Bailey - a big relief for trans people but it's not all good news

by Jess O'Thomson

Wed Jul 27, 2022 · 5997 words · 30 min

Update: Garden Court Chambers have, since writing, released a statement in which they explain that they are "reviewing the judgment carefully... with a view to appeal". This means appeal might be much more likely than indicated in the analysis below


Use this handy table of contents to navigate this hefty article:

Summary

The furore surrounding this case, focused on “GC”s finally taking Stonewall to task, has fallen apart. This is reason enough for the trans community to celebrate. Moreover, Bailey’s claim for indirect discrimination was torn apart, not least on the basis that no credible evidence was presented that lesbians or women were more likely to hold “gender-critical” views - indeed, the evidence showed the contrary.

However, Bailey did win her claim of direct discrimination. There remain significant concerns about the judgment not only in its legal analysis - which I argue is flawed, contrary to authority, and should be appealed - but also in the language and ideas it adopts, which I believe are evidence of apparent bias, and capable of being judicially reviewed. However, given the relatively small loss for Garden Court Chambers compared with potential further legal fees, I am doubtful that will happen. Ultimately, as with Forstater, a significant issue highlighted in the case remains the failure to adopt and follow proper social media policies and complaint procedures by employers. This is the action we should be taking in our workplaces.

What the fears were

Many of us had significant concerns about this case if the worst outcome had come to fruition. A loss for Stonewall might have resulted in big corporations pulling out of the Diversity Scheme, fearing litigation, and resulting in material harm for trans people. Fortunately, this was not the case. The big headline that Bailey was taking on Stonewall has fallen apart. The accusations of “Stonewall Law” have been proven a myth - the case was clear that it was Stonewall who benefited most from GCC, not the other way around. At [373], the judgment states:

…In this context, Garden Court provided voluntary services to Stonewall, not Stonewall to Garden Court; it was Stonewall that stood to lose. The email contains no instruction. If there some [sic] inducement here (fear of losing Stonewall Diversity Champion status, more generally a breach of obligation to Stonewall, and some loss of brand association), it lay in the minds of Garden Court managers and Heads. It did not come from Stonewall. There was not even an attempt at inducement…

It is in this context that you should read the rest of this analysis. Whilst the concerns in this article remain genuine ones with the potential to affect the lives of trans people in the future, Stonewall’s role in advocating for trans inclusion through its diversity scheme is not at risk.

Factual inaccuracies, offensive language, and apparent bias

Suggestions of apparent bias

One of the most notable aspects of the judgment is not its legal reasoning (which we will get to later on) but rather its bizarre and factually incorrect explanations, alongside shockingly offensive and unprofessional use of language.

The judgment, written by Judge Sarah Goodman, begins with a significant chunk of unnecessary preamble, one section of which purports to outline the “philosophical approach to sex and gender” in a single paragraph. I set out the entire paragraph [42] below, so you can see for yourselves what a truly remarkable piece of writing it is. I have italicised the most important section for the following discussion.

For thousands of years human societies have identified a difference between men and women on the basis of their observable physical characteristics. In most societies this brought in its train received ideas about what men and women could do, or should do, and the different roles each sex (as defined by their bodies) should play in social relations, in work, in government, ownership of property, and so on. In post-enlightenment Europe the idea developed that female biology was not determinative of social roles, indeed that social roles might restrict the development of sporting or intellectual capacity, so that many of the differences in men and women’s abilities were not, as many thought, determined by the biological differences, but a product of socialisation. Male and female bodies were not the same thing as masculine and feminine behaviour. Mary Wollstonecraft and John Stuart Mill developed this. In the post war period these ideas received more attention. Particularly influential was Simone de Beauvoir’s publication in 1948 of The Second Sex, a detailed examination of how women were thought to be different from men, and how women were in fact taught to be women. In part two, she began: “one is not born, but rather becomes, a woman”. From this developed a philosophical exploration, initiated by Judith Butler, of the idea that woman is a socially determined category, rather than someone with particular physical characteristics linked to childbearing. People could identify as of a gender other than that observed at birth, or both, or neither, in whichever they were comfortable. It was not just that women, defined biologically, should have rights and opportunities equal to those of men, but that the biological differences did not matter. This is gender self-identity.

