At a glance

• Qualifying philosophical beliefs are protected from discrimination under section 10 of the Equality Act 2010 (EqA).

• An Employment Tribunal has decided that a barrister with gender critical beliefs who brought a claim against her chambers was directly discriminated against and victimised because of those beliefs. However, her claim that Stonewall had instructed or induced discrimination by the chambers was dismissed.

Background

Ms Bailey was a criminal barrister at Garden Court Chambers (Chambers). She holds gender critical beliefs; she believes that a woman is defined by her sex. She disagrees with the beliefs of those who say that a woman is defined by her gender, which may differ from her sex, and is for the individual to identify. Ms Bailey also holds views, which she said amount to a belief, about Stonewall’s campaign on gender self-identity.

The background to the case concerned proposed reform of the Gender Recognition Act and the campaign group Stonewall’s advocacy of a change to gender self-identity. Opposition to the proposed changes focused on the need to preserve single sex spaces for natal women and the single sex exemptions in the Equality Act.

In late 2018, the Chambers signed up to Stonewall’s Diversity Champion’s scheme. Stonewall is a widely respected charity with a mission to advance the rights of gay, lesbian, bisexual and trans people (LGBT). Ms Bailey complained to colleagues about the Chambers becoming a Stonewall Diversity Champion, saying that Stonewall advocated ‘trans extremism’ and was complicit in a campaign of intimidation of those who questioned gender self-identity. Ms Bailey said that because of this complaint she was given less work, leading to a fall in income the following year.

In 2019 she was involved in setting up the Lesbian Gay Alliance to resist ‘gender extremism’. In 2019 her tweets on trans rights issues led to tweets and complaints being sent to the Chambers, some from individuals and some from trans rights campaign groups, saying that her opinions were transphobic and damaged the Chamber’s reputation as a human rights supporting set supporting trans rights. Stonewall also complained. The Chambers said in a tweet that ‘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 [the Chambers]. [The Chambers] is proud of its long-standing commitment to promoting equality, fighting discrimination and defending human rights’. The Chamber’s investigation concluded that two tweets were likely to offend the Bar Standards Board Code.

Ms Bailey brought claims against her Chambers and the two heads of chambers (KCs), alleging victimisation, direct discrimination because of her gender critical belief and indirect discrimination because of her sex or because of her lesbian sexual orientation. She also alleged that Stonewall, a campaigning group, induced, instructed or caused some of the Chambers’ actions or that they attempted to induce or cause those actions. All the respondents to her claim agreed that gender critical belief is protected as a belief under the EqA. They disputed that Ms Bailey’s views about Stonewall’s campaigning on gender self-identity are part of this protected belief.

Outcome

The Employment Tribunal held that Ms Bailey’s gender critical belief that Stonewall wanted to replace sex with gender identity, that the absolutist tone of its advocacy of gender self-identity made them complicit in threats against women and that it eroded women’s rights and lesbian same-sex orientation was a belief that was protected under the EqA.

Applying the Grainger test, the tribunal concluded that her beliefs not just about gender self-identity but about the pernicious nature of Stonewall’s campaign promoting gender self-identity were genuine and amounted to beliefs, not just opinions because at the core of her opposition to Stonewall was her understanding that their stance on gender theory underlay and was driving forward the erosion of women’s rights, access to single sex spaces and lesbian identity. Belief on gender theory is a belief about a weighty and substantial aspect of human life and the claimant’s beliefs passed the test of cogency, seriousness, cohesion and importance. Finally, expressing hostility to Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others.

The Employment Tribunal noted that where the treatment complained of was because of the way a belief is manifested, rather than the belief itself, a Tribunal may have to consider whether it was the objectionable manifestation not the belief itself that was the reason for the treatment. This was confirmed in the decision in Forstater v CGD Europe and others, another case in which the claimant succeeded in a discrimination case based on her gender critical beliefs. However, belief need not only be expressed nicely in a democratic society.

The Tribunal upheld Ms Bailey’s claim that Garden Court discriminated against her because of her belief in respect of tweets by Garden Court that the complaints would be investigated under a complaints procedure and in finding that two of her tweets were likely to breach barristers’ core duties. This was a detriment.

However, the tribunal did not accept that she lost work and income as a result. Claims of victimisation and indirect discrimination also failed.

The tribunal awarded £22,000 for injury to feelings, including a £2,000 award of aggravated damages, plus interest.

“The Tribunal found that the claimant’s gender critical belief was protected under the Equality Act and that she had been discriminated against and victimised by her chambers because of her belief”

What does this mean for employers?

The decision goes further than the decision in Forstater as to the nature of the gender critical views which are protected under the EqA, in the conclusion that views about Stonewall’s campaigning on gender self-identity could be part of this protected belief. It also demonstrates that organisations adopting Stonewall’s stance on gender identity may not be a neutral act and could open up potential liability under the EqA.

Bailey v Stonewall Equality Ltd and Garden Court Chambers (ET 2202172/2020)