The rights of transgender individuals have been in the spotlight in recent years and there has been heated public debate concerning gender theory as it relates to trans persons. Expression of beliefs about gender, is an issue employers may increasingly find themselves needing to address, as can be illustrated by two recent Tribunal decisions, one of which has been widely reported in the press and is likely to shape future debate on the scope of legitimate expression of beliefs about gender and perhaps more widely.
Under section 4 of the Equality Act (EqA 2010) it is direct discrimination to treat a person less favourably because of their religion or belief. The Equality Act 2010 defines belief as any religious or philosophical belief, and a reference to ‘belief’ includes a reference to a lack of belief.
In determining whether a particular belief is protected, case law has set out the following criteria that must be satisfied:
- The belief must be genuinely held.
- It must be a belief and not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
Tribunals are under a duty to interpret domestic legislation in a manner consistent with rights under the European Convention on Human Rights (ECHR). The ECHR protects freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas. However, that freedom may be restricted in certain circumstances, including for the protection of the rights and freedom of others.
The recent cases of Mackereth v DWP and Forstater v CGD Europe and others are both cases where the Claimants have alleged direct discrimination, harassment and indirect discrimination, relying upon the protected characteristic of religion or belief, after their employment contracts were terminated. Both argued that the reason for their termination was following the expression of gender critical beliefs. In both cases the he beliefs were found to be capable of protection as a religious or philosophical belief under the EqA 2010. However, whilst Ms Forstater successfully argued discrimination, Dr Mackereth was unsuccessful.
Essentially, there is a distinction between cases where the reason for the treatment is the fact that the Claimant holds a protected belief (which would amount to direct discrimination), as opposed to cases where the reason is that the Claimant had manifested that belief in some particular way to which objection could justifiably be taken; it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of (which would not amount to discrimination).
In the case of Mackereth v DWP, Dr Mackereth applied to work as a Health and Disabilities Assessor (HDA) at the Department for Work and Pensions. Dr Mackereth is a Christian and had a commitment to the primacy of the Bible and a belief that the word of God was the final authority in all matters of faith and practise.
The DWP required all HDA’s to comply with their policies and procedures, including their diversity and equality policy. The role of an HDA was to assess claimants for disability related benefits, including conducting face to face assessments and writing reports.
In May 2018, Dr Mackereth commenced an induction course. During a discussion, someone asked how they should refer to someone who was transgender. The lead physician responded that the transgender individual should be given their preferred name and title, and always referred to in their presented gender. This was in accordance with the DWP’s policy. Dr Mackereth explained that, due to his beliefs, he did not object to using whatever first name the service user wished but he did object to using pronouns or titles inconsistent with their birth gender. In his previous A&E work as a doctor, the hospital had been aware of his beliefs and had helped him avoid having to deal with transgender people. The lead physician checked if a similar accommodation could be provided. Two possible alternatives were identified; however, they were not practicable.
The DWP met with Dr Mackereth and asked him to clarify his position and gave him an opportunity to follow their agreed process in referring to service users in their chosen form of address. Dr Mackereth responded that he could not in good conscience do this. Therefore, DWP wrote to Dr Mackereth to confirm that he would not be able to work as an HDA.
Both the Employment Tribunal and the Employment Appeal Tribunal (EAT) held that Dr Mackereth had not been treated less favourably on the grounds of his religion or belief, rather DWP had merely been seeking to explore how his beliefs could be accommodated and that any person who refused to comply with DWP’s policy would have been treated in the same way.
As for indirect discrimination, the tribunal found that DWP had adopted two PCP’s (provision, criterion or practises): (1) requiring HDA’s to use service users preferred pronouns, and (2) to confirm a willingness to adhere to this. The Tribunal concluded that the PCP’s were necessary and a proportionate means of achieving legitimate aims, which were to ensure transgender service users were treated with respect and in accordance with their rights under the EqA 2010, and to provide a service that promoted equal opportunities. Potential accommodations for Dr Mackereth’s beliefs had been considered, but none were practicable.
In this tricky area of discrimination law, Tribunals have to find a balance between competing interests and determine when it is permissible to restrict a person’s rights to manifest their belief in the workplace. It is possible to disassociate a protected belief from the manifestation of that belief where everyone will be treated in the same way, regardless of their beliefs. Here, it was possible to sever Dr Mackereth’s protected beliefs from the way in which he wanted to manifest them.
He was dismissed not for his gender critical Christian views, but for refusing to address trans service users in the manner of their choosing, in accordance with the DWP’s policies.
This can be contrasted with the case of Forstater v CGD Europe and others. Ms Forstater was a Visiting Fellow and had entered into a Consultancy Agreement with CGD, a not-for-profit think tank focusing on international development.
Ms Forstater believes that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. She expressed several gender critical beliefs on Twitter, including referring to a prominent gender fluid individual as a “man in heels”, and some of her colleagues found this offensive.
CGD took the decision not to renew her contract and the reason(s) for this was the key issue for the Tribunal.
The Tribunal held that her gender critical beliefs had a significant influence on the decision not to renew her fellowship. The question then arose as to whether the way in which she manifested her beliefs was inappropriate. It was held that, taken overall, Ms Forstater’s manifestations of her belief were not objectively offensive, and it rejected CGD’s argument that it was the way in which Ms Forstater expressed her beliefs, and not the fact that she held them, that had been the reason for the non-renewal of her fellowship.
Where does that leave employers?
The EqA 2010 includes protections against discrimination and harassment which will apply both to gender critical beliefs, and to trans individuals. The unwarranted use of language in the workplace that someone in either group might reasonably find offensive could be unlawful harassment, but respectful discussion is unlikely to be so. Those holding opposite beliefs must tolerate each other, even if they find each other’s beliefs offensive.
Where to draw the line in individual cases will be highly fact sensitive. Hard and fast rules from these cases are difficult to come by and employers should seek legal advice on appropriate action to be taken when dealing with these issues.
Dr Mackereth has indicated he intends to appeal the EAT’s decision and we are awaiting the outcome of two other cases around gender critical views, so this is not the end of the road.