Bailey: Vindication
Garden Court Chambers (GCC) has been ordered to pay member Allison Bailey damages of £22,000 for injury to feelings over the way it handled complaints about her gender critical views.
However, an employment tribunal rejected Ms Bailey’s claim that LGBT charity Stonewall had directed GCC’s investigation process.
The tribunal criticised GCC for how it responded to the “Twitter storm” over the views the barrister had expressed, saying it had chosen sides rather than tried to stay neutral.
In December 2018, Ms Bailey emailed all GCC members to express her opposition to chambers joining Stonewall’s diversity champions scheme.
She argued that Stonewall advocated “trans extremism” and was complicit in a campaign of intimidation of those who questioned gender self-identity.
In October 2019, Ms Bailey co-launched and tweeted about the LGB Alliance, a campaigning group which says “attempts to introduce confusion between biological sex and the notion of gender are harming LGB people”.
In response, GCC received a series of negative tweets and complaints which said Ms Bailey’s views were transphobic, while soon after Stonewall also complained about a series of tweets.
GCC confirmed on Twitter that it was investigating her tweets and a couple of months later upheld Stonewall’s complaints about two of them, but she rejected a request to remove them.
The Central London 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 it complicit in threats against women, and that it eroded women’s rights and lesbian same-sex orientation – was a protected belief under the Equality Act.
The tribunal did not have to decide whether that belief was correct.
It upheld her claim that GCC discriminated against and victimised her because of her belief by tweeting that the public complaints would be investigated and then in deciding that two tweets complained about by Stonewall were likely to breach barristers’ core duties.
The investigation into the public complaints by Maya Sikand – who has since moved to Doughty Street Chambers and become a QC – concluded that, while Ms Bailey’s words were “deliberately provocative”, they did not express transphobic views and were not discriminatory.
The tribunal said it was “reasonable” for Ms Bailey to be aggrieved by the tweet about the investigation. “It suggested she had done something which at the least required investigation, and so might lead to action, which could suggest some punishment.
“It was not necessary: the complaints procedure envisages appointing an investigator if the heads decide investigation is needed, but we know that at least two heads, possibly all three, had not read either the tweets or the complaints.
“Had they read them, they might soon have concluded, as did Maya Sikand when she reviewed them, that whatever the rhetoric about breach of the Equality Act and core duties, there was nothing to investigate. They were just statements opposing the claimant’s views.”
The decision to respond publicly was “made in haste”. Had GCC wanted “to damp the Twitter storm”, the tribunal said, “they could have replied that Garden Court did not associate itself with the claimant’s views made in a personal capacity, along the lines of the website statement”.
Instead, “they picked sides”, it went on. “The heads chose 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.
“They knew it was about sex versus gender. Although in evidence all professed not to have a view in the sex versus gender debate, we concluded that they were opposed to her, perhaps because they had not appreciated the consequences of the transgender debate which the claimant was protesting about, perhaps because they were unused to the forceful tone of Twitter communication.”
The tribunal concluded that “the material fact operating on their decision to send a response tweet” was the attack on GCC “for its association with someone who expressed views contrary to theirs, that is, because the claimant had expressed a view in the sex versus gender debate”.
It said: “The attack could not be dissociated from her views. The heads knew this, but did not pause to consider a neutral approach.”
Stonewall complained about 11 tweets and Ms Sikand considered that two of them could have offended the Bar’s conduct rules, which was accepted by the heads of chambers.
They asked her to delete the two tweets but said they would not report her to the Bar Standards Board “as we do not consider that this amounts to the type of serious misconduct which would require us to do so”.
The tribunal held that Ms Bailey’s gender critical belief, and particularly her belief about Stonewall’s promotion of gender self-identity, “significantly influenced the finding that her two tweets were ‘likely’ to breach core duties”.
However, the tribunal rejected the other three detriments Ms Bailey claimed to have suffered – most notably that she had lost work and around £64,000 in income because of her December 2018 protest – as well as her indirect discrimination claim that GCC had a practice of holding that gender critical views were bigoted, and that it allowed Stonewall to direct its complaints process.
A separate claim that Stonewall had instructed or induced discrimination by GCC, or attempted to do so, was also rejected.
On the loss of income, the tribunal noted that Ms Bailey had complained about not being allocated work of an appropriate level well before these events.
“Her protest about the association with Stonewall seems to have attracted the attention of only a few members of chambers. There was no evidence of ongoing discussion of it after December 2018.
“The clerks will have seen the claimant’s reply-all email, but there is no evidence that they paid it much attention, and some evidence that it went over their heads.
“There is no evidence that the clerks knew, or cared, or were swayed by any attitude to the claimant on the part of the heads of chambers… There are other reasons why she suffered a fall in income. It was in all their interests to keep her busy.”
In assessing damages, the tribunal found that Ms Bailey’s colleagues were “unsympathetic” and suggested she had “brought matters on her own head”, paying little heed to her report of death threats. As a result, £2,000 of the £22,000 award took the form of aggravated damages.
Ms Bailey said: “This is a vindication for all those who, like me, object to the erasure of biological sex, of women, and of same sex attraction as material realities. It represents judicial recognition of the abuse waged against us.
“This case was never about money. I did not win everything, but I won the most important thing: I have brought Stonewall’s methods into the public eye, and I have shown them for what they now are.
“One of the proudest days of my life was being accepted into Garden Court Chambers. It was in the vanguard of sort of law I set out to practice: socially conscious, enlightened and determined to represent those who most need the law’s protection, encapsulated in its motto: “Do right, fear no-one.
“But its assumption of moral righteousness led it to classify gender critical feminism as bigotry, and me, by extension, as opposed to their ethos. On both counts it was wrong.”
A GCC spokesman noted that the tribunal dismissed Ms Bailey’s claim against Stonewall and most of her claims against the set.
“The tribunal found that it ‘could not conclude that Garden Court Chambers as a whole had a practice of treating gender critical beliefs as bigoted’. This confirms our stance.
“We have maintained throughout that our members, quite reasonably, hold differing views in the complex debate around trans and sex-based rights. Our primary aim throughout has always been to uphold our values and maintain a workplace that is inclusive and welcoming to all.
“We are reviewing the judgment carefully with our legal team with a view to appeal.”
Stonewall said it was pleased with the outcome. “The case heard by the employment tribunal did not accurately reflect our intentions and our influence on organisations,” it said in a statement.
“Leaders within organisations are responsible for the organisational culture and the behaviour of their employees and workers. Stonewall’s resources, support and guidance is just one set of inputs they use to help them as they consider how best to meet the needs of their own organisation.”
Ms Bailey’s press release about the ruling was headlined ‘JK Rowling’s friend Allison Bailey wins her case’ and on Twitter the Harry Potter author congratulated her, writing: “Allison Bailey is a heroine to me and innumerable other feminists for refusing to abandon her beliefs and principles in the fact of intimidation and discrimination.”
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