MANY readers will remember the case of Dr David Mackereth, a doctor for 26 years who was sacked while training to be a disability assessor for the Department of Work and Pensions (DWP) after he said he would not use self-identifying transgender pronouns as a Christian who is committed to telling the truth. We reported on the case in July 2018. Dr Mackereth sued the government for discrimination and lost his claim before the Employment Tribunal and although the verdict was partially overturned in May 2022 by the Employment Appeal Tribunal, the Tribunal still held that the DWP sacking had been justified, as we reported here. This decision was subsequently upheld by the Court of Appeal. This is believed to be the first time that a British judge has ruled that free citizens must engage in compelled speech. Now, after five years, Dr Mackereth has been assured by the General Medical Council that despite the legal verdict he is fit to practise his profession. The following article appeared in Christian Concern on June 8, 2023, and is republished by kind permission.
A Christian doctor sacked by the Department for Work and Pensions (DWP) for refusing to use hypothetical transgender pronouns has been vindicated by the General Medical Council (GMC) following a fitness to practise self-referral.
Dr David Mackereth, 60, had been a practising doctor for 26 years when he lost his job with the DWP. He told the DWP in a training session that in good conscience as a Bible-believing Christian he could not identify clients by their chosen ‘gender identity’ instead of their biological sex.
In response, the DWP declared that failing to accommodate clients’ preferences would amount to “harassment” under the Equality Act 2010 and dismissed Dr Mackereth from his role as a Health and Disability Assessor.
Supported by the Christian Legal Centre, Dr Mackereth launched a legal claim for discrimination on the grounds of his Christian and philosophical beliefs.
He lost his claim before the Employment Tribunal and although the verdict was partially overturned in May 2022 by the Employment Appeal Tribunal, the Tribunal still held that the DWP sacking had been justified. This decision was subsequently upheld by the Court of Appeal.
These rulings are believed to be the first time in the history of English law that a judge had ruled that free citizens must engage in compelled speech.
In response, Dr Mackereth believed he had no alternative but to self-refer to the GMC asking them to determine whether his fitness to practise is impaired due to his Christian and ‘gender-critical’ beliefs.
In a letter to Dr Mackereth, the GMC has this week provided an official response that is diametrically opposite to the view taken by DWP as his employer, which was endorsed by the judiciary.
The response states: “We have carefully assessed all the information you kindly provided which includes the decisions of the employment tribunal, the employment appeal tribunal and the Court of appeal.
“In doing so we don’t believe this is an issue requiring further GMC action being taken with a view to removing or restricting your registration.
“Although your views might be considered contentious, we haven’t seen evidence to suggest that patient safety is at risk from the information provided nor that your fitness to practise is impaired.”
“It is clear that you have a strong view on this subject and we are informed this is deeply rooted in your religion. Doctors are of course entitled to their views and this in itself wouldn’t be an issue requiring any regulatory action to be taken by the GMC. This would only become an issue for us should there be information to indicate that these views impact patient safety and or care.”
It continues: “We have considered your statement that you do not support the tenets of transgenderism, including the tenet which states: ‘…impersonating the opposite sex may be beneficial for an individual’s welfare.’ At this stage there is no information to suggest you have been approached by a patient for advice on this subject, in fact you state you have never encountered a transgender patient in your role working in an emergency setting or that if a patient was, that they would be given inappropriate treatment or advice.”
During Dr Mackereth’s domestic legal case, he provided evidence that the DWP dismissed over whether he would hypothetically be prepared to call a six-foot bearded man ‘madam’.
However, the GMC’s response says explicitly:
“In our view it would not be proportionate to consider what might happen in a hypothetical situation such as if you were to be approached by a transgender patient for instance and we could not open an investigation on this basis.”
Assessing all the legal documents and tribunal rulings, the GMC concluded its letter saying:
“We also note the tribunals’ comments around whether your views might contravene GMC guidance, however, again there is no evidence to indicate that you have provided inappropriate advice or care to patients based on your views.”
