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Transgenderism religious views and the Equality Act

This is an Employment Appeal Tribunal ruling on whether a Christian’s beliefs about transgenderism were protected under the Equality Act 2010. Dr David Mackereth, a Christian, was dismissed for refusing to use a transgender service user’s preferred pronoun. Both religious belief and gender reassignment are protected characteristics under this act.

The circumstances

Dr David Mackereth was employed in May 2018 by the Department for Work and Pensions as a Health and Disabilities assessor. During this induction he was told that he must use their transgender client user’s preferred pronoun, but he refused.

Despite the DWP considering their options for managing the situation such as whether he could be moved to a non client facing role, or only to assess non transgender service users, neither of these were practicable to the DWP.

Consequently, Dr David Mackereth had a period of absence due to being too upset and distracted to work, and both he and the DWP agreed that he would no work until the matter was resolved.

This action was then construed as suspension and the following month, the DWP revisited the question of whether he would use a transgender’s preferred pronoun to which he said he could not due to his Christian beliefs.

Dr David Mackereth’s beliefs were based on Genesis 1:27 which said that people are born male and female and that a person cannot change their sex or gender.

He therefore felt that the DWP’s policies conflicted with this belief and subsequently confirmed that he could no longer work for the DWP and submitted several tribunal claims, including direct discrimination, indirect discrimination and harassment.

The judgement

The original employment tribunal in 2019 ruled that Dr David Mackereth’s conscientious objection to transgenderism was incompatible with human dignity and the fundamental right of others. They did not agree that his biblical belief met the criteria for protection under the Equality Act which arose in the Grainger PLC v Nicholson case. He lost his claim and went on to appeal.

He argued at the Employment Appeal Tribunal (EAT) that the ruling in case Forstater v the Centre for Global Development should have been considered, as it was in this case that ruled a person’s personal view on gender constituted a philosophical belief under the Equality Act.

The EAT rejected Dr David Mackereth’s appeal for direct and indirect discrimination and harassment. Although the EAT found that the original ET hearing had incorrectly considered his beliefs relative to his employment at the DWP and were wrong to have focused on the potential manifestation of his beliefs rather than the beliefs themselves, as well as having applied too high a threshold.

They also acknowledged that the original tribunal were wrong to rule that his beliefs did not fall in scope of the Grainger criteria and referred to the more recent case of Forstarter. That said, based on the facts, they did not support upholding his appeal.

Dr David Mackereth has said that he will challenge the EAT’s judgement at the Court of Appeal.

We are here to help

If you require any further support with your business including your HR, Payroll or Health and Safety, please contact us and speak to a member of the team.

We currently offer a transgender policy in our HR Document Shop to support you and your business, which you can download here. We also recently held a webinar that explored transgender equality at work which you can be watched at your convenience, here.

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