They Call Me Trinity
Update 410 Court and Tribunal Special #BeMorePorcupine
It has been a bad moment for court and tribunal decisions. Allison Bailey has lost her claim against Stonewall. Two teachers have lost their cases. See further below. One good piece of news relates to Kevin Lister’s case - see also below. I am working through the judgments and will report back though you will see two excellent pieces on Allison’s case below from Sarah Phillimore and Michael Foran which may save me from having to say much (if any) more! Also bad news re free speech. And Lisa Nandy on women’s sport!! Not a good week at all!!
After the angst and intensity of A Man Called Horse, thanks once again to Rex Landy for some comic relief in the form of They Call Me Trinity. The film stars the duo of Terence Hill and Bud Spencer as half-brothers Trinity and Bambino, who help defend a Mormon settlement from Mexican bandits and the henchmen of the land-grabbing Major Harriman.
Please keep those suggestions for The Western Season coming in!
Thank as ever to two wonderful readers for their suggested pieces.
Kevin Lister
I previously did an analysis of Kevin’s case here:
Here is Kevin on X announcing that he has got permission to go to a final hearing in the Court of Appeal. Great news!
https://x.com/KevsTribulation/status/1815042542527811740
Allison Bailey
Here is Allison’s press release:
ALLISON BAILEY LOSES APPEAL AGAINST STONEWALL IN SHOCK JUDGMENT
1. Allison Bailey, the barrister who successfully sued her chambers, Garden Court, for direct discrimination when the chambers put her under investigation following a complaint from LGBTQ+ charity Stonewall about the barrister, who is black and a lesbian.
2. Bailey, who does not believe men can become women, came to prominence in October 2019, when she helped to set up the charity LGB Alliance, and after bringing her landmark discrimination case.
3. Bailey was represented by top silk Ben Cooper KC, who argued, in both the Employment Tribunal and the Employment Appeal Tribunal, that Stonewall acted unlawfully when they caused or induced the direct discrimination she suffered at the hands of Garden Court Chambers.
4. The Hon. Mr Justice Bourne, sitting in the Employment Appeal Tribunal, did not agree and dismissed Bailey’s case against Stonewall in a judgment that will shock legal commentators, many of whom believe that Stonewall was lucky to escape legal liability in the first place.
5. Bailey, posting on Twitter in 2019, had objected to a male Stonewall employee holding a workshop on the practice known as “overcoming the cotton-ceiling”, where men who believe themselves to be women or non-binary meet to strategise on how they can overcome the sexual boundaries of lesbians; and when Bailey posted about what she saw as the “appalling levels of intimidation, fear and coercion that are driving the Stonewall self-ID agenda”.
6. In October 2019, Stonewall wrote to Garden Court Chambers, stating that: “for Garden Court Chambers to continue associating with [Allison Bailey] … puts us in a difficult position with yourselves… I trust that you will do what is right and stand in solidarity with trans people”.
7. The Appeal judgment relies on the concept of “fair or reasonable or just” in finding that Stonewall did not act unlawfully, which Bailey says is “surprising” because the judge heard no submissions on this from either party in the 2-day Appeal, and it didn’t feature at all in the 117-page employment tribunal judgment or the 23-day employment tribunal hearing.
8. In a thread posted to X/Twitter today, 24 July 2024, Bailey wrote: “The judgment gives permission for organisations like Stonewall to procure the withdrawal of employment from people whose protected characteristic they disagree with, if this can be framed as a “protest”. This seems to go directly against the terms of the Equality Act. Sight should not be lost of the fact that Stonewall, a charity set up to protect the legal rights of lesbians like me, should be the ones to limit workplace rights like this. How far they have fallen” .
