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Monday, 07 October 2019 05:45

Fired for using the wrong pronoun

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Two cases have been highlight overseas recently where a Christian employee has been fired for declining to use the “preferred pronoun” of a person who identifies as a different gender to their biological sex. The cases illustrate that religious freedom, and free speech generally, in the workplace can be under challenge in circumstances involving “gender identity” issues. It is not clear how such cases would be resolved in Australia.

UK-  Dr David Mackereth 

In the first case, Mackereth v Department for Work and Pensions (ET: Case Number: 1304602/2018; 26 Sept, 2019), in the UK, Dr David Mackereth, an experienced health care professional, had taken on a contract position as a Health and Disabilities Assessor (“HDA”) on behalf of the Department for Work and Pensions (“DWP”), undertaking assessments of clients and potential clients of the Department. His position commenced in May 2018, and at an early stage he was required to attend an induction session for new physicians. One of the other participants asked how they should refer to clients who were “transgender”. The DWP trainer said something to the effect that clients should always be referred to in their preferred gender.

Dr Mackereth indicated that he was not happy with that policy. He said: “As a Christian, I cannot use pronouns in that way in good conscience” (para [66]). The trainer said that he would refer the issue to a supervisor. At a later meeting with a senior officer of the agency he was working for, he was in effect told that he would have to use a client’s preferred pronouns, whatever his private views on the issue might be.

There is conflicting evidence about who said what over the next few days. But ultimately Dr Mackereth was sent a letter from the DWP, saying:

we would like to ask you one final time whether you would follow the agreed process as discussed in your training and that in any assessment you conduct, that you refer to the customer by their chosen sexuality and name? We are of course happy to provide help and support on this. If however you do not wish to do this, we will respect your decision and your right to leave the contract.

Para [133]

Dr Mackereth responded: “I am a Christian, and in good conscience I cannot do what the DWP are requiring of me.” (para [134]) The Department later referred to his “resignation”, but he responded (with some justification) that he had been fired, rather than voluntarily resigned. He then took action against DWP, on the basis that his termination amounted to either direct or indirect unlawful discrimination, or harassment, on the ground of his religion, contrary to the Equality Act 2010 (UK). The Department’s response alleged that allowing Dr Mackereth to work in these circumstances would have been to potentially “cause offence” to clients who were transgender (even those who had not undergone all the procedures necessary for issue of a “gender recognition certificate” under UK law.)

The Employment Tribunal (a first instance tribunal hearing, among other things, complaints of discrimination in employment) ruled that all of Dr Mackereth’s claims under the Equality Act 2010 failed. In so doing, they made some deeply disturbing comments.

Dr Mackereth had set out the theological beliefs he held that were relevant to this issue as follows:

a. “His belief in the truth of the Bible, and in particular, the truth of Genesis 1:27: “So God created man in His own image; male and female He created them; in the image of God He created him.” It follows that every person is created by God as either male or female. A person cannot change their sex/gender at will. Any attempt at, or pretence of, doing so, is pointless, self-destructive, and sinful. (“Belief in Genesis 1:27”)
b. Lack of belief (i) that it is possible for a person to change their sex/gender, (ii) that impersonating the opposite sex may be beneficial for an individual’s welfare, and/or (iii) that the society should accommodate and/or encourage anyone’s impersonation of the opposite sex (“lack of belief in Transgenderism”)
c. Belief that it would be irresponsible and dishonest for e.g. a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex (“conscientious objection to Transgenderism”.)”

Para [6]

He said that those specific beliefs were part of a wider set of beliefs he held about Christianity. The Tribunal summed up why he felt he could not use a biologically incorrect pronoun as follows:

Dr Mackereth argues that as a result of his beliefs he cannot in conscience refer [to] individuals 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 the issue also extended to styles and titles of address.

Para [8]

However, he did make it clear that he was happy to use whatever personal name a person asked him to use.

The Tribunal’s role was to decide whether Dr Mackereth had been harassed or discriminated against on the basis of his religion under the Equality Act. However, in effect it ruled against the doctor by ruling that his set of beliefs were not able to be protected under UK law. Given the mainstream nature of these beliefs (in particular, “belief in Genesis 1:27”, a key passage from the very first chapter of the Bible about the nature of humanity), this is an astonishing position.

They reached this view after citing some words from a House of Lords decision on religious discrimination, R. (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 (HL), in particular the comments of Lord Nicholls at [23] (quoted in Mackereth at [158]):

Everyone … is entitled to hold whatever beliefs he wishes. But when
questions of “manifestation” arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection…” (emphasis added)

In a later decision of a lower court, the Employment Appeal Tribunal, in Grainger v Nicholson UKEAT/0219/09, Burton J picked up those words of Lord Nicholl’s in setting out a definition of what might be protected, not as a “religion”, but as a “philosophical belief”, saying at para [24](iv) (cited in Mackereth at [157]) about such a belief:

(v) 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.

Using these words of Burton J, the Tribunal in Mackereth concluded that Dr Mackereth’s views, noted above, failed this test! They said:

[197]… all three heads, belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals.

