The decision, on Wednesday, that LGB Alliance founder and barrister Allison Bailey had suffered direct discrimination and victimisation was the second highly anticipated ruling in less than a month – after the Maya Forstater case – concerning gender-critical women in the workplace.
With both women being allies of JK Rowling, and both of their cases turning on their tweets criticising beliefs of supporters of transgender rights, they attracted an unusual amount of attention for employment tribunals and experts say they have important implications.
The most significant ruling came in the Forstater case when, in June last year a panel led by the president of the employment appeal tribunal (EAT) held that gender-critical views were a protected philosophical belief under the Equality Act.
The decision paved the way not just for Forstater winning her case, which was then sent back to an employment tribunal to be heard in full, but also Bailey’s victory against her chambers, Garden Court.
Lucy Lewis, employment partner at Lewis Silkin, said: “If you want to engage in public debate, if you are clear you are doing that in your personal capacity, then I think that there is now much stronger protection as a result of these two cases in your ability to do that.”
Bosses at Garden Court Chambers (GCC) argued that Bailey’s tweets, one of which spoke of “intimidation, fear & coercion that are driving the @stonewalluk trans self-id agenda” went beyond her beliefs, which the Forstater case had established were protected, but this was rejected by the tribunal.
Lewis said as a result of the Forstater case “the bar is high” as views have to be “objectively offensive” but what the cases – both unusually involving high-profile individuals on social media, each with more than 50,000 Twitter followers – had left unanswered was how to deal with such a conflict of views in the actual workplace, for example directed towards a colleague.
She said the only case to address this to date was when a doctor, David Mackereth, who insisted on misgendering trans people while assessing benefit claimants lost a claim against the government that he was discriminated against on the basis of his religious beliefs, in another decision published earlier this month.
That was in line with the EAT’s decision in the Forstater case which it said “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity”.
Bailey sued both GCC, whose decision to join Stonewall’s Diversity Champions scheme provoked her tweets, and the LGBTQ+ charity itself. Her crowdfunding page, which raised more than £500,000 for legal costs, pointing the finger at the latter with the title: “I am suing Stonewall.”
She won the case against GCC – which has said it is considering an appeal – but lost against Stonewall, having failed to show that the charity, which was among those to complain about her tweets, had induced or instructed discrimination by her chambers.
Nevertheless it was Stonewall Bailey reserved her harshest words for following the decision, accusing it of “creating the environment in which discrimination against gender-critical women and lesbians has been allowed to flourish”.
For its part, Stonewall said it was committed to creating a workplace “where everyone can thrive” and placed responsibility for organisations’ culture in the hands of their leaders. “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,” the charity said.
Lewis said the fact that some people within an organisation did not agree with Stonewall did not mean that businesses should not engage with the charity but it would require careful management.
“There are lots of businesses that continue to engage with Stonewall even though employees within their organisations say they are uncomfortable about that because they have made their own assessment and they are comfortable with that,” she said.
“I think if you bring in any kind of external advice you need to take a measured approach to what you are looking to achieve and how that external organisation is going to help you achieve that.”
Her words were echoed by Georgina Calvert-Lee, employment law and equality expert at Bellevue Law, “There is no harm in employers engaging with third party interest groups – it often helps keep them aligned with current sensibilities which may affect their staff – but they should still ensure their workplace is tolerant of differences,” she said.
Calvert-Lee added that another lesson of the case was that where employers have mission statements or the like “they should stand back and consider objectively how proposed policies or statements may impact different members of staff, depending on their beliefs and other protected characteristics, and then try to plot a neutral path that avoids this different impact and treats everyone with respect”.
The tribunal heard that GCC, with a motto of “Do right, fear no one”, prided itself on supporting trans rights since 1988 but Bailey’s views on the matter were very different.
Echoing Calvert-Lee, Lewis said employers should “avoid taking a kneejerk reaction because somebody is expressing a view which is different from the organisation’s stated objective or stated position on a certain matter”.
But given there was still a debate at the time of Bailey’s tweets over whether or not gender-critical views were protected, she said it was a mistake organisations were less likely to make in the wake of the tribunal’s decisions.
• This article was amended on 29 July 2022. An earlier version referred to solicitor Lucy Lewis as “partner and head of the employment team” at Lewis Silkin. This has been changed to “employment partner”. To clarify: she heads the employment team at the firm’s Cardiff office.
