On discrimination of “gender criticals” – part 2 of open letter to Jodie Ginsberg

So in response to my first blog post about the Alison Bailey case, someone pointed out a thread at https://twitter.com/RadFemLawyer/status/1277203306104799232 , citing the Equality Act in the UK that subjects tenancy in chambers to anti-discrimination requirements, despite the voluntary association nature. The exact borders of this applicability is a matter for the court. But as a matter of principle, this brings us to the question of employment discrimination against gender-critical views.

And this is still an open letter to Jodie Ginsberg, so I want to argue points of principle before points of law. And the point of principle is: an absolutist approach to individual free speech at work is incompatible with enforcement of workplace rules that provide for the rights and the needs of colleagues and customers.

The ultimate cases of this conflict were the Kim Davis case in the US and the Ladele case in the UK. In both cases, state registrars refused to sign off on same-sex unions (marriages for Kim Davis, civil partnerships for Ladele) because approving such unions was incompatible with their religious beliefs. And in both cases, the registrars lost in court.

The rights of the customers to have their unions registered (in the US, “licensed”) were seen to trump the religious and free speech rights of the state registrars. There was a lot of additional complication in the Kim Davis case as she was technically in elected position and could not be simply fired, but the principle remains the same.

Ladele is a UK case, subject to the same UK law as the “gender critical” cases in question here. So the Court of Appeal decision citation is appropriate here:

The fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.

I would question the court’s decision to pry into what is a core or not core part of someone’s religion, but this is one point of many. The point of principle is that the workplace has a legitimate aim to avoid discrimination, and this aim trumps the free speech (and religious) rights of the employees. The mitigation here is that everyone is free to resign.

The Ladele precedent directly leads into the Mackereth decision. In this case, a state employee (who is a doctor but was employed to assess benefit cases, not to treat patients) refused to use preferred pronouns for customers, as explicitly required by workplace rules. He was fired for the refusal, sued, and lost. Link to full decision: https://assets.publishing.service.gov.uk/media/5d9b0c8aed915d35cff2225d/Dr_David_Mackereth_v_The_Department_for_Work_and_Pensions___Advanced_Personnel_Management_Group__UK__Ltd_1304602_-_2018_-_Judgment_and_reasons.pdf

The decision does, of course, cite Ladele. It also says that insofar as this is about belief discrimination, Mackereth’s belief does not satisfy the Grainger test (“incompatible with human dignity and conflict with the fundamental rights of others”, paragraph 197) – and goes so far as saying that “his wider faith”, insofar as it includes this belief, fails the Grainger test (paragraph 231) – I suspect this one would be a focus of any appeal, but none has happened so far.

The point of principle here is arguably expanded. In Ladele, the direct legal rights of customers trumped the free speech of the employee. In Mackereth, the need for respect for customers trump the free speech rights of the employee.

The respect, however, is a part of the legal right not to be discriminated by gender reassignment. And this same need for respect, backed by EA2010, applies in many other cases. For example, a school teacher who does not believe in same-sex marriage and parenthood would still be required to treat same-sex married parents of a pupil in exactly the same way as opposite-sex parents of other pupils. The teacher’s free speech rights are trumped by the need for respect.

An absolutist view of individual free speech at work is incompatible with enforcing such respect. If that view were to be established legally, the entire anti-discrimination framework unravels, because an employer has no way to ensure that discrimination by employee speech does not happen!

And this brings us to the next case, Forstater. I was ambivalent about Forstater at first, because I hoped for an argument establishing a stone wall (pun intended) between work and nonwork life – an argument I would support. I hoped that Maya would push a line that, while she was subject to discipline at work and that discipline included CGD’s diversity policy, she should not have been subject to discipline for personal tweeting outside work.

Maya decided against this line. Her argument ran contrary to this line in at least two ways:

  • She explicitly reserved the right to “use he/him for a trans woman” in any occasion at all, subject only to her own judgment.
  • She apparently claimed the right to express her views at work. She seems to declare this claim, as it happened, in a tweet to me: https://twitter.com/MForstater/status/1199727571623174144

Maya’s position, were she to prevail, would protect declaration at work that trans women are men and trans men are women. It would remove the employer’s tools to protect the legitimate needs of their transgender employers and customers.

We are talking about the kind of legitimate need explicitly recognized in the text of a UK Supreme Court ruling by Lady Hale: https://www.supremecourt.uk/cases/docs/uksc-2016-0062-judgment.pdf

Those of us who, whatever our occasional frustrations with the expectations of society or our own biology, are nevertheless quite secure in the gender identities with which we were born, can scarcely begin to understand how it must be to grow up in the wrong body and then to go through the long and complex process of adapting that body to match the real self. But it does not take much imagination to understand that this is a deeply personal and private matter; that a person who has undergone gender reassignment will need the whole world to recognise and relate to her or to him in the reassigned gender; and will want to keep to an absolute minimum any unwanted disclosure of the history. This is not only because other people can be insensitive and even cruel; the evidence is that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. It is also because of their deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted.” (emphasis mine)

I would posit that, as a matter of principle, an employer can have a legitimate aim to protect this need, whether or not a negation of this need would constitute an Equality Act violation in a particular case. For example, a CGD conference with Maya Forstater’s view probably would not violate the Equality Act. And yet, the employer has the right to protect this need. And this right trumps the free speech rights of the employee at work.

