An open letter to Jodie Ginsberg regarding the Allison Bailey case

This is an open letter to Jodie Ginsberg of Index On Censorship. Jodie, we met in person once when you spoke in Limerick. I respect a lot of your work. But I think you are strongly misjudging the situation with several people who were allegedly “persecuted” for holding views against transgender rights.

In particular, I suggest that in the case of Allison Bailey you might not be paying attention to the matter of freedom of association, which is just as fundamental as freedom of speech.

EDIT: it was later pointed out that Section 47 of the Equality Act 2010 applies to barrister chambers specifically, therefore limiting freedom of association in that one case without affecting voluntary associations as such We’ll hear the limits of this in court. I wrote a second and bigger part, regarding the matters of principle – not just of law – involved in claiming discrimination over views against transgender rights, or other similar rights. The chain starts from Kim Davis and Ladele, and Ladele was cited in the judgment on Mackereth. and Mackereth was cited at least in proceedings in Forstater.

I will leave the text up to avoid any accusations of “covering up tracks”. As a matter of principle, I actually do think that any voluntary associations should have anti-discrimination law relaxed, but the law is what it is.

Allison Bailey is a Barrister. If her statements or political activity endangered her position at the Bar, there would certainly be a great reason for concern – but this is not the case. All that is in question is her relationship with Garden Court Chambers.

Wikipedia tells us what a Chambers is. “To share costs and expenses, barristers typically operate fraternally with each other, as unincorporated associations known as “chambers”. The term “Chambers” is used to refer both to the physical premises where the Barrister’s Set conduct most of their work from, as well as the ‘set’ or unincorporated association itself. Chambers typically have office spaces for the barristers to work from, conference rooms with infrastructure to conduct video conferencing for a large audience, printing and photocopying sections, a substantially large and updated Library, as well as rooms for the Barristers’ and clients’ dining and entertainment.”

So Chambers exist under pure unadulterated freedom of association. Like every voluntary association, Garden Court Chambers has its own values and policies, which are necessarily a narrow subset of the range of values that is legitimate in society.

In particular, Garden Court Chambers proclaim a political commitment, which Allison actually cites in her description at :

The key words here are “our approach is progressive”. The term “progressive” refers to a political orientation.

Apart from any opinions, Allison Bailey has been involved in political organizing in the “LGB Alliance”. This alliance consistently opposes policies that are proposed and supported by mainstream progressive political movements. Moreover, it supports the work of Baroness Nicholson, a conservative stalwart and a life-long opponent of progressive politics.

A voluntary association with self-declared progressive politics has a full right to exclude someone for organising against progressive politics! The exact same, of course, would be true for conservative politics, or Marxist-Leninist politics, or radical feminist politics.

But now Allison is trying to use the force of law to challenge freedom of association of her fellow Barristers!

A Chambers is a voluntary association. And it is essential that voluntary associations must remain free to exclude members on the grounds of political activism. Otherwise, any and all political organizing is under threat.

The question of proper employers, which are not voluntary associations, is separate, and Allison’s action does have an indirect impact there. She is, as far as I understand, trying to get around the Forstater decision by claiming indirect discrimination on the basis of sex, instead of belief.

I am not an absolutist regarding freedom of association when it comes to proper employment. But there are other serious concerns with an “individual freedom of speech” approach to work relations. I will write a separate blog about the employment discrimination angle.

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