Misgendering and the importance of pronouns in the workplace

Val Dougan explains what employers can learn about balancing conflicting views and rights in the workplace from a recent case on trans rights and the use of the correct pronoun

It is perhaps inevitable that as employers promote a more inclusive workplace, the scope for conflict between members of different groups will increase. The challenge for employers is how to balance competing rights and show tolerance, while at the same time promoting equality. In most cases employers will try to accommodate different views. 

Tolerance means respecting the right of an individual to hold a belief that may be contrary to the values of an organisation. When it comes to belief and workplace behaviour, employers must not focus on the belief itself, but rather the manifestation of the belief, in other words the way the employee behaves or refuses to behave because of their belief. 

What becomes clear from the case below is that where the manifestation of a belief offends the dignity of others and conflicts with the fundamental rights of others, then an employer is able to say what behaviour is unacceptable in a place of work. Health and safety can be another reason for placing limitations on the freedom to manifest religion at work.

The latest case arises from trans rights and the importance of using the correct pronoun. While the case exposes opinions which will be unpalatable to many, another perspective can be offered: it shows how far society has come in the treatment of trans individuals; the rights to which they are entitled and the importance of language. 

In Mackereth v Department of Work and Pensions (DWP) a Christian doctor unsuccessfully argued that his employer’s behaviour towards him after he refused to address a transgender person by their chosen pronoun amounted to discrimination on the grounds of his religious belief. 

Dr Mackereth was employed as a health and disabilities assessor, engaged through a third party to provide services to the DWP. Mackereth said he would not be able to address a transgender patient by their chosen pronoun because he did not believe that gender could be fluid. Although alternative options were considered, Mackereth’s opinions ultimately led to the end of the relationship. He claimed discrimination, explaining:

  • God created man and woman in his image;

  • that it was not possible for a person to change gender, and

  • he was a conscientious objector to what he called ‘transgenderism’. 

He argued all three of these beliefs were a ‘sub-set’ of his Christian beliefs and should be protected. His employers argued that these views were intolerant and in breach of the dignity of transgender people. 

Mackereth acknowledged that refusing to address a transgender person by their chosen pronoun could cause offence and potentially breach the Equality Act 2010.

While the tribunal said there was no dispute that Christianity could fall within the Equality Act, and there was no doubt his beliefs were genuinely held, all three of his beliefs were not protected in law. They explained that before a belief can be protected in law, it must comply with a number of tests set out in Grainger plc v Nicholson (2009), which include a requirement that the belief should not be incompatible with human dignity, and not conflict with the fundamental rights of others. Here they conflicted with the rights of transgender individuals. 

While this case was about whether an aspect of a person’s belief was protected in law, it is also a good prompt to reflect on the increasingly important area of trans employees. If your organisation does not have a policy to support trans employees or include trans awareness as part of your equality training, then it should be on your agenda. 

Val Dougan is a professional support lawyer in the employment team at CMS