Wed 16 Oct 2019

Anti Transgender views and Equality Act Protection

UPDATE - although the claimant's appeal to the EAT was unsuccessful in that the employment tribunals view that he had not suffered discrimination was upheld, the EAT were of the view that the Tribunal had made errors in it's approach to whether the claimant's lack of belief in transgenderism was worthy of protection  under the Equality Act 2010.    Having a religion does not mean that related beliefs will be protected under Equality Act 2010

In Mackereth v The Department for Work and Pensions and Advanced Personnel Management Group UK Ltd the claimant was a Christian doctor who refused to address transgender patients by their preferred pronoun.  It quickly became clear that Dr Mackereth was not going to be able to fulfil his role carrying out health assessments for the Department of Work and Pensions as that would involve dealing with transgender clients.  The claimant made it clear that his preferred option would be to refer the client to a different doctor.  However, not only would this cause delays, the claimant acknowledged that his refusal to supply the service would likely cause offence to the individual concerned.

When the claimant's contract was terminated he brought a number of discrimination claims before the employment tribunal.  Both parties accepted that Christianity is a protected characteristic. It was though the claimant's beliefs that God created only man and woman and that a person cannot choose their gender, his lack of belief in transgenderism and his conscientious objection to it that were being considered. 

The tribunal considered the tests established in Grainger plc and others v Nicholson which included the requirement that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others when coming to their decision.  In concluding that the beliefs were not protected as religious or philosophical beliefs under the Equality Act 2010 the tribunal echoed the words of Lady Hale in Lee v Ashers Baking Company Ltd and Others that "It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person's race, gender, disability, sexual orientation or any of the other protected characteristics…..".

This was a decision of the employment tribunal and accordingly is not setting a precedent or lay down any authority but it does follow a number of other similar decisions where beliefs held by Christians that conflict with the rights of those with other protected characteristics are found not to be worthy of protection under the Equality Act.  This may not be the end of the story though as it is understood that the claimant is appealing.  

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