Allison Bailey v Stonewall

Doesn't the law have to operate within reality? And what are the consequences if it doesn't? If the law can't help us - will a Public Inquiry?

Disclaimer: I am not a specialist employment or discrimination lawyer but I have been following the (sadly long) line of cases in this field for some time now - described by Akua Reindorf KC as the most astonishing string of authorities she has ever seen in her career; the ‘Big Six’ all in favour of those who had claimed discrimination for their Gender Critical (GC) views - Forstater, Bailey, Fahmy, Phoenix, Meade and Adams. In short terms, GC views cover the belief that sex (as opposed to ‘gender identity’) is real, immutable and it matters as an organising category in society.

Allison Bailey of course won her case in 2022 against her former Chambers Garden Court and decisively so. But that was the second limb of her case. The first respondents were the lobby group Stonewall and Allison argued it had attempted to induce her Chambers to act to her detriment contrary to section 111 of the Equality Act 2010. She did not succeed and appealed. Argument was heard in May 2024 and the judgment in that appeal was handed down today. Again she lost. I think its worth unpicking, if possibly more for my benefit than yours. There may be some nuance that I lose, not being specialist in this field. But the law, to be of any use to anyone, has to be reasonably accessible to everyone of average intelligence.

Section 111 Equality Act 2010

Person A has to persuade to B to do or not do something that inflicts a detriment on person C AND that this act or omission was because of C’s protected characteristic - in this case, GC views. Person C will have to show the link between A and B’s conduct and that this causal connection is such that it’s fair and reasonable to make A liable for B’s behaviour.

The Employment Tribunal, whose decision was under appeal, decided that Stonewall did indeed make a complaint to Garden Court Chambers because of Allison’s GC views. But it was made a a ‘‘protest’ and without ‘any specific aim in mind’.

The ET found it was not fair or reasonable to hold Stonewall liable for the Chamber’s discrimination that followed. Certainly as the ET judgment showed, there were many members of Chambers who were only too willing to express distaste for Allison’s views in very strident terms and her public support for the LGB Alliance, put her beyond the pale. A meeting of the Trans Organisational Network in October 2019, attended by Stonewall encouraged those present to complain to Garden Court about Allison’s views. Garden Court initially concluded, prior to any complaint by Stonewall, that there was no case to answer; Allison’s publications were ‘provocative’ but not transphobic and not in breach of any regulatory guidance.

Stonewall then complained in these terms

‘for Garden Court Chambers to continue associating with a barrister who is actively campaigning for a reduction in trans rights and equality, while also specifically targeting our staff with transphobic abuse on a public platform, puts us in a difficult position with yourselves: the safety of our staff and community will always be Stonewall’s first priority’.

I recall many of us commenting at the time saw this in the vein of ‘nice little Chambers you’ve got there, be a shame if something were to happen to it’ and a clear example of inducement to the Chambers to expel or otherwise punish Allison for her views. Garden Court had signed up to the Stonewall Diversity Champions scheme in 2018 for annual fee of £2,500 and thus clearly valued being in Stonewall’s continued Good Books.

The ET found that Garden Court Chambers had inflicted detriment on Allison both before and after the Stonewall complaint. This was direct discrimination for her GC views. The deficiencies of the Chambers approach was laid ‘firmly’ at their door; Stonewall was not blamed for them. While Stonewall could be ‘person A’ within section 111, the necessary mental element was not present. It was ‘obscure’ what Stonewall wanted Garden Court to do. On one reading it did look like Stonewall wanted Allison expelled from Chambers. Kirrin Medcalf, the author of the email however argued that it was really about staff safety if Stonewall continued working with Garden Court, presumably fearing that Allison would be lurking in the corridors to attack members of Stonewall attending meetings.

When challenged about this lack of clarity, Medcalf, a trans identifying female (supported to give evidence by her mum and a support dog), said she was at the relevant time wearing an ‘advocacy hat’ which the ET understood as she was writing without any specific aim in mind, other than public denial of association with Allison’s views. The fact that Stonewall did not follow up the complaint supported a finding that it was ‘just a protest’.

The ET found that Medcalf did not know Garden Court were Stonewall Diversity Champions as the complaint made no reference to it, nor was it made to the relevant people in Garden Court who were in charge of the Diversity Champion scheme. Thus Stonewall were found not to be attempting to induce the chambers to take action for fear of losing that status.

Further the ET found that Garden Court Chambers themselves did not see this complaint as an inducement. The email therefore was ‘no more than protest, with an appeal to a perceived ally in a ‘them and us debate’.

The arguments on appeal

These are dealt with from para 72 in the judgment. Ben Cooper KC argued that ‘induce’ implies an intention to persuade or influence another to take action of an identified kind but not that it need result in any specific outcome. He suggested that A and B must share the same mental element but not the same motivation (I struggle to understand this distinction). Putting it more simply, both A and B act ‘because of’ the protected GC beliefs. Causation would be satisfied if it was ‘reasonably foreseeable’ that B would discriminate against C because of what A did. But for the making of Stonewall’s complaint, Garden Court would not have discriminated against Allison by upholding the complaint. It was reasonably foreseeable that Garden Court would read Medcalf’s email - ‘do what is right’ - as a threat to terminate the relationship between them.

