Courage of heroine who dared shine a light on a toxic subject many are too scared to even discuss
FOUNDED almost 50 years ago, Garden Court Chambers has built a topnotch reputation for fighting Left-wing causes. Be it securing last-minute injunctions to stop asylum seekers being deported to Rwanda or fighting for the rights of gypsies and travellers, its line-up of 200 wellpaid barristers are there to help. Or as its motto reads: ‘Do right, fear no one.’
Brave words – but ones that some think should carry the addendum: ‘Except the trans lobby.’
In recent months, the Londonbased chambers has found itself in the deeply uncomfortable position of having its progressive credentials challenged in a landmark employment tribunal.
To make matters worse, the person doing the challenging, Allison Bailey, is not only one of its own barristers – but ticks many of the same boxes as its roster of clients.
The daughter of Windrush-generation Jamaican parents and a survivor of child sexual abuse, Bailey is a lesbian gay rights champion.
With that background, it might be assumed the insight she has into fighting prejudice and inequality would have been regarded as an invaluable asset by her colleagues.
Instead, the 52-year-old claims that because of her belief that biological sex is immutable and those who are born male cannot transition to become women, she has been branded a transphobe and discriminated against, losing out on lucrative work.
Her chambers, she told the hearing, had fallen under the thrall of Stonewall, the UK’s leading LGBT charity, parroting its position that everyone should be accepted as the ‘gender’ they say they are, without exception.
That view was promoted, she alleged, through the campaign group’s controversial Diversity Champions scheme. The work the place programme has faced wide-ranging criticism, with organisations including the BBC and the Cabinet Office quitting it after questions were raised about whether they could be impartial on issues the charity campaigns on.
‘The inducement offered with its scheme is reputational protection or reputational harm,’ tribunal was told by Bailey, who counts author JK Rowling among her supporters and who successfully crowd-funded more than £500,000 to fund her case. ‘It is like a criminal protection racket.’
Yesterday, after deliberating over four weeks of evidence, the tribunal’s panel delivered its ruling, finding that Bailey had indeed been discriminated against by Garden Court Chambers because of her beliefs.
Bailey said: ‘This is a vindication for all those who, like me, object to the erasure of biological sex, of women, and of same sex attraction as material realities. It represents judicial recognition of the abuse waged against us.’
Rowling offered her congratulations, writing on Twitter: ‘Allison Bailey is a heroine to me and innumerable other feminists for refusing to abandon her beliefs and principles in the face of intimidation and discrimination.’
Bailey was not successful on all counts, however.
For example, her claim she lost income and been indirect-edly discriminated against, was rejected, and her separate complaint against Stonewall that it had ‘ instructed, caused or influenced’ the unlawful discrimination against her was not upheld.
To this, she said: ‘ This case was never about money.
‘I did not win everything, but I won the most important thing: I have brought Stonewall’s methods into the public eye and I have shown them for what they now are.’
There can be no doubt that the evidence heard has damaged the reputation of both Stonewall and Garden Court Chambers, which will be ordered to pay Bailey compensation. But it also shone a light on the wider debate about transgender rights – and some of the views held by influential figures shaping it.
Kirrin Medcalf, Stonewall’s head of trans inclusion and the person who instigated the complaint about Bailey, told the tribunal that humans are not naturally male or female.
‘They are just their bodies,’ he said, adding: ‘I have my own body – it’s for me. It doesn’t belong to any man or any woman.’ Medcalf agreed to give evidence only after telling the tribunal judge that he required a support worker, his mother and his dog to be at his side throughout.
On another occasion, Bailey’s lawyer questioned a former senior figure at the Bar Council, which represents the profession in England and Wales, who supported the principle of a training session in which trans women who were lesbians were ‘coached’ on how to persuade female lesbians into having sex with trans-people with penises.
‘Whether you agree with Allison’s position or not, by bring by
‘This was a very brave thing to do’
Allison Bailey is a heroine to me and innumerable other feminists JK Rowling
ing the case she has shone a light on a subject that many people are simply now too scared to even discuss for fear of being branded a bigot,’ said a legal source.
‘It was undoubtedly a very brave thing to do.’
But, then, Allison Bailey’s journey towards the top of the legal profession was never straightforward.
As she said in her witness statement: ‘My personal history is relevant to understanding my beliefs about sex and gender and why they are so important to me. My experience of being female has not been defined by my feeling female. I don’t know what it means to feel female, I just am female. My life has been defined by having a female body: gynaecological problems, sexual abuse in childhood, sex discrimination, being a lesbian, a black woman, gender non-conformity, and menopause. These experiences are all located in my physical, female body. I cannot identify into or out of them.’
Born in Oxford in 1970, her parents had arrived in Britain after the war, her father working as a bus conductor before becoming the county’s first black publican. But he and Bailey’s mother split due to his bouts of drunken violence, the tribunal heard. Between the age of nine and 11, she was sexually abused by her mother’s new partner, telling no one at the time. ‘By the age of 15, I realised that I was a lesbian, and I was in turmoil,’ she said.
She left home soon after and moved to San Francisco where she stayed five years, devoting some of her time to activism.
