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’.
This week, an employment tribunal in Birmingham produced the most ludicrous example yet of judicial overreach. Much of the tribunal’s judgment is barely readable – more on that later – but it puts its central point clearly enough: a ‘lack of belief in transgenderism’ is ‘incompatible with human dignity and’ – yes – ‘conflicts with the fundamental rights of others’.
The case has been reported as a story about a ‘Christian doctor’. But the doctor, David Mackereth, held a view shared by many millions of Britons, whatever their religion. He happens to think it is impossible for a man to become a woman, or vice versa. Last year, Dr Mackereth was being trained to work as a health and disability assessor at a centre run by the Department for Work and Pensions. The subject of transgender identity came up, and Dr Mackereth said that, if a biological male asked to be referred to as ‘she’ or registered on a form as ‘Ms’, he wouldn’t be able to comply.
Dr Mackereth’s bosses might easily have sought a compromise: for instance, people who identify as trans could be passed on to a different doctor. Unfortunately – the tribunal judgment tells us – such a policy might have caused ‘offence or the potential for offence’. Just imagine! So Dr Mackereth’s manager, James Owen, told him that DWP’s policy was to use transgender pronouns, adding that if Dr Mackereth disagreed then he had a ‘right to leave the contract’. The doctor left. He then argued at the employment tribunal that he had suffered discrimination, prompting Employment Judge Perry and his panel to rule that, if you don’t think a man can become a woman – as rather a lot of us don’t – then your view is ‘incompatible with human dignity’.
The implications are doubly alarming. First, if this judgment is correct, then presumably anyone can be forced out of a public-sector job on the off-chance that they might, at some unspecified point, ‘offend’ some unspecified trans person. Second, the judgment’s expansive wording tells everyone who doesn’t buy the transgender narrative that their views – not even their actions – are against ‘human dignity’.
Now, this may be a clumsy piece of legal writing which will be corrected on appeal. (The case could yet have a long way to go.) Indeed, the whole judgment is so badly-written that it’s hard to take seriously. It features embarrassing typos, straightforward grammatical mistakes, linguistic mix-ups (at one point “sexuality” is written when the panel mean “gender”), and paragraphs as elegant and lucid as this:
We find that on 6 June 2018 Dr Ahmed, who was the lead physician for the course, was undertaking the training that day when during a discussion whether service users should be referred to by their first name or their surname and title. One of the three other HDAs who was undertaking the course with Dr Mackereth asked how someone who was transgender should be referred to. Dr Ahmed told us, and we accept, this was not the first time he had been asked this question by doctors in training and having looked it up previously knew that DWP’s policy was to refer to transgender individuals by their preferred name and so replied that we should address transgender individuals by the title they choose to be addressed by.
But Dr Mackereth’s case should be taken seriously, because the tribunal’s judgment reveals what has happened with human rights law. It sounds like the kind of thing nobody could object to. It has ended up banning views which, until a few years ago, were held to be common sense. It sounds like a useful way of resolving disputes. It ends up with a doctor being told his opinion is ‘incompatible with human dignity’ by a judicial panel who haven’t yet mastered the basics of English grammar.
Lord Sumption observed that, in some quarters, ‘liberal principles’ have become an ideology comparable to ‘Communism, Fascism, Monarchism, Catholicism, Islamism, and all the other great isms that have historically claimed a monopoly of legitimate political discourse, on the ground that their advocates considered them to be obviously right.’ The Birmingham tribunal suggests he was right. Human rights law, it turns out, provides a convenient way for judges to sign up to the religion of liberalism.
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