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Is a Conscientious Objection to Transgenderism Protected Under the Equality Act?

In the case of Dr David Mackereth v The Department for Work and Pensions and Advanced Personnel Management Group (UK), a first instance tribunal considered whether a Christian doctor who conscientiously objected to transgenderism was protected under the Equality Act 2010 as a result of a religious or philosophical belief.

In this case, a Christian doctor sought to rely upon the following beliefs:

  • that God only created males and females and that a person cannot choose their gender;
  • his lack of belief in transgenderism; and
  • his conscientious objection to Transgenderism, namely that he believed it would be irresponsible and dishonest for a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex.

Dr Mackereth argued that due to his beliefs he could not in conscience refer to individuals (patients) he was contracted to assess on behalf of the DWP who were contemplating, undergoing or had undergone gender reassignment using the pronoun of that person’s choice, as the DWP required. It later became apparent that the issue also extended to styles and titles of address (such as Mr or Ms) although he had no issue with using whatever first name the service user wished to use.

In determining whether Dr Mackereth’s beliefs were protected under the Equality Act, the Tribunal considered the following test established in Grainger plc and others v Nicholson [2010]:

  • The belief must be genuinely held;
  • It must be a belief, 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; and
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The Tribunal held that Dr Mackereth’s views were incompatible with human dignity which conflicted with the fundamental rights of others and so were not protected religious or philosophical beliefs under the Equality Act.  That in turn meant he could not argue he had been treated less favourably by his employer, because of those beliefs, for discrimination purposes under that legislation.

It is reported that Dr Mackereth intends to appeal the decision. So, what have we learnt from this? This decision provides helpful guidance which shows how beliefs on transgenderism will be viewed by the courts.

It is important to note that it was not in dispute in this case whether Dr Mackereth is a Christian and if that qualifies for protection under the Equality Act.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as, legal advice.

JMW Solicitors is a Limited Liability Partnership.

The copyright in this article is owned by JMW. Any reproduction of this article should be credited to JMW. All rights reserved.