Gender trouble at work

It is rare that an employment tribunal case captures international attention, but Allison Bailey’s claim for discrimination against her barristers chambers and Stonewall was covered by news outlets across the world.

Ms Bailey won her claims of both direct belief discrimination and victimisation against her chambers. A separate claim that LGBTQ charity Stonewall had induced, caused or instructed the discrimination was not successful.

Although the case against Stonewall failed, it fuelled ongoing controversy about Stonewall and the requirements of its Diversity Champions Scheme and UK Workplace Equality Index. After criticism that its advice undermines compliance with the Equality Act 2010, numerous public sector organisations pulled out of the scheme, citing cost or potential conflicts of interest. Some private sector employers have also quietly decided not to renew their involvement, given increasing concerns about the direction and policies in respect of trans rights.

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A key issue is Stonewall’s ongoing support for gender self-identification, its policies in crucial areas such as women’s single-sex spaces, services and sport, and public statements by Stonewall’s CEO likening gender-critical beliefs to anti-semitism and likening lesbians not wanting to date trans women with not wanting to date people of colour.

It is dangerous to uncritically adopt theories of third parties such as Stonewall, as they may turn out to be controversial

In 2021, a report by barrister Akua Reindorf for the University of Essex found that the university’s policy on “supporting trans and non binary staff”, based on Stonewall guidance, was not in line with the Equality Act. Reindorf noted that the policy contributed to an environment of fear for staff holding dissenting views about sex and gender.

Ms Bailey was unabashed in criticising her chambers’ decision to participate in the Stonewall Diversity Champions scheme. The employment tribunal determined that her beliefs about Stonewall were protected under the Equality Act. Those beliefs are that:

• Stonewall replaced “sex” with “gender identity”.
• Stonewall’s campaigning was binary, absolutist and evangelical: “You are with us, or you are a bigot.”
• Stonewall’s absolutist stance has made debate vitriolic.
• Consequentially women are intimidated (threats of violence and sexual violence have become commonplace).
• Stonewall is complicit in creating this threatening atmosphere.
• Stonewall proselytises a gender theory that damages women’s rights; denying female-only spaces, for example in prisons, changing rooms, medical settings, rape and domestic violence refuges and sport.
• Stonewall’s gender theory is severely detrimental to lesbians.
• Stonewall has reclassified homosexuality from meaning “same-sex attraction” to “same-gender attraction”.
• Stonewall and other gender theorists that encourage lesbians to have sex with male-bodied people, and label them as bigoted if they won’t, are homophobic.
• Stonewall’s adoption of gender theory means that gay, lesbian and bisexual people who do not subscribe to gender theory are unrepresented and labelled as bigots by organisations originally founded to stand up for their interests.

The tribunal found that when Garden Court received complaints that Ms Bailey was voicing these beliefs it discriminated against her by publishing a statement that she was under investigation for breaching her professional obligations, and when also it upheld complaints that had been made about her by Stonewall. Unusually, the tribunal went so far as to award Ms Bailey aggravated damages to reflect Garden Court’s treatment of her.

Gender-critical employees should not be pressured into displaying their pronouns

While this is a first instance decision, it has wide-reaching implications for equality and diversity initiatives within the workplace. Key takeaways are:

• Policies about religious and philosophical beliefs, including sex/gender and about Stonewall, must be even-handed. Favouring one belief over another can give rise to discrimination, and treating gender-critical views as de facto transphobic will amount to harassment in the workplace.
• Employers must must expect debate and permit the expression of conflicting religious and philosophical beliefs.

While this is a complex area, the interests of gender-critical employees, women, and religious groups can be balanced with those of trans people by careful consideration of specific situations as they arise. Ms Bailey’s case did not consider all of these situations, but more broadly:

• Employers should apply their own thinking when developing trans and non-binary policies. It is dangerous to uncritically adopt theories of third parties such as Stonewall, as they may turn out to be controversial. Similar concerns exist about organisations such as Global Butterflies, whose training contains content which many gender-critical employees would take issue with.
• Toilet facilities must meet the minimum standards of the Workplace (Health, Safety and Welfare) Regulations 1992, which require separate toilet facilities based on sex unless there are separate lockable rooms (not cubicles).
• Gender-critical employees should not be pressured into displaying their pronouns.
• Sex, not gender, is the characteristic protected under the Equality Act. Employers may voluntarily collect gender identity data but this should not replace separate data on sex.
• In most organisations, women, ethnic minorities and people with disabilities are still under-represented at senior levels. Employers should be mindful of this when tackling inclusion and diversity issues and deciding how best to direct their resources. They should ensure any monitoring of sex/gender, for instance on pay parity, does not ignore biological sex in favour of gender identity.

Rebecca Bull is a solicitor in private practice, and a director of Sex Matters