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Although gender-critical beliefs (that a person cannot change their sex/gender at will) are protected under the Equality Act 2010, employers are entitled to take steps to prevent employees from demonstrating or expressing their beliefs in ways which are inappropriate in their impact.
The background:
To be a protected philosophical belief under the Equality Act 2010 it needs to meet the test set out in Grainger plc v Nicholson by the EAT, which is that the belief must:
A reference to belief includes a reference to a lack of belief.
The facts:
The employee, Dr Mackereth, is Christian and believes that God creates people as men or women and that the Bible prohibits transgenderism. This belief prevents him from using pronouns which are inconsistent with birth gender.
Dr Mackereth started work with the Department for Work and Pensions (DWP) as a health and disabilities assessor of benefits claimants. During the induction process Dr Mackereth stated that his beliefs meant he could not agree to use the preferred pronouns of transgender service users. However, this was at odds with the DWP’s policy which said that ‘A transgender customer … should be treated with respect and referred to in their presented gender at all times’.
The DWP took steps to clarify Dr Mackereth’s beliefs and to see if it could accommodate them. However, it could not find a way in which to do so. In particular:
Dr Mackereth subsequently left the DWP’s employment – with his view being that he had been dismissed. He also said that he had been ‘hauled out of a meeting’’ ‘interrogated’ and pressurised to renounce his beliefs. DWP said they did none of those things.
Dr Mackereth brought employment tribunal (Tribunal) claims for discrimination (direct and indirect) and harassment, relying on the protected characteristic of religion or belief (including a lack of belief in transgenderism).
Tribunal decision
The Tribunal dismissed Dr Mackereth’s claims. In particular, it found that his gender-critical beliefs did not satisfy the fifth Grainger principle as they conflicted with the fundamental rights of others (i.e. transgender people). It also found that his lack of belief in transgenderism was not protected under the Equality Act. The Tribunal went on to say that even if Dr Mackereth’s beliefs were protected, he had not been harassed or discriminated against.
Dr Mackereth appealed to the EAT.
EAT decision
The EAT said that the Tribunal had imposed too high a threshold when considering whether Dr Mackereth’s gender-critical beliefs were worthy of respect in a democratic society. For a belief to be protected, it only needs not to destroy the rights of others.
The EAT also said that Dr Mackereth’s lack of belief in transgenderism was protected. The Tribunal had been wrong to apply the Grainger test to this aspect. A lack of belief is protected regardless of whether it meets the Grainger test.
However, the EAT upheld the tribunal’s decision on discrimination. It was possible (and correct) for the Tribunal to sever Dr Mackereth’s protected beliefs from the action he wanted to take as a result (i.e. the way in which they ‘manifested’).
Implications:
The EAT in both this case and in its earlier decision of Forstater has made it clear that gender-critical beliefs are protected. This means that employers should handle any situation relating to such beliefs very carefully.
Fortunately for the DWP it did so. To manage the conflict between Dr Mackereth’s gender-critical beliefs and its preferred pronouns policy, DWP spent time speaking to Dr Mackereth about the nature of his beliefs and took care in assessing whether, and if so how, they could be accommodated. DWP was not hostile towards Dr Mackereth, or critical of his beliefs. If the Tribunal and EAT had found that DWP had acted differently, he may well have succeeded in his claims.
This decision is not authority that pronouns policies will always be justified. This will depend on the circumstances and facts of the case. However, it does clarify that having a protected belief does not legitimise conduct which would otherwise count as discrimination or harassment. In particular, having a gender-critical belief does not mean that an employee can ‘misgender’ transgender people with impunity. Dignity and respect is key.
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