Key moments from the Allison Bailey judgment

For my own amusement and possibly yours too.

Some of my favourite comments from the judgment, handed down on 25th July 2022. We can see that morality does indeed bind and blind. But hopefully some useful lessons here for all organisations who still want to plight their troth to Stonewall.

The massive public interest, helped by the work of @tribunaltweets - a new way of securing #openjustice

Para 13 "Unusually for an employment tribunal, members of the public and journalists observed the remote hearing in large numbers. At times there were up to 250"

Para 16 - the degree of support Stonewall employees require to appear in public

"the tribunal was told that when giving evidence he was to be accompanied by his mother, by a support worker and by a support dog."

"Mother and dog were there for moral support."

Para 19. The shocking state of Garden Court's bundle preparation. The main bundle was nearly 7k pages

"The main hearing bundle was exceptionally difficult to work with... it seemed to have been randomly thrown together."

Para 28 The shocking spectre of witness intimidation

"The order in which witnesses were called was not announced until the day before, for fear of witness intimidation. An incident on 3 May ... showed that the fear was not groundless."

Para 32. Garden Court's sloppy approach to litigation

"The tribunal was disappointed that the third respondent had sought to anonymise documents in the already agreed hearing bundle, without first making an application to the tribunal under rule 50..."

Para 38. The gap between the dream and the reality

"Garden Court had a particular focus on fighting inequality and protecting human rights. The claimant describes how she was attracted to its diversity
and its commitment to justice for some of the most disadvantaged in society"

Para 53 Lucid and economic description of the fundamental issues

"the belief that women are defined by sex, and the belief that gender is a matter of self identity, are protected as beliefs. Toleration of difference is an essential characteristic of an open, pluralist society."

Para 54. Well. Nobody's perfect

"Stonewall is a large and widely respected charity with a mission to advance the rights of gay lesbian bisexual and trans people (LGBT)."

Para 60 - Tribunal redeems itself

"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 “Paki” ...it is intended to offend, as has happened to“queer”

Para 62 - the naked self interest behind Chamber's collaboration with Stonewall

"Business development: we become an organisation to whom Stonewall refer their discrimination work ... Stonewall is looking for partner in strategic litigation..."

Para 67 - one brave member of Chambers, Marguerite Russell

"Stephen please make sure that Allison in bravely raising a concern about safety and the silencing and aggression that exists is listened to and respected ..."

Para 69 - friends in high places

"Another member of chambers, Nerida Harford-Bell, replied to all that she was having dinner with the chair of Stonewall (Ruth Hunt) the next night and would raise Allison’s concerns with her"

Michelle Brewer, the serving Judge...

“Great, now Allison’s wholly unfounded allegations are going to be aired with Ruth – nothing like washing our dirty trans-phobic laundry in public”.

Para 74 - the Heads of Chambers set out their stall early on

"We note however that the Heads of chambers were unsympathetic, whether with her opinion or her way of expressing it."

Para 75 - clear evidence of Stonewall providing 'advice' that 'goes beyond the law'

"a recommendation that “gender identity” was substituted for “gender reassignment” as a protected characteristic in the context of discrimination, so as to accommodate non-binary identities"

Para 79 - Nor did Stonewall meet Chamber's hopes for financial benefit from their association, which did not continue after 2020.

"Stonewall never referred the work that the
practice group and marketing director may have been hoping for."

Para 113 - the 'origin story' of Allison Bailey

"until late in 2017 she came across the website terfisaslur.com, with “page after page of
screenshots of images of trans-rights activists attacking women in the most violent language and imagery possible.."

TERF is a slurDocumenting the abuse, harassment and misogyny of transgender identity politicshttp://terfisaslur.com

Para 119 - Article 10? Wots that then?

"Michelle Brewer then sent the Morgan Page tweet to Stephanie Harrison QC, Stephen Clarke and Shu Shin Luh : “have you seen this – bloody shocking
post by Allison – I will be in touch with Stonewall on Monday – "

Para 127 - a handful of complaints was all it took for this Chambers to throw their tenant under the bus

"This was the first of 11 such comments on the website from then to 28 October, and the only one to be anonymous..."

Para 129. Michelle Brewer's hopeful assertion eventually dashed by Jon Holbrook

"The Bar Standards Board are taking a tough line now with barristers and social media”.

Para 134 - If only David in Marketing had trusted his first instincts

"He advised: “caution against us putting anything out on Twitter in response as it could prove to be a lightning rod, and it might just die down by tomorrow”.

