While the gender debate rages on between family and friends, on social media and now in the workplace, a growing number of women have been fighting their employers tooth-and-nail over the right to hold gender-critical beliefs without being subject to workplace discrimination.
In 2021, the Employment Appeal Tribunal ruled that think-tank researcher Maya Forstater was discriminated against by her employers. Forstater won on the ground that her philosophical beliefs on gender, which include the belief that sex is immutable and not to be conflated with gender identity, is a protected belief.
The Forstater judgment paved the way for further employment discrimination disputes to be fought in this manner. Garden Court Chambers’ (GCC) barrister Allison Bailey is an example of the most recent high-profile litigation in gender-critical employment disputes, when she won her case against GCC but lost her claim against LGBTQ+ charity Stonewall.
With Bailey’s official appeal on the Stonewall decision on the horizon, The Lawyer spoke with Doyle Clayton partner Peter Daly, an employment solicitor who has fought 22 gender-critical employment discrimination cases, including for both Forstater and Bailey.
“I’ve always enjoyed doing slightly unusual cases,” says Daly. “When I was a trainee, we were encouraged to pick up a case and run with it and see how far we got before reaching a point of saying, I’m not qualified to do this, or I haven’t got the resources.”
So, when Daly became a solicitor in employment law at Bindmans, and a case on ethical veganism as a protected philosophical belief landed on his desk, he threw himself into the case, and it received considerable media attention: “The press at the BBC loved it. I think we got lucky on a slow news day, and they went big with it. There was this idea of, ‘What do you mean, you can’t discriminate against vegans?’ It got worldwide coverage.”
Once a lawyer gets a reputation for doing unique cases, the process of receiving more unusual cases can feed itself. So, when Old Square Chambers barrister Anya Palmer picked up the phone and rang Daly, who was soon to be starting a position at Slater & Gordon, he accepted Forstater’s case: “She said to me, ‘Peter, what do you know about sex and gender? Because I’ve seen you’ve done this philosophical belief case on veganism, and I’ve got another one for you’.”
These gender-critical employment cases have several commonalities: many are in highly academic employment settings, are in institutions that are self-defined as moral organisations and, of course, involve individuals within them fighting an issue that people on either side of the debate simply won’t budge on.
Employment disputes that rest on philosophical beliefs are also incredibly complex, particularly for gender-critical discrimination cases. At the heart of this issue is how we identify as individuals and as organisations on a moral spectrum in modern-day society. Daly explains: “We see ourselves as good moral players, which we take pride in. It leads us to direct how we behave on a day-to-day basis, how we behave at work and how institutions behave and how they are seen and wish to be seen.
“This concept of being a moral player or a moral community means that people are a lot more attuned to what they perceive to be immoral behaviours. On the one hand, addressing bigotry is unequivocally a good thing. But sometimes, what constitutes an immoral behaviour is extremely subjective and in the eye of the beholder.”
The reaction of some of these organisations comes down to their very nature. Daly explains: “If a moral organisation has been accused of discrimination, it carries so much more weight because it’s not just its actions being criticised but its whole identity. It’s very easy for those organisations to react with extreme prejudice to any complaint or concern of discrimination because it is perceived that the gender-critical woman is attacking the institution’s identity.”
Daly had one case that involved a Plc, rather than the likes of universities, think-tanks and barristers’ chambers: “They were an absolute model of what should be done. They got everybody around the table, had a conversation and resolved it. As far as I know, everybody moved away from that much happier for it. When you’re not kind of blinkered, or when you’re not self-defined as a moral organisation, it’s a lot easier to do that.”
The debate has been commonly referred to as a civil war among the left. It also concerns issues people on both sides feel strongly about, such as child-safeguarding, violence against women, and a history of harassment toward LGBTQ+ people. Individuals and institutions’ views on these topics can also be what attracted the employee and employer to each other in the first place. Daly says: “The fact that these people won’t back down from these views and feel so strongly about them is in large part in most cases what attracted them to that organisation in the first place, and what attracted the organisation to them.”
