Allison Bailey’s employment tribunal ruling is a victory for free speech in the workplace

Barrister Allison Bailey has won (important parts of) her employment tribunal case, successfully arguing that she was discriminated against on the grounds of her ‘gender critical’ beliefs at the Garden Court Chambers (GCC) set (Times , BBC , CapX ).

The six-week tribunal was held remotely and brought us the spectacle of rowdy hearings, an “ill-disciplined” member of the online audience being disconnected for insulting counsel (as reported by Legal Cheek ), and esteemed barristers stumbling over pronouns while asking questions about ‘girldick’ and bearded ladies. Don’t be fooled by the trivialities, though, warned Jo Bartosch for Spiked : the implications of this case for free speech in and outside the workplace “are deadly serious”.

The “emotional heart of the case”, as the ruling put it, was the fact that Ms Bailey holds?‘gender critical’ beliefs, namely, that someone’s sex is biological, immutable and cannot be conflated with their gender identity. If gender critical beliefs are at all controversial, it’s because the object of their ‘criticism’ is a particular theory of gender held by organisations like Stonewall, namely, that sex is fluid – a social construct, just like gender. (On these debates, see the Critic ).?

On one side of the philosophical argument that played out during the tribunal, then, were Ms Bailey and the LGB Alliance, the organisation she helped found in opposition to Stonewall. On the other, were Allison’s chambers, GCC, and Stonewall, the charity behind the Diversity Champions Programme that GCC joined back in 2018.

Neither Stonewall nor GCC disputed that gender critical views were a protected characteristic – that point had already been established in the landmark employment tribunal case brought by Maya Forstater. (Unherd ). Rather, GCC’s claim had specifically to do with the language used by Allison in relation to Stonewall’s gender ideology – or “gender extremism” as she described it in the Tweet that led GCC to launch an investigation. Its argument was that the words Allison had chosen to use while expressing her views weren’t protected by the Equality Act 2010. As Andrew Hochhauser QC, acting for GCC, said in a written submission, the law distinguishes “between a protected belief and the manner in which it is expressed. There is no licence to abuse.” (Guardian ).

The language in question appeared in two tweets that Bailey was asked by GCC to remove from her personal Twitter account, one thanking the Times for reporting on the “coercion” driving Stonewall’s agenda, the other suggesting that a Stonewall employee ran workshops that had as their sole aim the coaching of heterosexual men who identified as lesbians on how to coerce young lesbians into having sex with them. (Both tweets appear in full in Julie Bindel’s piece for Unherd ).

In the end, the panel found that all of Bailey’s pleaded beliefs, not just the already protected belief that “woman is sex not gender” but the additional beliefs she expressed in those tweets – that Stonewall wanted to replace sex with gender identity, that the absolutist tone of its advocacy of gender self-identity made it complicit in threats against women, and that it eroded women’s rights and lesbian same-sex orientation – also constituted protected philosophical beliefs under the Equality Act 2010. (Express ). In one remarkable passage, the judgment states that these beliefs “were genuine”, that they “amounted to beliefs, not just opinions which might then change with further evidence” and that “the claimant does not have to be correct, or have evidence to show this…”

For some time now it has been an "uncomfortable fact" - as Andrew Tettenborn put it for the Spectator - that "threats to free speech increasingly come not from the state but from private pressure groups and the efforts of public and private bodies to appease them". The significance of this case for free speech in the workplace is that it gives all those organisations that currently toe the Stonewall line by stipulating what their employees can and can't say around issues like 'gender identity' and 'preferred pronouns' some pause for thought. From now on, as Ms Bailey herself warned following the tribunal's ruling, “organisations who put ‘Stonewall Law’ before Equality law or seek to silence others from lawfully voicing their criticism of Stonewall may be acting unlawfully and will suffer the consequences”. Kate Barker, Head of the LGB Alliance, concurred, telling GB News that “employers must now review their relationships not only with Stonewall but with any of the large number of lookalike groups”.