Bailey v Stonewall, Garden Court Chambers and others

2022 Employment Tribunal
2023 Costs hearing

Summary

Miss Bailey is a criminal defence barrister at Garden Court Chambers in London with a long history of involvement in gay rights. She holds the gender-critical view that sex is immutable. In 2018 she complained to her colleagues about Garden Court becoming a Stonewall Diversity Champion. Later in 2019 she helped set up the Lesbian Gay Alliance (LGB Alliance) as an alternative to Stonewall, believing that Stonewall’s gender extremism was sexist, lesbophobic and homophobic.

In October 2019 Miss Bailey tweeted to announce the launch of the LGB Alliance with “gender extremism is about to meet its match”. Her tweets were met with abuse online and complaints were sent to Garden Court alleging that Miss Bailey’s opinions were transphobic. Garden Court responded by tweeting that these complaints would be investigated under a complaints procedure.

Garden Court reprimanded Miss Bailey over two tweets and requested that she delete them, finding that both were likely to offend the Bar Standards Board Code. Both tweets were critical of Stonewall: one reported that Stonewall was running workshops on how trans-identified men “can coerce young lesbians into having sex with them” and the other stated that Stonewall was linked to “appalling levels of intimidation, fear and coercion”. Miss Bailey refused to delete the tweets and brought an action against her chambers for discrimination, and Stonewall for inducing or attempting to induce a contravention of the Equality Act 2010.

The ET found unanimously that Miss Bailey was discriminated against and victimised by Garden Court Chambers on the basis of her protected gender critical beliefs that sex is real and observable and gender is a subjective identity. The claim against Stonewall was not upheld and Miss Bailey has appealed that part of the judgment (details below). A claim for loss of earnings on the grounds of victimisation was dismissed, as were several other claims of direct and indirect discrimination. Miss Bailey was awarded aggravated damages and also costs related to the conduct of the hearing.

Significance of the case

The Employment Tribunal decision as a first-instance judgment is not precedent-setting, but it demonstrates an application of the finding in Forstater that gender-critical beliefs are covered by S.10 of the Equality Act. Miss Bailey’s stated beliefs went further than the basic view that sex is real, immutable and important and also included a belief that Stonewall’s campaigning is sexist and homophobic, and eroding women’s rights, access to single-sex spaces, and lesbian identity.

These beliefs and the others considered in the judgment (which runs to over 400 paragraphs) passed the Grainger test of being genuine, coherent, not just a matter of opinion, and worthy of respect in a democratic society. The tribunal took no view on whether those beliefs were correct. Garden Court Chambers discriminated against Miss Bailey because of her expressed beliefs about Stonewall.

Background

Allison Bailey: Crowdfunder and background

Tribunal Tweets: Understanding Allison Bailey’s claim against Stonewall and Garden Court Chambers

Proceedings

2022 Employment Tribunal

The proceedings were transcribed and live tweeted by Tribunal Tweets.

29th April to 6th May 2022: evidence from Dr Nicola Williams of Fair Play for Women, Dr Judith Green of Woman’s Place UK, Kate Barker, managing director of LGB Alliance, Stephen Lue of Garden Court Chambers (GCC), Lisa-Marie Taylor of Fiia and Allison Bailey.

9th to 13th May 2022: evidence from Allison Bailey, Zainab Al Farabi of Stonewall (Client Account Manager for Garden Court), Kirrin Medcalf of Stonewall (Head of Trans Inclusion) and Leslie Thomas of Garden Court.

16th to 20th May 2022: evidence from Sanjay Sood-Smith of Stonewall, Shaan Knan of Stonewall, Rajiv Menon QC of GCC, Maya Sikand QC (previously of GCC), Mia Hakl-Law of GCC, Judy Khan QC, joint Head of GCC 2016–2020 and Chair 2020–2021, Charlie Tennant of GCC (clerk), Luke Harvey of GCC (clerk), Louise Hooper of GCC and Trans Equality Legal Initiative and David Renton of GCC and chambers roommate of Allison Bailey at GCC for 10 years.

23rd to 26th May 2022: evidence from Marc Willers, QC, joint head of GCC until 2020, Stephen Clark QC of GCC, Liz Davies QC of GCC, Cathryn McGahey QC (was Vice Chair of the Bar Council Ethics Committee and gave advice to GCC), Tom Wainwright of GCC, Colin Cook of GCC (clerk), David Renton of GCC and chambers roommate of Allison Bailey at GCC for 10 years, David De Menezes GCC Director of Communications and Marketing, Kathryn Cronin of GCC (joint Head of Garden Court Chambers until 2017), Michelle Brewer formerly of GCC and now a judge and Stephanie Harrison QC of GCC and joint head of chambers for part of the period covered by the claim.

20th June 2022: closing submissions from counsel for all parties.

Text of claimant’s closing submission

2023 Costs hearing

29th June 2023 (morning session; afternoon session): court costs hearing

Judgments

Reserved judgment, 22nd July 2022

Costs hearing: reserved judgment 5th July 2023

Next steps

Ms Bailey appealed the decision of the ET dismissing her claim against Stonewall for causing a basic contravention of the Equality Act 2010. Garden Court Chambers did not appeal. The ET’s decision against it for discrimination and victimisation, and the award of damages and aggravated damages stands.

The appeal is expected to be heard in 2023.

Commentary

Following Stonewall advice brings real risks for employers. Garden Court Chambers had taken some advice from Stonewall, but was not a participant in the Workplace Equality Index, in which bespoke feedback is sent to participating employers with explicit instructions on how to change their policies to win more points. Neither had it adopted organisation-wide policies disparaging gender-critical views.

Those organisations that have adopted such policies, or followed Stonewall instructions, should reassess their actions. Gender-critical beliefs are protected. If individuals are free to express a belief in transgender ideology then they should also be free to express gender-critical views in the same way. It may be more prudent for employers to simply discourage the active promotion of any kind of belief in the workplace and instead foster good relations between employees whose beliefs diverge.

Naomi Cunningham, chair of Sex Matters, said:

“Many will have joined Stonewall’s schemes hoping for guidance on how to make their workplaces fairer and more inclusive. What they got was encouragement to write equality, diversity and inclusion policies that are in themselves discriminatory.”