With its own dedicated (unofficial) Twitter account and people following proceedings daily live via video, the unlawful discrimination case brought by barrister Allison Bailey against her chambers Garden Court and Stonewall has seen levels of engagement rare for an employment tribunal.
The reason is that the case, due to hear closing arguments on Monday, is a microcosm of the wider debate about transgender rights.
In the one corner is Bailey, a lesbian and founder of the LGB Alliance, set up in direct opposition to Stonewall and accused of transphobia. In the other is a chambers that prides itself on being progressive and the LGBTQ+ charity.
The case concerns Garden Court chambers’ (GCC’s) reaction after tweets by Bailey criticising Stonewall’s position on trans rights were the subject of complaints, including by the charity, which accused her of “transphobic abuse”.
Bailey, a friend of JK Rowling, was asked to delete two tweets but refused to do so. She claims she subsequently suffered detriment, because of “organisational ‘politics’ resulting from the negative reaction to her objections to Stonewall”. Bailey alleges direct discrimination on the basis of her gender-critical views.
Despite barristers being self-employed, under the Equality Act, Bailey is able to sue her chambers because it is a trade association and Stonewall on the basis that it allegedly instructed, caused or induced GCC to contravene the act, which the charity denies.
Even if GCC risks financial and reputational loss, it is to some extent a bit player. Bailey’s crowdfunder for her legal costs, which has raised more than £550,000, is titled “I am suing Stonewall”.
It reflects the fact that for the LGB Alliance and its allies, the charity is their nemesis. Discussing Stonewall’s Diversity Champions scheme for employers, which GCC was a member of, Bailey told the tribunal: “The inducement that Stonewall offers with its scheme is reputational protection or reputational harm [for the employer]. It’s like a criminal protection racket.”
For its part, Stonewall argues that Bailey has been driven to bring a case that “lacks legal merit” by her “visceral and implacable hostility” towards the charity.
Irreconcilable differences were evident from the outset as Bailey’s barrister, Ben Cooper QC, made it clear that she objected to being called “cis” and said that at times during the case she would need to refer to trans women as “male” or “men” – in direct opposition to the beliefs of trans rights supporters. For Stonewall, Ijeoma Omambala QC asked that her side be allowed to use the word cis when not talking about Bailey.
Reflecting the wider hostilities aroused by the topic, judge Sarah Goodman has been forced to intervene because of abuse – a taunt/threat towards Bailey and a misgendering of Omambala’s junior barrister – from people watching online.
Neither Stonewall nor GCC are disputing that gender-critical views are a protected characteristic, as this was established by the employment appeal tribunal in the case brought by Maya Forstater, an ally of Bailey. But they claim that the language used by Bailey was not protected because it went beyond beliefs that sex, rather than gender, is fundamentally important.
In one of the two tweets Bailey was asked to remove, she thanked the Times for “fairly & accurately reporting on the appalling levels of intimidation, fear & coercion that are driving the @stonewalluk trans self-id agenda”.
In the other, she said: “Stonewall recently hired Morgan Page, a male-bodied person who ran workshops with the sole aim of coaching heterosexual men who identify as lesbians on how they can coerce young lesbians into having sex with them. Page called [the workshop] ‘overcoming the cotton ceiling’ and it is popular.”
Andrew Hochhauser QC, acting for GCC, said in written submissions the law distinguished “between a protected belief and manner in which it is expressed. There is no licence to abuse.”
Cathryn McGahey QC, who, while vice-chair of the Bar Council’s ethics committee, advised GCC that the tweets were “probably over the borderline of acceptable conduct”, told the tribunal their content was “not substantiated”. She also said what Bailey was accusing Stonewall of – intimidation, inducing fear and coercion – was “potentially criminal conduct”.
Hochhauser and McGahey’s interpretations were rejected by Cooper and in testy exchanges he and McGahey also clashed over whether the workshops referred to in the second tweet involved “coercion”, as Bailey wrote, or “persuasion”, as she suggested.
Bailey said her chambers took “a shameful and a disgraceful act” by tweeting that she was under investigation for her social media posts in response to complaints by “white men who were abusing me on Twitter”.
She is also claiming indirect indiscrimination, arguing that the gender-critical movement is “comprised predominantly of women and disproportionately of lesbians” – an argument GCC says is lacking in evidence – and so they were more likely to be disadvantaged by the chambers’ policies.
When the judgment comes, weeks or months from now, it will inevitably be heralded as a proxy victory by one side of the wider trans versus gender critical debate.
But it could ultimately come down to a more prosaic matter than Goodman’s interpretation of the language used in the relevant tweets and whether GCC was right to investigate them if the judge does not find Bailey to have suffered the detriments she alleges.
In her witness statement, the barrister says she suffered a loss of work from GCC’s clerks because of issues she “had raised about chambers’ affiliation with Stonewall and the view that I was a transphobe”.
But GCC says this assertion is “ludicrous” and without evidence. The chambers insists it was professionally obligated to investigate complaints, but the conclusion was that “no action was necessary” and that was the end of the matter.
• This article was amended on 20 June 2022 to clarify the grounds on which Bailey alleges she was subject to direct discrimination by GCC and Stonewall; an earlier version said that it was because of her refusal to delete two tweets.
