50.50: Analysis

Why ‘gender criticals’ are desperate to claim victory against Stonewall

Lawyer Allison Bailey lost her case against Stonewall. But her supporters are trying to claim the exact opposite

Jess O'Thomson.jpeg
Jess O'Thomson
4 August 2022, 10.15am

Allison Bailey at the LGB Alliance’s first annual conference, London, 2021 | PA Images / Alamy Stock Photo

‘Gender critical’ barrister Allison Bailey lost her lawsuit against Stonewall. The judgment from the London Central Employment Tribunal, published last week, dismissed all her claims against the LGBTQ+ rights charity.

What the tribunal did uphold were some claims of discrimination against her legal chambers, Garden Court. It also found that her so-called ‘gender critical’ views were protected under the Equality Act 2010, and she was awarded £22,000 in compensation for injury to her feelings.

Although Bailey’s case against Stonewall was “dismissed”, the ‘gender critical’ community had been so determined to win this case against the charity that it has now managed to convince itself – and most of the mainstream British press – that it did.

Here’s what actually happened, and what it means for the claims made about Stonewall by ‘gender critical’ people.

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Tribunal claims

Bailey had argued that she was given less work, and experienced a loss of income, as a result of her ‘gender critical’ tweets and accusations she made against Stonewall on social media after the chambers signed up to the charity’s Diversity Champions scheme.

Bailey’s tweets incited a “strong reaction” on Twitter, the tribunal heard. Garden Court chambers received complaints about the barrister as a result, including that Bailey’s “transphobic perspectives” were “denying minority rights”.

One such complaint came from Kirrin Medcalf, head of trans inclusion at Stonewall, who condemned Bailey’s accusation that the charity engaged in “appalling levels of intimidation, fear and coercion” and said her use of the phrase “trans extremism” had encouraged violence against Stonewall. Garden Court said on Twitter that it was “investigating concerns” raised against the barrister.

Bailey then brought an employment tribunal case against the chambers, alleging discrimination because of her ‘gender critical’ beliefs, and also filed claims against Stonewall Equality Ltd, alleging that the charity had “instructed or caused or induced” some of Garden Court’s actions against her.

‘I am suing Stonewall’

It has become a running joke within the trans community that we wish we had as much power as ‘gender critical’ advocates say we have. Stonewall has long faced accusations that it exerts a malign and illicit influence on society, engineering a “trans Taliban” to erode women’s rights.

These accusations formed a central pillar of Allison Bailey’s lawsuit against Stonewall and her legal chambers, Garden Court. Indeed, on her crowdfunder for the case, Bailey – who co-founded the anti-trans lobby group LGB Alliance – explicitly made it clear who her main target was: “I am suing Stonewall.”

Bailey’s case is part of a larger ‘gender critical’ attack on Stonewall. The argument goes that, because Stonewall encourages organisations to adopt policies that are more trans-inclusive than the strict language of the Equality Act 2010, it is attempting to supersede the actual law with its own “Stonewall Law”.

This fundamentally misunderstands the role of employment legislation. The Equality Act represents a minimum standard – a “floor of rights”, rather than a ceiling. This means that, as long as an employer does not infringe other rights, it may choose to adopt practices that provide greater protection than required by the act.

In other words, Stonewall is perfectly entitled to advocate more trans-inclusive policies than the law currently requires.

Despite this, Bailey asserted in her case that the charity’s actions were unlawful and malicious in nature. She maintained that Stonewall “proselytises” gender theory and is “complicit” in “threats of violence and sexual violence” against women. She described Stonewall’s trans rights ‘agenda’ as “one of the most dangerous political and cultural movements we have seen in the West” and “undemocratic and vicious”.

Most significantly, Bailey claimed that Stonewall’s Diversity Champions scheme is an “organised protection racket”, and that the charity sought to direct Garden Court’s complaints process against her.

In part that was because of a complaint Medcalf made to Garden Court Chambers, which had argued: “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.”

