Barrister Allison Bailey wins discrimination case over gender critical views

A leading barrister was discriminated against by senior colleagues over gender-critical comments she made on social media, a tribunal has ruled.

Allison Bailey, a black lesbian barrister, was victimised when Garden Court Chambers published a statement that she was under investigation after it received a complaint from Stonewall, the UK’s most prominent LGBT charity.

The Central London employment tribunal found that the chambers had victimised Bailey by upholding Stonewall’s complaint against her. Bailey had tweeted her rejection of the concept of a “cotton ceiling”, which she said suggested that trans women had a right to sex with lesbian women. Bailey said that a Stonewall activist had used the term during a workshop at the chambers, and that this amounted to teaching heterosexual men to coerce lesbians into having sex with them.

Bailey attended a lunch with Rowling and others including the Labour MP Rosie Duffield and the philosopher Kathleen Stock

Bailey, who raised more than £550,000 through crowdfunding for her case and has the support of the author JK Rowling, had lodged a joint claim against Stonewall, which she accused of operating like a “criminal protection racket” and being complicit in a campaign against her.

Bailey was awarded £22,000 in damages, of which £2,000 was aggravated damages, as well as £4,693.33 in interest after a case that involved several novel legal aspects.

Lawyers at the independent Bar are technically self-employed sole practitioners who gather together in chambers to share clerking and administrative costs. Therefore, Bailey first had to prove that she was entitled to bring a claim for discrimination against her chambers in the employment tribunal, even though she was not an employee.

She also had to argue that Stonewall should be joined in the claim over allegations that it had acted unlawfully by goading her chambers’ leaders into disciplining her unfairly over her beliefs around sex and gender.

The tribunal allowed both arguments, and the claim proceeded. Bailey proved her case against the chambers. The claim against the charity was dismissed.

The tribunal upheld Bailey’s claim that Garden Court discriminated against her because of her belief when it tweeted that the complaints would be investigated under a complaints procedure, and when it found in 2019 that two of her tweets were likely to have breached barristers’ core duties.

However, the tribunal ruled that Bailey had not lost work and income because of her protest the previous year, and that she had not been harmed by delays in disclosing documents. It also did not accept that a complaint made by Stonewall about her tweets had been engineered by a colleague who supported transgender rights.

Allegations that Garden Court had a practice of holding that gender critical views were bigoted, and had allowed Stonewall to direct its complaint process, were rejected. A claim that Stonewall had instructed or induced discrimination by Garden Court, or attempted to do so, was also rejected.

Bailey brought a discrimination claim accusing her chambers of bowing to pressure from the group to discipline her for making allegedly so-called gender critical comments on social media.

In several heated exchanges over weeks of hearings, Bailey said she had been “thrown to the hate mob” by the chambers, adding: “What I have never tried to do to anyone in chambers or elsewhere is to say that because you do not agree with me I am going to ruin your reputation and deprive you of your livelihood. That has been the stock in trade of the trans rights movement.”

She told the tribunal that Stonewall had “opened the floodgates” to males who were not covered under the Gender Recognition Act to use female-only spaces, and claimed that a fellow barrister had secretly recorded her conversations.

She said that the Equality Act did not cover males who could be described as “cross-dressers”, but Stonewall guidance did and that the organisation was operating outside the act.

“We are living in extraordinary times when the chief LGBT organisation is absolutely encouraging and discriminating against lesbians and gays who disagree with it,” she said. “It has created an environment that says that it is a hate crime and unacceptable for anyone to disagree with it.”

After the judgment, Bailey said that although she had lost her case against Stonewall she had “succeeded in exposing Stonewall’s conduct and the enormous, and to my mind malign, influence it wields in the workplace and in society more generally”.

Stonewall said it was pleased with the ruling, adding that “the case heard by the employment tribunal did not accurately reflect our intentions and our influence on organisations. 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.”

A spokesman for Garden Court said the chambers was considering an appeal of the ruling. “We have maintained throughout that our members, quite reasonably, hold differing views in the complex debate around trans and sex-based rights,” the spokesman said, adding: “Our primary aim throughout has always been to uphold our values and maintain a workplace that is inclusive and welcoming to all.”