The idea that trans people who support gender self-identity believe “biological differences [do] not matter” is, of course, an absurdity. There are reasons why many of us seek surgeries or take hormones to alter our biology. The key distinction is that we believe that biology is not determinative, and that sex is not a fixed, binary category to be assigned at birth. We are able to alter our biology and able to change sex for all meaningful purposes. Trans people were not invented by Judith Butler. I implore judges to refrain from attempts to explain complex sociological issues they appear not to fully understand, and about which many books have been written, in their legal judgments. Not only is this “explanation” concerningly incorrect, but it is also entirely unnecessary. The legal position - outlined in paragraphs [43]-[48] - exists independent of one’s view of the philosophy.

The above explanation also alludes to a set of beliefs about trans people apparently held by the writer, malicious or not, which taint the whole of the judgment. There are many examples of where the judgment uncritically accepts gender-critical talking points and uses inappropriate and transphobic language.

Immediately obvious throughout the judgment is the use of the phrase “transwomen”, “transman”, and “transpeople” as opposed to “trans women” and “trans people”. This rejection of “trans” as an adjective is a well-known dog-whistle. The implication is that “transwomen” are their own separate category, rather than a (trans) subsection of women. It is the equivalent to contracting “tall women” into “tallwomen”, and is a profoundly worrying use of language. Moreover, the judgment misquotes Stonewall as using such exclusionary language at [59]. Even whilst writing this article, my spellchecker keeps attempting to correct the language to include a space. It is difficult to believe that this was an error, as opposed to a deliberate choice.

Indeed, it is contrary to the language used and suggested by the Equal Bench Treatment Book. The July 2022 interim edition repeatedly uses the phrase “trans woman” and “trans person” when outlining “acceptable terminology”. This is not Judge Goodman’s only departure from the EBTB - she refers multiple times to “natal” men and women rather than using the EBTB suggested “gender assigned at birth”. Most egregiously, she refers to “misgendering” someone (the preferred language of the EBTB) as “transgendering” them, at [367]. One can only hope that this particular instance is an unprofessional typo, as opposed to a deeply sinister attempt to conflate identity with the harassment (which it was confirmed misgendering can be in Forstater) one can receive for said identity. The guide, whilst not binding, is often cited in judgments (including Forstater) and judges are encouraged to follow it. The EBTB makes clear why it encourages this:

To ensure equality before the law, a judge must be free of prejudice and partiality and conduct themselves, in and out of court, so as to give no ground for doubting their ability and willingness to decide cases solely on their legal and factual merits, as appears from the exercise of an objective, independent and impartial judgment (to paraphrase Lord Bingham).

Thus, it is clear that to fail to follow the language suggested in the guide invites accusations of bias. It is enormously concerning that Judge Goodman has chosen to depart from its suggestions in favour of more “gender-critical” alternatives, and in my view demonstrates her unacceptable apparent bias in a case centred on “gender-critical views”.

This apparent bias runs deeper than an inappropriate choice of language. In discussing the legal position on sex and gender, the judgment irrelevantly references a YouGov poll, drawing unfounded conclusions from the data. At [45] (emphasis added):

In the course of the evidence we were taken to a July 2020 report on a YouGov survey of public opinion on transgender rights. Some of the questions were asked twice, on the second occasion specifying that the transgender person had not had gender reassignment surgery. This caused a plurality of the women surveyed to change their answer from allowing transwomen access to women’s changing rooms and toilets to disallowing access. It seemed to show that many respondents to the survey had at first assumed a transwoman would have had surgery.

This data does not necessarily show that respondents assumed a trans woman would have had bottom surgery (the judgment makes the hilarious error of simply referring to it effectively as ‘The Surgery’, a well-known joke known amongst trans people). What the data shows is that when attention is drawn to the genitalia of trans women, the question itself emphasises their importance, and in doing so implies that trans women are not really women. That there is something ‘different’ about them. It is unsurprising that a question with such leading implications would have different results to a question without them. It does not say anything about assumptions with regard to surgery, and even if it did, it is unclear why that is relevant to an assessment of the current “legal position on sex and gender” (the subheading this paragraph falls under). It is a very odd for comment for a judgment to make, which appears to be implicitly attempting to defend the substance of the claimant’s views, rather than engaging with a legal analysis of the claim at hand.

