“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“A barrister (A) must not discriminate against a person (B) who is a pupil or tenant— (a) as to the terms on which B is a pupil or tenant; (b) in the way A affords B access, or by not affording B access, to opportunities for training or gaining experience or for receiving any other benefit, facility or service; (c) by terminating the pupillage; (d) by subjecting B to pressure to leave chambers; (e) by subjecting B to any other detriment.”
“(2) A trade organisation (A) must not discriminate against a member (B)— (a) in the way it affords B access, or by not affording B access, to opportunities for receiving a benefit, facility or service; (b) by depriving B of membership; (c) by varying the terms on which B is a member; (d) by subjecting B to any other detriment.”
“111 Instructing, causing or inducing contraventions (1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4) For the purposes of subsection (3), inducement may be direct or indirect. (5) Proceedings for a contravention of this section may be brought— (a) by B, if B is subjected to a detriment as a result of A's conduct; (b) by C, if C is subjected to a detriment as a result of A's conduct; (c) by the Commission. (6) For the purposes of subsection (5), it does not matter whether— (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A's conduct. (7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B. (8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it. (9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating— (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C. 112 Aiding contraventions (1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention). (2) It is not a contravention of subsection (1) if— (a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and (b) it is reasonable for A to do so.”
“She believes that a woman is defined by her sex. She disagrees with the beliefs of those who say that a woman is defined by her gender, which may differ from her sex, and is for the individual to identify. She also holds views, which she says amount to a belief, about Stonewall’s campaign on gender self-identity.”
“51. Opposition to proposed changes has focused on the need to preserve single sex spaces for natal women, and the single sex exemptions in the Equality Act. Some fear that self-identification of gender identity could facilitate abuse of women. Lesbians and gays are concerned that young people exploring their sexual identity may identify in another gender when they are only same-sex attracted, or even that same-sex orientation will be erased. 52. The debate on reform has been polarised, often uncompromising, and sometimes hostile and abusive. Men and women who oppose gender self-identity can be labelled transphobes. Transgender people are in turn accused of homophobia and misogyny. It is probably relevant to the uncompromising tone that the issue is not one of philosophy but of the practical consequences. Many transpeople live in fear of challenge, ridicule and threats. Transwomen are subjected to open abuse and sometimes violence - as gay men sometimes are, possibly by the same people, policing masculinity. They also fear unpleasant challenges from women if they try to use women’s toilets and changing rooms. From the other side, the long and continuing history of male violence towards women can make women fearful and mistrustful of admitting people with male bodies to protected spaces where they are vulnerable, such as rape crisis centres, public toilets, changing rooms and refuges. Others fear losing the chance to correct historic disadvantage, for example, in collecting equal pay statistics. People who are same-sex attracted are concerned that younger people may find it hard to recognise they are gay or lesbian when it is suggested to them that their confused feelings mean they are in fact of another gender. Opponents talk of women, or gays or lesbians, being ‘erased’.”
“57. In March 2017 Stonewall published A Vision for Change, setting out action to advance trans equality at work, at home, in school and in public. It has also researched the levels of discrimination and hate crime experienced by trans people. This survey recorded that 2 in 5 had suffered an unpleasant “incident” and 1 in 8 had been physically attacked by a colleague or customer at work. There is no breakdown of the sex or gender of the attackers, but the report includes a quote from a trans person surveyed about two women ejecting them from women’s toilets. 58. Stonewall also prepared detailed policies for employers to promote inclusion for trans people as well as gays and lesbians. Many organisations have signed up with its Diversity Champions Scheme, aimed to spread inclusion in workplaces. Other employers participate in its Workplace Equality Index, which ranks the top 100 participant organisations for inclusiveness. 59. This change in direction caused tension among some of Stonewall’s traditional supporters. Lesbians in particular felt threatened that people with male bodies who identified as women would have access to same sex spaces, and alienated when told by some that they were transphobic if they objected. At the annual Pride march in London in July 2018 a group of lesbian protesters carried banners that ‘transactivism erases lesbians’, to which Stonewall responded that ‘transwomen are women’. In October 2019 one of Stonewall’s co-founders, Simon Fanshawe, considered setting up a breakaway group, because Stonewall had ‘lost its way… they had confused legal and biological questions with social identity’. This was the LGB Alliance.”