9. In a dramatic twist, Bailey believes that although she has lost her Appeal, the judgment creates legal liability for Stonewall in the area of indirect discrimination and thus further represents a hollow victory for them. Bailey wrote on X/Twitter: “My case is about direct discrimination, but the judgment also considers indirect discrimination. There, it appears to establish that workplace policies of “Stonewall Law” which are implemented through the Diversity Champions Scheme – e.g. the removal of single sex spaces – DOES in fact generate legal liability”.
10.Bailey thanked everyone who has supported her and said that she will consider carefully next steps with her legal team. ENDS
https://allisonbailey.co.uk/wp-content/uploads/2024/07/Final-Final-Press-Release-2348.pdf
Sarah Phillimore on her substack comments:
Allison Bailey v Stonewall
Doesn't the law have to operate within reality? And what are the consequences if it doesn't? If the law can't help us - will a Public Inquiry?
JUL 24, 2024
Disclaimer: I am not a specialist employment or discrimination lawyer but I have been following the (sadly long) line of cases in this field for some time now - described by Akua Reindorf KC as the most astonishing string of authorities she has ever seen in her career; the ‘Big Six’ all in favour of those who had claimed discrimination for their Gender Critical (GC) views - Forstater, Bailey, Fahmy, Phoenix, Meade and Adams. In short terms, GC views cover the belief that sex (as opposed to ‘gender identity’) is real, immutable and it matters as an organising category in society.
Allison Bailey of course won her case in 2022 against her former Chambers Garden Court and decisively so. But that was the second limb of her case. The first respondents were the lobby group Stonewall and Allison argued it had attempted to induce her Chambers to act to her detriment contrary to section 111 of the Equality Act 2010. She did not succeed and appealed. Argument was heard in May 2024 and the judgment in that appeal was handed down today. Again she lost. I think its worth unpicking, if possibly more for my benefit than yours. There may be some nuance that I lose, not being specialist in this field. But the law, to be of any use to anyone, has to be reasonably accessible to everyone of average intelligence.
Section 111 Equality Act 2010
Person A has to persuade to B to do or not do something that inflicts a detriment on person C AND that this act or omission was because of C’s protected characteristic - in this case, GC views. Person C will have to show the link between A and B’s conduct and that this causal connection is such that it’s fair and reasonable to make A liable for B’s behaviour.
The Employment Tribunal, whose decision was under appeal, decided that Stonewall did indeed make a complaint to Garden Court Chambers because of Allison’s GC views. But it was made as a ‘‘protest’ and without ‘any specific aim in mind’.
The ET found it was not fair or reasonable to hold Stonewall liable for the Chamber’s discrimination that followed. Certainly as the ET judgment showed, there were many members of Chambers who were only too willing to express distaste for Allison’s views in very strident terms and her public support for the LGB Alliance, put her beyond the pale. A meeting of the Trans Organisational Network in October 2019, attended by Stonewall encouraged those present to complain to Garden Court about Allison’s views. Garden Court initially concluded, prior to any complaint by Stonewall, that there was no case to answer; Allison’s publications were ‘provocative’ but not transphobic and not in breach of any regulatory guidance.
Stonewall then complained in these terms
‘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’.
I recall many of us commenting at the time saw this in the vein of ‘nice little Chambers you’ve got there, be a shame if something were to happen to it’ and a clear example of inducement to the Chambers to expel or otherwise punish Allison for her views. Garden Court had signed up to the Stonewall Diversity Champions scheme in 2018 for annual fee of £2,500 and thus clearly valued being in Stonewall’s continued Good Books.
The full piece is here:
Michael Foran on his substack also comments on the judgment.
Bailey v Stonewall and Garden Court Chambers
Did Stonewall cause discrimination?
JUL 25, 2024
Michael concludes as follows:
There is a lot to say about this decision, specifically as it pertains to what an appellate tribunal should be able to do in terms of creative addition to bolster the analysis (or lack of analysis) of a lower tribunal. The following comments will focus more on the legal tests set out for interpreting s.111 and their application to the facts of this case.
