“He/him, “she/her”, “they/ them”? Important new case on the use of preferred pronouns for transgender individuals in the workplace.

An employment appeal tribunal (EAT) has found that a Christian doctor who refused to use the preferred pronouns of transgender service users was not discriminated against by his employer.

By way of way of background:

What did the Tribunal previously find?

Ultimately, the Tribunal dismissed the doctor’s claims. The Tribunal found that his beliefs did not amount to a protected characteristic under the Equality Act 2010 (EqA).  Even if the doctor’s beliefs did amount to a protected characteristic, they were of the view that he was not treated less favourably or harassed as a result of this belief.

The Tribunal also found that there was no indirect discrimination.  The practice, criterion and provision in this case was requiring assessors to use service users’ preferred pronouns and to confirm a willingness to do so. The tribunal found that this was a necessary and proportionate means of achieving the DWP’s legitimate aims: ensuring transgender service users are treated with respect in accordance as well as a provision of a service that promoted equal opportunities.

What has the EAT now found?

Is a lack of belief in ‘transgenderism’ and a belief that a person cannot change their sex/gender protected under the EqA? Yes.

The EAT held that the Tribunal made some errors. The EAT held that the doctor’s biblical belief and lack of belief in transgenderism were protected under the EqA. In order for a belief to qualify for protection under the EqA, it only needs to be established that ‘it does not have the effect of destroying the rights of others’. However, the EAT found that whilst the doctor’s beliefs were ‘likely to cause offence’, this did not mean that this belief could not be protected.

In addition, the doctor’s lack of belief in ‘transgenderism’ is enough in itself to qualify for protection under the EqA.

Was the employer’s response to the Doctor’s refusal to use preferred pronouns discrimination? No. 

The EAT still upheld that he had not suffered direct discrimination, indirect discrimination or harassment as a result.

The doctor was not put under pressure in relation to renouncing his beliefs. The DWP did not dismiss the doctor. The doctor made the decision to leave whilst the DWP were still at a stage where they were gathering information. Moreover, the EAT found that the tribunal were correct in finding that the doctor’s beliefs were not the reason for the DWP’s conduct. The reason was that the DWP wanted to treated service users in a way in which they wanted to be identified. Further, the EAT held that there was no harassment.

In addition, the EAT agreed with the Tribunal that there was no indirect discrimination.

What can employers learn from this?

This case demonstrates that use of preferred pronouns is an emotive issue which should be handled with care as this is crucial to achieving an environment which promotes equality and tolerance.  Equally, employers need to be conscious of the fact that a lack of belief in transgenderism is capable of being a belief which is protected under the Equality Act.  The outcome of this case illustrates that employers need to conduct a careful balancing exercise when it comes to the rights of those who identify as transgender and those who want to uphold their own religious beliefs.