A Barrister Explains Why Employment Tribunals Are a New Trans Rights Battlefield

The workplace is becoming a warzone.

by Moya Lothian-McLean

31 May 2022

Those with ‘gender critical’ views are claiming they are facing discrimination at work. Vuk Valcic/Reuters

Last week saw the conclusion of the evidence phase in an employment tribunal that has “captivated” a small but fervent audience, yet has flown under the radar of most of the general public. Barrister Allison Bailey – a co-founder of the LGB Alliance, a transgender-exclusionary organisation – is suing, in one fell swoop, Garden Court, her legal chambers, and Stonewall, the largest LGBTQ+ organisation in Europe. 

Bailey’s charge is that her views on trans people – specifically, trans women – prompted discrimination against her at work in the form of a lesser workload and lower earnings. Stonewall, she alleges, was involved in this conspiracy because of its aim to champion inclusive workplaces – which Bailey described as advocating “trans extremism” in one email read out to the court. In 2018 Garden Court signed up to become a ‘Stonewall Diversity Champion’, a corporate programme promising to ensure “all LGBTQ+ staff are free to be themselves in the workplace”. Bailey’s opposition to this, she claims, was followed by a decrease in the cases she was being assigned. Having heard all evidence, the court will now reconvene on 20 June for closing submissions. 

Bailey’s case is just one of several legal challenges brought by those who fall under the umbrella of what’s now termed the ‘gender critical movement’. They’re made up of a loud (and often public-facing) minority, that run a gauntlet from rightwing evangelicals, in the American mould, to radical feminists. Binding them is an inexplicable opposition – in many cases, what feels closer to virulent hatred – to the existence of trans people. Increasingly, their focus is on the law and attacking even the current meagre rights it offers trans individuals, from access to healthcare to protection from the likes of conversion therapy

Two of the most high-profile cases of this new legal front have come in the form of employment tribunals. Bailey’s is one, preceded by that of Maya Forstater, a tax expert, vs her former contractors, the Center for Global Development (CGD) Europe. Again, Forstater sued the CGD for discrimination, alleging her consultant contract was discontinued because of her gender critical beliefs. 

To make sense of this new legal battlefield, I spoke to Robin White, an employment and discrimination law barrister who is currently representing Stonewall in Bailey’s case.  

Novara Media: Why are we seeing anti-transgender campaigners at the centre of discrimination tribunals, particularly ones focused on the workplace? 

Robin White: It’s an area where personal rights come into focus. If you allow trans people to play a full part in society, that involves the workplace. There’s two aspects to this. These people [anti-transgender campaigners] don’t think accommodating trans people is consistent with their rights. But secondly, we are now having questions about the extent to which one can express those rights in the workplace and how restricting the expression of those rights is something that becomes actionable. 

NM: What precedent are these cases seeking to set within the workplace?

RW: What they seek to establish is that trans people should not be accommodated as they are, or allowed to play a full part in society, and that people promoting those views should not be disadvantaged in the workplace.

NM: What laws are these cases being brought under? 

RW: You have to come under one of the nine categories in Equality Act to qualify for protection from discrimination [which is what these cases are alleging]. There are three really relevant protected characteristics that have been relied upon by gender critical people. One is ‘belief’, and that’s been used by the likes of Forstater [a gender critical campaigner alleging discrimination caused dismissal from her role as a tax consultant]. Her case was brought on the basis of a protected belief, and argued that her belief that sex is a matter of biology – and gender identity should not be treated on par with that – is such a fundamental part of her self-definition that it is due protection.

The second category is sex [discrimination]; they argue that women are more likely to hold these [gender critical] beliefs than men. It’s not true, actually – a national survey done fairly recently found that men are less supportive of trans identities than women. Thirdly, it’s been suggested that accommodating trans people is inconsistent with sexual orientation rights. What’s said if that if you blur the boundaries as to who is ‘male’ and ‘female’, lesbians and gay men, for example, find it harder to draw a line around their particular spaces. These are minority views. But these people are very loud and very active.

NM: Who brings the tribunals in the first place? 

RW: You have to put it in a claim, e.g. Forstater brought her case. There’s a thing called ‘early conciliation’ which you have to engage in via ACAS [the Advisory, Conciliation and Arbitration Service] with your ex-employer [that offers a chance for an agreement to be reached without a tribunal]. 

NM: But Forstater wanted to press on with the public tribunal? 

RW: Strangely, and somewhat politically, she wanted the question as to whether her beliefs were protected beliefs tried as a preliminary issue. What tribunals can do is split off an issue, so in a disability discrimination case for example, you have to prove you are a disabled person and often that’s a preliminary thing. Often that’s straightforward; if you’re missing a leg for example, you’re recognised as disabled. But if you’ve got a medical condition that impacts you [differently], an employer might turn around and say, ‘Well, we don’t think this is a disability’. So that becomes the preliminary case that you might spend a few days trying, split off from the main hearing, because if you’re found not to be a disabled person, well the case is knocked out.

In the first instance, the judge decided her beliefs were not protected because he found that she would act towards trans people in such a horrible way that they [her beliefs] were inconsistent with the rights of other people.

NM: Was that the end of her case? 

RW: Forstater appealed, and at the employment appeal tribunal they said no, the [first] judge got it wrong and that her belief might be unpleasant and troubling for a number of people, but having troubling, unpleasant beliefs and still being allowed to operate in public is part of a free society. If you don’t allow some degree of radicalism, then it’s not a free western society. So she won that case. But, unusually, at the employment appeal tribunal, there was a very firm statement that said the fact she was allowed to hold her belief and, in some cases to show it, didn’t give her a licence to go around harassing trans people. 