Behind the story

When a fellow barrister suggested that the feminist Allison Bailey was a “terf”, it was the start of a chain of events that would culminate in a landmark legal case. Bailey’s complaint against Garden Court Chambers and Stonewall would come to encapsulate all the tensions and acrimony that characterise the wider debate on trans issues.

Terf — the acronym for trans-exclusionary radical feminist — is widely used as a term of abuse for those with gender critical views. Bailey was in little doubt that Alex Sharpe, a trans woman and member of Garden Court, had directed the insult squarely at her. She had, after all, been vocal in her belief that biology meant that sex was immutable and women could not become men.

The tribunal’s ruling marked the end of a fraught and highly unusual two-year saga in which Kirrin Medcalf, Stonewall’s head of trans inclusion, told the judge that he required a support worker, his mother and a support dog to accompany him while giving evidence.

Bailey’s case attracted support from JK Rowling, who paid tribute to the “resilience and courage” of her “inspirational friend”. Bailey was present at a lunch organised by the author at the River Café in London earlier this year for women’s rights campaigners, including the Labour MP Rosie Duffield and the philosopher Kathleen Stock.

The row can be traced back to social media comments from Bailey when, in 2019, she co-founded the LGB Alliance group, an organisation for lesbian, gay and bisexual people to provide an alternative to Stonewall that its policies on transgender issues.

She said that a tweet about the launch had attracted online abuse, including death threats. Within 48 hours, her chambers had posted a tweet saying Bailey was under investigation. The tribunal was told that this gave credence to internet “trolls” who accused her of being transphobic.

She said that Stonewall had complained to her chambers about tweets including #TheyCallMeTerf “because I put the rights and safety of women before men who want to live as women”. She said the group had complained about another in which she said it was “offensive and unacceptable to suggest, much less legislate for, a system whereby *any* man can declare himself lawfully to be a woman”.

Another tweet said: “Transgenderism is real, self-ID is not. It makes a mockery of the trans movement, of women, our rights and our safety. The trans women I know check male privilege, they do not revel in it. We need boundaries and safeguards. Anyone arguing otherwise is not to be trusted.”

During the four-week hearing some female barristers at the chambers argued that, despite its progressive and diverse image, Garden Court was rife with sex discrimination, which resulted in them being put on lower earnings than their male counterparts.

Bailey claimed that Garden Court had pandered to Stonewall because it wanted the charity to instruct its barristers in transgender disputes. She claimed that Stonewall officials objected to her comments and militated for her to be shut down.

It was her case that the chambers’ leadership reacted by instructing the clerks to not to pass her instructions, which reduced her income.

It was also alleged that Garden Court was a fundamentally badly managed chambers with its QC heads and other senior lawyers having told the tribunal they were on holiday, too busy, looking after their children — or even based abroad — at crucial times in the dispute with Bailey.

Lesley Thomas QC, who was joint head of the set during much of the time that Bailey was in dispute with her colleagues, is the first black professor of law at Gresham College, the 400-year-old City institution that provides free public lectures.

Another former head of chambers, Judy Khan QC, who, along with Thomas, faced a grilling by Bailey’s lawyer at the tribunal, is one of the Bar’s most prominent Asian women criminal law specialists.

Garden Court calls itself “a number-one ranked chambers committed to fighting injustice, defending human rights and upholding the rule of law”, but during the tribunal it emerged that the chambers was riven with internecine battles and, by its leaders’ own acknowledgment, often bordered on administrative chaos.

Under questioning by Ben Cooper QC, Bailey’s lawyer, Thomas told the tribunal that there was poor “email discipline” at the set, with messages flying between sub-groups in the chambers with little knowledge of the senior members. Thomas also conceded that during much of the dispute between Bailey and the chambers, he had been living in Poland.

For her part, Khan told Cooper that she had paid little attention to the row between Bailey and her colleagues because she personally had little interest in issues around transgenderism.

Both Bailey and Stonewall have said they are pleased with the result — something of an irony for two vehemently opposed parties whose views are no closer together after two years of fierce wrangling.