Discrimination and Freedom of Belief in the Sex and Gender Debate
3 August 2022
We do not usually cover first-instance employment tribunal judgments on this blog, but two cases handed down in the last three weeks – Forstater v. CGD Europe and Bailey v. Stonewall Equality Ltd and Garden Court Chambers – have attracted so much attention that we feel an exception must be made. Both cases involved women with ‘gender critical’ beliefs who faced hostility in their workplaces after expressing them. Both succeeded in their claims of direct discrimination and victimisation on grounds of belief under the Equality Act 2010. Although neither of the cases sets a binding precedent for other courts or tribunals, they contain interesting legal analysis and comment about the importance of freedom of expression and freedom of belief in the context of work which is of wider significance.
There was a preliminary hearing in Ms Forstater’s case in which Employment Judge Tayler had decided that her belief was not protected under the Equality Act 2010. This was successfully appealed to the Employment Appeal Tribunal, which in an important ruling held that the Act protects a very wide range of beliefs, including ‘gender-critical’ beliefs. Only beliefs that would be an affront to ECHR principles in a manner akin to totalitarianism, Nazism or the espousal of violence or hatred in the gravest of forms are excluded from protection. It was summarised on the blog here.
Bailey – Facts
Allison Bailey is a criminal defence barrister at Garden Court Chambers. From around 2017 she became interested in the debates about sex and gender and the interaction between trans rights and women’s rights. The tribunal judgment in her case sets out a good summary of the background to these various issues at -, which is well worth a read for anyone not familiar with how they have developed over time.
In December 2018 Ms Bailey complained to her colleagues about Garden Court becoming a Stonewall Diversity Champion due to her disagreement with Stonewall’s campaign to reform the Gender Recognition Act 2004 to introduce a self-identification approach, and her view that Stonewall threatened or intimidated anyone who questioned their stance. She alleged that following this complaint she was given less work and suffered a fall in income.
The following year, in October 2019, Ms Bailey was involved in setting up an organisation called the LGB Alliance. Her comments on Twitter about this led to several complaints being made to Garden Court accusing her of transphobia. Garden Court published a statement via Twitter saying that Ms Bailey would be investigated. A complaint was also made by Stonewall about Ms Bailey. Garden Court’s investigation then concluded that two of Ms Bailey’s tweets were likely to be in contravention of the Bar Standards Board Code of Conduct. She alleged that the public statement that she was being investigated and the outcome of the investigation were due to her gender critical beliefs. She also alleged that Stonewall had instructed, caused or induced Garden Court to discriminate unlawfully against her on grounds of belief, contrary to s.111 of the Equality Act 2010.
The level of interest in this case is indicated by the fact that at times there were up to 250 members of the public or journalists watching the remote hearing (see ) and the level of emotion generated by the underlying sex and gender debate can be seen from the fact that there was an attempt to intimidate one of the tribunal panel members during the hearing (see ).
Bailey – Judgment
The tribunal held that Ms Bailey’s beliefs, set out at , were all protected under the Equality Act. In particular, this included her belief that the content and tone of Stonewall’s campaigning on trans rights and gender theory is sexist, homophobic, absolutist and severely detrimental to women in general and lesbians in particular. The tribunal found that it was “not possible to separate Stonewall as a campaigning organisation from the gender theory with which the claimant disagreed” and, quoting from John Milton’s famous defence of free speech Areopagitica, commented that expressing hostility to Stonewall was part of the “dust and heat generated by the conflict of opinion that must nonetheless be tolerated to avoid the greater evil of censorship”.
The tribunal noted that there can be a distinction between unfavourable treatment because of a belief and because of an objectionable manifestation of that belief. But it emphasised that “belief need not only be expressed nicely in a democratic society”, quoting John Stuart Mill’s On Liberty this time and his statement that “truth, in the great practical concerns of life…has to be made by the rough process of the struggle between combatants fighting under hostile banners”.
The tribunal was not persuaded that Ms Bailey lost any work or income as a result of complaining about Garden Court joining the Diversity Champions scheme. However, the tribunal found that that she was discriminated against by the publishing of the statement that she was to be investigated, and by the investigation outcome itself. The key findings on the statement are at -, where it was held that Garden Court showed a lack of sympathy for Ms Bailey when she faced a Twitter storm, and instead of pausing to consider a more neutral approach or carefully weigh up whether taking action was justified, they “picked sides” in the debate.
As to the investigation, a key problem was that Garden Court outsourced its decision-making to Cathryn McGahey QC, vice-chair of the Bar Council’s ethics committee, without supplying her with Ms Bailey’s full explanation and response to complaints (see -). The decision not to provide this was made by a member of chambers who had already expressed hostility to Ms Bailey’s beliefs. The tribunal therefore held that Ms Bailey’s beliefs were a reason for the outcome of the investigation.
