Christian doctor to take trans pronoun case to Court of Appeal, following ‘muddled’ tribunal judgment29 June 2022 Issued by: Christian Legal Centre
In a mixed judgment, the President of the Employment Appeal Tribunal (EAT) has today ruled that biblical beliefs that do not affirm transgenderism are protected under the Equality Act, while also ruling that Christians cannot express those beliefs in the workplace without fear of losing their jobs.
Mrs Justice Eady handed down judgment in the case of Dr David Mackereth, 58, who had appealed his sacking in 2018 as a medical assessor for the Department for Work and Pensions (DWP) after refusing to identify clients by their chosen gender instead of their biological sex.
Supported by the Christian Legal Centre, Dr Mackereth, an A&E doctor with 30 years’ experience, had challenged a previous Employment Tribunal (ET) ruling which said that his belief in Genesis 1:27, that we are born male and female, was ‘incompatible with human dignity’, ‘unworthy of respect in a democratic society ’and ‘mere opinion.’
The ruling stemmed from a legal precedent set in the case of Grainger PLC v Nicholson (2010) which outlined five criteria that would qualify as a ‘philosophical belief’ to be protected under the Equality Act.
Judge Perry had ruled in October 2019 that Dr Mackereth’s biblical beliefs had not met these criteria and were therefore not worthy of protection under the Equality Act.
The ruling put Dr Mackereth’s biblical beliefs on a par with neo-Nazi beliefs and was believed to be the first time in the history of English law that a judge had ruled that free citizens must engage in compelled speech.
Today, Justice Eady has now ruled, however, that the Employment Tribunal ‘erred in law’ in its previous ruling.
This means that the belief in the Biblical account of God’s creation order, and that transgenderism is sinful, is a protected belief under both the Equality Act and the Human Rights Act.
Furthermore, it means that more narrow beliefs flowing from that core belief, such as that affirming a transgendered person in their gender identity belief is harmful, are also protected. The right not to believe in transgenderism is also protected.
In the judgment, Justice Eady stated: “It had been wrong to find these were merely opinions based on the information available (Grainger (ii)) when the statements were extrapolations from the claimant’s belief (a) and were properly to be viewed as manifestations of that belief. More generally, the ET had erred in its approach to the question whether the beliefs were worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others (Grainger (v)): the ET had wrongly considered the claimant’s beliefs relative to his particular employment; had erroneously assumed they must give rise to unlawful discrimination or harassment; had focused on the potential manifestation of the claimant’s beliefs instead of the beliefs themselves; and had applied too high a threshold (Forstater applied).”
Justice Eady also found that the Employment Tribunal’s conclusions on Dr Mackereth’s beliefs had been: “explained only by its finding that the claimant’s beliefs were “likely to cause offence.” The fact that a belief is likely to cause offence cannot, however, mean that it is automatically excluded from protection.”
However, the EAT went on to dismiss Dr Mackereth’s appeal on the basis that the EAT believed the ET had done a proper assessment of the merits as if the beliefs had been protected.
Ultimately, the EAT affirmed the ET’s findings that while the belief, or lack of belief, in transgenderism was protected, its manifestation in the workplace was qualified.
“The ET’s finding thus drew a permissible distinction between the claimant’s beliefs and the particular way in which he wished to manifest those beliefs (Page v NHS) and meant that his claim of direct discrimination had to fail.”
The judgment also reveals that while the EAT has held that belief in Genesis 1:27, and everything that flows from that core belief, are protected, it also found that those beliefs may nonetheless be ‘offensive’ – a view which passes judgment about the substance of Christian beliefs in breach of the court’s duty of strict neutrality.
Justice Eady concluded the ruling by saying:
‘Critically evaluating the reasoning in this case (as we are required to do), we cannot see that the ET erred in concluding that the measures adopted by the [Department for Work and Pensions] were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users and on the risks to those individuals and, in consequence, to the [Department for Work and Pensions].’
Court of Appeal
Responding to the ruling, Dr Mackereth, said: “I am grateful to the court for recognising that a belief that we are made by God, both male and female “in His image” is not incompatible with human dignity. The court has agreed to recognise this as a legitimate belief, but not to extend the same protections, under law, to that belief as to others. For this reason, I will be taking my case to a higher court.
“My case affects everyone, not just me and Bible-believing Christians, but anyone who is concerned by compelled speech and transgender ideology being enforced on the NHS and other public services.
