The barrister Allison Bailey has lost her Employment Appeal Tribunal (EAT) case against LGBTQ+ lobby group Stonewall, having argued that the charity tried to silence her for tweeting about her gender-critical beliefs and her view that it was driving a “dangerous” agenda around gender self-identification.
In 2022 Bailey brought an Employment Tribunal (ET) claim of discrimination and victimisation against her then employer, Garden Court Chambers (GCC), as well as Stonewall, the charity behind the controversial Diversity Champions Programme, which GCC joined in November 2018.
Her appeal case centred on a complaint made to GCC by Stonewall regarding her involvement with the LGB Alliance, a gender critical campaign group she helped to found in 2019, and which opposes the charity’s view that trans rights should effectively take precedence over women’s rights in policy and law.
Stonewall’s then Head of Trans Inclusion complained directly to GCC about 11 of Bailey’s tweets, at one point remarking: “For [GCC] to continue associating with a barrister who is actively campaigning for a reduction in trans rights and equality, while also specifically targeting our staff with transphobic abuse on a public platform, puts us in a difficult position with yourselves.”
Bailey says that because of this complaint she was given less work, leading to a fall in income the following year.
Faced with a growing, trans activist induced Twitter storm, GCC panicked and “picked sides”, as the ET ruling put it, with the firm’s Heads of Chambers choosing “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”.
In response to the online mob – and in breach of a confidentiality obligation – GCC tweeted:
We are investigating concerns raised about Allison Bailey’s comments in line with our complaints/BSB [Bar Standards Board] 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 longstanding commitment to promoting equality, fighting discrimination and defending human rights.
Perhaps unsurprisingly, the sending of this response tweet was one of a number of detriments which, in her ET claim, Bailey contended were inflicted on her by reason of her holding protected beliefs.
During the ET hearing itself, neither Stonewall nor GCC disputed that gender critical views were a protected characteristic – that point had already been established in the landmark employment tribunal case Forstater vs CGD European & Others.
GCC’s claim had specifically to do with the allegedly “inflammatory” language used by Bailey in relation to Stonewall’s gender ideology – or “gender extremism” as she described it in the initial tweet that led GCC to launch an investigation. Its argument was that the words Allison had chosen to use while expressing her views weren’t protected by the Equality Act 2010 (‘EqA’). The law distinguishes “between a protected belief and the manner in which it is expressed,” as Andrew Hochhauser QC, acting for GCC, claimed in a written statement. “There is no licence to abuse.”
The language in question appeared in two tweets that Bailey was asked by GCC to remove from her personal Twitter account, one thanking the Times for reporting on the “coercion” driving Stonewall’s agenda, the other suggesting that a Stonewall employee ran workshops that had as their sole aim the coaching of heterosexual men who identified as lesbians on how to coerce young lesbians into having sex with them.
Following a four-week long hearing, the ET panel found that Bailey had been discriminated against and victimised on the grounds of her ‘gender critical’ beliefs as a member – or “tenant” – at the GCC set, and awarded her £22,000 compensation for injury to feelings.
In an important judgment for free speech in and outside the workplace, the panel found that all of Bailey’s pleaded beliefs, not just the already protected belief that “woman is sex not gender”, but the additional beliefs she expressed in her tweets – that Stonewall wanted to replace sex with gender identity, that the absolutist tone of its advocacy of gender self-identity made it complicit in threats against women, and that it eroded women’s rights and lesbian same-sex orientation – also constituted protected philosophical beliefs under the EqA.
As per the written judgment, these beliefs “were genuine”, they “amounted to beliefs, not just opinions which might then change with further evidence” and “the claimant does not have to be correct, or have evidence to show this…”.
In other words, thanks to Bailey’s ET ruling, organisations who put ‘Stonewall Law’ before Equality law or seek to silence others from lawfully voicing their criticism of Stonewall now have to confront the fact that they may be acting unlawfully.
But although Bailey’s claim against GCC succeeded, the panel dismissed her claim that Stonewall had acted contrary to section 111 of the EqA by persuading the firm to inflict a detriment on her on the grounds of her protected gender critical beliefs. On this point, the tribunal failed to find that the charity satisfied the legal test of “instructing, causing or inducing” the discrimination she experienced.
Bailey subsequently launched an appeal against this order at the EAT, where her legal team argued that in upholding Stonewall’s complaint, GCC not only directly discriminated against her because of her beliefs and the expression of them, but also demonstrated the strength of the relationship that existed between itself and the charity. It was this, they claimed, that brought the charity within the scope of section 111 EqA.
“But for the making of that complaint,” Ben Cooper KC, represented Bailey, told the hearing, “GCC would not have discriminated against Ms Bailey in that way.”
However, the EAT decided not to uphold the appeal, and in its ruling found that Stonewall did not satisfy the legal test of instructing, causing or influencing the discrimination Bailey experienced.
In his written judgment, Mr Justice Bourne agreed with the original ET ruling, that Bailey had fallen “well short of showing that if Stonewall either induced or attempted to induce GCC to inflict a detriment on her, the inducement was to inflict the detriment on grounds of her protected belief rather than because of an allegedly objectional manifestation of her belief”.
Reacting to the ruling, Bailey said Judge Bourne’s view would “shock” legal commentators, “many of whom believe that Stonewall was lucky to escape legal liability in the first place.”
She went on to claim that the judgment “gives permission for organisations like Stonewall to procure the withdrawal of employment from people whose protected characteristic they disagree with, if this can be framed as a simple ‘protest’ rather than an attempt to “instruct, cause or induce” a detriment.
“This seems to go directly against the terms of the Equality Act,” she added. “Sight should not be lost of the fact that Stonewall, a charity set up to protect the legal rights of lesbians like me, should be the ones to limit workplace rights like this. How far they have fallen.”
