Workers are protected from discrimination based on religion and philosophical belief (or lack thereof) within the employment sphere. Back in June 2021, we reported that the EAT had held that holding gender-critical beliefs – that is the belief that a person’s biological sex cannot be changed – is a protected philosophical belief. Last month, we reported that an employment tribunal had held that a worker’s expression or manifestation of her gender-critical beliefs on social media was protected and not easily dissociable from the belief itself (Forstater). In an entirely separate, albeit similar, case a lesbian barrister (B) has been held to have suffered discrimination and victimisation by her chambers (GCC) because of the manifestation on social media of her gender-critical philosophical beliefs. 

In late 2018, GCC signed up to Stonewall’s diversity champions’ scheme. Shortly afterwards, B emailed all members of GCC to object saying, ‘I emphatically object to any formal association with Stonewall…There are many of us within the LGBT community who fully support trans rights but who do not support the trans-extremism that is currently being advocated by Stonewall…’ B’s email went on to express, in forceful terms, B’s concerns about Stonewall’s role in the debate about proposals to reform the gender recognition process to allow self-id (self-id reforms). B’s email resulted in some concerns being raised by a small number of GCC’s members, but no formal action was taken against B. 

In the Summer and Autumn of 2019, B posted a number of tweets commenting on trans rights, the need to protect women/girls/lesbians, the proposed self-id reforms, some of Stonewall’s activities and what she called ‘trans extremism’. These tweets led to a member of GCC raising concerns about B’s social media posts and, around the same time, GCC received a series of comments on its website expressing concerns about B’s social media posts. 

On 22 October 2019, B posted a tweet launching the creation of the LGB Alliance saying, “…we mean business. Spread the word, gender extremism is about to meet its match’. This tweet generated a strong reaction on Twitter, some of which was specifically directed at GCC, and this led to GCC launching (and publicly announcing on Twitter) an investigation into B’s tweets. Before this investigation was concluded, Stonewall’s Head of Trans Inclusion complained to GCC about 11 of B’s tweets. GCC’s investigation concluded that two of B’s tweets were likely to offend the Bar Standards Board Code. B brought various claims of discrimination and harassment against GCC and Stonewall. 

The employment tribunal firstly held that B held various ‘protected’ gender-critical beliefs, including that sex is real and observable whereas gender is a subjective identity, that Stonewall wanted to replace sex with gender identity, that the absolutist tone of its advocacy of gender self-identity (including the slogan ‘trans women are women’) made Stonewall complicit in threats against women, and that gender theory as proselytised by Stonewall is severely detrimental to women (because it denies them the ability to have female only spaces) and lesbians (by reclassifying homosexuality from ‘same sex attraction’ to ‘same gender attraction’).

The tribunal went on to hold that GCC had subjected B to direct discrimination based upon her protected gender-critical philosophical beliefs when it had: (1) Publicly tweeted that it would launch an investigation - the ‘Twitter storm’ that GCC claimed it needed to ‘damp down’ arose from differences of belief and was indissociable from B’s protected belief; and (2) Upheld a complaint by Stonewall about B’s tweets. Further, GCC had victimised B in relation to various tweets, because these amounted to the manifestation of B’s protected gender-critical beliefs. However, the tribunal rejected B’s indirect discrimination claims, and her claim that Stonewall had instructed, caused or induced the discrimination by GCC. The tribunal awarded £22,000 as damages for injury to feelings, including £2,000 aggravated damages. B’s claim for lost earnings failed as she was unable to prove that the drop in her earnings were in any way connected to her gender- critical belief.

The tribunal’s decision is much wider than the decision in Forstater – with the tribunal holding that B’s protected philosophical beliefs extended beyond mere gender-critical beliefs to also include her views about Stonewall’s campaigning on gender theory and self-id reforms. The overriding lesson for employers is of the need to tread very carefully when faced with disputes and complaints in this sensitive area of debate; staff on both sides of the debate are likely to benefit from protection from discrimination and employers should beware of picking a ‘side’. 

Bailey -v- Stonewall Equality Ltd and others [2022] ET/2202172/2020

Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being deal with in the ET.