A doctor dismissed for refusing to refer to transgender people by their preferred pronouns is this week taking his case to the Employment Appeal Tribunal (EAT) in an attempt to overturn a 2019 judgment that described his views as not ‘worthy of respect in a democratic society’ and ‘incompatible with human dignity’.
Dr David Mackereth’s claim for religious discrimination and harassment failed at the Birmingham employment tribunal after he lost his job as a health and disabilities assessor for the Department for Work and Pensions (DWP).
Mackereth, a Christian now working in the NHS, hopes the judgment will be overturned following the ruling in the case of Maya Forstater last June. In that case, the judge found that Forstater’s personal views on gender constituted a philosophical belief under the Equality Act 2010.
DWP’s policy states that transgender individuals should be referred to by their preferred name, gender pronoun and title. But during a training session, Mackereth said that using pronouns that did not match a person’s sex at birth would be incompatible with his Christian faith.
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He was subsequently dismissed by Advanced Personnel Management, which employed him as a contract worker for the DWP, because he refused to identify clients by their relevant gender instead of the sex they were assigned at birth.
Mackereth’s legal team, backed by the Christian Legal Centre, argued in the employment tribunal that the DWP policy of compelling staff to use transgender pronouns was a breach of the Equality Act and that the DWP had breached his right to freedom of thought, conscience and religion.
His lawyers said his “conscientious objection to transgenderism” is based on his belief “that it would be irresponsible and dishonest for a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex”.
They argued that the DWP discriminated against Mackereth because of his beliefs, including: “His belief in the truth of the Bible, and in particular, the truth of Genesis 1:27: ‘So God created man in His own image; in the image of God He created him; male and female He created them.’”
Incompatible with human dignity
However, Employment Judge Perry ruled that: “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.”
Andrea Williams, chief executive of the Christian Legal Centre, said: “This was an astonishing judgment and one that if upheld will have seismic consequences not just for the NHS and for Christians, but anyone in the workplace who is prepared to believe and say that we are created male and female.
This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” – Mr Justice Choudhury in the Forstater ruling
“The teaching of Genesis 1:27 is repeated throughout the Bible, including by Jesus Christ himself. It is fundamental to establishing the dignity of every human person but is, in a bizarre ironic twist, being branded as incompatible with that dignity.”
Dr David Mackereth’s appeal
Ahead of the hearing, Mackereth said: “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.
“The judgment from two years ago said to Christians ‘you have to believe in transgender ideology.’ That is totalitarianism. It made out Christianity to be nothing, the Bible to be nothing. That cannot be allowed to stand.”
In the EAT hearing which began yesterday, lawyers are arguing that Maya Forstater’s successful appeal at the EAT last summer has resolved the “central issue of law” raised in Mackereth’s case.
Finding in favour of Forstater, Mr Justice Choudhury ruled that a previous employment tribunal had erred in law in the preliminary issue of whether her belief was a philosophical belief as described in section 10 of the Equality Act.
Outlining the case before the EAT yesterday, Mackereth’s legal team argued that the Forstater case relied on similar beliefs about sex and gender to those held by Mackereth, albeit on a secular rather than a religious basis. They argued that because claimant’s gender-critical beliefs form part of his wider Christian faith, the judge’s reasoning in Forstater applied even more strongly.
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Speaking to Personnel Today however, Robin White, barrister and co-author of A Practical Guide to Transgender Law, said that there are two significant differences between Mackereth’s case and Forstater’s.
“Dr Mackereth’s principal case was based on the fact that he was a Christian, and the tribunal was very clear that there are plenty of trans-supportive Christians as well as anti-trans Christians,” said White.
“Part of his claim was that he was indirectly being discriminated against because Christians are likely to be anti-trans. The tribunal said no, there’s no evidence to support that.”
The Forstater judgment
White added that Judge Choudhury, in the Forstater appeal case, made a “big caveat” in his judgment by saying that it did not give licence to those seeking to harass trans people. The Forstater ruling states: “This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity.”
“Forstater says that she would respect the way that trans people would like to be referred to,” explained White. “Dr Mackereth by comparison says he’s entitled to misgender a trans person. His belief therefore is more extreme than Forstater’s because he claims the right – based on his belief – actively to be unpleasant to trans people.”
In the employment tribunal case in 2019, Dr Mackereth referred to transgenderism as a “delusional belief” and that it would be irresponsible and dishonest for a health professional to accommodate and/or encourage a patient’s “impersonation” of the opposite sex.
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White concluded: “In my view it is wrong to say that the Forstater judgment determines what the result should be in the Mackereth case.”
The EAT hearing concludes today.