Bailey argued that the complaint by Stonewall’s head of trans inclusion conveyed “the express intention” of causing her to lose her place at the Chambers.

Another complaint, made by Shaan Knan from the LGBT Consortium, highlighted a rise in anti-trans hate crime and the daily harassment and stigmatisation experienced by many trans people, and said Bailey’s actions were “extremely harmful” and “completely against the ethos of Garden Court Chambers”.

The judgment concluded that Bailey’s allegations amounted to a “conspiracy theory” and were simply “not the case”. Why, then, has there been so much media coverage suggesting the contrary? For example, The Telegraph published a headline at 1.35pm on Wednesday 27 July, stating “Allison Bailey: Barrister wins discrimination case against Stonewall”. This is an entirely false statement, and has since been removed.

The answer becomes clear when we analyse what the real purpose of this litigation is likely to have been, and why only a defeat for Stonewall – and not simply a win for Bailey – was acceptable.

Targeting the Diversity Champions scheme

Crowdfunded litigation is usually strategic. This means that a case is taken forward to test some point of law for future cases, or to change a policy that is likely to affect a large group of people.

The Bailey case is distinct from these types of strategic litigation. The point of law – that ‘gender critical’ beliefs are protected philosophical beliefs under the Equality Act – had already been established last year in the ruling on the Maya Forstater case. So why bring the case?

The answer is that the aim was to destroy the reputation of Stonewall and its Diversity Champions scheme.

This is why 'gender critical’ advocates, hoping to prove that they have not wasted a lot of energy and money, are desperate to spin the tribunal’s decision to claim that Stonewall is a spent force. Witness, for example, the responses of Julie Bindel and Maya Forstater. Bindel’s article for UnHerd is even entitled ‘How Allison Bailey crushed Stonewall – its rainbow reign is finally over’.

In addition, ‘gender critical’ group Sex Matters has announced yet another freedom of information campaign targeted at undermining the Diversity Champions scheme. Well-known 'gender critical’ voices have also set their sights on other pro-trans organisations, such as the trans youth charity Mermaids, saying that they must fall next.

But Stonewall, of course, has not fallen at all.

Quite the contrary, in fact. The Diversity Champions Scheme continues to thrive – despite press coverage claiming the contrary, the programme is growing in numbers.

As Moya Lothian-McLean has explained, this strategy forms part of the larger war of attrition against Stonewall.

False claims of victory

The ‘gender critical’ lobby maintains that its response to the outcome of Bailey’s case is entirely rational. The argument is that, although Bailey’s claim against Stonewall failed, Stonewall’s advice is the reason why Garden Court was found to have discriminated against her.

Ex-Guardian journalist Suzanne Moore stated on her Substack: “She lost against Stonewall because it could not be proved that Stonewall directly caused the discrimination. They just handed out the advice that did.”

This is patently false. One member of Stonewall’s staff made a complaint, but this was “no more than protest”, according to the judgment, and entirely lawful.

In the judgment, handed down on 27 July, employment judge Sarah Goodman concluded there was “no evidence whatsoever” that Stonewall had directed Garden Court’s investigation process, and dismissed Bailey’s claims against the charity. “Stonewall was unable to get Garden Court as a Diversity Champion to amend its employment policies or join its networking, let alone direct its complaint process,” she wrote. “Alleging that Stonewall directed the complaint process was a conspiracy theory.”

Where Garden Court did discriminate against Bailey, the judgment found, was in announcing (via Twitter) an investigation into Bailey’s tweets before properly assessing the content of the tweets themselves, and in failing to provide Cathryn McGahey, vice-chair of the Bar Council’s ethics committee, with Bailey’s defence of her tweets. (This is despite the fact that, even having read Bailey’s defence, McGahey stated in evidence referenced in the judgment that she would have reached the conclusion that two of Bailey’s tweets would probably have breached Bar Council guidelines.)

Trans people – and our allies – must be alive to what the Bailey judgment actually said, and willing to challenge attempts by ‘gender critical’ campaigners to turn their resounding failure into a rhetorical victory.

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