“In return for an annual fee of£2,500 , Diversity Champions received a dedicated account manager to advise on best practice and conduct client meetings with Garden Court Chambers stakeholder groups, free places at Stonewall best practice seminars, use of the Stonewall Diversity Champions logo, free copies of Stonewall research publications, discounted rates for Stonewall conferences, and ‘regular networking opportunities with the other 750 member organisations’. The declared aim of the scheme was to develop inclusive workplaces.”
“We are investigating concerns raised about Allison Bailey’s comments in line with our complaints/BSB policies. We take these concerns very seriously and will take all appropriate action. Her views are expressed in a personal capacity and do not represent a position adopted by Garden Court. Garden Court Chambers is proud of its long-standing commitment to promoting equality, fighting discrimination and defending human rights”
“189. While the report on the original reference was being drafted, Kirrin Medcalf of Stonewall had now sent his own complaint, dated 31 October, to Garden Court. The complaint seems to have been drafted on 28 October, when he posted on the STAG wall ‘done’ (referring to Shaan Knan’s appeal there to send messages of support) with a comment, adding that he had found an earlier offensive tweet, probably the Morgan Page one. 190. Identifying himself as Head of Trans Inclusion at Stonewall, he complained of 11 tweets by the claimant, giving their links. Some of these went back to September, so before the launch tweet. He praised Garden Court’s positive relationship with the trans community, but: ‘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’. The reference to Stonewall staff concerns … the tweet about Morgan Page on 22 September. He said this targeted a woman who worked for Stonewall, and called her – ‘Morgan Page, a male’. He complained of Allison Bailey calling their campaign ‘trans extremism’, which encouraged violence. He also complained of the accusation that Stonewall engaged in ‘appalling levels of intimidation, fear and coercion’.”
“On the premise that there is nothing sufficient to substantiate the allegation of coercion what is your view?”
“Faced with a Twitter storm on gender self-identity, they picked sides. The Heads chose to prefer the view that the claimant was in the wrong and that her tweets should be investigated, because there was a lot of opposition to the views expressed in them. They knew it was about sex versus gender. Although in evidence all professed not to have a view in the sex versus gender debate, we concluded that they were opposed to her, perhaps because they had not appreciated the consequences of the transgender debate which the claimant was protesting about, perhaps because they were unused to the forceful tone of Twitter communication.”
“Ms Harrison had already demonstrated her opposition to the claimant’s views about trans rights and about Stonewall, and had herself recognised that she should not be involved. It is hard not to infer that her own view on gender critical feminism as hostility to trans rights played a part in this decision. Maya Sikand, initially neutral, had shown hostility to the claimant’s 2 November tweets about Stonewall (tweet 10), and seems to have been influenced by Garden Court being a Diversity Champion, though Kirrin Medcalf’s complaint made no mention of this. From this we can infer that disapproval of the claimant’s beliefs about Stonewall informed her sense that there must be some breach of the core duties here.”
“From these matters we conclude that the claimant’s gender critical belief, and in particular her belief about Stonewall’s promotion of gender self-identity encouraging and being complicit in hostility to gender critical feminists, significantly influenced the finding that her two tweets were ‘likely’ to breach core duties.”
“Stonewall’s complaint of 31 October was only a complaint. There is no evidence that Stonewall directed how that complaint was handled; they did not follow it up, or even ask the outcome. … Alleging that Stonewall directed the complaint process was a conspiracy theory.”
“360. Of the mental element required, where the basic contraventions themselves require a mental element (as in direct discrimination and victimisation) then the tribunal must find that A’s reason for its instruction, inducement, causing, or attempts to induce or cause conduct that would amount to a basic contravention were significantly influenced by the claimant’s protected characteristic (here, belief), even if that was not the motive, or was not the conscious reason.”