The judgment continues with further concerning comments. At [52] the judgment states:

…Many transpeople live in fear of challenge, ridicule and threats. Transwomen are subjected to open abuse and sometimes violence - as gay men sometimes are, possibly by the same people, policing masculinity. They also fear unpleasant challenges from women if they try to use women’s toilets and changing rooms. From the other side, the long and continuing history of male violence towards women can make women fearful and mistrustful of admitting people with male bodies…

The clear intent behind this quote is to imply that the struggle of trans people is ‘lesser’ - comparing mere “challenge, ridicule and threats” to fear of “male violence”. We know this is not the case - trans people face very real violence if someone decides that they are in the wrong bathroom. Significantly, the judge refers to trans women as “people with male bodies”, embedding the “gender-critical” idea that they are really men. This runs directly contrary to the legal discussion which preceded this, which makes clear that any person with a gender recognition certificate “becomes for all legal purposes the acquired gender”. In law, a trans woman with a GRC is female-bodied.

Going further, this same paragraph later repeats the “gender-critical” and often far-right talking point that trans youth are simply “confused” and having transness “suggested” to them:

…People who are same-sex attracted are concerned that younger people may find it hard to recognise they are gay or lesbian when it is suggested to them that their confused feelings mean they are in fact of another gender…

This plays into the insidious “groomer” narrative, ignoring the fact that many trans people are explicit about experiencing dysphoria and identifying outside of their gender from early childhood, often without the language or knowledge of the existence of trans people to properly identify such experiences at the time.

Most egregiously, the judgment goes on to uncritically accept the argument that TERF is an “offensive” term, providing no justification, evidence, or discussion for this point - it is simply included as a statement of fact in the scene-setting preamble. The judgment then takes a step which is quite frankly beyond belief, and compares it as equivalent to a racial slur, uncensored in the judgment, though censored below [60]:

…TERF stands for Trans Exclusionary Radical Feminist, and while it started as a descriptive term, in current usage it is offensive - as in the slide from “Pakistani” to “P***”…

Printing an uncensored racial slur, and comparing other forms of alleged oppression to it, is unprofessional, indefensible, and is an example of racism. I believe comparing any non-racial oppression to racialised oppression to be an act of racism. To do so here cannot be justified, and I fear brings shame upon the entire legal profression. It also provides more evidence of Judge Goodman’s apparent bias in favour of “gender-critical” beliefs, given the lack of any analysis or justification as to whether this incredibly bold statement is true. Worst of all, this is not simply an offhand comment - it is later used to evidence less favourable treatment of Allison Bailey by Garden Court Chambers on the basis of her “gender-critical” belief, due to the fact that her trans colleague Alex Sharpe had used the word “TERF” on twitter [317]-[318]:

Was the treatment less favourable than the treatment received by someone who had not expressed this belief? When it came to the complaint of antisemitism in January 2020, there was no response to anyone to suggest there was an investigation. We were not taken to other complaints about members of chambers, other than by members themselves. On Alex Sharpe, the respondents [regarding the TERF tweet] said there had been no formal complaint for them to take the matter up. The complaints policy does not require a response, nor (as was clear when the tweets were read) any investigation. We had to consider why this was. We concluded it was because she had expressed unpopular views on a matter of public debate.

We concluded that the less favourable treatment was because of her views about gender self-identity and Stonewall’s role promoting gender self-identity…

The above evidence clearly demonstrates an apparent bias on behalf of Judge Goodman of which we should be accutely aware. Before “gender-criticals” claim that this assertion is itself based on my pro-trans bias, I will make clear the following points. Firstly, this is not something I believed or has come to mind with any other judgment I have read that has reached an outcome I disagree with - it is unique to this case. Secondly, I have provided clear evidence of how the judgment fails to comply with even the basic terms outlined as standard in the EBTB - not the ones I would prefer, or best practice within the trans community. This clearly demonstrates a choice on the behalf of Judge Goodman that I think sustains an assessment of apparent bias, whether Judge Goodman was in fact biased or not.

The Law on Apparent Bias

A decision of a tribunal, such as this one, may be overturned by judicial review in cases of apparent bias. Apparent bias is defined as follows in the leading case of Porter v Magill:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

It is irrelevant whether the decision-maker was actually biased - the only question is what the perception of fair-minded and informed observer might be. This is to ensure not only that justice be done, but that justice is seen to be done (per Lord Hope, in Davidson).

The recent case of Higgs - another “gender-critical” case - shows how widely this test can be applied. Here, a trans lay-member (non-legal member) of the Employment Appeal Tribunal was removed from hearing a case on the basis that they had tweeted in support of trans rights, and asserting that feminism which excluded trans people was not intersectional. If a trans people merely stating their beliefs on social media is sufficient to give rise to apparent bias, then it is clear to me that uncritically replicating “gender-critical” talking points and choosing to use transphobic dog-whistles as opposed to the generally accepted professional language outlined in the EBTB - within the text of a judgment about the issue itself - certainly gives rise to apparent bias.

