Employment Law: Competing Protected Characteristics - Transgender

Employment Law: Competing Protected Characteristics - Transgender

Joseph Weston focuses on gender reassignment in his latest employment article and what is meant by Protected Characteristics in the Equality Act and a recent case of interest

Joseph Weston

Competing Protected Characteristics - Who Wins?

Perhaps the most divisive and complex cases involving discrimination are those where there are two protected characteristics, each vying for more protection to the detriment of the other. In my opinion, this is rarely felt as keenly as in cases involving sexual orientation or gender reassignment and religion or belief.

Within this article, I hope there will be valuable information for both employers and employees who find themselves either on either side of the divide, or treading the thin line which separates them. Although there are a number of cases involving sexual orientation and religion and belief (see for example Lee v Ashers Baking Company Ltd and others [2018] UKSC 49), this article will focus on gender reassignment.

What are the protected characteristics?

Gender reassignment is a protected characteristic under section 7 of the Equality Act 2010. It refers to a person who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. In general terms, people who are likely to benefit from this protected characteristic will consider themselves as trans, meaning their gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.

Religion and belief is a protected characteristic under section 10 of the Equality Act 2010. Although many beliefs can be captured under this protected characteristic, such as Veganism, this article needs only focus on mainstream religious beliefs, such as those held by Dr David Mackereth, a Christian doctor working with the Department for Work and Pensions, where he assessed people with disabilities.

What happened in the case?

As elucidated in Employment Judge Perry’s judgment in Dr David Mackereth v The Department for Work and Pensions and others ET/1304602/2018, Dr Mackereth believed that “a person cannot change their sex/gender at will. Any attempt at, or pretence of, doing so, is pointless, self-destructive, and sinful”. Although there was no dispute that Christianity is a protected characteristic, the Respondents argued that “at the heart of those beliefs [as above] is intolerance towards transgender people, and that a refusal to respect the dignity of transgender people and their perferred form of address is incompatible with human dignity and conflicts with the fundamental rights of others”.

Following EJ Perry’s judgment, where Dr Mackereth’s claim failed was in the nature of his belief. Specifically, his belief, in his own words, that “Transgenderism is delusional” and his lack of belief that “impersonating the opposite sex may be beneficial for an individual’s welfare”. These beliefs do not relate to a weighty and substantial aspect of human life and do not attain the level of cogency, seriousness, cohesion and importance required for protection under section 10 of the Equality Act 2010.

What does this mean for employers?

The case above should serve as a, perhaps unnecessary, reminder that discrimination law can be incredibly complicated. Due to the unfortunate conflict that has arisen between religion and belief on the one hand and sexual orientation and gender reassignment on the other, employers would be wise to ensure that their policies are as fair as possible and sensitive to each group’s particular circumstances.

If you are an employer and are struggling to navigate this complicated area of the law, feel free to contact a member of Lawson-West’s experienced employment law team, who will be able to provide the expertise and deft touch needed to reduce as much as possible the likelihood of any potential discrimination claims from arising.

And for employees?

Experiencing discrimination of any kind can be devastating. When that discrimination is compounded by being told either that you cannot express your views, or that your authentic self is not only unacceptable but sinful, the effect can be suffocating and dehumanising. The above case helps to some extent to clarify the extent to which a religious belief can be used to suppress a person’s gender identity, but it may be naive to believe that this is the last we will hear of this issue.

If you believe you have been discriminated against, either by your colleagues or your employer, we can help you navigate this complicated area of law and achieve the most suitable resolution to your issue.

Contact Joseph Weston for advice or support jweston@lawson-west.co.uk in relation to transgender discrimination and the workplace.

Helpful Links: 

Lee v Ashers Baking Company Ltd and others [2018] 

Dr David Mackereth v The Department for Work and Pensions and others 



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