You might think the last place to harbour unlawful discrimination would be a barristers’ chambers that prides itself on “defending human rights and upholding the rule of law”. But the employment tribunal last week found that Garden Court Chambers discriminated against and victimised its tenant Allison Bailey on account of her “gender critical” beliefs.
It is the second such finding of discrimination by the courts in a month, after they ruled that Maya Forstater was denied work by the thinktank CGD Europe because she articulated her belief in the scientific reality that someone’s biological sex is real and immutable. Like Forstater, Bailey disagrees with campaigners such as the charity Stonewall that someone’s self-identified “gender identity” should override their sex and argues that women have the right to access female-only sports, prisons, refuges and changing rooms. Garden Court announced that it was investigating her social media activity, including a tweet robustly criticising Stonewall for championing gender ideology and another calling out the coercive concept of the “cotton ceiling”, a reference to lesbians’ knickers in the context of the absurd view that lesbians who exclude males who identify as women from their dating pool are transphobic.
(Stonewall maintains that discussion of this is akin to “sexual racism”.)Bailey was treated appallingly by the human rights QCs who headed her chambers and was awarded aggravated damages, which apply in cases where an employer has behaved particularly egregiously. It is a critical ruling not just for employee rights but for free expression, showing that the courts will not tolerate bosses interfering with their employees’ democratic rights by victimising those they disagree with politically. It sits alongside the court of appeal’s observation that gender ideologues have wielded false accusations of transphobia to impede the free expression of their opponents.
Bailey also accused Stonewall of unlawfully “instructing, causing or inducing” Garden Court to discriminate against her, after a senior member of staff wrote to warn the chambers about its association with her. (As a member of Stonewall’s Diversity Champions scheme, Garden Court paid it for employment advice and training.) She lost this part of her case, but the judgment far from vindicates Stonewall. The tribunal ruled that Garden Court was acting independently when it discriminated against Bailey, but that the Stonewall letter could credibly be read as a threat to terminate its relationship with Garden Court unless the chambers expelled Bailey. And that Bailey’s belief that Stonewall’s proselytisation of gender ideology is severely detrimental to women and lesbians is cogent, serious and important and so is a protected belief under equalities law. (It turns out Stonewall has a track record of targeting the employers of gender-critical black lesbians; Lucy Masoud has discovered that it secured a meeting with her employer at the time, the London Fire Brigade, that was preceded by internal discussion of “how to tackle her.”)
Moreover, a recent review by the barrister Akua Reindorf for Essex University found that its employment policies, reviewed annually by Stonewall, misstated equalities law “as Stonewall would prefer it to be rather than as it is”, paving the way for unlawful discrimination against two female academics. As a result, Reindorf, now a commissioner at the Equality and Human Rights Commission, recommended that Essex reconsider its relationship with Stonewall.
The information commissioner has also found that Stonewall operates a “significant degree of influence” over members of its workplace index, in which organisations compete to show how aligned they are with its worldview.
Universities are supposed to be bastions of academic freedom, senior QCs defenders of rights. It is extraordinary the extent to which they and others – including the BBC, government agencies and the police – have been captured by a controversial ideology that pushes the view that sex is irrelevant in law and society.
But by far the worst example has been in children’s healthcare. Gender ideology posits the view that when children express discomfort about their sexed bodies, this must be understood as an indicator of a fixed trans identity that should be immediately affirmed as the basis of any clinical treatment for gender dysphoria. Stonewall claims that children as young as two can have trans identities, which, given they can barely speak, is revealing of the extent to which adult identity politics is being imposed on children who do not conform to regressive gender stereotypes.
Gender-non-conforming behaviour is something to be celebrated, rather than the basis for teaching children that they may have been born in the wrong body, as some schools now do. There are many reasons why children and young people may experience gender dysphoria: it may be a sign that a child will go on to have a fixed trans identity in adulthood, but can also be associated with discomfort about puberty, grappling with same-sex attraction and childhood trauma. There is a coincidence with autism.
Yet the NHS has ignored this in embracing gender ideology’s unevidenced affirmative model and has put growing numbers of young people on the path of irreversible medical treatment that can make them infertile and has potentially significant risks for their brain and physical development, without adequately exploring the reasons for their gender dysphoria.
Expert whistleblowers sounding alarm bells about the lack of caution have been tarnished as bigots by fellow clinicians and institutionally vilified by the NHS. It has taken years of dogged campaigning and more than one court case to get the government to establish an independent review of NHS gender identity services for children, led by a distinguished paediatrician Hilary Cass.
That review is yet to produce its final report, but has already concluded that the affirmative model is unevidenced and castigated the NHS for failing to track outcomes for children undergoing this experimental treatment. Last week, it instructed NHS England to close down the Tavistock gender identity clinic children have been funnelled into and replace it with a more holistic model of service provision that explores why children may be experiencing gender dysphoria and builds the evidence base that is so sorely lacking.
One day we may look back and wonder at how a regressive and controversial worldview – that being a woman is not a scientific fact but variously an inner feeling or conformity to sexist stereotypes of femininity – came to exert so much influence over so many public institutions and professions. It is a product of corrosive groupthink, charities whose campaigning hinges on bullying their opponents by traducing them as bigots and individuals so keen to prove they are on the “right side of history” they abandon the critical faculties that are core to their profession. It has caused serious harm and a course correction is long overdue.
• Sonia Sodha is an Observer columnist
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