I hope that Garden Court Chambers will seek judicial review on this matter, but I worry this will be unlikely in practice. The amount won by Allison Bailey for injury to feelings is relatively insignificant compared to the substantial costs which would be generated by further litigation. Unfortunately, it would be less risky and likely cheaper for GCC to simply accept the judgment. It, therefore, seems probable that the unacceptable language and approach of this judgment will be allowed to stand. It is my opinion that any trans person who is allocated Judge Goodman in a future case should use the evidence outlined above to request her recusal.

The Discrimination Claims

This article will not discuss the victimisation claim in any great detail, as it is of little to no relevance to the protection of trans rights at work. In summary, a claim of victimisation under section 27 of the Equality Act 2010 does not assess the merits of any claim - it merely requires that a claim has been brought under the Equality Act 2010 - the “protected act” - and that the claimant has been subject to a detriment because they have or are believed to have done that protected Act. As I said at the time, this claim was clearly made out and would have been so even if Allison Bailey’s claim had been based on an alleged philosophical belief that pineapple is the best pizza topping.

The claim of most relevance to trans safety is Bailey’s claims of discrimination. If employers are unable to act on complaints about the potentially transphobic conduct of their employees for fear of litigation, this limits the safety and dignity of trans people as service users and as workers. Bailey brought claims of both direct and indirect discrimination, which will be discussed separately, starting with the shorter analysis of Indirect Discrimination. I argue that the reasoning on direct discrimination is entirely flawed, expanding even further the scope of philosophical beliefs within the Equality Act 2010, and reflects an urgent need for clarification from a higher Court or through legislation.

Indirect Discrimination

Under section 19 of the Equality Act 2010, indirect discrimination is defined as:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Bailey’s claim was that GCC had adopted a provision, criterion or practice (PCP) of treating gender-critical beliefs as bigoted, and that because, she alleged, women and lesbians were more likely to hold such beliefs, this amounted to indirect discrimination on the grounds of the protected characteristics of sex and sexual orientation.

It was with great hilarity that the testimony of LGB Alliance in support of this claim was enjoyed at the time. Aiming to prove that lesbians were more likely to hold “gender-critical” beliefs, the witness for LGB Alliance actually informed us all that the so-called LGB Alliance has a mostly straight membership - only 7% of ‘supporters’ had identified as lesbians. The witness also accidentally ‘said the quiet part out loud’ when admitting that the common thread between members of the organisation was “gender-critical” views, as opposed to the pro-LGB campaigning they maintain as their alleged purpose to retain charity status. I can only hope that this information as to their real organising aims, as opposed with their stated charitable objects, is used against them in the upcoming challenge to that status.

Thus, not only finding that GCC had no such PCP of treating “GC” beliefs as bigoted, the tribunal also held that the evidence pointed to the opposite conclusions - women were less likely to hold these views at [351]:

The YouGov poll showed women more likely than men to agree that people should be allowed to self-identify, and more likely to agree that a transwoman was a woman. Women were more likely than men to agree transgender women should be allowed to use women’s changing rooms and women’s toilets and domestic violence refuges if they were themselves victims, although these views changed when told that the transgender person had not had gender reassignment surgery. Women then agreed that transgender women should not be allowed to use women’s toilets, or women’s changing rooms, though on the latter point men still took a stronger view than women. We had no figures at all on the proportion of lesbians in the gender critical group as compared with the general population. Taking the evidence as a whole, we could not conclude that a practice of considering gender critical views bigoted showed women at proportionately greater disadvantage than men. We also had no evidence on lesbians being at any different disadvantage to women as a whole: the campaign group witnesses did not collect this information and relied, within very small samples, on impression.

This provides clear evidence that “GCs” do not represent and speak for women or lesbians as a class, no matter their claims to the contrary.

Direct Discrimination

Under section 13 of the Equality Act 2010, direct discrimination is defined as:

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

This can be broken down into three core elements. Firstly, you need a protected characteristic - here, philosophical belief. Secondly, the claimant must be subject to a detriment. Thirdly, it must be a detriment suffered because of the belief, i.e. the claimant would not have suffered the detriment if they did not hold that belief. I will discuss my concerns regarding the finding that Bailey’s views amounted to a philosophical belief. There are also questions as to other findings of fact - such as whether an investigation amounts to “detriment”, but they are not errors of law and thus unlikely to be appealable.