If you deny that, you deny the employer the right to any values and any meaningful control of the output of their work!

And this brings us to Alison Bailey.

The Garden Court Chambers openly declare that they have certain values, including political values of treating everyone with the progressive understanding of equality. Any clients of Garden Court Chambers come in expecting to deal with people ready to apply these values.

How can Alison Bailey be expected to provide application of these values when she is involved in active political campaigning against them? We’re not talking of a stray “like”, tweet, or Facebook post. We’re talking a key role in organizing a political lobbying group, “LGB Alliance”.

As a matter of principle, prioritizing Alison’s free speech in this instance means that a chambers simply can not have political values. And that Garden Court would arguably have to accept a Christian or Islamic fundamentalist barrister if he chose to ask for a tenancy there! And this would increase the probability of their name attached to lawsuits against gay rights or against abortion rights, for example. (Maya Forstater correctly pointed out that the cab rank rule means it can happen anyway, as anyone could instruct any barrister; however, factually people do select who to instruct).

…but I wrote “arguably” because this would happen if, indeed, free speech rights were applied, the matter of principle important to Jodie.

The matter of law is somewhat different. Alison is claiming discrimination. And to avoid the Grainger test, which anti-trans views already failed in two cases, she claims instead that discrimination against gender-critical views is discrimination against women – because gender-critical views are overwhelmingly held by women.

If this logic were to prevail, however, then arguably fundamentalists would still get protected. One has to be a Christian or Muslim to be a fundamentalist of that religion. And therefore, if discrimination by views predominantly held by people with a characteristic is discrimination by that characteristic, then fundamentalists can not be discriminated against.

Even if we stay only with the protected characteristic of sex, radical MRAs/MGTOWs would get protection, as they are overwhelmingly men.

Thankfully, the logic is, in my amateur opinion, very unlikely to prevail because of the Ashers decision of the Supreme Court. This decision is surprising here, it was an LGBT activist loss, a conservative win (for the record I saw the case as LGBT activist overreach at all times, in line with the view that Peter Tatchell arrived to).

And yet that judgment contains a key statement. Part of the claim against Ashers was that the customer who ordered a cake was discriminated for his sexual orientation. This was, however, not a gay wedding cake (and the bakery apparently would have no problem making such a wedding cake). It was a cake calling for introduction of same-sex marriage. This was a political view, which was a live debate in Northern Ireland at the time (and a referendum campaign down the road in the Republic).

The actual discrimination happened for the political view that supports same-sex marriage. It is true that gay people overwhelmingly hold this view. And yet the Supreme Court held in paragraphs 24 to 46.

In the same way, Alison’s political position described as “gender critical” is not a proxy for being a woman. Discrimination for activism for that position is not discrimination for being a woman.

One could point out that a key part in paragraph 25 is “People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage.” However, men can and do support gender-critical views, very notably a certain Graham Linehan. Yes, perhaps less men support them than women, but also less straight people than gay people supported same-sex marriage in Northern Ireland at the time of the Ashers case.

Therefore, Alison’s position does not, to me, look legally tenable. But the more important point is that of principle. Can an organization have political values of the kind that protect legitimate needs, perhaps above and beyond the mandatory legal requirements? Can it make rules in accordance with such values, and enforce them with workplace discipline?

Or does the workplace have to become a legally-mandated neutral arena where, at best, the bare legal minimum of respect can be universally expected, and even that would be hard to obtain as detractors would claim the right to free speech? The public debate sphere is, by important democratic necessity, just such an arena. But do we want to expand this to the workplace?

Having said all that: a clearer denomination of what can and can not be subject to workplace discipline in life outside work would be a valid discussion at least. However, for different reasons, the cases at hand don’t seem to facilitate that discussion. Neither complainant seems interested in drawing the line between work and non-work, and in the case of Alison Bailey the line is arguably impossible to draw, given the public nature of the work of a barrister.

I could be convinced otherwise on the latter point, though, as maybe I misinterpret how barristers work, and maybe one can make a clear work-nonwork partition there – if Alison chooses to argue this point we shall hear it. But in general, in some positions public statements are hard to disconnect from work. A very famous, but not UK, case was Israel Folau, terminated for promoting messages against homosexuality on his social media.

P.S. A side issue is how CrowdJustice removed Alison’s text. My hypothesis is that the removal was actually done for legal self-protection.

The text contained a statement that Stonewall was harmful to young people. I would remind the reader that when someone tweeted that JK Rowling should not be trusted around children, JK Rowling threatened “lawyers”, and the poster removed the tweet. Alison’s statement about Stonewall is substantially the same, except it applies to an organization and not to a person.

Therefore, the statement could reasonably be read as defamatory.

I would suspect this might be the point. Perhaps Alison wants Stonewall to counter-sue her over this assertion, and then she would rely on the truth defence and get the leeway for wider discussion of Stonewall’s actions in court. This is a valid strategy, there is nothing “vile” about it, and in at least one case (Irving v Penguin Books) use of this strategy is widely condoned.

However, CrowdJustice has a right not to be a part of it, not to risk becoming a co-defendant. And that, I think, may have been the real reason. But, in this theory, stating that openly could be a legal risk in itself so they wrote up something else.

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