Bailey: New duty is a terrible idea
The barrister who successfully sued her chambers over the way it investigated complaints about her gender-critical views has expressed alarm at the Bar Standards Board’s proposed rewrite of its equality rules.
Allison Bailey said the move “smacks of regulatory overreach”.
The regulator is consulting on a new positive duty to act “in a way that advances equality, diversity and inclusion (EDI)”.
It would replace existing core duty 8, under which barristers “must not discriminate unlawfully against any person”.
In July 2022, an employment tribunal ordered Garden Court Chambers to pay Ms Bailey damages of £22,000 for injury to feelings over the way it investigated complaints about her gender-critical views.
It found she was discriminated against or victimised in two out of five alleged detriments. Garden Court was later also ordered to pay costs of £20,000. But it rejected Ms Bailey’s claim that Stonewall had directed the chambers’ investigation process, a decision recently upheld on appeal.
Writing yesterday on X, Ms Bailey said her “immediate reaction” to the announcement was that “it’s a terrible idea”.
She explained: “EDI has become synonymous with trans activism, the removal of single-sex protections and rights in the workplace and elsewhere, and the unlawful discrimination and victimisation of women.
“This has been to the detriment of tackling other forms of discrimination and inequality in areas such as disability, age, sex, race, and sexual orientation discrimination, including by those within the so called LGBTQ+ ‘community’.
“But it isn’t for barristers to promote anything beyond the rule of law and the best interests of their clients within the law.”
Ms Bailey argued that the existing core duties sufficed: “They require barristers not to discriminate unlawfully and to act with honesty and integrity. Turning this into a requirement to promote EDI is fraught with danger.”
Another gender-critical barrister, Sarah Phillimore, described the BSB’s proposal as “appalling” and “meaningless because it is undefined and I suggest undefinable”.
Also writing on X, she highlighted the comment in the consultation that a “failure to create an inclusive culture” was one of the challenges facing the Bar.
She said: “If the Bar is meant to reflect society at large – an important goal – then you must surely be aware that society is made up of many different types of people, belief and practices which must exist in tension with one another.
“What exactly do you mean by an ‘inclusive culture’? Surely the best we can do is attempt to balance tensions, promote tolerance and compromise and deal with active discrimination. You are suggesting here a positive duty to create something which you do not explain, I suggest because it defies explanation.”
The BSB’s suggestion that the new duty would apply “when practising or otherwise providing legal services” was “ deeply disturbing”, Ms Phillimore continued.
“If I am representing a client to the best of my ability who somehow offends against your vision of an ‘inclusive culture’ – am I in breach? Is the rule of law and my duty to my client, who is equal to all others before the law, to come second place to this ‘duty’?
“Do you include diversity of political opinion under this heading? How do you propose to determine between two genuinely held but opposing beliefs, both of which will be protected characteristics?”
The barrister said she feared that the duty would be used to “deny representation to those who do not have the right views – to be defined presumably by the lawyer, not the law”.
Earler this year, the BSB decided not to investigate Ms Phillimore after she was accused of being transphobic by misgendering two trans lawyers.
Transgender journalist and campaigner India Willougby responded to Ms Phillimore, saying that acting in a way that encourages equality, diversity and inclusion “are qualities that fly in the face of gender critical ideology – and would prevent bigotry against trans people”.
Colin Wynter KC, who has also spoken out in favour of gender-critical views, wrote that the consultation “offers little as to why a proscription on discrimination should be replaced by DEI. Big change requires big reasons. [The BSB] falls well short.”
He added: “We mostly receive instructions to do specific things from solicitors. We marshal facts & apply to them what we think is the correct law. Discrimination is precluded. Where/how does one squeeze ‘DEI’ into any of that?”
We reported last year that the BSB dropped a case study from its revised social media guidance concerning gender-critical views after it was accused of promoting a ‘gender ideology’.
Alice 
ST 
As usual, very sensible and nuanced explanation. And as usual, the TA people so nobody any good by being completely narrow minded and focused solely on how a tiny number of people might be affected versus the much more important larger minority, not to mention the obvious broader implications of forcing a position via poorly thought out laws and policies which do not stand up due to being unworkable and contradictory with general freedom of expression.