The claim against Stonewall under s.111 was unsuccessful. Kirrin Medcalf, Stonewall’s Head of Trans Inclusion, had complained to Garden Court about Ms Bailey’s tweets. However, the tribunal was not persuaded that this complaint contained any clear request for action against Ms Bailey that amounted to an instruction or inducement to discriminate. It is possible that the conclusions may have been different if Garden Court had been a full member of Stonewall’s Workplace Equality Index, or had changed its policies according to Stonewall’s recommendations, or otherwise been more closely aligned to Stonewall’s agenda. But that was not the case. On the facts as found, the tribunal held that (at ): “if there is some 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.”
Forstater – Facts
The Center for Global Development (CGD) is a non-profit think-tank based in Washington DC. In 2015 Maya Forstater, who is a researcher, writer and campaigner in the fields of sustainable development and tax policy, was engaged by CGD’s European branch, based in London, as a self-employed consultant to produce a paper. Following the success of this project she joined CGD Europe as a Visiting Fellow in November 2016. This was a role as a researcher, appointable for renewable periods of 12 months. The Visiting Fellowship was renewed for a second year in October 2017. Ms Forstater entered into a series of consultancy contracts for further projects in 2016-2018. CGD also raised the possibility of hiring her into a permanent, employed role.
Ms Forstater was active on social media commenting on a range of issues. In September 2018 she started a discussion on Twitter about gender identity and its effect on women and girls’ sex-based rights. This was prompted by a news item about Pips Bunce, a natal male director at Credit Suisse who identifies as gender variant or gender fluid, and who had been included in a list of ‘top one hundred female executives’. Around the same time Ms Forstater attended a protest related to proposed reform of the Gender Recognition Act 2004, and on her return brought to the office a hard copy of a booklet by the organisation Fair Play for Women. This led to some discussion with colleagues.
Following these events, several members of CGD’s staff (mainly in the US) complained about Ms Forstater’s comments. Ms Forstater was asked if she could make clear that any views she expressed on Twitter were her own and not those of CGD. She agreed. She was also asked if she could be careful about the tone in which she expressed her views on these issues. She agreed. Despite this she was told she would no longer be offered an employment contract.
CGD then commissioned a small ‘diversity and inclusion’ outfit based in San Francisco called Quantum Impact to undertake a ‘fact-finding exercise’. Quantum Impact produced two reports, one internal and one public-facing. The first, internal, report concluded that Ms Forstater’s writing was offensive and discriminatory. This was based on the author’s view that “argument itself is offensive” in relation to questions of sex and gender because the statement than transgender women are not women “seeks to eliminate the existence of a group of people”. The second report concluded that Ms Forstater “either did cross the line or almost crossed the line in terms of respectful workplace based conduct” but did not specify how or when. Ms Forstater was shown only the second report and gave a detailed response. However, the leadership of CGD then decided in February 2019 that Ms Forstater’s Visiting Fellowship would not be renewed for a third year because her position was contrary to CGD policy, which was to recognise the right of persons to self-identify their sex and gender.
Ms Forstater brought a discrimination claim in the tribunal. Shortly afterwards she found that her profile had been removed from CGD’s website, whereas previously it had been on the Alumni page along with those of other former Visiting Fellows.
Forstater – Judgment
The tribunal found that the decisions by CGD not to offer Ms Forstater an employment contract and not to renew her Visiting Fellowship were both unlawful direct discrimination. It was also held that CGD victimised her by removing her profile from the website in response to her tribunal claim. Given the success of the direct discrimination and victimisation claims, alternative claims in indirect discrimination and harassment were dismissed.
The central part of the judgment is at - where the tribunal analysed whether any of Ms Forstater’s tweets or other comments about sex and gender were objectively offensive or unreasonable. CGD argued that their decisions were because of the way Ms Forstater had manifested her belief, rather than because of the belief itself. As in the Bailey case, the tribunal therefore considered carefully whether there was anything about the way in which Ms Forstater had expressed herself that would amount to an objectionable or inappropriate manifestation of her belief. The three-person panel came to the unanimous conclusion that nothing did, save for one comment (about Pips Bunce being a ‘part-time cross-dresser’) which one panel member thought crossed the line and the majority of two did not. This slight disagreement made no difference because the tribunal was unanimous that it would have been disproportionate for CGD to have taken the decisions it did on the basis of this one comment.
These two cases are a clear warning to employers not to take sides in the current debate over sex and gender in a way that prevents anyone from expressing their point of view, so long as they do so in a reasonable manner. They are also of wider significance in handling expressions of religion or belief in the workplace; a reminder that it is generally wrong to take any action against a worker because someone either inside or outside the organisation disagrees with, or is offended by, a straightforward expression by the worker of a belief they hold.
Both cases are also a stark reminder to employers that they need to be careful to follow and apply the law, rather than the recommendations of campaign groups or the personal views of diversity and inclusion advisers. Garden Court’s mistake, at least in part, was to focus too much on what it thought others such as Stonewall would think, rather than what the law required. CGD went wrong, at least in part, because of an ill-considered reliance upon guidance from a US-based adviser who does not seem to have understood UK equality law.
–Alasdair Henderson is a Barrister at 1 Crown Office Row