It is believed that this is the first time a professional regulator have considered the issue of ‘misgendering’ and ruled in favour of one of their members.
Doctor to appeal employment case to Europe
This significant conclusion from the GMC coincides with Dr Mackereth launching an application for the European Court of Human Rights (ECHR) to also make a ruling on his case as all domestic legal remedies have now been exhausted.
The application asks the court to address “questions it has never to date reviewed; that being the Convention implications surrounding compelled speech and forced adherence to gender identity belief as a condition of employment.”
Lawyers argue that Dr Mackereth’s Article 9 rights to freedom of thought, belief and religion were breached by his employer. They say that his “conscientious objection to transgenderism’ is protected under the ECHR and therefore ‘his dismissal from employment under the circumstances of the case were of a disproportionate measure which cannot be determined necessary in a democratic society.”
Dr Mackereth has also presented to the ECHR how his right to freedom of expression (Article 10) has been violated by the UK courts.
Lawyers say that: ‘The domestic courts failed to remain impartial and properly balance the competing interests involved, particularly the importance of upholding religious expression and conscientious objection.”
Furthermore, Dr Mackereth’s lawyers say that: “compelled speech, in this case the required use of a service user’s desired gender pronouns as a condition of continued employment is just as much a violation of [freedom of expression rights] s punishing someone for the contents of their speech.”
A response to the application from the ECHR is expected within the next six months.
Encouraged by the response
Responding to the letter from the GMC and launch of his appeal to the ECHR, Dr Mackereth said: “I am delighted, grateful and encouraged by the response from the GMC. My hope is that it will encourage medics across the profession to speak out more on these issues, especially those who are sitting on the fence out of fear of backlash.
“I also hope that it will encourage professionals in other sectors, such as teachers, who are currently facing enormous pressure to go against their conscience and conform to transgender ideology. Those who refuse to do so, like myself, face severe ramifications, and this must urgently end.
“What the conclusion from the GMC exposes is that the DWP and the judiciary sacked and ruled against me based on what I think and believe rather than anything I have ever done in my 30 years as a doctor.
“I have been hugely disappointed by the failure of the UK courts to recognise that what happened to me was unlawful.
“I am more determined than ever to continue fighting for justice in this case and I hope and pray that the ECHR will take my case forward and take it very seriously. This would be the first time that the ECHR would scrutinise and rule on a case of this nature, so there is a huge amount at stake.
“My case affects everyone, not just me and Bible-believing Christians, but anyone who is concerned by compelled speech and transgender ideology being enforced on the NHS and other public services.
“Everyone in the NHS should be able to say publicly without fear that a person cannot change sex, but instead we are being forced to accept a massive change to our concept of the medical reality of sex, with no scientific basis for that change.
“No doctor, or researcher, or philosopher, can demonstrate or prove that a person can change sex. Without intellectual and moral integrity, medicine cannot function. I believe this conclusion from the GMC brings some much needed sanity to these issues in the medical profession.
“As Christians we are not trying to be unkind to people in any way. As Christians we are called to love all people with Christian love. But we cannot love people truly when we live and disseminate a lie.”
Society’s sanity ‘found wanting’
Andrea Williams, chief executive of the Christian Legal Centre, said: “David Mackereth’s case challenged the sanity of our society, and our society was found wanting.
“We welcome the official conclusion by the GMC, but the freedom to hold a belief but not express it is no freedom at all. More must be done to recognise and protect the freedom of professionals with Christian and gender critical beliefs on these issues to use their professional judgment without fear of severe and unjust ramifications.
“Dr Mackereth chose to sacrifice his distinguished professional career rather than compromise on the Bible and his conscience. The requirement to use transgender pronouns defies common sense and Christian faith. It serves no useful purpose except filtering out firm Christians and men of principle such as Dr Mackereth.
“If we tolerate this as a society, if we give in on the essential freedom of thought, conscience and religion, no other freedom is safe. We are determined to fight all the way to secure justice in this case.”