Transgenderism and Freedom of Expression: Resolving the Tension Between Competing Rights
By: Jacob Vande Zande
Earlier this year, a tribunal panel ruled against a doctor who had been terminated from his employment for refusing to renounce his religious belief that gender is determined at birth.[1] In dismissing Dr. David Mackereth’s religious discrimination claim, the panel held that the “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.”[2]
Dr. Davis Mackereth, a 56-year-old Reformed Baptist, worked a the National Health Service and was training to be a disability assessor at the Department for Work and Pension.[3] The conflict arose in June 2018 when Mackereth asserted that due to his religious beliefs, he could not refer to a six-foot man with a beard as a biological woman.[4] While Mackereth was open to call patients by their chosen name, he drew the line at putting on a form that a biological male was a biological female or vice versa.[5] Nevertheless, Mackereth’s position led to his termination as it is against the National Health Service’s policy to use patients’ preferred pronoun and under the Equality Act of 2010, which includes sex and gender reassignment in its list of protected classes.[6]
Ultimately, this case has inspired questions about the proper way to resolve the tension between competing rights, more specifically, how much interference with the freedom of religion and expression should be permitted in the pursuit of protecting the rights of others not be subjected to discrimination based on sexual identity, and how should the law strike a fair balance between differing fundamental rights?
Mackereth alleged harassment – direct and indirect discrimination based on his religious beliefs.[7] The panel narrowed the beliefs at issue to: 1) belief in Genesis 1:27 in that gender is determined at birth, 2) lack of belief in Transgenderism and 3) “conscientious objection to Transgenderism” as the “[b]elief 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.”[8] Furthermore, the panel held that while Christianity is protected, his belief in Genesis 1:27, lack of belief in transgenderism, and conscientious objection to transgenderism were not protected beliefs.[9] “In so far as those beliefs form part of his wider faith, his wider faith also does not satisfy” the requirement of being “worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.”[10] Therefore, the panel concluded that “[i]rrespective of our determinations above, 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.”[11]
In addition, the panel found that “refusing to refer to a transgender person by his/her/their birth sex, or relevant pronouns, titles or styles would constitute unlawful discrimination or harassment under the EqA [Equality Act of 2010].”[12] Therefore, the panel found that the Department of Work and Pension’s policy requiring the use of patients’ preferred pronouns had a legitimate aim that was relevant, necessary, and proportionate.[13] In the end, the panel held that “there was no contravention of part 5 of the Equality Act 2010 and the claimant was not subjected to discrimination in contravention of s.13 (direct), s.19 (indirect) and s.26 (harassment) Equality Act 2010.”[14] The Department for Work and Pensions backed the panel’s decision as one spokeswoman defended the decision as a proactive measure to safeguard transgender patients; “We acted to protect claimants from behaviour that would have failed to treat them with dignity, so we welcome this ruling. We expect all assessors to approach their work sensitively.”[15]
However, this decision also inspired criticism from the other side who argued that this decision was an unprecedented infringement on the freedom of expression and religion.[16] Andrea Williams, the CEO of the Christian Legal Centre which represented Mackereth, asserted that “It is deeply disturbing that this is the first time in the history of English law that a judge has ruled that free citizens must engage in compelled speech.”[17] She also argued that the judge “ruled that Christianity is not protected by the Equality Act or the ECHR, unless it is a version of Christianity which recognizes transgenderism and rejects a belief in Genesis 1:27.”[18] Mackereth felt that he could no longer keep silent about this issue and needed to take a stand based on his belief that “gender is defined by biology and genetics and that as a Christian the Bible teaches us that God made humans male or female.”[19]
Nevertheless, while Mackereth’s freedom of expression and religion argument was the one that received all the attention, his position was also based on his medical and scientific beliefs.[20] More specifically, Dr. Mackereth argued that “Transgenderism” and “gender fluidity” have “no sound medical or scientific basis.”[21] While Mackereth acknowledges that the belief that one was born as the wrong gender has always existed and does not doubt such individual’s sincerity, he argues that “Up until recently, such a belief was considered by medics to be delusional and a symptom of a medical disorder” and that political pressure is responsible for the change, “not scientific evidence.”[22] Ultimately, Mackereth asserts that he is not the only one in the medical community, religious or not, that share his concern about freedom of expression being undercut by such rulings, arguing that “No doctor, or researcher, or philosopher, can demonstrate or prove that a person can change sex. Without intellectual and moral integrity, medicine cannot function and my 30 years as a doctor are now considered irrelevant compared to the risk that someone else might be offended.”[23]
In conclusion, this blog shows an example of how the United Kingdom has approached striking a balance between competing rights. However, this approach is not without its shortcomings and critics, which highlights the significant difficulty of resolving tensions between competing rights and establishing a fair balance. Therefore, at the end of the day, one could conclude that it is just not possible to establish a truly fair balance between competing rights through the legal system. It may be that there is no approach or legal framework that sufficiently solves conflicts between very important rights and freedoms.
#UnitedKingdom #Blogpost #InternationalLaw #JaconVandeZande
[1] See Mackereth v. DWP: 1304602/2018; Chiara Giordano, Christian Doctor Who Refused to Call Transgender Woman ‘She’ Loses Employment Tribunal, INDEPENDENT (Oct. 3, 2019), https://www.independent.co.uk/news/uk/home-news/christian-doctor-transgender-woman-she-david-mackereth-a9133496.html; JD Flynn, In England, Christian Doctor Loses Trans Beliefs Case, Catholic News Agency (Oct. 4, 2019), https://www.catholicnewsagency.com/news/in-england-christian-doctor-loses-trans-beliefs-case-27463; BBC News, David Mackereth: Christian Doctor Loses Trans Beliefs Case, BBC News (Oct. 2, 2019), https://www.bbc.com/news/uk-england-birmingham-49904997.
[2] Mackereth, at 32.
[3] See Giordano, supra note 1; Flynn, supra note 1.
[4] See Hank Berrien, British Court in Transgender Case: Bible Belief is ‘Incompatible with Human Dignity’, Daily Wire (Oct. 2, 2019), https://www.dailywire.com/news/british-court-in-transgender-case-bible-belief-is-incompatible-with-human-dignity.
[5] See id.
[6] See Flynn, supra note 1.
[7] Mackereth, at 1.
[8] Id. at 2.
[9] Id. at 32.
[10] Id. at 23, 37.
[11] Id. at 32.
[12] Id. at 33.
[13] Id. at 39-41.
[14] Id. at 1.
[15] BBC News, supra note 1.
[16] See Caleb Parke, Christian Doctor of 30 Years Loses Job for Refusing to Use Transgender Patient's Preferred Pronoun, Fox News (Oct. 3, 2019), https://www.foxnews.com/faith-values/christian-doctor-fired-gender-pronoun.
[17] Id.
[18] Id.
[19] Hank Berrien, British Doctor Fired for Stating Gender is Determined at Birth, Daily Wire (July 9, 2018), https://www.dailywire.com/news/british-doctor-fired-stating-gender-determined-hank-berrien.
[20] See Berrien, supra note 4.
[21] Mackereth, at 8.
[22] Berrien, supra note 4.
[23] Id.