The Employment Appeal Tribunal has ruled that a Christian doctor’s beliefs about transgenderism were protected under the Equality Act 2010, but he was not entitled to express those views at work.
Dr David Mackereth lost his claim for religious discrimination and harassment at the Birmingham employment tribunal in 2019, and took an appeal against the ruling to the EAT earlier this year.
His former employer, the Department for Work and Pensions, dismissed him from his role as a health and disability assessor after he refused to use transgender service users’ preferred pronouns.
Mackereth’s beliefs are based on what the bible says in Genesis 1:27; that we are born male and female and that a person cannot change their sex or gender. This belief conflicted with DWP’s policies.
In 2019, the employment tribunal ruled that Mackereth’s conscientious objection to transgenderism were “incompatible with human dignity and conflict with the fundamental rights of others”. The judge said his biblical beliefs did not meet the criteria for a philosophical belief as defined in the Grainger PLC v Nicholson case, and were therefore not worthy of protection under the Equality Act.
On appeal, his legal team argued that the ruling in the case of Maya Forstater last year should be applied to his claim. In that case, the judge found that Forstater’s personal views on gender constituted a philosophical belief under the Equality Act 2010.
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In a 61-page judgment handed down today (29 June), the EAT ruled that Mackereth’s belief is protected under the Equality Act and Human Rights Act. Nevertheless, the judgment notes his belief could be deemed offensive.
Justice Eady stated: “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. 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.”
However, Justice Eady stated that the employment tribunal had properly taken account of the context in which Mackereth had expressed his beliefs and had carefully evaluated DWP’s concerns with them being expressed in his role.
The judgment says: “Given the particular context, it could not be said that the ET had erred in finding the measures adopted by the respondents 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 respondents.
“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… and meant that his claim of direct discrimination had to fail.”
Mackereth, who is now a doctor in the NHS, said he would take his case to the Court of Appeal.
Everyone in the NHS should be able to say publicly without fear that a person cannot change sex.” – Dr David Mackereth
He 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.
“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.”
The Christian Legal Centre, which supported Mackereth with his case, described the judgment as “confusing and muddled”.
Chief executive Andrea Williams said: “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.
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“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.”
