High Court Battle - pronouns

[PigeonLittle]

Not sure if this is being discussed here, couldn't see it after a brief look.

www.dailymail.co.uk/news/article-10507853/Christian-doctor-David-Mackereth-sacked-trans-views-fight-High-Court.html

I've been in the position of being under the care of a doctor who had some very conservative views - my first psychiatrist insisted that my relationships with women were a symptom of "risk taking behaviour" and "low inhibitions" and was quite blunt about this. I'm sure he also thought he was just stating biological fact. It was very distressing and impossible to really challenge as he had a great deal of power over me, as the doctor.

I agree with PP, it is awful you were treated in this way. The difference was that he felt free to express his opinions to you and inform you all about his perceptions and interpretations of your sexuality and lifestyle. In essence to lecture you and try to bully you out of your sexuality. Absolutely unacceptable.

You were not requiring him to lie to you however. Nor the case of him politely saying I can't use that language you would like to require me to use, because it is making me say something I don't believe to be true, and which goes against my own beliefs. Nor was he in danger of repercussions if he failed to obey your instructions requiring his compelled language and enactment of belief.

What is being required here is mutual tolerance. I can be perfectly accepting of someone's belief that they need to pray five times a day. I am not going to be accepting of a requirement that I do it too, along with them, and enact their belief as if it was my own.

@RoyalCorgi

He was sacked for refusing to lie. This is what it boils down to.

It will be interesting to see how this ties in with the Forstater case. If I remember correctly, in the Forstater ruling, the judge said that gender critical beliefs were protected in law, but that this didn't extend to using the "wrong" pronouns.

Of course this claimant is using religious belief rather than gender-critical beliefs, and it is potentially very interesting because of the clash of rights: do religious beliefs that there are only two sexes override the apparent right of people with gender reassignment to be called what they want? It's obviously very tricky because the judge will have to consider a) whether a belief in transgender identity contradicts Christian beliefs b) what exactly gender reassignment means in this context (I'm assuming the person in question didn't have a GRC).

You say "do religious beleifs that there are only two sexes override the apparent right of people with gender reassignment......*

It is indeed those two protected characteristics which are clashing, not gender identity. GI and GR are different and not interchangeable as I understand it, and I think the difference is important.

Not the only time the MRAs conflate terms and sit back and watch the confusion. We need to be clear in response.

@SunniDelite

I don't understand why it's assumed that only people of faith object to lying. I am an atheist yet I believe in science and reality and the truth. I would find it very difficult to be forced to deny the evidence of my eyes and ears..... I hope this man wins his case, whatever the Bible says.....

That's is exactly. It's lying to call him a she. Regardless of your religion. But objecting on the basis of I only want to tell the truth, whole truth and nothing but the truth, probably has little weight. Objecting on religious grounds probably has more weight.

We've got into a fine mess with all the trans stuff. Thr tide will turn it has to.

@Motorina: "Not the time or place for a doctor to be imposing their religious beliefs on the patient."

You ignore the fact that gender ideology is nothing but a religious belief so why should trans people impose their religious beliefs onto others?

Having been rush into A&E with a condition that was specific to my sex A&E doctors don't have the time or energy to pander to the delusions of a patient who may walk out fine in an hour's time or end up in a life or death situation.

There is a time and place for indulging people's ideas of how they'd like others to see them but A&E isn't it.

...and believing people are male or female and that their sex can have implications on health outcomes is not a religious belief its a biological reality.

@DontLikeCrumpets as a rule of thumb they shouldn't

However, we're talking within the specific confines of a medical appointment. Not only that, a one off medical appointment for a very specific purpose - to assess suitability for work. And the imposition is the relatively minor matter of addressing someone by their chosen name and title.

We accept that, in other circumstances, the rights of patients outweigh the rights of medical staff. I can, for example, insist on a female gynaecologist even if that means a male trainee lacks the opportunity to gain experience, or a male doctor's right to work is infringed. My rights as a patient to receive treatment I am comfortable with outweigh the doctor's rights. As they should.

I think this is another of those circumstances. I think that in part because of the power imbalance in this particular medical consultation. And in part because calling someone with a 5 o'clock shadow 'Mrs' if that's their preference is a relatively minor infringement for the doctor, but has fairly major impact for the patient.