Firstly, I think that much of what the EAT says here is sensible and correct as a matter of statutory interpretation. It was right to stress that the interpretation of s.111 should be guided by the purpose of the Act which is to eliminate discrimination. That should direct interpretation away from creating loopholes for liability.
Secondly, the EAT was correct to stress that discrimination law does not focus on the motive of the duty-bearer. The ‘because of’ test for direct discrimination does not, as per Nagarajan v London Regional Transport [1999] ICR 877 require that the discriminator has conscious discriminatory motives so long as a significant cause of the less favourable treatment is the protected characteristic in question.
I also think that the EAT was right to reject the ‘reasonable foreseeability’ test proposed by Ben Cooper KC. That would have concluded that A caused B to discriminate against C where
B’s discrimination against C would not have occurred bur for the conduct of A, and
B’s discrimination against C was reasonably foreseeable at the time of As conduct.
In my view this is an unnecessary addition to the legislative framework. I can understand why it was proposed - a ‘but for’ causation might lead to cases where, on a normative view, it really wouldn’t be fair to impose liability even if as a matter of fact the discrimination would not have occurred were it not for the actions of A. For example, if Stonewall has written to Garden Court Chambers to praise Alison Bailey’s defence of LGB rights and the Heads of Chambers responded by discriminating against her for holding gender critical views. In that scenario, as a matter of fact, Garden Court Chambers would not have discriminated against Bailey but for the conduct of Stonewall. Yet it seems wholly obvious that Parliament did not intend s.111 to apply liability for causing discrimination in that sense.
It therefore seems reasonable and defensible in my view for the EAT to adopt the approach that it did, but with an important caveat. S.111 presumes that B is responsible for the discrimination against C. Liability for discrimination cannot be imposed if B is not responsible for discrimination that is based on the protected characteristic of the claimant. If this is the premise, then that must be accounted for when assessing whether causation obtains and it cannot be said that the fact that responsibility rested with GCC is sufficient to absolve A of any liability for causing B to discriminate. More by way of analysis is needed here. The mere fact of a causal relationship is likely not sufficient to establish liability, but equally the mere fact that B is responsible for the discrimination cannot be sufficient to absolve A of liability either.
In my view, more searching scrutiny of the conduct of A is required. This cannot be scrutiny into discriminatory intention or motive, as these are not necessary for liability under s.111(2). Nor can the focus here be on the harm caused, since the harm in question here is the act of unlawful discrimination and that has already been established. I think the EAT is right to conclude that the question is whether it is fair, reasonable, and just to impose liability. Where I think it has gone astray is in tying that to responsibility for discrimination and away from whether the conduct in question is itself culpable.
So what exactly did Stonewall do? It wrote to Garden Court Chambers complaining about the fact that someone GCC owes duties of non-discrimination to had manifested her protected beliefs in a way that Stonewall took offence to. It described Bailey and her protected views in a way that would have amounted to harassment had Stonewall been her employer and made specific reference to the nature of the relationship between Stonewall and GCC being undermined if GCC continued to associate with her. If Garden Court Chambers had spoken about Alison Bailey the way that Stonewall was, it would have been in clear breach of the Equality Act. That cannot be ignored when considering the purpose of s.111 is to eliminate exactly this kind of conduct.
The Employment Tribunal and the Employment Appeal Tribunal described what Stonewall did here as no more than a protest. But it must be asked, a protest of what? The protest was of Alison Bailey’s protected views and her protected manifestation of them.
Compare this to a “protest” against a company employing a muslim. Imagine if Stonewall had “protested” at a barristers chambers continuing to associate with a muslim woman because of her protected beliefs about marriage being a heterosexual union between one man and one woman. Imagine if Stonewall framed this as homophobia and wrote to Garden Court Chambers to protest at their association with this woman. Then imagine if Chambers opened an investigation and discriminatorily found that this barrister was likely to be in breach of the Bar Standards Boards ethics code. Surely ‘protest’ in this sense can amount to causation for the purposes of s.111(2).
