Edward Lord recused from hearing gender-critical belief case

Trans rights activist recused: “The evidence of the lay member’s position [...] must again lead that observer to conclude that there would remain a real possibility of unconscious bias.”

A recent hearing of the Employment Appeal Tribunal considered whether trans rights activist Edward Lord was a suitable person to hear a case of gender-critical belief discrimination.

The case of Kristie Higgs v Farmor’s School concerns whether restrictions of the free-speech rights of critics of the transgender movement are a proportionate means of achieving a legitimate aim or whether Ms Higg’s freedom of speech should have been protected notwithstanding that some (such as those holding transgender beliefs) find it offensive.

In a judgment handed down today on the question of whether Edward Lord should be recused, Mrs Justice Eady said:

“Applying the test of the fair-minded and informed observer (Porter v Magill [2002] 2 AC 357 HL), and having regard to the relevant context (which included the nature of the debate relating to the issues raised by the appeal and an assessment of the task the Employment Appeal Tribunal would be required to undertake in determining this matter), there was a real ground for doubt in the lay member’s ability to approach this matter with an impartial and entirely open mind. That being so, the lay member would be recused from hearing this appeal.”

Key evidence provided to the court to make the case that a reasonable observer might perceive Edward Lord’s judgment as biased on this issue included:

  • his policy of blocking gender critical feminists on Twitter
  • tweeting support for the controversial charity Mermaids, and against the LGB Alliance’s charitable status
  • calling Professor Kathleen Stock is a “notorious trans hater”
  • calling a speaker at the Middle Temple LGBTQ+ Forum event “a well known ‘gender critical’ barrister who champions transphobic causes” (this tweet referred to Sex Matters’ Chair Naomi Cunningham)
  • taking part in a march to Parliament calling for gender identity to be included in a proposed ban on “conversion therapy”
  • saying that Justin Webb of the BBC “will always shoehorn in a transphobic story, just as he did yet again today”.

Kristie Higgs argued that these tweets indicated that Edward Lord is intolerant of her values. Mrs Justice Eady concluded:

“On the evidence of the tweets relied on, in my judgment, that is not a concern that the fair-minded observer could dismiss… a doubt would inevitably arise whether the lay member would in fact be able to approach the task required of the Employment Appeal Tribunal with an entirely open mind.”

The judgment describes the curious series of mishaps which led to the situation whereby Edward Lord was able to volunteer to be on a panel for this case (rather than it being assigned to the lay member at the top of the list). The issue of his public views was only raised when the Archbishops’ Council (which is intervening in the main appeal) noticed it and notified the other parties. Mrs Justice Eady noted that it would have been better if Edward Lord had raised the issue of potential appearance of bias over these issues himself.

She noted the importance of disclosure as “a badge of impartiality”, citing this guidance from Lord Bingham:

“It is very important that proper disclosure should be made in such cases, first, because it gives the parties an opportunity to object and, secondly, because the judge shows, by disclosure, that he or she has nothing to hide and is fully conscious of the factors which might be apprehended to influence his or her judgment. When such disclosure is made, it is unusual for an objection to be taken…”

She gave guidance for future cases that a lay member should raise any potential issues of this nature with the judge with whom they are sitting on the case in question; the judge would be best able to act as the fair-minded and informed observer, with an understanding of the issues to be determined.