Others have said there are situations where it may be appropriate to challenge a patient on the validity of their gender identity. I agree. If you're going to your GP because of mental health problems, and your gender identity feeds into that, then that shoudl of course be open for exploration. If the appointment is for a physical problem when sex is relevant, then of course that should be considered. But if someone's long-transitioned and is going for their bunions, then the doctor would be obnoxious to insist on addressing them in a way appropriate to their sex.

It's not requiring the doctor to believe that the person in front of them has changed sex. That would be a nonsense. It's simply requiring the courtesy of addressing a patient in a way they prefer, when the reason for that preference is not clinically relevant.

There are situations when the pronoun line must be held firmly. This situation isn't one of them.

So the correct response for the assessor doing the clinical assessment to decide if the applicant qualifys under the rules for tax funding
said "I identify as being a woman who can't work due to having cervical cancer, missing a left leg, and not being able to speak"
is "I am not your psychiatrist so have approved your self identified issues".

No, of course it isn't. It's to say 'there's no objective medical evidence of any of those things therefore I cannot agree to this claim on medical grounds'.

That's not why he was fired. He was fired for refusing to address the patient in the way they felt comfortable being addressed, where there is nothing to suggest that that is relevant to his clinical assessment.

That's not why he was fired. He was fired for refusing to address the patient in the way they felt comfortable being addressed, where there is nothing to suggest that that is relevant to his clinical assessment.

Was he? From the reporting that I've seen, he was fired because he was given a hypothetical scenario by his line manager and he didn't answer in accordance with the line manager's wishes. I don't know if the wishes were in line with an official DWP policy or not.

Yes, but that's what the hypothetical scenario was.

And he chose to make it all about him and his religious beliefs.

This consultation isn't about him. It's about the poor bugger who has no choice but to be there (or lose benefits), can't request a different clinician (or they'll lose benefits), and for whom the outcome could be lifechanging.

Their needs outweigh his. In the same way as my need for a female gynaecologist outweighs the need of a male gynaecologist to earn a living.

If it's relevant to the consultation and clinical decision making then of course it should be addressed. If it isn't? Wrong time to draw a line in the sand.

The tribunal decision is at assets.publishing.service.gov.uk/media/5d9b0c8aed915d35cff2225d/Dr_David_Mackereth_v_The_Department_for_Work_and_Pensions___Advanced_Personnel_Management_Group__UK__Ltd_1304602_-2018-_Judgment_and_reasons.pdf If that's been linked to before then I apologise!

Knowing the patient in front of you is male or female is not a religious belief though is it?

Sorry - pressed post too soon! That judgement makes it clear it's not about his clinical assessment where trans issues affected people's ability to work, but it is entirely about his refusal to use preferred name, title and style of address, because of his religious beliefs.

@Motorina

Sorry - pressed post too soon! That judgement makes it clear it's not about his clinical assessment where trans issues affected people's ability to work, but it is entirely about his refusal to use preferred name, title and style of address, because of his religious beliefs.

Protected characteristics include disabilities.

There are a fair number of contested areas where claimants/patients assert that they have a condition in which HCPs/assessors do not believe.

afaict, there is no drive to compel HCPs/assessors to accept a claimant/patient's firmly held beliefs that an array of symptoms are associated with hypothyroidism/ME/fibromyalgia/B12 issues/microvascular angina. There are a fair number of peer to peer support groups where you can see people who are profoundly unhappy at the diagnostic delays for the tests that they want or who have opted to self-medicate because of the severity of their symptoms. They also feel very angry when they are judged to be unreliable narrators of their own experience and when the HCPs/assessors do not accept their diagnosis or reject the severity and impact of their symptoms.

In the tribunal assessment, I can see that it's acknowledged that there are special sensitivities around transgender people because of an association with poor mental health that is a consequence of perceptions of treatment by society (possibly the healthcare system).

I wonder about the disparity of treatment for one protected characteristic that is not available for other categories.

@Motorina

Yes, but that's what the hypothetical scenario was.

And he chose to make it all about him and his religious beliefs.

This consultation isn't about him. It's about the poor bugger who has no choice but to be there (or lose benefits), can't request a different clinician (or they'll lose benefits), and for whom the outcome could be lifechanging.

Their needs outweigh his. In the same way as my need for a female gynaecologist outweighs the need of a male gynaecologist to earn a living.

If it's relevant to the consultation and clinical decision making then of course it should be addressed. If it isn't? Wrong time to draw a line in the sand.