With respect, there are serious legal problems here. The subtle shift that has taken place starts with the allusion to Lord Nicholl’s words, which are clearly meant to carve out a very narrow class of exceptions to the manifestation of “religious beliefs” which are protected at law; his Lordship says these are meant to be “modest, objective minimum requirements”, and the only beliefs he instances are “subjecting others to torture or inhuman punishment”. This is then broadened out in the comments of Burton J at a Tribunal level, not referring to “religion” but “philosophy”, to exclude something that is “incompatible with human dignity”. This phrase itself, set loose from the context in Williamson, has now been broadened to potentially include “human dignity” at large, rather than the confined area covered by Lord Nicholl’s comments.

Finally, the comments in Grainger, now applied in Mackereth in a religious belief context rather than a “philosophy” context, are broadened even further. What evidence does the Tribunal offer to support its view that a belief in the teaching of the Bible about humanity being created in two sexes, is somehow “incompatible with human dignity”? How does it conflict with a “fundamental” right of a transgender person?

The only answer that is offered to this startling proposition seems to be the comments that were made earlier in the decision (and accepted by Dr Mackereth as his views) that “transgender individuals… may find my beliefs to be offensive” (see para [198]; see also reference to “taking offence” in paras [96], [145]-[146].)

The fact that a person’s religious beliefs may not support a transgender person’s conviction about their own gender identity may of course cause “offence”. But it is a very large step indeed to find that a belief of this sort is the functional equivalent of Lord Nicholl’s examples of “subjecting others to torture or inhuman punishment”. There is a massive gap between inflicting physical torture or punishment on someone, and holding a belief that someone is wrong about their gender.

In fact, belief in “Genesis 1:27” encompasses much more than a belief in the created binary sexual nature of humanity. The belief in the doctrine mainly set out in the verse- that all human beings are created in the image of God- is the very foundational belief underlying the commitment of Western society to defending the rights of all people, whatever colour, or gender, or age, or socio-economic class, or other characteristic. The verse is the very basis for “basic standards of human dignity”, that drove William Wilberforce to spend his life fighting to abolish the slave trade, or the Earl of Shaftesbury to agitate for workplace safety laws and the abolition of child labour.

Indeed, it is worth noting that not only was a belief in Genesis 1:27 said to be “incompatible with human dignity”, there is even a suggestion that Christianity as a whole is suspect. In concluding its discussion on “indirect discrimination”, the Tribunal commented:

We accept Dr Mackereth’s account that his beliefs [ET1/5] are inherent to his wider faith [ET1/4]. In so far as those beliefs form part of his wider faith, his wider faith also does not satisfy Grainger (emphasis added)

Para [231]

Insofar as any sense can be given to this reference to Dr Mackereth’s “wider faith”, this seems to be a reference to Christianity in general: see the Tribunal’s comments in para [5]: “Dr Mackereth asserts [ET1/4] that he is a Christian and his religion is a relevant protected characteristic for the purposes of ss. 4 & 10 EqA”.

While it is by no means clear, perhaps the reference to the “wider faith” now said to be “incompatible with human dignity” (which is what “does not satisfy Grainger” means) is intended “only” to be limited to the specific theological stance noted later:

Dr Mackereth told us, and we find, that he holds to the principles of the Great Reformation of the 16th Century including a commitment to the supremacy of the Bible as the infallible, inerrant word of God as his final authority in all matters of faith and practice.

Para [37]

Evangelical Christians will not find this very comforting.

In short, the implications of this Tribunal decision are very wide-reaching. However, the importance of the decision should not be over-stated. Tribunal decisions of this sort do not amount to binding precedent for courts. There are still a number of levels of possible appeal. It seems to me quite unlikely that this broad-ranging condemnation of orthodox Christian beliefs will be upheld by other courts. But of course it does signal the degree to which those beliefs are under attack from current sexual orthodoxy.

There is no space to give a full review of other aspects of the decision, but I will note them briefly. Given the “knock-out blow” administered by the Tribunal to Dr Mackereth’s beliefs as “unworthy of protection”, they did not actually need to comment on the other harassment and discrimination claims. But they chose to do so.

I agree with the Tribunal that the “harassment” claims were not very strong- the members of the DWP seem to have administered their bad news in a polite way. I also think that the Tribunal were probably correct to reject the claim in “direct discrimination”. It does indeed seem true that anyone who had voiced an objection to being required to use biologically incorrect pronouns would have been treated in the same way that Dr Mackereth was- see para [222].

The Tribunal found that there would have been a prima facie case of “indirect discrimination” under s 19 of the Equality Act. There was a “provision, criterion or practice” applied by DWP (agreed to be at least that spelled out in para [23](a): “The DWP requires all Health and Disability Assessors to use such pronouns as may be preferred by a particular client, regardless of that client’s biological sex”). This requirement put Dr Mackereth (and other evangelical Christians with similar views) at a “disadvantage” in comparison to those who did not share those religious views. Indeed, the Tribunal was prepared to find at [232] there was such a disadvantage.