Para 140 - if only Tom Wainwright had a crystal ball, in terms of foreseeing reputational damage

"...about the claimant’s 22 October launch tweet, which was:“already causing damage to our reputation. Would the management please look at this urgently? "

Para 143. Reassuring to see the BSB in good hands

"Leslie Thomas had that year become a member of the Bar Standards Board, and he went on to say that the new (October 2019) Guidance on the Use of Social Media from the Bar Standards Board seemed relevant at
paragraph 3..."

Para 147. If it's a choice between protecting fundamental human rights or protecting income streams, it's no contest

"It was thought that her tweets were undermining the position of a number of members of chambers who were doing transgender work."

Para 159. Senior barristers cannot properly name or understand the law they rely upon

“this is damaging to our reputation. Can I confirm that we are now investigating a complaint. The suggestion that she may have breached the Equalities Act is
very serious..."

Para 161 The Heads of Chambers did not even read the tweets before making public condemnation of their tenant

"We see from this that she, like Leslie Thomas, had not yet read the tweets"

Para 164 much reliance placed on the analysis of David from Marketing, which in hindsight seems ill advised

"He said that they already been sent “to loads of people on Twitter” and if deleted now “we will end up [with] an even more epic Twitter storm..."

Para 179 - some voices of sense still sound in Chambers

"To a colleague, Rajiv Menon commented:
“the reality is that neither Allison nor chambers has covered itself in glory so far. Why on earth has chambers been drawn into something that has nothing to do with us?"

Para 225 - some initial sensible advice -

"Cathryn McGahey gave her considered advice on the 3 December... She concluded that “the vast majority of the comments published by Allison would not amount to a breach of CD5,or any other professional obligation.”

Para 230 but Chambers had to 'sex it up'

"On the basis that these explanations did not substantiate allegations of alleged criminal conduct, which Cathryn McGahey had said would “probably” breach the guidelines, they could say it was “likely” to breach the BSB guidelines. "

Para 288 - fundamental truth, pithily expressed. What a pity a self identified 'human rights' Chambers lost sight of all this

"Beliefs may be unorthodox, even repellent, but: “in matters of human rights, the courts should not show liberal tolerance only to tolerant liberals” -

Para 292 that this even has to be said!

"Finally, we concluded that expressing hostility to Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others, in
a way that would not be worthy of respect in a democratic society -"

" - It was part of the “dust and heat” (Milton: Areopagitica) generated by the conflict of opinion that must nonetheless be tolerated to avoid the greater evil of censorship."

Para 295 shout out to @WeAreFairCop

"... when Mr Miller posted about transwomen in terms that were ”for the most part either opaque or profane or unsophisticated”. However “intemperate or inoffensive”
his language, he did not lose the protection of article 10..."

Para 296 - if you remember only one quote, remember this

Sedley L J “free speech includes not only the inoffensive but also the irritating, the contentious, the eccentric, the heretical, the unwelcome and provocative,
provided it does not tend to provoke violence...."

"Freedom only to speak inoffensively is not worth having”.

Para 306 - if only the Heads of Chambers had actually read the tweets!

"Had they read them, they might soon have concluded, as did Maya Sikand when she reviewed them, that whatever the rhetoric about breach of the Equality Act and core duties, there was nothing to investigate."

Para 312 - senior barristers outsourced understanding of the demands of article 10, with disastrous consequences

"They relied on the reports of David de Menezes. He reported the unprecedented response, and damage to their reputation. He commented on "criticism of Stonewall..."

Para 315 - the beating heart of what went wrong

"Faced with a Twitter storm on gender self-identity, they picked sides. The Heads chose to prefer the view that the claimant was in the wrong and that her tweets should be investigated, because there was a lot of opposition..."

Para 322 - the truly shocking evidence that persuading lesbians to 'do dick' was akin to a blow against racial apartheid

"in evidence she said she understood the workshop to be reconciliatory, like Nelson Mandela attending a Springboks rugby game..."

Para 390 - claim against Stonewall fails to surmount burden of proof. But we will all remember the evidence its witnesses gave.

"We conclude that the claim that Stonewall instructed, induced or caused, or attempted to induce or cause detriment to the claimant does not succeed"

Para 395 - the award for injury to feelings is at the upper end of the middle band

"it is appropriate to place it in the middle band. As updated, for claims presented after 6 April 2020 (this claim was presented on 9 April), that is a range of £9,000-£27,000.