In my Forstater article I stated you did not need to worry about the other Grainger criteria outside of (v) for determining whether a belief amounted to a philosophical belief for the purposes of the Equality Act 2010. In this instance, this proves to be an oversimplification. The other Grainger criteria are key to this analysis, and I believe the approach taken by the tribunal in Bailey has rendered them nonsensical.

Grainger states that a belief must satisfy the following five criteria to be considered a philosophical belief:

(i) the belief must be genuinely held

(ii) it must be a belief, and not simply an opinion based upon the present state of information.

(iii) it must concern a weighty and substantial aspect of human life and endeavour

(iv) it must attain a level of cogency, seriousness, cohesion and importance

(v) it must be worthy of respect in a democratic society and not conflict with the fundamental rights of others.

It is clear from both Mackereth and Forstater that “gender-critical” beliefs - simply put the belief that sex is immutable - satisfy these criteria. I highly recommend you read my analysis of these cases if you have not done so already, for context.

However, Mackereth is clear that not all beliefs and manifestations related to these “gender-critical” beliefs also satisfy the criteria and thus may not be protected under the Equality Act 2010.

Dr Mackereth held three key beliefs on which he based his claim, referred to by the following shorthand in the judgment:

(a) belief in Genesis 1:27

(b) lack of belief in transgenderism

(c) conscientious objection to transgenderism

It was necessary to consider whether all three beliefs satisfied the Grainger criteria. In Mackereth the discussion of criterion (iv) at [77] concluded that:

…the additional test of cogency, seriousness, cohesion and importance (Grainger (iv)) may mean that the more narrowly a belief is defined the less likely it is to be found to be a philosophical belief for the purposes of section 10 EqA

Thus whilst the first was held to satisfy the Grainger criteria, the EAT accepted the tribunal’s decision that beliefs (b) and (c) did not do so, and so were not protected.

It held that [110]:

…the progressively narrow way in which the claimant’s beliefs were defined meant it was hard to see those as meeting the relevant threshold…

Thus, the Employment Tribunal was [113]

…entitled to find that the more narrowly focused statements at (b) and (c), taken in isolation, did not have the required level of cogency, seriousness, cohesion and importance. Indeed, in our judgement, the relevant statements at (b) and (c) could only meet the Grainger (iv) test when understood in the context of the claimant’s underlying belief at (a). That confirms to us that the statements in issue at (b) and (c) are properly to be understood as statements of opinion or viewpoints that make manifest the claimant’s belief in Genesis 1:27.

Despite this clear decision that narrow statements of belief will not satisfy criterion (iv), in Bailey, the tribunal went on to find that far narrower beliefs about Stonewall - a single organisation - did satisfy the criteria. Bailey’s beliefs are outlined as follows in the judgment at [279]:

(a) Sex is real and observable. Gender (as proselytised by the First Respondent) is a subjective identity: immeasurable, unobservable and with no objective basis.

(b) At the root of the First Respondent’s espousal of gender theory is the slogan that “Trans Women Are Women”. This is advanced literally, meaning that a person born as a man who identifies as a woman literally becomes a woman for all purposes and in all circumstances purely and exclusively on the basis of their chosen identity. To all intents and purposes, the First Respondent has reclassified “sex” with “gender identity”.

(c) The tone of the First Respondent’s campaigning on this subject has been binary, absolutist and evangelical. It may be summarised as “You are with us, or you are a bigot.” Discussions on the subject have become extremely vitriolic, largely as a result of the First Respondent’s absolutist tone, replicated by other organisations with which the First Respondent works closely. This has resulted in threats against women (including threats of violence and sexual violence) becoming commonplace. The First Respondent has been complicit in these threats being made.

(d) Gender theory as proselytised by the First Respondent is severely detrimental to women for numerous reasons, including that it denies women the ability to have female only spaces, for example in prisons, changing rooms, medical settings, rape and domestic violence refuges and in sport.

(e) Gender theory as proselytised by the First Respondent is severely detrimental to lesbians. In reclassifying “sex” with “gender”, the First Respondent has reclassified homosexuality from “same sex attraction” to “same gender attraction”. The result of this is that heterosexual men who identify as trans women and are sexually attracted to women are to be treated as lesbians. There is therefore an encouragement by followers of gender theory (including the First Respondent) on lesbians to have sex with male-bodied people. To reject this encouragement is to be labelled as bigoted. This is inherently homophobic because it denies the reality and legitimacy of same sex attraction and invites opprobrium and threatening behaviour upon people who recognise that reality and legitimacy.