Although lawyers are doing judicial review cases, these can be extremely expensive. There are still few lawyers doing employment litigation cases, and Daly is undoubtedly the lawyer who has done the most. Daly says that since 2021 he has been trying to encourage lawyers and other firms to get involved in this work: “It’s great work – it’s interesting, ground-breaking and genuinely fascinating. If that’s the kind of thing that floats your boat, then why not do it? For an awful lot of employment and discrimination lawyers, that kind of work is precisely what floats their boat. I’ve been encouraging it, not least because you end up with a better body of law, there are also more brains working on it.”
Daly continues by saying that many of these cases continue to come in: “They are not always in the public domain, either because they settled or because employers genuinely find themselves in a position where they thought they were doing the right thing, and once you explain the litigation risk, they’re open to a conversation.
“The other issue is that there’s no funding for it, you’ve got to crowdfund, meaning you have to go public. Some claimants are happy to do that, and others don’t want to.”
Crowdfunding needs social media, which is where the sex and gender debate is at its most toxic. On Twitter, it is commonplace to be publicly shamed and for individuals to take matters into their own hands when they see a comment that they perceive as discriminatory. Bailey’s tweets on the “cotton ceiling” enraged Twitter transactivists, as did Forstater’s tweets on gender recognition. A Twitter mobbing ensued for University of Sussex professor Kathleen Stock, a case Daly advised on that ended in no litigation and an apology from the university.
So, the online environment of Twitter amplifies how crowdfunding can be a double-edged sword. Daly explains: “When Maya’s crowdfunding launched, it blew up. In the first weekend, tens of thousands of pounds were raised. But it also received a lot of vitriol online, with the use of all the kinds of slurs that usually attach to the women who bring these cases.”
Daly has no qualms about putting his name on the cases for crowdfunding. He explains: “I think it’s very important for anybody who’s thinking of donating to a legal case that they know who the lawyer is and that the lawyer is prepared to put their name to it. It’s saying that this isn’t some nonsense, I stake my reputation and my name on the fact that I can’t tell you this case is going to win, but I can tell you it’s got merit.”
Social media attention has also led to greater public awareness of the litigation and court process, explains Daly: “All of the hearings were either remote video or hybrid. They got hundreds of viewers, I think 300 at one point for Allison Bailey’s case. These are cases that people watch and follow.
“A non-lawyer friend of mine watched some of the cases. She told me she suddenly realised at the end that she knew so much about how a court case works, what the law is, what a barrister is doing when he is cross-examining, what constitutes a good witness and what a judge wants to see. If you take the whole process away from the subject matter and look at the public engagement with the law, it’s been fantastic.”
Judges have also worked to facilitate the public. Daly says: “Usually, as the claimant’s solicitor, I don’t get looked at by a judge. But he said to me at the start of every session and two or three times a day, ‘Mr Daly, can you make sure that the bundle is in the video chat so the public can read it?'”
The Twitter account Tribunal Tweets has played a role in raising public awareness in real-time live tweeting of the cases, says Daly. “You don’t have to have a court log-in, you can scroll through it in a few minutes and get a sense of it. And again, the judges have been incredibly open to that and are recognising that Tribunal Tweets, which is avowedly a gender-critical collection of people, nevertheless, do this thing. And they do it objectively, fairly, and reasonably, even though they’ve got their own point of view.”
How can individuals in organisations deal with this type of issue when it lands on their doorstep, though? Daly has some advice: “You’ve got to create a safe space for people to disagree. Be circumspect about the sources of legal advice you are receiving. Don’t take sides. If you’ve got a situation where two employees are having a disagreement about sex and gender, run a million miles away from the idea that one of them is bigoted or prejudiced on either side. Communicate to your staff that people will strongly disagree on values they take very seriously, which they take to be self-evidently morally correct, and that isn’t of itself unlawful.”
With further gender-critical employment cases like this undoubtedly on the horizon, the prior and current disputes illustrate the importance of why having a zero-sum game of moral winners and moral losers can be painful for both organisations and the individuals within them.
