Employers must reconsider their policies and relationship with Stonewall after Allison Bailey’s victory

Allison Bailey has won her claims of direct belief discrimination and victimisation against Garden Court Chambers. The Employment Tribunal unanimously found that Miss Bailey was discriminated against and victimised by her barristers’ chambers on the basis of her gender-critical beliefs.

Importantly, the judgment recognises that the whole of Allison Bailey’s beliefs are covered by the protected characteristic of philosophical belief, under Section 10 of the Equality Act 2010.

Like Maya Forstater, Allison Bailey successfully argued that she suffered discrimination for holding the core “gender-critical belief” that sex is real and observable and that gender is a subjective identity. The new element in this case was that she suffered discrimination for the particular belief that Stonewall’s campaigning, based on the doctrine that “trans women are women”, is sexist and homophobic and is driving forward the erosion of women’s rights, access to single-sex spaces and lesbian identity. 

Elements of the belief the tribunal considered as being covered by S.10 protection included that:

• Stonewall has reclassified “sex” with “gender identity”.
• The tone of Stonewall’s campaigning on this subject has been binary, absolutist and evangelical: “You are with us, or you are a bigot.”
• Discussions on the subject have become vitriolic, largely as a result of Stonewall’s absolutist tone, which has been replicated by other organisations.
• 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. 
• 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 sport.
• Gender theory as proselytised by Stonewall is severely detrimental to lesbians.
• In redefining “sex” as meaning “self-declared gender identity”, Stonewall has reclassified homosexuality from “same-sex attraction” to “same-gender attraction”.
• It is homophobic for Stonewall and other followers of gender theory to encourage lesbians to have sex with male-bodied people, and to label them as bigoted if they won’t. 
• The adoption of gender theory by Stonewall left those gay, lesbian and bisexual people who did not subscribe to gender theory without representation, and labelled as bigots by their main organisation supposed to stand up for their interests. 

While the tribunal, rightly, did not take a view on whether these beliefs are correct, it found that they passed the “Grainger” test of being genuine, coherent, not just a matter of opinion, about a weighty issue and “worthy of respect in a democratic society”.

The tribunal describes Stonewall as a “well-known radical group” and concludes: 

“it was not possible to separate Stonewall as a campaigning organisation from the gender theory with which the claimant disagreed. Her objection to Stonewall ‘proselytising’ gender self-identity theory is about the difference between her belief and theirs. To separate them would be like holding that homosexuals may lack belief in evangelical Christian teaching about sinfulness of same-sex orientation, but not be protected when they speak against a church institution, or that reformed Protestants are not protected when they denounce the Church of Rome as the whore of Babylon or the Pope as the Antichrist.“

Rainbow risk

While Stonewall was not found to have actively induced Garden Court Chambers to discriminate against Ms Bailey, her chambers were found to have discriminated against her because of her expressed beliefs about Stonewall. 

In practice, Garden Court Chambers had a relatively weak relationship with Stonewall. It didn’t participate in the Workplace Equality Index, which might have led it to take actions such as tweeting in support of Stonewall’s positions, marking the “Transgender Day of Remembrance”, requiring staff to take part in reverse mentoring or including displays of “allyship” within performance evaluations. 

The tribunal considered a letter from Stonewall’s head of trans inclusion, Kirrin Medcalf, to Garden Court Chambers complaining about Ms Bailey’s tweets and noted that it did not mention the Diversity Champions Scheme. It concluded that the email contained no explicit instruction or inducement such as a threat to Stonewall Diversity Champion status. 

Bespoke feedback forms used in the Workplace Equality Index scheme, on the other hand, do contain explicit instructions and are linked to inducements (in the form of points and rankings). While Stonewall was not found liable for Garden Court’s mistreatment of Allison Bailey, that will be cold comfort for any other employer that is found in future to have adopted discriminatory policies after obeying Stonewall’s advice. 

The tribunal found that views expressed by several individual members did not mean that Garden Court Chambers had the “policy, criterion or practice” of treating gender-critical beliefs as bigoted. Organisations that have adopted organisation-wide policies asserting that “trans women are women” or disparaging gender-critical views would be wise to consider the liability this is likely to create. 

Employers should ensure that their policies about the expression of religious and philosophical beliefs, including beliefs about gender identity and about Stonewall, are even-handed. 

If individuals are free to express their allegiance to Stonewall with rainbow-coloured lanyards and pronoun badges, they should also be free to express their gender-critical views with lanyards that read “Women: adult human female” and badges that say “sex matters”. If the workplace encourages, facilitates and engages with an LGBTQ+ Forum, it should be willing to provide a Gender-Critical Forum with the same level of encouragement and access. 

Employers may find that it is simpler to discourage the active promotion of any kind of belief in the workplace, and ask employees to concentrate their efforts on doing their jobs. 

To avoid being sidetracked into fractious debate about sex and gender issues, employers, schools, universities and other institutions should ensure their policies use the language of the Equality Act – such as sex (man, woman, male, female), mother and transsexual / gender reassignment – and the generalised protections against harassment and discrimination, and avoid trying to go “beyond the law” into promoting areas of contentious belief. 

Truth and reconciliation

Garden Court Chambers is not exceptional, and was not even exceptionally committed to sex denialism. 

The Forstater and Bailey cases are the tip of an iceberg of gender-critical discrimination cases. Others waiting to be heard include Jo Phoenix v Open University, the Green Party cases (Shahrar Ali , Emma Bateman and Dawn Furness) and Gillian Philip’s case against her publisher. As the principles become established in case law, the costs of bringing these cases will fall; and trade unions may start to give their members the support for which they have paid their dues. 

There may also be group actions on “bulk harassment”, such as training programmes that disparage gender-critical views. 

Employers should consider the risks that they are carrying in the form of Stonewall Workplace Equality Index participation, discriminatory policies that depart from the Equality Act 2010, and LGBT forums that enforce ideological compliance. 

When defending a discrimination claim, employers may seek to rely on what is known as the “statutory defence”. Section 109(4) of the Equality Act 2010 provides a defence for employers, where they are able to demonstrate that they took all reasonable steps to prevent the discriminatory acts alleged. If an employer’s EDI policy actively encourages staff to see gender-critical views as backward and bigoted, that defence will be hard to make.

Given the institutionalised nature of gender-critical discrimination, there may need to be industry-wide and sectoral approaches to de-radicalisation. 

Employers should undertake urgent audits of their policies to assess and mitigate the risks of gender-critical discrimination. (If you would like Sex Matters’ assistance in this, email [email protected] with an inquiry.) Industry associations should convene their members, and audit their own guidance. The Equality and Human Rights Commission is also well placed to provide template policies and guidance on how to avoid the traps that Garden Court Chambers and the Centre for Global Development fell into.