David Mackereth, M.D., has worked for the British National Health Service for nearly 30 years and has never had a single complaint from a transgender patient. That might be because Mackereth treats his patients respectfully and according to their medical needs — as he ought. But when Mackereth applied for a job as a disability assessor in a medical center run by the British government’s Department of Work and Pensions (DWP), he ran into serious trouble.
A “trainer” instructed him on a hypothetical scenario. If he were to encounter a transgender patient, the trainer said, he must refer to that patient, both in person and in writing (in medical records), by whichever pronouns and prefixes the individual preferred (such as he or she, they or ze). As a doctor, Mackereth, was worried this was not in his patient’s best interests. And as a Christian, Mackereth felt that he was unable to lie. He told the trainer that if such an instance arose, he would be unable to comply. His dissent was not well received.
“After some discussion” with the DWP, Mackereth told me, “I was given the opportunity to change my mind and I said in good conscience, as a Christian, I can’t do that. And I was told that my services would not be required.”
Believing that he’d been unfairly discriminated against, Mackereth took legal action. But an employment judge decided against him in July, issuing its decision last week. Mackereth is not backing down. “We will take this as far as we have to, or as far as we possibly can,” he says. After all, as the British journalist Dan Hitchens noted wryly:
Judges, like comedians, seem ever more convinced that their role in society is to broadcast their political opinions. As Jonathan Sumption put it in his Reith Lectures, the judiciary often resemble a “priestly caste” who want their liberal values to be raised to the level of “fundamental human rights.”
It is true that a growing portion of the British judiciary (not unlike its American counterpart) is indistinguishable from the trials-by-media circus. Often, if they differ at all, it’s simply a matter of tone.
During the hearing in July, for instance, Piers Morgan of Good Morning Britain invited the mild-mannered Mackereth on his show, only to call him a “bigot,” which Morgan defined — with zero self-awareness, evidently — as “a person who is woefully intolerant of people.” Morgan then blithely explained (to the medical doctor with nearly three decades of experience) that transgender people go through an “extraordinarily long and painful transition process both physically and psychologically, and they do it because fundamentally they believe they were born in the wrong body.”
MACKERETH: Well, the Bible tells us that God has made us male and female. He made us for His own glory. And if I’m a bigot, then the whole of Christianity throughout history is bigotry. I don’t believe that. I believe Christianity is the truth of God.
MORGAN: The Bible says if you look at people in an adulterous manner you should be stoned to death. Do you agree with that? . . . Given your self-righteousness, do you wander round the streets of your city now looking for people who are looking at people in a lustful way and stone them to death? And if not, why not?
MACKERETH: You haven’t established that I’m self-righteous. I’m a sinner saved by the grace of God through faith in Jesus Christ, so I carry the righteousness of Jesus Christ. I long for the same thing for everybody to have what I have, which is to know Him. That includes people of every kind of background. But you’re right, if we were to apply the Bible literally without taking its context, then every one of us could be stoned to death. Every one of us has broken God’s commandments.
MORGAN: Have you ever looked at people in a lustful way?
MACKERETH: [Laughing] Of course I have!
MORGAN: Well then, applying the letter of the law and the letter of the Bible, you should now stone yourself to death.
Mackereth was not able to respond to this because Morgan and his fellow panelists cut him off and took to sneering. If he has been able to get in a word edgewise, he might have explained that the Bible is not a straightforward manual of morals. Rather, it is, as Bishop Barron once put it, a library. And when you’re in a library, do you read the history section in the same way as the poetry section? And do you read the poetry section in the same way as the science section?
Truth, as it happens, can take many forms and can touch on many spheres of life, from psychology to physics. The moral truth that babies are innocent is unlike the scientific truth that the earth is round, but it does not necessarily follow that one is more or less true than the other. Often such truths are complementary. This is the beauty of literature, in fact — and the reason that thoughtful agnostics (such as Jordan Peterson) and clever atheists (like Camille Paglia) so esteem the Bible.
