By Madeleine Kearns
Tuesday, October 08, 2019
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 judgement 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:
1.
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”)
2.
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”)
3.
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 judgement 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 judgement 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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