What matters here is not whether this conduct amounted to protests. It is whether this conduct amounted to the kind of protests that would culpably be classified as having caused another to discriminate against the claimant.
The EAT framed this as though what Medcalf was doing in writing to Garden Court Chambers was merely manifesting his protected beliefs and that it would be counterintuitive to conclude that he would be engaging in unlawful conduct for doing something which is protected under the act. But Medcalf was not simply expressing protected beliefs, he complained about Bailey’s beliefs and stated clearly that the continuing association with her was an issue.
It is here where the distinct nature of Bailey’s beliefs become relevant. Alison Bailey did not just hold gender critical beliefs. She also held views about the moral impermissibility of Stonewall’s campaigning by virtue of it being, in her view, homophobic and sexist. That is a view that she is entitled to hold and to manifest free from discrimination or harassment. But it is also a view that could itself amount to unlawful conduct, if used to justify or motivate an attempt to induce, cause, or instruct another to discriminate against an employee of Stonewall, given the accepted view of several tribunals that gender identity belief is also protected.
A belief being protected under the Equality Act does not magically absolve its holder of obligations under the Act. If Medcalf was ‘protesting’ in a manner that was inspired by or even manifesting his protected belief, but which amounted to conduct that contravened the Equality Act, then that conduct is still in contravention of the Act.
The belief that gay relationships are sinful is protected under the Equality Act. That does not give licence to those who hold that belief to discriminate against or harass gay people. Crucially, it also doesn’t give licence to instruct, cause, or induce another to discriminate against someone because they are gay either. The mere fact that someone was engaging in conduct that was inspirited by or manifested a protected belief does not resolve the question of whether it would nevertheless be fair, reasonable and just to impose liability for causing another to discriminate unlawfully.
So, while I agree with the EAT in terms of the legal tests that were appropriate for this case, I disagree with their application to these facts. In my view, there is more than enough evidence to establish that Medcalf and by extension Stonewall behaved culpably such that it would have been fair, reasonable, and just to hold them liable for the discrimination they caused Garden Court Chambers to engage in.
The full piece is here:
In a separate piece, Michael also picks up on a point made in Allison’s press release:
Is Stonewall in Trouble?
A sting in the tail of Bailey v Stonewall and Garden Court Chambers
JUL 26, 2024
The outcome in Bailey v Stonewall and Garden Court Chambers is likely to be treated by Stonewall with a sense of relief. Its reasoning, however, might pose a significant challenge to Stonewall’s advocacy efforts, exposing it to potential liability for inducing unlawful discrimination via its Diversity Champions Scheme. In this post, I explore what looks like a sting in the tail of this judgment for advocacy organisations that provide training or other services that involve misrepresenting the Equality Act or inducing unlawful discrimination in the name of trans inclusion.
The issue in this case was whether the complaint made by Kirin Medcalf on behalf of Stonewall amounted to an instructing, causing, or inducing a basic contravention of the Equality Act 2010. Ultimately the Employment Appeal Tribunal concluded that it did not. …
In this post I want to explore some of the broader implications of this judgment, in particular the possibility that liability for causing or inducing indirect discrimination does not require a specific mental state such as an intention that B discriminate against C.
The full piece is behind a paywall and is here:
https://knowingius.substack.com/p/is-stonewall-in-trouble
Here is the judgment:
https://drive.google.com/file/d/1B-Awt4VWO-uKJExLiDKesGkSAoAcQNxX/view?pli=1
James Orwin
Thanks as ever to my mate, Fingers, for the Times press cuttings.
Jonathan Ames (Workers sacked over pronouns protest 18 July) reports:
A council worker who sued the authority’s chief executive after she encouraged staff to state their preferred pronouns in email signatures has lost his client for unfair dismissal.
