Gender pronouns are terms people choose to refer to themselves that reflect their gender identity. Whilst not mandatory, some employers encourage the use of gender pronouns to promote inclusivity and diversity.
An employee’s refusal to address transgender patients by their chosen pronouns was at the forefront in the recent case of David Mackereth -v- Department for Work and Pensions & anor. Dr Mackereth (“Dr M”) is a Christian doctor employed by the DWP as a disabilities assessor. He refused to use preferred pronouns when addressing transgender patients due to his Christian beliefs.
The Employment Appeal Tribunal (EAT) held that whilst Dr M’s Christian beliefs were protected, his beliefs were not the reason for DWP’s conduct, rather it was because they wished to treat transgender patients in accordance with their rights by addressing them by their chosen pronouns. They also found that any employee who refused to honour patients by their chosen pronouns would have been treated in the same manner as Dr M irrespective of whether they shared Dr M’s Christian views. As such, the EAT found that DWP’s demands that Dr M address transgender patients by their pronouns was a reasonable and proportionate means of achieving a legitimate aim.
The Employment Tribunal (ET) only last week, also handed down its long-awaited judgment in the landmark case of Maya Forstater -v- CGD Europe. Mrs Forstater (“Mrs F”) posted tweets from her personal twitter account against transgenderism however one tweet stated that she would still be polite to transgender people and address them by their chosen pronouns. Mrs F took her employer to the ET claiming that the non-renewal of her consultancy contract was discriminatory and that her beliefs were protected under the Equality Act 2010. The ET held, in stark contrast to the case above, that Mrs F was directly discriminated against and victimised due to her gender-critical beliefs that sex is immutable and should not be fused with gender identity.
The fundamental distinction that can be made in both these cases is:
• the holding of a belief; and
• the manifestation of such a belief, the latter being the supporting factor in Mrs F’s case. Essentially, everybody has the right to hold a belief but it is whether the manifestation of those beliefs adversely conflict with the rights of others where the waters start becoming muddy.
Implications for employers
As can be seen from the discussion of the cases above, much of these types of scenarios depend wholly on the specific context and circumstances surrounding each case.
In light of this ever-changing and ever-emerging area of law please contact our Employment team for assistance with managing sensitive issues like transgenderism and the use of pronouns.