Gender Critical Belief: Latest Legal Development

Fri, 29 Jul 2022

No5’s Oliver Lawrence and Sapandeep Singh Maini-Thompson explore the Employment Tribunal's decision in Bailey v Garden Court. They analyse the legal developments in respect of gender-critical belief.

The Employment Tribunal has ruled that Garden Court Chambers directly discriminated against and victimised its tenant, Alison Bailey, because of her “gender-critical” beliefs. The Tribunal found that Garden Court directly discriminated against Ms Bailey by announcing on Twitter that it was launching an “investigation” into her “gender-critical” tweets on the social media site and by upholding a complaint about those tweets without pausing to consider a neutral approach. Several other claims of direct discrimination, indirect discrimination and victimisation against Stonewall and Ms Bailey’s former Heads of Chambers were dismissed. This case marks the latest instalment in a novel series of litigation concerning gender-critical belief and freedom of speech in the workplace.

Factual Background

The Tribunal assessed the evidence of over 20 witnesses, the internal email communications of Garden Court’s barristers and the social media posts of the relevant parties. The saga began in December 2018 when Ms Bailey complained to her colleagues about Garden Court becoming a Diversity Champion for Stonewall and expressed her belief that natal sex, as opposed to self-identified gender, determines whether someone is a man or a woman. Ms Bailey went on to express her gender-critical beliefs on Twitter. The tweets led to several complaints being made to Garden Court about the incompatibility of her views with the rights of transgender persons. Garden Court responded by announcing that it would launch an “investigation” into Ms Bailey’s tweets. The outcome of the investigation was that two of the tweets were likely to offend the Bar Standards Board Code of Conduct.

Garden Court’s argument was that Ms Bailey’s gender-critical views themselves were not the reason for the decision, citing the need to “damp down a Twitter storm” and its concern that one of its members had breached BSB core duties. The Tribunal rejected this argument, finding that in making the decision, the heads of chambers were aware that the controversy arose from differences of opinion on the nature of sex and gender. The material fact operating on their decision to announce the investigation was the criticism made of Garden Court for its association with someone who expressed views contrary to theirs. Faced with a Twitter storm on gender self-identity, Garden Court picked a side.

The effect of Forstater

This case follows the decision of the Employment Appeal Tribunal in Forstater v CGD Europe Ltd (2022) ICR 525 that a gender-critical belief can constitute a “religious or philosophical belief” for the purposes of section 10 of the Equality Act 2010 (‘EqA’). There are several criteria which a belief must meet in order to receive the protection of section 10 EqA (‘the Grainger criteria’), including the criterion that the belief must be capable of respect in a democratic society. The EAT held that this criterion only excluded beliefs which aim to destroy the rights of others such as Nazism or totalitarianism. It is not sufficient that a belief or a statement has the potential to offend, shock or disturb a section of society for it to be deprived of the protection of Article 9 or Article 10 of the ECHR. In light of Forstater, all the Respondents to Ms Bailey’s claim agreed that gender-critical belief is protected and that treating someone less favourably than others because of a gender-critical belief constitutes direct discrimination for the purposes of section 13 EqA.

The Tribunal noted that the topic of gender-critical belief “arouses considerable public interest, and in some sections of the public, great hostility” [12]. Nonetheless, in Forstater, the EAT emphasised that those who hold gender-critical beliefs are subject to the same prohibitions on discrimination, victimisation and harassment as the rest of society. However, the fact that an act is a manifestation of a protected belief does not operate automatically to shield a discriminator from liability.

In this case, Ms Bailey expressed her gender-critical beliefs through several tweets. The nature of the manifestation of a protected belief is relevant to the question whether the protected belief is the ‘reason why’ the less favourable treatment occurred. Where the treatment complained of was because of the way a belief is manifested, rather than the belief itself, a tribunal may have to consider whether it was the “objectionable manifestation” which was the reason for the act complained of (Page v NHS Trust Development Authority (2021) ICR 941).

The Tribunal found that the less favourable treatment occurred because of Ms Bailey’s views about gender self-identity – not because of the way those views were manifested. Accordingly, her claim succeeded. This distinction may feature in the grounds for a potential appeal to the EAT.

An emerging trend in the law?

By publicly announcing an “investigation” into her social media activity, the ET found that Garden Court had unreasonably “suggested [Ms Bailey] had done something which at the least required investigation, and so might lead to action, which could suggest some punishment.” [306] This exposed her to stigma. To some extent, the ET’s ruling echoes the recent judgment of the Court of Appeal in R (Miller) v College of Policing (2022) HRLR6, which held that the recording of non-crime hate incidents by the police is “plainly an interference with freedom of expression” [73 in Miller].

The Court of Appeal further held “knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate.” [73] These cases highlight the principle that respect for freedom of speech requires a level of institutional impartiality. Employers, professional organisations and public sector authorities are obliged to take a proportionate approach when balancing their duty to protect against unfair treatment and harassment, and their obligation to permit the free expression of protected beliefs on matters of “current controversy” [295]. A failure to maintain that balance incurs the risk of discrimination and a breach of ECHR Article 10.

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