James Owrwin said that the move by Caroline Lacey, the boss of East Riding of Yorkshire council, infuriated him, and that he refused to remain silent because the policy, which was designed to promote transgender inclusion, facilitated “the steady creep of evil”.
An employment tribunal in Hull was told that instead of appending pronouns to his email signature, the technology specialist protested by changing it to: “XYchromosomeGuy/ AdultHumanMale”. [ Dusty - nice one, my son!! 😊]
Orwin insisted that the council was not promoting equality but implementing a “political position” that it had “no mandate to adopt”. He added that the use of pronouns was a “political gesture designed to intimidate anyone who does not embrace the contested ideology of gender identity”.
Orwin was suspended and sacked after repeatedly refusing orders to remove the addition to his email signature after bosses argued that it posed a “serious risk” to transgender people and the council’s reputation. The employee sued, claiming that he had been discriminated against on the grounds of religion or belief and that he had been unfairly dismissed.
The tribunal has rejected Orwin’s claim, finding that he did not suffer discrimination. However, in a move that falls in line with recent findings by other employment tribunals, the judge in Orwin‘s case, accepted so–called gender–critical opinions amounted to a protected “philosophical belief”.
The judgment is here:
Joshua Sutcliffe
I reported on Joshua’s case here:
Christian Concern ( Judge says teachers must ‘celebrate’ transgender pupils and that girls can ‘credibly’ be boys as ban for not using preferred pronouns upheld 25 July) reports:
A High Court judge has today ruled that Christian maths teacher, Joshua Sutcliffe, should continue to be banned from the profession indefinitely for refusing to use the preferred pronouns of a girl identifying as a boy.
In his judgment, Mr Justice Pepperall ruled that no matter what a teacher’s religious or philosophical beliefs they must in relation to transgender pupils use compelled speech and “respect and celebrate the pupils’ personal autonomy.” He added that “just because misgendering a transgender pupil might not be unlawful does not mean that it is appropriate conduct for a teacher.”
In December 2023, the Conservative government published draft transgender guidance for schools which said teachers should not be compelled to go against their consciences by using preferred pronouns that are contrary to biological sex. Regarding the guidance, however, the judge ruled that Mr Sutcliffe’s conscience based on his Christian beliefs did not justify him referring to a girl as a she. He said:
“The draft guidance, which of course postdated these events and the panel’s decision, envisaged that schools would rarely agree to change a pupil’s pronouns but did not purport to suggest that such course would never be appropriate. As the draft made plain, such decisions are complex and are made by schools and not individually by each member of staff according to their own assessment of the merits of the request.”
The judge added that by not using preferred pronouns, Mr Sutcliffe had failed to treat Pupil A with ‘dignity and respect’. He added that Pupil A, who is a girl, ‘credibly passed for a male and was only known by male pronouns at Cherwell [school].”
Dismissing every ground of the appeal leaves Mr Sutcliffe will now appeal this ruling to the Court of Appeal.
Dusty- it has to be said that there were other aspects to this case and not just gender ideology - I am pondering the judgment - watch this space!
The full article is here:
The judgment is here:
Free Speech in the UK
Things seemed to start ok under the Labour Government with Wes Streeting but now it seems they are beginning to show their true colours! It appears that free speech is only to be available to their mates and not to our side of the argument.
Poppy Wood and Nick Gutteridge in The Telegraph (Free speech on campus ‘in peril’, Labour warned over plan to scrap cancel culture laws 26 July) report:
Dr Kathleen Stock © Provided by The Telegraph
Free speech on campus is “in peril”, Labour was warned on Friday after it announced it would shelve a law to tackle cancel culture at universities.
Bridget Phillipson revealed she has pulled the plug on the law designed to protect academics from being no-platformed or forced out over their views.
The Education Secretary will now consider repealing the Higher Education ( Freedon of Speech) act 2023 just days before it was due to come into force.
