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.
Biblical beliefs ‘incompatible with human dignity’?
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, Mrs 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, Mrs 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).”
Mrs 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.
Mrs 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.”
Freedom to hold a belief but not express it ‘is no freedom at all’
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.”
Download Employment Appeal Tribunal judgment June 2022
Download Employment Tribunal October 2019 judgment