(f) It is particularly damaging to lesbians that the First Respondent has taken this position. The First Respondent had been the foremost gay and lesbian rights campaigning organisation in the UK and one of the world’s leading such organisations. The adoption of gender theory by the First Respondent therefore left those gay, lesbian and bisexual people who did not ascribe to gender theory without the representation that the First Respondent had previously provided, and left those people labelled as bigots by their primary representative organisation

Beliefs (b)-(f) are clearly incredibly narrow, and border on conspiracy theories about a single organisation - for example claiming Stonewall is “complicit” in “threats of violence and sexual violence”. Nonetheless, the tribunal considers all of these to satisfy the Grainger criteria, at [291] on the basis that:

The claimant’s beliefs, taken as a whole, in our finding pass the test of cogency, seriousness, cohesion and importance. They cohere because of the claimant’s understanding that gender theory, adopted without compromise, generates the range of adverse consequences for women and lesbians that are described in her list of beliefs. Her objections to Stonewall are all because of the gender self-identity theory which she believed to be erroneous. We concluded it was not possible to separate Stonewall as a campaigning organisation from the gender theory with which the claimant disagreed. Her objection to Stonewall “proselytising” gender self-identity theory is about the difference between her belief and theirs. To separate them would be like holding that homosexuals may lack belief in evangelical Christian teaching about sinfulness of same-sex orientation, but not be protected when they speak against a church institution, or that reformed Protestants are not protected when they denounce the Church of Rome as the whore of Babylon or the Pope as the Antichrist. Manifesting those beliefs may be limited under articles 9 and 10. The beliefs set out by the claimant cohere as an interrelated whole because they are all underpinned by the conflicting view of gender and sex.

This is simply incorrect and directly contradictory to Mackereth where despite being rooted in the claimant’s belief in the immutability of sex Dr Mackereth’s additional, more specific views were held to be manifestations of the core belief, not protected in and of themselves. This goes to the core of the distinction between manifestation and belief, which the EAT Forstater judgment emphasised were not to be conflated in this way. This is why in cases like Azmi the wearing of a veil by a Muslim woman was held to be a manifestation, rather than a belief.

This approach flies in the face of clear precedent and is ripe for appeal. I fear we will not get one, given that there is little financial motive for GCC to do so, as discussed above. It is clear that tribunals are struggling to apply the law consistently since Forstater EAT, and we are in need of urgent clarification from a higher court. Alternatively, we need legislation which clearly distinguished between protections for significant religious and spiritual beliefs, and protections for expression of political views - the latter of which should be protected in line with free speech, but to a much lesser degree than the former.

Importance of Policies Once Again

Another important element of the discrimination claim was the finding that an investigation was announced into Allison Bailey not because of her tweets or their content, but because of her beliefs. This reasoning is similar to Forstater, but here justified not because Bailey’s tweets were protected as inseparable from her belief (an error I discuss in my Forstater analysis), but rather because none of those who decided to take the action had actually read her tweets at all. Most significantly, the judgment clearly states at [315]:

As for social media guidance and breach of core duties, chambers had no policy of its own, and probably only Leslie Thomas had studied the new BSB guidance, but he himself said he had not read the tweets, and none of them was in a position to form a view on whether the tweets she had sent out could have been in breach… It is clear from Judy Khan’s communications to and about the claimant in December 2018, and on 24 October 2019, that she disliked the way the claimant expressed herself, but on this occasion, given that at the time none of them had read beyond the claimant’s Twitter statement that the views were her own, it is more likely that it was her statements of belief in themselves, (and the opponents’ protests that this was contrary to Garden Court’s reputation as a human rights chambers) that led to this decision, rather than the terms in which she expressed them.

Thus, ultimately, if GCC had adopted a fair social media policy - applying to all - which promoted a use of social media inline with inclusive values, and acted upon it by critically evaluating her tweets rather than acting in haste, then Bailey’s claim would likely have failed. This is particularly true given the weight of Bailey’s tweet about Morgan Page, describing her as “male-bodied”, attempting to “coerce young lesbians” into sex with trans people. If a proper process had been followed, based on a proper procedure and a well-designed social media policy, then I hope that a tweet which I and many others believe to be disgusting and defamatory would have been found to be in breach of it. This, then, is the message to take forward from recent litigation in our organising to protect trans dignity at work.