Returning to the UK in 1996, Bailey won a place at Manchester University to study sociology, graduating with a first- class degree. She then studied law before being called to the bar in 2001, going on to work as a criminal defence barrister.
Attracted by its reputation as a ‘radical, progressive set’ with a ‘long and proud history of fighting injustice and holding public authorities to account’, she duly joined Garden Court Chambers. Despite suffering ill-health, she built up a successful practice, representing defendants up to and including at the Court of Appeal.
She was also instrumental in the jailing of her childhood abuser.
‘Following the Jimmy Savile revelations… I googled his name and found him,’ she told the tribunal.
‘I had hoped he was dead. He was alive and seemed to have access to children.
‘He was a man in his late 70s. I reported him to the police in 2012. In 2015, he stood trial at Oxford Crown Court charged with four counts of assault by penetration of a child under the age of 13 – me. I was the chief witness for the prosecution. He was convicted after trial and sentenced to ten years’ imprisonment and a lifetime on the sex offenders’ register.’
To the background of those life experiences, in 2016 Bailey says she noticed an increased interest in the issue of trans rights within her chambers.
She came to realise, she said, that the barristers who took on the work ‘tended to adopt a particular philosophy of gender identity espoused by the external trans rights organisations and activists with whom they engaged on these issues to an extent that is to my knowledge uncommon when compared to any other area of legal practice.’
She added: ‘For example, the slogan “Trans Women Are Women” is meant wholly and literally. While I always knew that there were trans rights activists that believed in this, I did not understand that this belief was held by the lawyers that advised and represented actual clients.
‘It appears from the disclosure I have had in these proceedings that the people who undertook that work actively hold and directly profess the beliefs of the clients for whom they acted, to the extent that it appears that the holding and professing of these beliefs was expected by the clients.’ Specifically, Bailey says she was growing increasingly concerned by the nature of Stonewall’s campaigning on the issue and the charity’s influence over her chambers.
Stonewall was set up in the 1980s in response to legislation known as Section 28 that prohibited the ‘promotion of homosexuality’ in schools. In the decades that followed, it successfully campaigned for gay and lesbian rights.
But the charity’s recent focus on trans rights has attracted growing controversy.
One founding member has accused it of adopting an ‘extremist stance’, with other critics warning that it has aggressively sought to shut down wider debate on the subject.
The launch of Stonewall’s Diversity Champions programme, which Garden Court Chambers joined at the end of 2018, has proved equally controversial.
It is designed to promote workplaces ‘where LGBTQ+ people are free to be themselves and can live their lives to the full’, but Bailey and other critics claim that companies and public bodies that sign up to the £2,500-a-year scheme are pressed to embrace its ideology of transgender self-identification and to impose the Stonewall ‘value system’.
Bailey claimed that Stonewall representatives had recommended her chambers change the pronouns ‘she’ and ‘he’ to ‘they’ and ‘their’. Giving evidence, she said: ‘The fact that Stonewall considered sex language unacceptable and to be replaced by gender-neutral language had wider implications for me within [the chambers].
‘ Stonewall and its Diversity Champions scheme would be exclusive of me. It declared people with my views as being hateful and bigoted. They declared an intention to discriminate against lesbians like me.’
Matters came to a head in 2019, after Bailey helped to found the LGB Alliance, a charity which opposes many Stonewall policies.
She was asked by her chambers to delete two messages posted on Twitter criticising Stonewall’s position on trans rights.
In one of them Bailey had thanked The Times newspaper for ‘fairly and accurately reporting on the appalling levels of intimidation, fear and coercion that are driving the @stonewalluk trans self-id agenda’. The tweets led to complaints to the chambers, including one from Stonewall.
She said that as a result she came to be viewed as ‘transphobic and bigoted’ and her work suffered as she was ‘offered inferior brief after inferior brief’ and blocked from more substantial cases.
‘I have shown them for what they now are’
‘This case was never about the money’
Bailey claimed discrimination on the basis that her so- called gender-critical views have been found to be a protected philosophical belief under the Equality Act 2010. She was able to sue Stonewall because the act states that it is unlawful to induce, cause or influence prohibited conduct.
Garden Court Chambers and Stonewall denied all allegations of wrongdoing.
Stonewall argued that Bailey had been driven to bring a case that ‘lacks legal merit’ by her ‘visceral and implacable hostility’ towards the charity.
It issued a statement saying it was pleased with the tribunal’s decision, but added: ‘The case heard by the employment tribunal did not accurately reflect our intentions and our influence on organisations.
‘Leaders within organisations are responsible for the organisation culture and the behaviour of their employees and workers.’
A spokesman for Garden Court Chambers said: ‘We are reviewing today’s judgment, which dismissed Miss Bailey’s claim against Stonewall and most of her claims against Garden Court Chambers, including all her claims for indirect discrimination.
‘The tribunal found that it “could not conclude that Garden Court Chambers as a whole had a practice of treating gender critical beliefs as bigoted”. This confirms our stance. Our primary aim throughout has always been to uphold our values and maintain a workplace that is inclusive and welcoming to all.
‘We are reviewing the judgment carefully with our legal team with a view to appeal.’