Can forcing the use of transgender preferred pronouns amount to discrimination?
Posted by Steph Marsh on 18th July 2022
In short, it will depend on the facts!
Background
In the case of Mackereth v Department for Work and Pensions (“DWP”) the
question of whether it was discrimination to refuse to use the preferred
pronouns of transgender clients was deliberated.
The Claimant, Dr David Mackereth, was a Christian doctor who provided health and
disability assessments for the DWP. Early in his career, he stated that because of his religious beliefs he would not use the preferred pronouns of any
transgender clients. However, this contradicted the DWP’s policies,
which stated that those undergoing transition should be referred to by their
presented and preferred gender at all times.
Clearly the Claimant was going to be in breach of this
policy, so decided to resign and bring a claim in the Employment Tribunal.
Christianity, as a religion, is a protected characteristic, but this was not
the issue in this case. It was whether he could show that his
beliefs that a person cannot change their sex/gender, that it would be
irresponsible for a health professional to encourage transgenderism and his lack
of belief in transgenderism could amount to direct discrimination,
harassment and indirect discrimination.
Ruling
The Employment Tribunal held that the Claimant’s beliefs did
not amount to protection under the Equality Act and even if they had
done, he had not suffered any less favourable treatment/harassment.
The DWP’s policies were justified and were
necessary and proportionate in meeting their legitimate aim of ensuring that
transgender clients were not discriminated against and were treated with
dignity and respect.
The Claimant was clearly not happy with the decision and
appealed to the Employment Appeal Tribunal. Unfortunately for him, the EAT
agreed with the initial decision, finding that he had not been subject to
discrimination. Although, the EAT pointed out that some of his beliefs would
qualify for protection under the Equality Act.
How does this impact employers?
One reason that the Claimant’s claim failed was that his
employer had tried to accommodate his beliefs, but he had resigned before they
could implement any strategies and adjustments.
Employers should ensure that if they require employees to
use certain terms when dealing with transgender clients, the requirement is
proportionate to achieving a legitimate aim, for example treating those clients
with respect and promoting equal opportunities.
If you would like any further advice, or would like us to
review any of your policies, then please get in touch with a member of the team on 01752 663295.