Has refusal to use others’ preferred pronouns or other opposition to usage of elective pronouns found legal protection in the UK?

Question

Whether under article 9 or 10, or (preferably) as a protected philosophical belief under the equality act 2010, has opposition to usage of elective pronouns found the protection of the law? (Predominantly interested in the British position, though of course other jurisdictions are also very welcome.)

Answer 1

A relevant recent case with the opposite conclusion is Mackereth v DWP [2022] EAT 99. Dr Mackereth worked for about a month as a disability assessor for the Department of Work and Pensions, where he was meant to examine people claiming disability-related benefits. In that role, the employer's policy was that he should use the names, titles and pronouns which applicants wanted him to use. Because of his evangelical Christian views he objected to this policy and left the job (he claims he was dismissed, but the first-instance tribunal found that he resigned voluntarily). His legal action alleged discrimination and harassment by the respondents on the grounds of his beliefs. He lost, appealed, lost again, and is now reportedly pursuing the matter in the European Court of Human Rights.

The conclusion in the Employment Appeal Tribunal is subtle. They criticized some points in the Employment Tribunal's assessment of the claimant's beliefs against the Grainger criteria for protection. But they accepted the finding that certain of Mackereth's beliefs "lacked the necessary cogency, seriousness, cohesion and importance" to meet the test. Even though Christian belief in general is certainly within the scope of the Convention rights, the beliefs at issue did not have a "close and direct nexus" with the faith (Eweida v United Kingdom 48420/10, [2013] IRLR 231 at 82). That is, his stated beliefs included examples like:

it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex

He claimed this was consistent with, and justified by, Christian doctrine regarding God's design for humanity as expressed in Scripture. But it is not in itself a precept of faith, and so it falls to be considered separately from Christian belief and practice in the large. The belief that doctors should only use pronouns corresponding to a person's assigned sex at birth, considered on its own, was so narrow that the Employment Tribunal was justified in saying it did not meet the Grainger test.

As in other cases relating to protection of beliefs, the findings are quite specific to the ways in which the individual claimant expressed and manifested their beliefs. Another person with similar beliefs, perhaps characterizing them differently, might have a different outcome. Moreover, the EAT agreed with the ET that on the facts, Mackereth had not suffered discriminatory treatment in any case.

Perhaps most importantly, they further found that the Grainger criteria are not the end of the story. Somebody may hold a belief that qualifies for anti-discrimination protection. However, for practices that would otherwise amount to indirect disrimination, a policy that is "a proportionate means of achieving a legitimate aim" (Equality Act 2010 s.19(2)(d)) can nevertheless be permissible. In this instance, even if Dr Mackereth's beliefs were protected, and if the DWP's policy meant that people with that belief were less likely to work there, the policy could still stand on proportionality grounds. The ET found that it was legitimate "to ensure transgender service users were treated with respect and in accordance with their rights" and that the pronoun/name policy was necessary and proportionate to that aim. This is consistent with Forstater v CGD Europe [2022] ICR 1 EAT, which firmly determined that the claimant in that case was not entitled to engage in harassment or discrimination against transgender people.