Now Forstater has gone back to the employment tribunal case. There was a hearing a couple of months ago that looked at what actually happened in the workplace and will rule on whether CGD excluded her from working as a consultant and [if so], were they wrong to do so, given her belief was protected. A very big part of this case is that unless she was an employee or worker, she doesn’t have that right. And [CGD] argued really quite strongly that she wasn’t in one of those protected categories, and she didn’t have the right employment status. Now we wait to see the result.

NM: The people at the heart of these tribunals tend to be in the professional class, a lawyer, a tax expert, and so on. Is this indicative of anything about the gender critical movement?

RW: These are professions in which public speech and opinion is important, the ‘talking’ professions. If you work for Amazon and your job is packing things into boxes, there are fewer opportunities to air your views on trans people. Traditionally barristers were a pool that generated quite a lot of politicians in the country.

NM: Is it a coincidence that discrimination tribunals are becoming a battlefield for trans rights? 

RW: It’s not like there’s a centre to a web of [conspiracy], but it is more like a neural net. For example, watching the Bailey case – because you, as a member of the public, can turn up and watch the case virtually – we have people like Ann Sinnott, who runs something called the Authentic Equity Alliance, who’s definitely part of the anti-trans movement. And there’s Shahrar Ali, who ran for leader of the Greens but allowed his anti-trans views to be a bit too visible, so much so that the party decided it was not good he was put forward as a [spokesperson]. He is bringing a case against the party about that. Forstater is watching the Bailey case. I wouldn’t say there is coordination in the sense of an ‘anti-trans [command centre]’, but there is certainly a degree of working together among the individuals and groups involved.

NM: In your opinion, what’s the motivation for this type of legal challenge – is it just about winning? 

RW: There’s multiple motivations. These people know they might lose; if you look at the crowdfunding being run for the case against the rape crisis centre in Brighton, they say one of the reasons they are running the appeal is that they might lose and have to pay the other side’s costs. But they think it’s worth it to bring the issue into the public domain and grow their movement. And that has happened so far. 

There have also been attempts in parliament, in particular [concerning] NHS bills, because parliament does things with the NHS that require primary legislation. These are often dealt with in Lords, not the Commons. There’s two characters called Baroness Nicholson and Lord Blencathra who both have anti-trans views. They proposed amendments to a national health bill going through the Lords that said you should only be treated on an NHS ward consistent with your natal sex or, in some completely separate ward, away from all the ‘normal’ people. That was defeated, so they withdrew it. But it was very concerning in the first place to have a suggestion debated in the Lords that said if they were to go to hospital for a broken leg, they couldn’t be accommodated on a ward consistent with their gender identity – they would either be on a ward according to their natal sex or in some trans person’s ghetto, miles away. It would have segregated trans people and non-trans people. 

NM: Is there a specific aim when it comes to bringing a discrimination tribunal? To me, it seems a way of framing someone with gender critical beliefs as a victim. And even if they lose, the existence of a discrimination tribunal make people think ‘no smoke without fire’.

RW: Yeah, that’s right. There’s an example from the US, a big argument about college sports and whether transgender teenagers should be allowed to participate. In Utah, they had a law put forward banning trans athletes in girls’ sports, but the governor refused to sign it [Utah governor Spencer Cox initially vetoed the bill but was overruled]. He said look, there are about 75,000 [athletes] in college sports and about four trans people within that, only one of whom is a girl. But this entire thing was whipped up in Utah and actually, when you drill it down, there’s only one trans girl out of 75,000. When you look at the numbers, it’s minuscule. There are so many better ways of advancing the position of women – think of all the good you could do with the £500,000 Bailey has raised for tribunal. 

NM: How can employers and workers who want to create inclusive workplaces go about doing that in a world where gender critical beliefs are protected? 

RW: What employers have to make clear is their standards of behaviour. This is about education, and not big sticks. The stick side is that all sensible employers will have anti-discrimination policies, and will have trained their staff on them because of a thing in employment law called the statutory defence. If someone makes a transphobic remark in the workplace, for example, the employer isn’t necessary liable for [discrimination] if they can show they’ve taken all the reasonable steps to make it clear that such behaviour isn’t acceptable in the workplace. Then the individual is personally liable for any discrimination claims.

The carrot side of it is that with better policies, if you’re a service provider, you’re more likely to delight a service user for getting it ‘right’. A personal example of this is that I bank with HSBC, and at one time, I did most of my banking via phone, and had to go through the necessary security questions. If you see me [in person], you’re in no doubt about my gender. But if you hear just my voice, I still sound quite male. I haven’t done very much with my voice because it’s a working tool – I have to cross examine for days – and vocal cord surgery could impact that [if it went wrong]. I’d ring HSBC trying to access to the account of Robin Moira White, and the operator would think I was a fraudster. I’d get, ‘Oh, really?’. It was getting boring, frankly. So one day I happened to be passing HSBC’s call centre and I paid them a visit. Someone quite senior came to talk to me and listened. I got a phone call the following day, and within 48 hours they’d changed the training of their call handlers to tell them that there are people whose voices don’t sound the way you might expect, and that if they can answer the security questions, they can access their account. That’s an illustration of how getting it right can positively impact a business. So it’s not just the stick of ‘we don’t want to be sued’. There’s a positive of ‘we want to get it right for people’. 

Moya Lothian-McLean is a contributing editor at Novara Media.

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