In such a case, to justify the indirect discrimination, the alleged discriminator must show that what was done was “a proportionate means of achieving a legitimate aim” under s 19(2)(d) of the Equality Act. Here it seems fair to say that the legitimate aim was to show respect for transgender persons- para [240]. But, as in most such cases, the question as to whether the means adopted to achieve this end were “proportionate” was one on which minds could differ. One suggestion put forward was that clients could have been through a screening process and those who were transgender, not sent to be assessed by Dr Mackereth. Alternatively, Dr Mackereth could agree to refer these customers to another assessment officer. But these options were rejected as likely to create “offence” to transgender clients- see para [246]. One other option put forward by Dr Mackereth at trial was for him to agree not to use pronouns at all in speaking to patients (a condition which is not, perhaps, as extreme as it first sounds, given that really it is only third-person pronouns which raise the issue, and the unlikelihood that one would need to address someone one was speaking to using such a pronoun.) But that was found not to have been suggested at the relevant time. Hence the Tribunal ruled that even if an indirect discrimination claim were otherwise available, it would have failed.

The question remains at the end of the case, however, whether it is a “proportionate” way of achieving the legitimate aim of providing respect to the transgender clients who may have presented (acknowledged to probably be a handful of times per year- para [253]), for a person with orthodox Christian beliefs to lose their job. No doubt other clients of DWP may have been “offended” by advice they had to be given by assessment officers (such as in declining payment of a pension, for example). Was the cost of momentary offence to transgender customers, when they were passed on to be served by someone else, so high that it justified excluding medical officers with mainstream Christian (or Jewish or Muslim) beliefs from employment altogether? These questions are unresolved for the moment.

US- Peter Vlaming

In the United States, a similar sequence of events has seen 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 is biologically female and “transitioning” to male. The facts of the case are set out in a detailed statement of claim recently filed by lawyers acting for Mr Vlaming in the local Virginia Circuit Court.

Briefly, Mr Vlaming seems to also be a Christian with a strong belief that the Bible’s view of humanity is that there are only two sexes, and that these are not changeable. Having been told that one of the students in his class now identified as male, he undertook to the student not to refer to them in class by using a pronoun. He said that he would not, however, use what he regarded as the wrong pronoun. This was not acceptable to the student’s parents, however, who demanded that he commit to using the student’s preferred pronoun.

Sadly the matter became even more fraught when a class-room activity involving virtual reality goggles saw the student in question about to walk into a wall and suffer an injury. In the heat of the moment Mr Vlaming called out to one of the other students, “Don’t let her hit the wall”. At the end of the class he apologised to the student for this slip in his promised policy.

After a formal complaint from the student’s parents, Mr Vlaming was directed by the school to use only male pronouns in referring to the student. He refused on the basis of his religious beliefs and on the grounds that he believed this was compelled dishonesty. He was subsequently dismissed.

The claim he has now filed with the court includes claims on the basis of breach of rights of free speech (including complaint about “compelled speech”) and religious freedom, under the Virginia Constitution and legislation protecting religious freedom. The case has not yet been heard.

Australian law on pronouns?

My previous blog post on the law of Australia, on the question whether it is unlawful to decline to use someone’s preferred pronoun, suggested that at the moment it is probably not. The exception may be under the law of Tasmania, but even there I indicated that the matter is by no means clear. Since that last post, legal academic Professor Patrick Parkinson has presented an important paper which also touches on these issues: see “Is Gender Identity a Religious Freedom Issue?” (11 Sept, 2019).

The recently released Exposure Draft of a Religious Discrimination Bill from the Commonwealth Government provides, as the UK law noted above does, for an action for “indirect discrimination” on the basis of religious belief or activity, in clause 8. Similar issues to those noted above in the Mackereth case, will need to be resolved under this law, if enacted in its current form, in considering whether the imposition of a rule about pronoun use is “reasonable”. Clause 8(2) requires a weighing up of the “nature and extent” of the disadvantage imposed on the employee, the feasibility of overcoming this, whether the disadvantage is “proportionate to the result sought”. Finally, under cl 8(2)(d), since what we are considering is what the Bill calls an “employer conduct rule” (imposed by an employer on employees and relating to “standards of … behaviour”- cl 5(1) definition), the tribunal or court would need to consider:

the extent to which the rule would limit the ability of an employee of the employer to have or engage in the employee’s religious belief or activity 

These are worthwhile matters to be weighted up.

Conclusion- a question of free speech

Finally, having considered how these issues may be approached where the reasons for declining to use preferred pronouns are based on religious conviction, it is worth noting that a reluctance to accept a preference for changed pronouns can be held on a number of non-religious grounds. A number of feminist and other commentators have expressed grave concern about rules requiring the recognition of biological males as females. Their concerns are not drawn from religious convictions, but from views about the science of the matter, and a fear that many of the gains of feminism in winning appropriate recognition of the need for space for women, are being undermined.

From either a religious or a non-religious perspective, the community needs to be concerned about cases where employees of good will, not otherwise showing hate or animosity to transgender persons, are being dismissed for conscientious objection to using pronouns.



Neil Foster

Law Professor

Neil is an evangelical Christian, an Associate Professor in law, a father and a grandfather. He has qualifications in both law and theology and teaches “Law and Religion” as an elective to later year law students.

He blogs at Law and Religion Australia