In a good development for religious freedom, the UK Employment Appeal Tribunal (“EAT”) in its decision in Mackereth v Department for Work and Pensions & Anor [2022] EAT 99 (29 June 2022) has ruled that a Biblical view of human sex and gender is “worthy of respect” and may be protected as a religious belief in an appropriate case. Unfortunately for Dr Mackereth, the outcome of the appeal was that the way he had been treated by the relevant Department in response to his protected belief was a “proportionate” and hence lawful action. As I will explain below, I think this part of the ruling may be challenged. But it is good to see common sense on the issue of the status of his belief, which is one that would be shared by many people in the community.

I have previously commented on the proceedings involving Dr David Mackereth, who lost his job because he declined to agree to use the “preferred pronouns” of transgender patients. In the course of its 2019 decision dismissing his claim for religious discrimination, the Employment Tribunal ruled that Dr Mackereth’s beliefs (which included the belief that Genesis 1:27 implies that “every person is created by God as either male or female. A person cannot change their sex/gender at will”) were not “worthy of respect in a democratic society,… incompatible with human dignity and … [in] conflict with the fundamental rights of others” (at para [197] of that earlier decision.)

Those who are interested in these issues will no doubt recall that a similar set of proceedings had been brought by Maya Forstater, who had also challenged popular views about “gender identity”. Ms Forstater, after initially losing her claim in the Employment Tribunal for similar reasons to those provided in Dr Mackereth’s case, was vindicated in Forstater v CGD Europe [2021] UKEAT 0105_20_1006 (10 June 2021), [2022] ICR 1 when the EAT ruled that her views were also worthy of respect and protection. (See my comment on that decision for further discussion.) Ms Forstater’s views were not based on religious belief, and so were protected as legitimate “philosophical beliefs” under UK discrimination law. (Her proceedings continue on other questions around the discrimination claim.)

This EAT decision in Dr Mackereth’s case, then, was heavily influenced by the 2021 EAT Forstater decision. The Appeal Panel (chaired by the President of the EAT, the Hon Mrs Justice Eady DBE) held that the lower level decision was wrong in the way it characterised Dr Mackereth’s beliefs about gender identity. She cited the 2021 Forstater decision extensively, noting that there the Appeal Panel had noted that only the most seriously harmful views would be excluded from protection:

“79. In our judgment, it is important that in applying Grainger V, Tribunals bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be.”

Fostater EAT decision, 2021; quoted in Mackereth EAT 2022, at [86].

Applying these principles here, the President held that the lower level ET had been wrong in the way that it characterised Dr Mackereth’s views:

117. More generally, we are satisfied the ET erred in its approach to Grainger (v) by imposing too high a threshold for the protection of a belief under section 10. As has been made clear in the case-law, in a pluralist democratic society it is necessary for the threshold to be set at a low level so as to allow for protection not just of beliefs held to be acceptable by the majority but also of minority beliefs, even where those beliefs might offend others; we respectfully agree with the EAT in Forstater that the bar can be seen to be set by article 17 ECHR, such that: “in order for a conviction or belief to satisfy threshold requirements to qualify for protection, it need only be established that it does not have the effect of destroying the rights of others” (Forstater, paragraph 59)

118. For these reasons, we agree with the claimant that the ET erred in finding that (a) his belief in Genesis 1:27 did not amount to a protected characteristic for the purpose of sections 4 and 10 EqA. Similarly, to the extent that the claimant’s lack of belief (b)(i) (that it is possible for a person to change their sex/gender at will) fell to be considered against the Grainger criteria, we find the ET also fell into error.

Mackereth 2022, paras [117]-[118]; emphasis added.

Importantly, the President also noted at [116] that the ET had also been wrong to find “a failure to use a transgender person’s preferred pronouns must necessarily constitute unlawful discrimination or harassment under the [Equality Act]”.

These are important propositions which will be very helpful in protection of religious free speech, and free speech generally on “gender identity” issues, in the future. The EAT then went on to consider the question of whether, given that Dr Mackereth’s views were in a general sense “worthy of protection” as religious beliefs, there had been unlawful discrimination in this case.

Here I think the EAT gets it wrong. Without going into all the details, I agree that what had happened to Dr Mackereth was probably not harassment or “direct” discrimination. But I think the case for indirect discrimination was very strong. A case of indirect discrimination, in broad terms, is a claim that a provision, criterion or practice (“PCP”) has been applied to the claimant which imposes a substantial burden on him that would not be experienced by those who did not share his protected attribute (here, his religious beliefs about gender.) In addition, to defend a claim for indirect discrimination the employer must show that the PCP was necessary and proportionate to achieve a legitimate aim.

In this case it was accepted that PCPs had been applied “such that HDAs [health and disabilities assessors] were required to use service users’ preferred pronouns, and to confirm that they were willing to do so” (see para [133]).

One of the problems that Dr Mackereth faced was that there was a question whether he had actually been fired. He reported a conversation with a supervisor where in effect an ultimatum was given. But at that point he chose to resign, and this then led to some uncertainty about the legal effect of what had occurred. In my view this is not a very strong argument in favour of the Department. It seems fairly clear that what he was told meant that the very next step would be the termination of his contract. But this uncertainty played into the EAT decision that what had been done was not “disproportionate” (allegedly, they “sought to accommodate the claimant’s position and to clarify his position before taking any further steps”- see [133]).

The Department alleged that what it did was needed to avoid “discrimination”. But the facts of the case show that what Dr Mackereth said he would do, would avoid this. He accepted that he would use the preferred name of patients. In his face-to-face interaction with them, he would not need to use “third person” pronouns- the English language of course allows one to address someone else as “you” in the second person with no grammatical marker for sex.

The EAT said that there were “particular sensitivities arising from the face-to-face interactions the claimant would have with service users as part of his role”- at [134]. But it fails to address the matters noted above. Indeed, it acknowledges that under UK law it is not unlawful to use a non-preferred pronoun in relation to all transgender persons- legal obligations to do so only arise when a person has satisfied additional requirements under the relevant UK laws: “that not all transgender service users would fall within the relevant EqA protected characteristic (gender reassignment), and that fewer still would fall under the protection of the GRA” (at [135]).

Weighing up all these matters, and the suggestion made by Dr Mackereth that he would use a person’s preferred name, the decision that what was done to him (by effectively forcing him to resign) was “proportionate” seems to me to be incorrect.

Whether or not Dr Mackereth pursues a further appeal process, the decision here as to recognition of the religious beliefs as worthy of protection is a welcome one. In my previous comment on this case, I also mentioned there is similar litigation underway in the US involving a high-school French teacher, Mr Peter Vlaming, dismissed from his teaching position for declining to agree to use the preferred pronoun of a student who was biologically female and “transitioning” to male. That case is now before the Virginia Supreme Court (see this update from Mr Vlaming’s lawyers as of 24 March 2022) and may provide further guidance in the future.

Calls for use of preferred pronouns have been an important part of the “transgender” movement, which in its extreme forms denies the reality of biological sex. There is now a movement with no connection to religious beliefs, pushing back against these demands: see, for example, this article by Colin Wright, an evolutionary biologist, from February 2022: When Asked ‘What Are Your Pronouns,’ Don’t Answer. (WSJ). Religious beliefs from most mainstream religious texts would also provide a reason for those of faith to be concerned about being required to use language that does not correspond to reality. Hopefully officials, courts and tribunals who consider these issues will uphold the rights of free speech of those who disagree with these calls to conform on the basis of their own deeply held beliefs.