Ijeoma Omambala KC for Stonewall submitted that the ET had directed itself correctly and made findings of fact supported by evidence. This appeal was in reality an impermissible attempt to challenge those findings of fact. The finding that Medcalf did not try to exert influence by threatening withdrawal of Chambers Diversity Champion status was central to the conclusion that the Stonewall did not induce Garden Court to discriminate. The relevant tortious conduct by Garden Court was the upholding of the complaint, not the investigation. Medcalf may have set the ball rolling but did not bring about the prejudiced outcome, and the fact that Garden Court would demonstrate prejudice was not reasonably foreseeable to Stonewall. A finding that Stonewall made a ‘protest’ was fatal to any consideration of ‘inducement’.

The court’s ruling

This can be found from para 94 of the judgment. The purpose of section 111, as with all the sections of the Equality Act 2010, is to ‘strive to eliminate the evil of discrimination on certain proscribed grounds in various sectors’. Section 111 does not refer to any mental state but the court found that it obvious as a matter of ‘common sense’ that anyone instructing anyone to do something, must intend something specific. The court doubted that it was possible to ‘induce’ a contravention without also ‘causing it’ but ‘not every causative act can also be characterised as inducing’ (this is another distinction I am struggling with).

How was the court to identify the extent or nature of the ‘causing’ which Parliament intended to outlaw? By having regard to the Parliamentary intention (para 111) of ‘rooting out and eradicating discrimination on proscribed grounds and by applying common sense’. Reasonably foreseeable consequences are relevant when the court is looking at liability for causing personal injury. But the test of ‘pure causation’ was applied to an earlier case of race discrimination, where the claimant suffered psychiatric harm after racial abuse; this wasn’t ‘reasonably foreseeable’. This fits with Parliament’s intentions to ‘root out’ the evil of discrimination.

The threshold requirement is that it is fair and reasonable to make Stonewall liable for causing Garden Court’s breach of the Equality Act. Here, Stonewall made a complaint about Allison and her Chambers decided to deal with it in a way that infringed the Equality Act. Medcalf was significantly influenced by Allison’s protected belief in making the complaint. But the ET carefully analysed the complaint and rejected the suggestion it was intended or understood as a threat to discontinue Stonewall’s relationship with Garden Court, if Allison was not expelled.

Commentary

So far, I follow. But I have particular difficulties with para 129:

In my judgment, it was not particularly likely that in responding to the complaint and identifying any breach of the BSB guidelines, GCC would be significantly influenced by the mere fact that Ms Bailey held particular beliefs i.e. her “gender critical belief and her belief about Stonewall’s promotion of gender self-identity encouraging and being complicit in hostility to gender critical feminists” (see ET [328]). On the contrary, a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner whether Ms Bailey’s expression of any views had contravened any guideline

This is a bizarre characterisation, given the findings made against Garden Court. It appears to me at least, clear that this Chambers abandoned all pretence of ‘specialising in equality law’ when it subjected Allison to very serious and significant detriment for holding views it found ‘extremely alarming’. The fact that Stonewall was joining the clamour of voices demanding ‘action’ appeared to be a highly significant factor in why this Chambers acted so poorly. The ‘protest’ WAS the problem here - as was seen from the evidence given by member of Chambers, when the reaction of fear to a ‘social media storm’ directed their response of ‘picking a side’ rather than any nod to their ‘specialising in equality law’.

Stonewall knew exactly what that response would be, for years positioning itself at the forefront of ‘no debate’ - the very attempt to raise any criticism or challenge to gender identity ideology was held in and of itself an outrageous and bigoted affront to the ‘rights’ of a marginalised and vulnerable group. Stonewall created this atmosphere; of course they were going to take advantage of it. The complaint letter was vague and sloppy because it didn’t require any rigour. Simply voicing Stonewall’s discontent was enough to send otherwise educated and intelligent professionals into a panic.

I am disappointed with this outcome. It seems to me to gloss over the reality of what was happening at this time. Perhaps inevitably. It is difficult to ask a court to descend into the kind of arguments that would need to be made about the general toxicity of Stonewall and the general stupidity that this has engendered in a wide variety of institutions. This is Public Inquiry territory and following this judgment I am even more convinced that one is urgently needed.

But to place so much reliance on what Parliament intended - to root out the evils of discrimination - without much if any recognition of what Stonewall had assiduously planted and watered in the soil it had prepared, is in my view, perverse.

We are left with a situation where Stonewall continues to sit on the shoulders of many individuals and organisation, whispering poison into their ears and then being able to step back in all innocence - but it wasn’t me Guv! If someone decides to act in a bigoted and discriminatory way after our legitimate protest, then that can’t be our fault!

But I think it is. Stonewall can be found at the root of much of this evil that has so far required six years and millions of pounds in crowdfunders to put right. If Parliament and the courts are serious about dealing with this evil, then action needs to be taken against lobby groups which masquerade as charities and promulgate unlawful ‘advice’, contributing significantly to a climate of fear where legitimate challenge to demented ideologies may not be made and where women and children suffer for it.

I hope Allison appeals further and I hope she wins. Or we have a Public Inquiry. One or the other is needed in my view to root this evil out at its source. Then sow the ground with salt. We must never be in this position again.