This is everything I was trying to say but much much more concisely.

Having skim read the first tribunal judgement I don't think it's possible that he can work in that role with the manifestation of the belief that he has (refusing to use someone's given pronouns or title).

The service said it can't know in advance which attendee will be trans so they can't assign the case to a different assessor. The doctor as per GMC rules is not allowed to discriminate against patients based on his own beliefs. The same anti-discrimination requirement is made by the Disability Assessment employer. There aren't any backroom (non user facing) roles that he would be qualified for because he would have to gain 12 months experience in working as an assessor first.

My experience of working in services, whether its health or social care, is to be person-centred, not worker-centred. If you work in a clinical role there will be plenty of situations in which you will have to hold your tongue or do things that don't comply with your own belief system.

It would be one thing if he refused to confirm that a male can have ovarian cancer as that would be a statement of fact. But refusing to use the title provided by the patient/service user just seems a bit petty especially given that it is unlikely that he would often have to do this in person. He could use the person's name during the appointment and use their name in reports and might just have to tick a box for the titles.

I think maybe he could win the first part of an appeal because it seems discriminatory to say you can't hold christian beliefs. But I think he will lose the second part of the appeal based on not being able to function in the role as required given the manifestation of his belief. But I'm not a lawyer

My experience of working in services, whether its health or social care, is to be person-centred, not worker-centred. If you work in a clinical role there will be plenty of situations in which you will have to hold your tongue or do things that don't comply with your own belief system.

And yet we have women who have a traumatic history who have been labelled transphobes and bigots for requesting a female HCP for a mammogram. Even more, they've been used as an example of transphobia and bigotry in a report issued by their healthcare trust.

This person-centred v worker-centred seems to be awfully partial at times.

www.mumsnet.com/Talk/womens_rights/3763519-A-woman-who-asked-for-her-NHS-breast-screening-to-be-carried-out-by-a-female-born-clinician-was-pilloried-as-a-transphobe-by-a-hospital-trust

@EmbarrassingHadrosaurus different scenarious.

The equivalent to your hypothyroidism/ME/etc scenarious is if a claimant were saying, "I can't work because I'm trans. Being trans has these impacts on my ability to work..."

In that case, it's totally within his remit to assess whether there are medical grounds for their claims on how their gender identity impacts on their ability to work.

That's not what's happening here. Based on the tribunal information, he doesn't believe in transgenderism and has a conscientious objection to it, and bases this on the opening verses of Genesis. So he refuses to use people's chosen names and titles. He refuses to do so even if the reason they can't work is back pain, or cancer, or having lost a limb. So nothing at all to do with their gender identity.

His preferred solution is that he doesn't assess anyone who is trans.

He raised this in training. The DWP looked into it and decided stopping him seeing any trans clients wouldn't work for two reasons. Firstly, often the assessor doesn't find out that someone is trans til they're already in the room. Stopping the consultation saying, "I don't believe in how you're choosing to identify, so I'm not prepared to assess your bad back" is bound to cause offence. It also delays the person's assessment, as they'll have to wait for another assessor to become available, and may mean they have to come back another day.

Which may involve 3 bus rides. For someone with a disability. Where every penny counts.

How would we feel about an assessor choosing not to see a gay client because he is fundamentally oppossed to their lifestyle on religious grounds? Or a client from a different religion?

The DWP decided this wasn't okay, and so fired him.

The tribunal decided that his beliefs were "genuinely and ferverently held" and that he was entitled to hold them. They're very clear on that.

What he wasn't entitled to do was act on those beliefs in a way which he agreed trans clients would find offensive, and which would inevitably delay them being assessed.

I'm GC in my beliefs. I think sex cannot be changed and that single sex spaces are important. I'm willing to fight for those beliefs (and have dug in various gardens to do so).

I wouldn't dream of calling a trans patient - or any patient - by anything other than their preferred name and title. Because when I'm seeing a patient the consultation isn't about me.

[quote EmbarrassingHadrosaurus]My experience of working in services, whether its health or social care, is to be person-centred, not worker-centred. If you work in a clinical role there will be plenty of situations in which you will have to hold your tongue or do things that don't comply with your own belief system.

And yet we have women who have a traumatic history who have been labelled transphobes and bigots for requesting a female HCP for a mammogram. Even more, they've been used as an example of transphobia and bigotry in a report issued by their healthcare trust.

