Allison Bailey is a criminal defence barrister at Garden Court chambers in London, a large and important group of lawyers with a reputation as a human rights ‘set’ supporting trans rights. In December 2018, she complained to her colleagues about Garden Court becoming a Stonewall ‘Diversity Champion’. She said that Stonewall advocated ‘trans extremism’ and was complicit in a campaign of intimidation of those who questioned gender self-identity, a claim the charity denies. In October 2019, she was involved in setting up the Lesbian Gay Alliance, a charity to resist ‘gender extremism’. She tweeted about these matters.
That led to complaints to her chambers, accusing her of transphobia and other hateful conduct. In response, the chambers made a public statement that it would investigate those complaints. In December 2019, it found that her tweets were likely to have breached her core duties as a barrister.
Today, an employment tribunal found that Garden Court Chambers discriminated against Bailey because of her ‘gender critical’ belief that policies and practices carried out to promote the primacy of gender identity over biological sex can be harmful, especially to women.
To quote the Judicial Office release on the Bailey judgment:
‘The tribunal held that her 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 protected under the Equality Act. The tribunal did not have to decide whether that belief was correct...The tribunal upheld her claim that Garden Court discriminated against her because of her belief.’
This is the second such court ruling relating to gender critical views this month. Earlier in July, a tribunal confirmed that Maya Forstater, a think-tank researcher, also suffered discrimination because of her gender critical beliefs. An earlier element on Forstater’s case led to the ground-breaking ruling that such beliefs are ‘protected’ under the Equality Act 2010.
These cases are a big deal. Their implications for employers may be significant. They should also have significant consequences for wider public discourse around sex and gender.
This debate is often characterised by fear. Many people, both prominent and ‘ordinary’, feel wary of speaking openly about their doubts and questions around trans issues. The courts have now made plain that expressing such views – within the usual limits of measured, polite speech – is entirely valid.
People who calmly and politely express such views are not doing anything wrong or hateful. They are entitled in law to hold those views and to express them. Anyone who seeks to prevent the expression of such views should consider that legal fact very carefully.
That fear of speaking out, of being seen to question the gender identity agenda, is one of the reasons I’ve written so much about this topic in the last few years. When I entered this conversation in 2018, I was amazed to find so many people, many of them prominent in public life, felt that fear, and as a result remained silent on the topic.
I work at Westminster and so deal regularly with politicians, officials, journalists and other prominent and influential people. Over several years, I grew accustomed to such people quietly taking me aside to say things to the effect of ‘I am worried about sex and gender issues, but I am afraid to say so openly.’
Some of those people were members of parliament, some of cabinet and shadow cabinet rank. Others were prominent journalists with large public platforms. Over time, that fear has ebbed. Some, but far from all, of the people who have private concerns here are now willing to speak openly.
There are many reasons for that tide of fear receding. But foremost among them is the bravery of a small number of women. I shan’t go into the background of the Allison Bailey case, beyond pointing out that – given the nature of the bar – for a barrister to take her chambers to court is a huge and risky step. Garden Court Chambers is a seriously important and influential part of the old-fashioned little world that is the bar, where relationships and reputations matter enormously.
Allison Bailey’s willingness to go against senior members of her own small and powerful profession over such a contentious issue, required extraordinary courage. The same can and should be said of Maya Forstater, who was also operating as a contractor in a small, well-connected and politicised sector.
Both of those women might have had quieter, easier lives if they’d folded and let their cases drop. Knowing a bit about the risks and pressures involved, I’m pretty sure that if I found myself in a comparable situation, I’d give up and back down. I am not brave: I understand the silence of all those prominent people I know who have stayed quiet on this issue over the years.
But Allison Bailey is brave. So is Maya Forstater. Everyone is better off for their bravery. I hope those who remained silent while those women fought on will now find their own voices.
She wouldn’t want to be the focus of this story, but a word should be said here about JK Rowling. She has supported both Bailey and Forstater. That is to her credit, but that’s not the key point here.
Rowling has suffered huge public criticism because of her support for these women; her critics say such support is proof that Rowling holds bigoted or hateful views. Now the courts have held that Bailey and Forstater hold legitimate beliefs and have suffered discrimination, the fundamental basis for any criticism of Rowling over sex and gender is destroyed.
It would be nice to think that the rulings over Bailey and Forstater would bring about the vindication of JK Rowling, but I think that is sadly unlikely. Instead, I suggest that anyone who persists in their damnation of Rowling over sex and gender in spite of those rulings is revealing quite a lot about themselves and their motives.
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