29th July 2019

Gender Identity and the Impact of Language

 

Outside of school English classes: how much do you know about pronouns? How important would you say they are to you? How important do you think they are for someone who is transgender?

David Mackereth is a doctor who was in training to become a work and health assessor for the Department for Work and Pensions (DWP). During the training process he was informed he would have to follow DWP policy and refer to patients by their indicated gender and respective pronouns. Dr. Mackereth refused to do this and his employment was terminated during his probationary period. (https://www.bbc.co.uk/news/uk-england-birmingham-48924966)

Dr. Mackereth’s refusal stems from his Christian religious belief that a person’s biological sex is inextricably linked to their gender identity and the two cannot be separated. The DWP operate a policy where all assessors must address patients by their preferred pronouns regardless of biological sex.

The case is ongoing (with evidence being heard on 10 July 2019) and, whatever the outcome, is a reminder for employers to strike the right balance when it comes to equality and diversity training of their staff.

What are pronouns?

When it comes to a person’s gender identity, a pronoun is what the person in question is referred to as when not using their name in a sentence. For example of someone who uses female pronouns an example would be: “Jess is suffering from concussion; she feels dizzy and has asked for her mum to be called”.

A transgender non-binary individual may elect to use “they/them/their” as their preferred pronoun. For example: “Sy has suffered a cut on their leg, they should keep it elevated – would you take them to Ward 4?”

Utilising a person’s preferred pronouns shows respect to the individual in question. Although many people may feel awkward when addressing the issue of pronouns (especially in a doctor/patient context) it is something which should not be shied away from.

Why are pronouns important?

If you think about it, how you are addressed and referred to by others forms a large part of your life. A person’s pronoun is closely linked to their identity and the matter is highly personal, especially to members of the trans community. For many trans people, choosing their preferred pronoun marks the first step to asserting their own trans identity.

Research carried out by LGBT+ rights charity, Stonewall, has shown that half of transgender employees in the UK hide the fact that they are transgender for fear of discrimination.

So what does religion have to do with it?

In the UK, individuals have the right not to be discriminated against by reason of their religious beliefs. An employer will fall foul of the Equality Act 2010 if it discriminates against an employee because of that employee’s religion or belief. Similarly, if a policy of the employer puts an employee (of a particular religion or belief) at a substantial disadvantage and the policy cannot be said to a proportionate means of achieving a legitimate aim then it will be discriminatory.

There have been a number of cases involving practicing Christians being disciplined in the workplace for allowing their religious beliefs to inform their behaviour at work. These individuals normally assert that their Christian beliefs prevent them from recognising transgender identities (as in the case of Dr Mackereth) or the promotion and acceptance of LGBT relationships.

Conclusion

Although the case of Dr. Mackereth has not been heard in full, it will be interesting to see what specifically he is claiming against the DWP and whether he is successful. His case is being funded by Christian Concern who have a record of supporting members of the Christian faith in proceedings similar to these ones. Often, even though claimants in these cases lose for one reason or another (see below), they usually appeal. In some cases claimants take things further to the European Court of Human Rights arguing that their Article 9 Rights (Freedom of Thought, conscience and religion) are being infringed.

Often cases brought on these grounds can be defeated by the employer relying on the argument that the equality and diversity policy in question is a proportionate means of achieving a legitimate aim. Specifically, the aim of creating a diverse and inclusive workforce.

*All information is correct at the time of publishing

Napthens LLP

Employment Law Specialists

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