Experts warned the move could leave academics unprotected against cancel culture on campus, with a new complaints scheme for those who have been “no-platformed” expected to be axed.
Akua Reindorf, a barrister and Equality and Human Rights commissioner, said she was shocked by the move. “The Act was not perfect, but it’s quite evident that free speech and academic freedom are in peril in universities,” she said.
“I’m surprised and shocked that Bridget Phillipson has announced that the Higher Education (Freedom of Speech) Act 2023 won’t come into force on 1 August and may be repealed.”
Under the flagship Tory policy, universities, colleges and student unions would have been required to actively promote free speech on campus.
Those found to have breached academics’ right to free speech would face sanctions by the universities regulator and possible fines.
Academics and students would also be able to seek compensation through the courts if they suffered financial loss after being expelled, dismissed or demoted. The protections would cover any visiting speakers whose invitations were rescinded following student protests.
It was introduced after a series of rows over the so-called cancellation of academics and students over their views. They include Dr Kathleen Stock a philosophy professor, who resigned from Sussex University in 2021 after what she described as a witch-hunt over her views on transgender issues.
The full article is here:
Women’s Sport
In case you thought it couldn’t get any worse, enter another of the Labour TRA handmaidens!!
Jason Groves in The Mail Online ( Lisa Nandy is accused of 'betraying women' after Culture Secretary indicates Trans athletes COULD compete in female sport 25 July) reports:
Culture Secretary Lisa Nandy faced a ferocious backlash last night after leaving open the door for trans athletes to compete in women's sport.
Ms Nandy sparked fury from campaigners after she dropped the previous government's insistence that sporting bodies must protect women's sports by banning trans competitors.
The Culture Secretary - who was backed by Downing Street - said Labour would instead leave the issue to sports' governing bodies, despite warnings that many have been accused of pandering to trans campaigners.
The Women’s Rights Network said 'most sports have not got the balance right' - and pointed to research showing that more than 50 sports, including football, cricket and tennis, allow trans athletes to compete and use women's changing rooms.
The campaign group said it was 'scandalous' that biological males were still allowed to compete in areas like grassroots football, adding: 'Sports are failing to protect the rights of women and girls.
Lisa Nandy [ Dusty - Betrayer of women’s rights]
'Lisa Nandy told us loudly and proudly who she was pre-election. She's one of the main reasons I couldn't vote Labour,' Harry Potter author JK Rowling wrote on Twitter/X about Ms Nandy
The full article is here:
Come out punching, Terven!!
A Play Called Terf
I watched the original interview on Spectator TV between Julie Bindel and the author of a new play called ‘Terf’ that is to be performed at the Edinburgh Fringe Festival. Then I watched Kellie-Jay Keen’s reaction video and was very pleased that what KJK said very much mirrored what I had been thinking. Let us know what you think 😊
BTW I love the fact that the word ‘Terf’ is behind KJK’s left shoulder 😂
Let Women Speak
Reformers' Tree
Please note that the pub is booked from 3pm to 6pm. If you arrive before 3pm you must wait in the bar, do not go to our usual area before 3pm.
Time & Location
28 Jul 2024, 13:00 – 15:00
Reformers' Tree, London W2 2UH, UK
Endpieces by Dusty and Liz
I have dug out an old favourite from the LPs while I worked on this tonight, namely the much underrated Felicity Buirski:
Obviously I am going to be upstaged by Liz!
#BeMorePorcupine
Oh dear! We really need to win more legal cases, that’s very disappointing. I don’t understand how it’s ok to advertise your belief system via pronouns but get sacked for expressing a belief in reality. Surely he can appeal that.
As for Labour, who’s surprised? Just when we thought we might be making some progress. ☹️
What a bloody week! I wasn’t holding my breath about labour but, even so. The (in)justice system, Harriet Harman chairing the Equalities Select Committee, Lisa Nandy’s cowardice. I’m going down the garden to eat worms!