This person-centred v worker-centred seems to be awfully partial at times.

www.mumsnet.com/Talk/womens_rights/3763519-A-woman-who-asked-for-her-NHS-breast-screening-to-be-carried-out-by-a-female-born-clinician-was-pilloried-as-a-transphobe-by-a-hospital-trust[/quote]
Forgive me if I am wrong but is it not that Doctors can opt out of performing, or being involved in, offering abortion services? So isn't there already something in the rules that allows for the Doctor's religious beliefs to allow him / her to opt out of a part of patient treatment.

Now, I understand that someone with these beliefs might, instead, choose to work in orthopaedics or ENT where abortions are not an issue. But, their beliefs are accommodated when working in particular areas of the NHS during training.

Is this significantly different?

@Cismyfatarse yes, it's very different.

It's closer to someone choosing not to treat people who have sex out of wedlock, because it doesn't accord with their own beliefs, even if the reason the patient has attended is due to their nosebleeds.

I've stated my expectations and perspectives earlier and we're in agreement on some points. I distinguished holding beliefs and manifesting them.

However, in the same way that HoL debates in advance of 2004 GRA correctly anticipated many of the difficult situations that have subsequently manifested despite reassurances to the contrary.

In the scenario I have advanced, and given the discordant recollection of assessment interviews that many people report for PIP and similar claims, can you not anticipate that there may be a consequence for the right for people to argue for their perception of their condition and its impact has to be accepted.

Despite the status of some conditions as recognised clinical entities, there are many reports from distressed patients/claimants of treatment/assessments that go awry because an HCP doesn't believe in it or the impact of it. I'm not aware that they can insist upon an HCP/assessor who believes in a condition or who is trained not to manifest their personal lack of belief in it. I could use long Covid as a common topical example.

I see a disparity in treatment opening up. DWP already loses a fair number of PIP, DLA and ESA appeals (67% iirc). I'd anticipate that a new area for challenge will open up.

I think what people are missing is that using preferred pronouns and the requirement to do so reinforces gender ideology - which has real consequences for people outside of the consulting room. There are some things we just can't bring ourself to do because we know that to be the case - e.g. using racist language. You could say that if a client wanted you to refer to someone else in those terms it's just what the client wants, it's just in the consulting room. But it's not is it?

Forgive me if I am wrong but is it not that Doctors can opt out of performing, or being involved in, offering abortion services?

I've had a doctor refuse to prescribe me the morning after pill, he just got a colleague to do it.

As far as I can tell this doctor didn't discriminate against the trans individual? He was willing to perform the assessment, but not to make statements of belief he did not agree with (that probably had no bearing on the content of the assessment?)

Seems fairly similar to that bakery case where they were happy to bake a cake, but not ice a message supporting gay marriage (and the bakery won AFAIK).

@CismyfatarseCismyfatarse

UnderlForgive me if I am wrong but is it not that Doctors can opt out of performing, or being involved in, offering abortion services? So isn't there already something in the rules that allows for the Doctor's religious beliefs to allow him / her to opt out of a part of patient treatment.

Now, I understand that someone with these beliefs might, instead, choose to work in orthopaedics or ENT where abortions are not an issue. But, their beliefs are accommodated when working in particular areas of the NHS during training.

Is this significantly different?

The right not to participate in abortion is codified in law though as part of the the 1967 Abortion Act under section 4(1) of the Act.

I don't think he has any legal protection to not use titles/pronouns for a specific group in the same way that he does if he wants to opt out of participating in abortion.

@EmbarrassingHadrosaurus

And yet we have women who have a traumatic history who have been labelled transphobes and bigots for requesting a female HCP for a mammogram. Even more, they've been used as an example of transphobia and bigotry in a report issued by their healthcare trust.

This person-centred v worker-centred seems to be awfully partial at times.

Yeah I agree so we should fight against the sexism inherent in prioritising the needs of the TW clinician over the needs of the vulnerable patient who requests a female clinician.

I suppose another way of thinking about the disability assessment situation is what if the assessor was Adrian Harrop and he insisted on referring to us as "c*s woman" or "not-trans woman" or "non-man" in his reports or during the assessment.

We would feel utterly disrespected but our reliance on him for a positive benefits judgment would render us powerless to challenge him in that situation.