Discrimination and 'gender critical' philosophical belief
A barristers’ chambers discriminated against a barrister due to her protected belief that a woman is defined by her sex (a ‘gender critical’ belief).
Public debate on proposed reform of the Gender Recognition Act and the campaign group Stonewall’s advocacy of a change to gender self-identity formed the background to the events of this case.
Ms Bailey is a criminal defence barrister at Garden Court chambers in London. She holds the gender critical view that sex is immutable. In December 2018 she complained to her colleagues about Garden Court becoming a Stonewall Diversity Champion, saying that Stonewall advocated ‘trans extremism’ and was complicit in a campaign of intimidation of those who questioned gender self-identity. In October 2019 she was involved in setting up the Lesbian Gay Alliance to resist ‘gender extremism’. Her tweets opposing trans rights campaigns led to tweets and complaints being sent to Garden Court saying that her opinions were transphobic and damaged Garden Court’s reputation as a human rights chambers supporting trans rights.
Garden Court tweeted that ‘we are investigating concerns about Allison Bailey’s comments in line with our complaints/BSB policies. We take these concerns very seriously and will take all appropriate action. Her views are expressed in a personal capacity and do not represent a position adopted by Garden Court. Garden Court Chambers is proud of its long-standing commitment to promoting equality, fighting discrimination and defending human rights’. Its investigation concluded that two tweets were likely to offend the Bar Standards Board Code. Ms Bailey brought various tribunal claims against both Garden Court and Stonewall.
In a 100+ page judgment, the tribunal, applying the Grainger test, held that Ms Bailey’s gender critical belief that Stonewall wanted to replace sex with gender identity, that the absolutist tone of its advocacy of gender self-identity made them complicit in threats against women, and that it eroded women’s rights and lesbian same-sex orientation, was a belief protected under the Equality Act.
The tribunal did not have to decide whether that belief was correct. The tribunal upheld Ms Bailey’s claim that Garden Court discriminated against her because of her belief, when they tweeted that the complaints would be investigated under a complaints procedure, and when they found in December 2019 that two of her tweets were likely to breach barristers’ core duties. She was awarded £20,000 compensation for injury to feelings and £2,000 aggravated damages because of the unsympathetic way she had been treated by members of her chambers (they’d paid little attention to the death threats she received and intimated that she had brought trouble to her own door by tweeting about controversial topics).
The tribunal did not accept that she had lost work and income because of her December 2018 protest, or that she was harmed by delays disclosing documents. Nor did it accept her claim that a complaint made by Stonewall about her tweets was engineered by a colleague who supported trans rights. Ms Bailey had made an indirect discrimination claim alleging that Garden Court had a practice of holding that gender critical views were bigoted, and that Garden Court allowed Stonewall to direct its complaints process. Both these allegations were rejected. A separate claim that Stonewall had instructed or induced discrimination by Garden Court, or attempted to do so, was also rejected.
Whilst this is a tribunal case and therefore does not set any legally binding precedent it nevertheless shines light on a number of important and topical legal points.
Although the Equality Act 2010 generally prohibits claims from the self-employed, Ms Bailey as a self-employed barrister was allowed to bring her claim of discrimination against her chambers, Garden Court, because it is a trade association, and against Stonewall on the basis that it allegedly instructed, caused or induced Garden Court to contravene the Equality Act.
The case overall is one in a recent line of cases about transgender rights and what protection the law gives to those on either side of the debate. The Equality Act treats ‘gender reassignment’ as a protected characteristic and prohibits discrimination on this ground. However, what is clear from the tribunal’s decision is that gender-critical views, such as held by Ms Bailey, may also amount to a protected characteristic under ‘religion/belief’ and accordingly attract protection from discrimination under the Act.
In summary, the lesson for employers is that the Equality Act protects those who have firm beliefs on either side of the debate. Both have a right to hold and express those beliefs - provided they do so in a way that does not discriminate or harass their colleagues or breach their employers’ legitimate internal policies.