Bailey v Stonewall and Garden Court Chambers

A new protected Belief

This is the first of two posts summarising and analysing the case of Bailey v Stonewall and Garden Court Chambers. This post will look at the Employment Tribunal decision as background for an analysis of the Employment Appeal Tribunal decision that was delivered this week. I won’t focus on the claims relating to Stonewall in this post as they will be discussed at length elsewhere. Here I want to focus on what sets Bailey apart from Forstater v CGD Europe and how these differences might be relevant for the EAT appeal.

Allison Bailey had tweeted opposition to Stonewall, a charity and advocacy group campaigning to introduce legal and policy change to reflect gender identity theory. She was also involved in setting up LGB Alliance, a charity and advocacy group campaigning in opposition to gender identity theory, with particular focus on sexual orientation. When complaints were made to Garden Court Chambers, it tweeted:

‘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’.

Following the investigation, the complaint was upheld and Bailey sued for belief discrimination. Her belief was considerably more granulated than Forstater’s and focused heavily on Stonewall. She believed that Stonewall’s “campaigning on gender theory is sexist and homophobic”. [279]^⁠. Specifically this belief included the following:

“(a) Sex is real and observable. Gender (as proselytised by [Stonewall]) is a subjective identity: immeasurable, unobservable and with no objective basis.

(b) At the root of [Stonewall]’s espousal of gender theory is the slogan that “Trans Women Are Women”. This is advanced literally, meaning that a person born as a man who identifies as a woman literally becomes a woman for all purposes and in all circumstances purely and exclusively on the basis of their chosen identity. To all intents and purposes, the First Respondent has reclassified “sex” with “gender identity”.

(c) The tone of [Stonewall]’s campaigning on this subject has been binary, absolutist and evangelical. It may be summarised as “You are with us, or you are a bigot.” Discussions on the subject have become extremely vitriolic, largely as a result of the [Stonewall]’s absolutist tone, replicated by other organisations with which [Stonewall] works closely. This has resulted in threats against women (including threats of violence and sexual violence) becoming commonplace. [Stonewall] has been complicit in these threats being made.

(d) Gender theory as proselytised by [Stonewall] is severely detrimental to women for numerous reasons, including that it denies women the ability to have female only spaces, for example in prisons, changing rooms, medical settings, rape and domestic violence refuges and in sport.

(e) Gender theory as proselytised by [Stonewall] is severely detrimental to lesbians. In reclassifying “sex” with “gender”, [Stonewall] has reclassified homosexuality from “same sex attraction” to “same gender attraction”. The result of this is that heterosexual men who identify as trans women and are sexually attracted to women are to be treated as lesbians. There is therefore an encouragement by followers of gender theory (including [Stonewall]) on lesbians to have sex with male-bodied people. To reject this encouragement is to be labelled as bigoted. This is inherently homophobic because it denies the reality and legitimacy of same sex attraction and invites opprobrium and threatening behaviour upon people who recognise that reality and legitimacy.

(f) It is particularly damaging to lesbians that [Stonewall] has taken this position. [Stonewall] had been the foremost gay and lesbian rights campaigning organisation in the UK and one of the world’s leading such organisations. The adoption of gender theory by [Stonewall] therefore left those gay, lesbian and bisexual people who did not ascribe to gender theory without the representation that [Stonewall] had previously provided, and left those people labelled as bigots by their primary representative organisation.”^⁠

This belief, in it’s entirety, was held to be protected under s.10 of the EqA [290].^⁠ It was genuinely held and was informed by philosophical opposition to the gender identity belief adopted by Stonewall. Because of this, it was not a mere opinion susceptible to changes in evidence but rather a sincere philosophical belief open to modification only where there is a change in the behaviour of Stonewall. The Tribunal therefore concluded [290] that the only way that Bailey would change her belief in response to developing context

“was if Stonewall itself modified its approach to gender identity theory so as to accommodate the possibility that physical differences between men and women based on sex should lead to say, spaces reserved for women based on sex not gender, and separate sporting competitions, based on sex.”^⁠

Bailey’s belief was about a weighty and substantial aspect of human life. The Tribunal held that her belief was cogent, serious, cohesive, and important [291]. Finally, it also concluded that “expressing hostility to Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others, in a way that would not be worthy of respect in a democratic society.” [292]^⁠

The tribunal upheld Bailey’s claim that Garden Court Chambers had unlawfully discriminated against her when it tweeted that it would be investigating her. This was done with the approval of Heads of Chambers, in full knowledge and with the intention that it would spread on social media [304]. The Tribunal concluded that this was a detriment that gave rise to a reasonable sense of grievance because it suggested that Bailey had done something that warranted investigation. This as an unnecessary response made in haste without due regard to the internal complaints procedure or the effect that this would have on Bailey [304]-[309]. As the Tribunal puts it [315]:

“Faced with a Twitter storm on gender self-identity, they picked sides. The Heads chose to prefer the view that the claimant was in the wrong and that her tweets should be investigated, because there was a lot of opposition to the views expressed in them. They knew it was about sex versus gender. Although in evidence all professed not to have a view in the sex versus gender debate, we concluded that they were opposed to her”.^⁠

This amounted to direct discrimination on the basis of philosophical belief and was therefore not capable of justification. Similarly, launching a spurious investigation and upholding a spurious complaint amounted to unlawful discrimination [327]-[328].^⁠ Once a belief is recognised as protected under s.10, it will be treated as any other religion or belief that is similarly covered would be. This means that those who hold this belief will be protected from all forms of unlawful conduct proscribed by the Equality Act, including indirect discrimination, harassment and victimisation.

Importantly for the EAT appeal, the protected characteristic here is not the same as that in Forstater. Maya Forstater believed that biological sex is real, immutable, and important. Alison Bailey believed that but also additional beliefs specifically about Stonewall. Her holding and manifesting those beliefs is protected under the Equality Act 2010 and any inducement or causation of Garden Court Chambers to discriminate against here on the basis of them may be unlawful, should the inducement or causation come from a person or entity covered under s.111 of the Act. More on that in the next post.