“Everyone in the NHS should be able to say publicly without fear that a person cannot change sex, but instead we are being forced to accept a massive change to our concept of the medical reality of sex, with no scientific basis for that change.
“No doctor, or researcher, or philosopher, can demonstrate or prove that a person can change sex. Without intellectual and moral integrity, medicine cannot function and my 30 years as a doctor are now considered irrelevant compared to the risk that someone else might be offended.
“As Christians we are not trying to be unkind to people in any way. As Christians we are called to love all people with Christian love. But we cannot love people truly when we live and disseminate a lie.
“If we are to tell patients that they need to ‘follow the science’, then we must not tell them that they can change sex.”
Andrea Williams, chief executive of the Christian Legal Centre, said: “This is a confusing and muddled judgment. The way in which the judge has driven a wedge between holding a belief and manifesting it means these basic Christian beliefs are protected on paper but not in practice.
“The freedom to hold a belief, but not be able to express it, is no freedom at all.
“This ruling means that you can believe that it is impossible to change sex but if you live out that belief as a doctor your job may be at risk.
“If you fail to comply, you could be forced out of your employment.
“We stand with David as he continues to seek justice in this case.”
Notes to editors
What does the EAT’s judgment mean and what are its ramifications?
1. Belief in the Biblical account of God’s creation order and that transgenderism is sinful is a protected belief under both the Equality Act and the Human Rights Act. More narrow beliefs flowing from that core belief, such as that affirming a transgendered person in their gender identity belief is harmful, are also protected. Lastly, the right not to believe in transgenderism is protected, and an employer should not punish someone for refusing to affirm transgender belief.
2. While the EAT has held that belief in Genesis 1:27, and everything that flows from that core belief, are protected, it also found that those beliefs may nonetheless be offensive. The implied bias makes the ruling unsafe in that is passes judgment about the substance of Christian beliefs in breach of its duty of strict neutrality. The unconscious disdain shown to those beliefs also empowered the EAT to bend over backwards to justify Dr Mackereth being forced out of his job.
3. The way in which the EAT balanced the difference between holding a belief and manifesting it sets a dangerous precedent which is ripe for promoting viewpoint discrimination. It would appear that the EAT factored in its lack of sympathy with Dr Mackereth’s beliefs when balancing the competing interests involved to ultimately find that Dr Mackereth’s loss of employment was a price worth paying to avoid any speculative possible ‘distress’ to persons identifying as transgender.
4. The ET judgment at several points was patently incorrect making the judgment unsafe. For example, the ET held that Dr Mackereth was not dismissed for manifesting his beliefs, when in fact the last email sent to him by his employer was clear that he must agree to go against his conscience and use another’s desired pronouns or resign his position. Elsewhere, the EAT inexplicably found that the ET recognised group discrimination when it had not. The ET found that Dr Mackereth’s beliefs were not protected as some Christians feel able to use preferred pronouns. It then held that any group which does hold beliefs such as Dr Mackereth’s, would not be protected because their views were either merely opinions or not worthy of respect in a democratic society. It was precisely this latter finding which doomed the ET’s analysis of the indirect discrimination claim and which should have been corrected by the EAT. The ET held “What flows from that is that insofar as those individuals did not hold those beliefs [Dr Mackereth’s views], they would have been able to comply with the PCP and thus not put to a disadvantage. Those that did hold those beliefs, in our view did not satisfy the test in Grainger.
5. Every Christian in the United Kingdom should be concerned that our courts and Tribunals can find that being forced to violate your deeply held Biblical beliefs and conscience which might result in the loss of your job, is a small price to pay to prevent and possible ‘distress’ to possible transgender clients that a person might have to assist only a few times a year.
6. It is particularly concerning how haphazardly the EAT disavows fundamental freedoms to believe and manifest our beliefs; to enjoy freedom of expression, including the right not to be compelled to express specific beliefs; and the freedom of thought and conscience. The EAT went so far as to give greater weight to the rights of those who adhere to gender identity belief but are not protected under the Equality Act, than to a Christian who does have a recognised legally protected belief under the Act and who wished to manifest a genuine act of conscientious objection.
7. The EAT, while affirming its earlier precedent that a blanket requirement to use someone’s desired pronouns would be a disproportionate limitation on freedom of belief, nonetheless upheld the DWP’s blanket requirement to use desired pronouns. No accommodation would be afforded to Dr Mackereth.
Images and video of Dr Mackereth
Download Employment Appeal Tribunal judgment June 2022
Download Employment Tribunal October 2019 judgment