Christian doctor who would not call a transgender woman ‘she’ loses tribunal claim

Is a worker’s conscientious objection to calling transgender individuals by their chosen pronouns capable of protection as a religious or philosophical belief under the Equality Act 2010?

No, according to a recent employment tribunal in which a Christian doctor who refused to refer to transgender benefits claimants by their chosen pronouns has lost his claim for religious discrimination and harassment.

Relevant Legal Principles

“Religion or belief” is one of nine “protected characteristics” covered by the Equality Act 2010 (EqA 2010), the others being age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex and sexual orientation. “Religion” means any religion (including a lack of religion). “Belief” means any religious or philosophical belief (including a lack of belief).

Penalising someone because of their religion or belief is unlawful under the EqA 2010.

Facts

The Claimant was a qualified medical doctor and began work as a health and disabilities assessor at the Department for Work and Pensions’ (DWP) assessment centre in Birmingham. He was also a devout Christian.

At the Claimant’s induction session, another worker asked how assessors should refer to transgender claimants. The session co-ordinator said it was DWP’s policy that transgender individuals should be referred to by their preferred name, gender pronoun and title.

The Claimant told the co-ordinator that he did not have an issue with using whatever first name the benefits claimant wished to use, but as a Christian he objected to using pronouns inconsistent with the person’s birth gender.

He claimed that he was subsequently called to an urgent meeting and told that DWP would not allow him to meet with transgender benefits claimants if he did not agree to use their chosen pronouns. Following that meeting, the Claimant left work. He alleged (but it was denied) that he had been suspended from work.

He was then sent an email stating: “On behalf of DWP 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 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.”

The Claimant replied that he could not do so in good conscience because of his Christian faith.

The Claimant alleged that he had been dismissed.

Claim

The Claimant brought a claim in the employment tribunal (ET) arguing that he had been discriminated against on the grounds of religion or belief for refusing to address transgender patients by their chosen pronoun. He relied as acts of discrimination on pressure put on him to renounce his beliefs, his ‘suspension’ from work and his dismissal.

He asserted that his Christian religion was a protected characteristic under the EqA. In addition, he relied on as religious and/or philosophical beliefs (a) his belief in the truth 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.” It followed in the Claimant’s belief that every person is created by God as either male or female. A person cannot change their sex/gender at will; and (b) his “conscientious objection to transgenderism”

ET Decision

The ET dismissed the Claimant’s claim for discrimination. The ET accepted that the Claimant’s Christianity was protected under the EqA 2010. However, it ruled that the Claimant was not entitled to manifest his particular beliefs that God only created males and females and that a person cannot choose their gender, his lack of belief in transgenderism, and his conscientious objection to transgenderism, as these were views incompatible with human dignity and conflicted with the fundamental rights of others and so were not protected religious or philosophical beliefs under the EqA 2010.

Mackereth v The Department for Work and Pensions ET/1304602/18

Comment

Penalising someone because of their religion or belief is unlawful under the Equality Act 2010. However, it can be difficult to strike a balance in the workplace between the right of employees to express their religious views and the rights of others.

Case law suggests that, while employers should not discriminate against employees because of their religious views or beliefs, this does not give employees free rein to manifest or express those beliefs at work regardless of the impact on others.

The Claimant in this case has expressed his intention to appeal against the tribunal decision so this may not be the last word in the matter.

Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article