did not concern whether Dr Mackereth is a Christian and if that qualifies for protection under the Equality Act. That was never in dispute.” Instead, they tribunal found it was about the right to dignity of transgender people:

“This case concerned … whether he was entitled to manifest those beliefs in the circumstances that applied here.” And the tribunal concluded the answer to that question was “no”.