“367. We next address Kirrin Medcalf’s complaint on behalf of Stonewall … As Head of Trans Inclusion he objected to the claimant on a number of grounds: (a) transgendering This appears to be a clerical error and should read “misgendering” i.e. referring to a trans person in the wrong gender. in various of the claimant’s tweets, including Morgan Page, a member of staff (b) attacks on trans people’s rights to access to women’s prisons and hospital wards (c) aligning Stonewall with extremism, intimidation and inflaming the debate (d) chairing meetings of Women’s Place, a ‘hate group’. 368. It is obscure what he wanted to achieve or Garden Court to do. The claimant sees the statement that continued association with her put them in a difficult position as a threat that she should be expelled if Stonewall was to continue its relationship with Garden Court. This is certainly one reading. Kirrin Medcalf said it was about the safety of staff if they were to continue working with Garden Court. This is not clear from his email, but is consistent with the protest about ‘targeting our staff with transphobic abuse’ on a public platform, and to ‘the safety of our staff and community’ being their priority Kirrin Medcalf explained that his staff safety as his purpose in writing the email in a little more detail. He is himself trans. Transwomen are apprehensive of being challenged in a hostile way by natal women if they use female toilets. They are often objects of violence. He did not say whether the violence came from women or men. He did attend a further meeting at Garden Court a month later, on prison policy, and decided that to mitigate the risk of challenge he would not arrive early, would attend with a cis-male colleague, and would not wear anything that associated him with Stonewall. But if mitigation of risk was his purpose in writing the complaint email, we considered it will have been wholly obscure to the recipients. Other than the final mention of safety, this concern could not be detected. Agreeing that he had not given any detail of his safety concern or what would mitigate any risk, he said in evidence that he had thought they would get back to him about it and they could have a discussion. To our minds however it was implausible that what he wanted was a discussion of arrangements for access to female toilets, or he would have said so. 369. Challenged on why he was not more specific about what he wanted, he said he had ‘had his advocacy hat on’, which we understand to mean that he was writing to protest about her views (stated to come from a member of Garden Court) and put the case for trangendered people. In other words, he wrote without any specific aim in mind except perhaps a public denial of association with her views. … 372. It is less likely he had in mind any formal action by chambers when he was too late for the meeting date advertised by Shaan Knan, though it is a possibility. The lack of any follow up to this complaint - it was not mentioned in the meeting with Garden Court about the scheme early in 2020 for example, even though they had had no response at all from Garden Court in two months – indicates that Kirrin Medcalf and Stonewall had not in fact been looking for any action. It was just a protest.”
“At most, their reaction to an attack on Stonewall, seen as an ally, was to consider whether there were any grounds for finding the claimant in the wrong, and reaching for BSB social media guidance as the only candidate. That was Stephanie Harrison’s response to [one of the claimant’s tweets posted on 2 November], which Stonewall did not complain about. That did not come from Stonewall. Kirrin Medcalf did not know about Bar standards or barristers’ duties.”
“377. As for causing, in the ‘but for’ sense it is true that if Kirrin Medcalf had not written, Maya Sikand’s report would have been limited to the original batch referred, which she would have dismissed without investigation. The email was the occasion of the report, no more. Was the letter an attempt to cause discrimination against the claimant? We concluded that it was no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate.”
“We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.”
“(1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention). [emphasis added] (2) It is not a contravention of subsection (1) if— (a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and (b) it is reasonable for A to do so.”
“There may be cases where inducement involves the offer of some benefit or the threat of some detriment, but in their ordinary meaning the words ‘to induce’ mean ‘to persuade or to prevail upon or to bring about’. In our judgment the intimation by Mrs McBride that ‘she would rather the school did not send anyone coloured’ as ‘that person would feel out of place as there were no other coloured employees’ did constitute an attempt to induce Mrs Patterson not to send coloured applicants for interview.”
“70. The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment ("ought to be held liable"). Written large, the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are interchangeable). To adapt the language of Jane Stapleton in her article "Unpacking 'Causation' " in Relating to Responsibility, ed Cane and Gardner (2001), p 168, the inquiry is whether the plaintiff's harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant's responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this. 71. In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name. Usually, there is no difficulty in selecting, from the sequence of events leading to the plaintiff's loss, the happening which should be regarded as the cause of the loss for the purpose of allocating responsibility. In other cases, when the outcome of the second inquiry is not obvious, it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant's obligation in the particular circumstances. What was the ambit of the defendant's duty? In respect of what risks or damage does the law seek to afford protection by means of the particular tort? … ”
“The tort of racial discrimination is a unique tort. It cannot be committed by accident. The act or omission must be deliberate but I agree with Pill LJ that there is no need for an analysis of why the act or omission is committed. I also agree with him that in these circumstances there is no need to superimpose the requirement or pre-requisite of reasonable foreseeability in order to achieve the balance of interests which the law of tort requires.”