But here’s an interesting consideration, besides: The reason Mackereth feels so strongly about pronouns — strongly enough to lose his job over it and to be mocked mercilessly on national television — is that he believes that the immutability of sex is both a moral and a scientific truth. This is why it would be an oversight to think that this was only about Mackereth’s Christianity. His case raises important questions for all of us.
Should the judiciary, on behalf of the state, compel people to say things they don’t believe to be materially and morally true? Should the judiciary, on behalf of the state, compel people to tell lies about serious things? If a resounding no is still heard throughout democratic nations, it perhaps helps explain why it isn’t merely a handful of fundamentalist Christians who worry about enforced transgender pronouns.
Mackereth told me that many of his colleagues were “absolutely thrilled” that he’d taken a stand:
I’m not saying everyone agrees with me, and I’m certainly not expecting everybody to agree with me, but I’m working in the accidents and emergency room, and we have very tight-knit teams. And there was this outpouring of thankfulness [from colleagues who aren’t Christian] that somebody had said something. If you were to multiply this across the whole NHS in England, Wales, and Scotland — that’s a very strong body of opinion that what’s happening is wrong.
As I’ve said time and again, there are two things here: My Christian conviction, which tells me I cannot lie. And my medical, scientific training, which tells me that there isn’t a doctor, researcher, or philosopher in the world who could demonstrate or prove that somebody could change sex. It’s actually impossible.
* * *
Given the immense seriousness of a law compelling speech in this way, it is useful to parse this judgment bit by bit.
As I noted above, Mackereth frames his dissent in religious terms primarily because this is his strongest moral motivation. However, as far as legal strategy is concerned, a religiously framed defense is also his best defense. It might not win him any friends on Good Morning Britain, but religion remains one of the protected characteristics under the U.K.’s most powerful anti-discrimination law, the Equality Act of 2010.
Prior to the Equality Act, the U.K. had three significant pieces of legislation to ward off discrimination: the Sex Discrimination Act of 1975, primarily intended for women; the Race Relations Act of 1979; and the Disability Discrimination Act of 1995. The Equality Act of 2010 was designed to be more comprehensive: to protect citizens from “direct or indirect discrimination, harassment and victimisation” on the basis of age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, or sex.
What is fascinating (if entirely foreseeable) in Mackereth v. DWP, of course, is a violent clash of rights. Mackereth has a right to protection under “religion or belief,” while the imaginary transgender patient (hypothetically conceived in the mind of an activist trainer) has the right to protection (not only from discrimination but from offense, which we’ll return to later) in relation to “gender reassignment.”
The legal precedent for a case like this, as referred to throughout the judgment, comes from Grainger v. Nicolson, argued in 2010. In Grainger, Nicolson’s lawyers successfully argued that his belief in climate change was a philosophical position worthy of protection under the “religion or belief” clause of the Equality Act. Nicolson’s environmentalism was then used to establish the following criteria for the category of “belief”:
- That it be “genuinely held.”
- That it be a belief and not an opinion or viewpoint (e.g., this or that political affiliation or preference.)
- That it be concerning “a weighty and substantial aspect of human life and behavior.”
- That it have “a certain level of cogency, seriousness, cohesion and importance.”
- That it be “worthy of respect in a democratic society [and] be not incompatible with human dignity and not conflict with the fundamental rights of others” (emphasis added).
In setting out the scope and limitations of the criteria, Grainger established that “racist” and “homophobic” philosophies could be comfortably disqualified as a belief requiring legal protection, while scientifically informed philosophies such as Darwinism could be comfortably incorporated as a belief. The employment judge of Grainger explained: “It is not the function of the Tribunal to examine the beliefs of Claimants appearing before it. Instead it is the function of the Tribunal to analyse those beliefs to see whether they engage relevant legislation.” In other words: Don’t worry, everyone. Our standards may appear really subjective and suspectable to bias, but they’re totally not.
