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Christian doctor who insisted on misgendering trans people loses case

Beliefs that restrict the fundamental rights of others are not protected under the Equality Act, tribunal holds

Lou Ferreira 2022.jpg
Lou Ferreira
4 July 2022, 4.09pm

Blue Train Photography / Alamy Stock Photo

A doctor who insisted on misgendering trans people while assessing benefit claimants has lost his discrimination claim against the government.

David Mackereth claimed he had suffered discrimination for his religious beliefs, as well as harassment, because the Department for Work and Pensions required him to use patients’ correct pronouns.

He said this was in conflict with his beliefs, resigned, and brought a tribunal case against the department and the agency that contracted him to work there.

In a decision published on 1 July, the Employment Appeal Tribunal agreed with an earlier tribunal held in Birmingham that the doctor’s beliefs did not qualify for protection under the 2010 Equality Act because of the harm they would likely cause to trans people.

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While the tribunal accepted that Mackereth’s Christian faith was a ‘protected characteristic’ – meaning it attracts certain rights under the Equality Act – it also found his specific beliefs to be “incompatible with human dignity”, and said his claims of indirect discrimination needed to be balanced against the rights of trans service users.

Claims dismissed

Mackereth began working as a health and disabilities assessor at a Birmingham DWP centre in 2018. The role required him to carry out in-person interviews assessing claimants’ eligibility for disability-related benefits.

During an induction on 29 May 2018, the centre’s lead physician Dr Ahmed explained that DWP policy demanded trans service users “be treated with respect and referred to in their presented gender at all times”.

Mackereth told his employers that he would not use trans patients’ preferred pronouns because of his Christian beliefs, and because of “a lack of belief in transgenderism”, the tribunal heard.

Following a series of meetings and emails between Mackereth and his employers, the doctor resigned.

One email from his manager revealed at the tribunal said: “We would like to ask you one final time whether you would follow the agreed process as discussed in your training and that in any assessment you conduct, that you refer to the customer by their chosen sexuality [sic] and name? We are of course happy to provide help and support on this. If however you do not wish to do this, we will respect your decision and your right to leave the contract.”

Mackereth replied: “I am a Christian, and in good conscience I cannot do what the [DWP] are requiring of me.”

The doctor was employed by the Advanced Personnel Management Group, which provides health and disabilities assessors to DWP centres. As part of this agreement, assessors must adhere to DWP guidance and procedures, including its policies on diversity and equality.

Mackereth claimed he had in effect been sacked for his beliefs, and brought employment tribunal claims against the DWP and the Advanced Personnel Management Group, alleging direct and indirect discrimination as well as harassment on the basis of religion or belief.

He cited his literal belief in the wording of 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”); that a person “could not change their sex/gender” and that “attempting to do so was pointless, self-destructive and sinful”.

He also said he had “a lack of belief in ‘transgenderism’ and ‘gender fluidity’” and claimed “it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s ‘impersonation’ of the opposite sex”.

‘Incompatible with human dignity’

In order for a belief to be protected under the Equality Act, it must pass a set of criteria called the ‘Grainger test’, the judges explained in their decision.

Mrs Justice Eady, Mr D Bleiman and Mr D G Smith wrote that one of these requirements is that the protected belief “is worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others”.

Although the tribunal accepted that Christianity is a protected characteristic, it found that none of the doctor’s specific beliefs satisfied this requirement as they were all “incompatible with human dignity” and in conflict with the fundamental rights of trans people.

The judges added that Mackereth’s beliefs were “likely to cause offence” and “have the effect of violating a transgender person’s dignity… or subjecting a transgender person to less favourable treatment”.

‘Unlawful discrimination’

The tribunal decision noted that General Medical Council guidelines require practitioners to “treat patients with respect whatever their life choices and beliefs” and “follow the law relevant to their work”, including the Equality Act 2010. That means doctors are prohibited from harassing or discriminating against others on the basis of a protected characteristic.

“Refusing to refer to a transgender person other than by his/her/their birth sex, or relevant pronouns, titles, or styles, would constitute unlawful discrimination or harassment under the [Equality Act],” the tribunal found.

It also found the DWP’s policies requiring practitioners to use people’s correct pronouns “were a necessary and proportionate means of achieving [the DWP’s] legitimate aims” of providing an equal-opportunities service – and ensuring trans people who dealt with the DWP “were treated with respect and in accordance with their rights” under the Equality Act.

The appeal tribunal dismissed Mackereth’s claims of direct and indirect discrimination, and held that he had not experienced harassment relating to his religion or beliefs.

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