Healthcare-workers and transgender clients: Mackereth

And just in case you thought we’d given up doing proper law…

In Dr David Mackereth v The Department for Work and Pensions & Anor [2019] ET 1304602/2018, Dr Mackereth had been recruited by Advanced Personnel Management Group (’APM’) as a Health and Disabilities Assessor (‘HAD’) on behalf of the DWP [3]. He was contracted to assess individuals on behalf of the DWP who were contemplating, undergoing or had undergone gender reassignment. However, as a result of his Christian beliefs he refused, in conscience, to refer to clients using the pronoun of their choice – as the DWP required. It later became apparent the issue also extended to styles and titles of address [8]. He was suspended and, ultimately, sacked [17].

At the Employment Tribunal, Dr Mackereth asserted that he was a Christian and that his religion was a relevant protected characteristic for the purposes of ss. 4 & 10 of the Equality Act 2010 [5]. He believed in the truth of the Bible and, in particular, the truth of Genesis 1:27: “male and female He created them”. Therefore, he believed, a person could not change his or her sex/gender at will. He asserted a lack of belief that it was possible for a person to change his or her sex/gender, that impersonating the opposite sex might be beneficial for an individual’s welfare and/or that society should accommodate and/or encourage anyone’s impersonation of the opposite sex. Further, he believed that it would be irresponsible and dishonest for, eg, a health professional to accommodate and/or encourage a patient’s “impersonation” of the opposite sex [6].

Both respondents accepted that Christianity was a protected characteristic but did not accept that Dr Mackereth’s assertions constituted a protected characteristic. They argued that at the heart of his beliefs was intolerance towards transgender people and that a refusal to respect their dignity and their preferred form of address was incompatible with human dignity and conflicted with the fundamental rights of others [7]. It was agreed that Dr Mackereth’s complaints fell within ss.39, 40 and 41 of the Equality Act 2010  and that references to discrimination in the revised list of issues included harassment [16]. The acts of harassment and less favourable treatment that he relied upon were the pressure put on him to renounce his beliefs, his suspension from work on 13 June 2018 and his summary dismissal [17].

Dr Mackereth did not assert that he was treated less favourably than a person who, for reasons unrelated to Christianity or other belief refused to comply with the DWP’s gender reassignment or equal opportunities policy [19]. It was agreed that the DWP applied the following provisions, criteria or practices (PCPs):

“all Health and Disability Assessors to use such pronouns as may be preferred by a particular client, regardless of that client’s biological sex’ ; in the event of doubt, that ‘a Health and Disability Assessor … confirm his or her adherence to the said PCP … at an early stage of their training and without any such issue arising in practical work”.

It was also agreed that the penalty for non-compliance was suspension and/or dismissal [23].

Unsurprisingly, the ET accepted that Christianity attracted the protection of Article 9 ECHR and/or of s.10 Equality Act 210 [194]. It also accepted that his belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism were genuinely held and that belief in Genesis 1:27 and the first aspect of lack of belief in transgenderism related to a weighty and substantial aspect of human life and behaviour and attained a certain level of cogency, seriousness, cohesion and importance [193]. However, it also found that, notwithstanding the low threshold, Dr Mackereth’s lack of belief that “impersonating the opposite sex” might be beneficial for an individual’s welfare, and/or that the society should accommodate and/or encourage it, did not reach the necessary threshold for protection:

“Irrespective of our determinations above, all three heads, belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals” [193].

Therefore, refusing to refer to a transgender person by his/her/their birth sex, or relevant pronouns, titles or styles would constitute unlawful discrimination or harassment under the Equality Act [201] and failed the test in Grainger Plc & Ors v Nicholson [2009] UKEAT 0219/09/0311 [202]. The claims of direct and indirect discrimination and harassment therefore failed [204].

The ET added as a footnote that the case was not about whether or not Dr Mackereth was a Christian and whether or not that qualified for protection under the Equality Act. Nor did it doubt the genuineness of his beliefs [261 & 262]:

“What this case concerned is whether he was entitled to manifest those beliefs in the circumstances that applied here. He accepted that his beliefs meant that insofar as a service user was a transgender individual within the meaning of the [Equality Act], that whilst he did not wish them to, his actions would cause offence and potentially breach the [Equality Act]. We find that if the service user also held a full gender recognition certificate Dr Mackereth’s position was that he would also potentially breach the [Gender Recognition Act] for the reasons we give above” [263].

It is likely that Dr Mackereth will appeal.

Cite this article as: Frank Cranmer, "Healthcare-workers and transgender clients: Mackereth" in Law & Religion UK, 6 October 2019, https://lawandreligionuk.com/2019/10/06/health-workers-and-transgender-clients-mackereth/

Leave a Reply

Your email address will not be published. Required fields are marked *