They totally are, though. To return to Mackereth, we see how Grainger is being applied politically. Hedging his bets somewhat, Mackereth complained of both direct and indirect harassment under the Equality Act’s provision for religion. The tribunal’s judgment notes that he listed three of his beliefs:
His belief in the truth of the Bible, and in particular, the truth of Genesis 1:27: “So God created man in His own image; in the image of God He created him; male and female He created them.” It follows that every person is created by God as either male or female. A person cannot change their sex/gender at will. Any attempt at, or pretence of, doing so, is pointless, self-destructive, and sinful. (“Belief in Genesis 1:27”)
Lack of belief (i) that it is possible for a person to change their sex/gender, (ii) that impersonating the opposite sex may be beneficial for an individual’s welfare, and/or (iii) that the society should accommodate and/or encourage anyone’s impersonation of the opposite sex (“lack of belief in Transgenderism”)
Belief that it would be irresponsible and dishonest for e.g. a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex (“conscientious objection to Transgenderism”) [Emphasis added.]
(Note that the last point is necessarily grouped with the first two points, in order to meet the criteria for “religion or belief” set by Grainger.) The judges accept that Mackereth’s Christian faith is genuinely held, that it is a belief, and that it is weighty and is serious. But on the last clause of Grainger, they find it unworthy of respect in a democratic society. They explain why.
First, Mackereth’s refusal to comply due to conscientious objection (which, in practice, might just mean that he sends transgender patients to “gender-affirming” doctors instead) could still cause “offence or the potential for offence” to a patient and therefore, per Grainger, his refusal “conflicts with the fundamental rights of others, specifically here, transgender individuals.”
Second, “irrespective of” the fact that Christianity meets all but one of the criteria set out by Grainger, the judges find that “belief in Genesis 1:27, lack of belief in transgenderism, and conscientious objection to transgenderism in our judgment are incompatible with human dignity.” So the tribunal rules in favor of the DWP, asserting that Mackereth has not been unlawfully discriminated against on the grounds of his religion.
When I contacted the DWP spokesperson for comment, he provided me with their generic statement also given to the BBC: “We acted to protect claimants from behavior that would have failed to treat them with dignity, so we welcome this ruling. We expect all assessors to approach their work sensitively.”
I wanted to ask him how, exactly, the DWP was defining “dignity,” since Mackereth has a competing definition — one that’s been around much longer. However the DWP is defining “dignity,” it’s clearly not giving any of it to Mackereth, whose rights have been trampled into dust. I also wanted to ask the DWP which “claimants” they were hoping to “protect,” since — again — this was an entirely hypothetical situation. But the spokesman explained that he would be issuing no further comment.
More remarkable still, the judges have concluded this case without demonstrating that they themselves are confident about what language ought to be used when describing transgender people. They adopt the term “transgender” while admitting inconsistent usage with the earlier term “transsexual” found in the Equality Act. And at one point they confuse “birth sex” with identified sex.
It would be easy to dismiss this as sloppiness — just some badly decided judgment in a small city in a small country that is of little consequence. But it is not so. The judges in question (smart people) spent three months trying to write this judgment as carefully as they could, trying to interpret legal case law, and they still managed to butcher it.
They aren’t the only ones struggling, of course. Last month, a liberal British journalist tried to tell off the National Review Institute’s Douglas Murray for not believing in “non-binary” people, and the journalist simultaneously managed to misgender Sam Smith as a “he” (instead of Smith’s newfound preference for “they”). Before that, during a Democratic-primary debate, Julian Castro managed to champion “abortion rights” for transgender women (who, being male, are not themselves physically capable of having abortions). I almost feel sorry for these woke cultural scolds. How stressful it must be! Knowing that you’re only ever one misgendering episode away from social annihilation.
We may feel vindicated when a progressive is hoisted on ziz/zer own petard. But in the judiciary, it’s not funny. It’s a bloody mess, a bloody mess with very bloody consequences. Welcome to the era of compelled speech. Leave your dictionaries and your beliefs — however well founded — by the door.
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