Mermaids’ appeal against the England & Wales Charity Commission’s decision to award the LGB Alliance charity status has been dismissed on technical grounds.

The trans youth charity took legal action against the decision in June 2021, backed by a coalition of LGBTQ+ organisations including the LGBT+ Consortium. It argued that, while the LGB Alliance (LGBA) claims to support the rights of lesbian, gay and bisexual people, its “real purpose is the denigration of trans people and the destruction of organisations that support them”.

Its activities cause “immeasurable harm” to an already marginalised community, including “encouraging discrimination against transgender people” and obstructing the work of registered LGBTQ+ groups, and does not pass the legal test for charity registration, a tribunal heard last year.

In a decision handed down on 6 July, judges Lynn Griffin and Joseph Neville dismissed the case on technical grounds, concluding that Mermaids does not have the legal “standing” needed to challenge the commission’s decision.

LGBTQ+ campaigners have moved to dispel misinformation circulating online, including claims that the ruling affirms the group’s right to charitable registration.

The tribunal did not rule on whether LGBA’s aims and activities are charitable, explained grassroots organisation Trans Activism UK: “The judges opted not to provide their views on whether or not the LGB Alliance should have charity status…

“The appeal was dismissed. Nobody lost or won.”

No legal standing

Before deliberating on whether LGBA meets the legal requirements for charity registration under the 2011 Charity Act, the tribunal was first tasked with deciding whether Mermaids had the legal right, or “standing”, to appeal the commission’s decision.

In order to have the requisite standing, Mermaids would have needed to show that its own “legal rights” had been “impinged, altered or affected” by the decision to award LGBA charity status, the judges explained. However, the tribunal could not establish a “causal relationship” between LGBA’s charitable registration and the impacts of its activities on Mermaids.

“LGBA’s activities prior to the application for registration, throughout the period awaiting registration and post registration, taken together with the evidence we heard, demonstrate clearly to us that LGBA is determined to present its view to the public and to challenge those it disagrees with, regardless of registration,” the decision read.

“There is no legal right to be free from criticism by those who disagree with you, or to prevent those who hold beliefs that the law recognises as protected from expressing themselves or seeking to persuade others to their point of view.”

Giving evidence in support of LGBA last year, the group’s founder Katherine Harris told the tribunal that gaining charity status had “made a big difference” because of “all of the opportunities” this allowed. But she added: “We would have lobbied over our safeguarding concerns in any case.”

The judges were “unable to reach agreement” on whether LGBA met the requirements for charitable status under the 2011 Act – and, because they found Mermaids did not have the necessary standing to challenge the commission’s decision, it would be “inappropriate” for the judges to deliver conclusions on a “hypothetical issue”, the decision explained.

The hearing

Over six days between September and November 2022, lawyers and witnesses for Mermaids had argued that, while LGBA claimed to support lesbian, gay and bisexual people, the majority of its campaigns had involved promoting “gender-critical views and policies to the disadvantage of trans people”. The tribunal heard that LGBA’s activities had caused “immeasurable harm” to an already marginalised community including “encouraging discrimination against transgender people” and obstructing the work of registered LGBTQ+ groups, and did not meet the legal requirements for charitable status.

Since forming in 2019, LGBA has campaigned against gender recognition reform, challenged school education on gender identity, and sought to exclude trans people from a proposed ban on ‘conversion practices’. It has also “repeatedly targeted” Mermaids, Stonewall and other LGBTQ+ charities, the tribunal heard last year. It has campaigned to remove Mermaids’ funding, called on institutions to cut ties with Stonewall’s Diversity Champions scheme for inclusive workplaces, and accused Stonewall of homophobia and “extremism”, spreading disinformation, and endangering the rights of children, women and gay people.

“It has done nothing to tangibly benefit LGB people,” said Paul Roberts, CEO of LGBT+ Consortium, giving evidence in support of Mermaids last September.

LGBA founding members Eileen Gallagher and Katherine Harris told the tribunal that the group had made a short film and “put in funding” for a helpline to support young LGB people, and promised “hugely good intentions”. Giving evidence in support of LGBA, Harris said the group had “received so many messages” thanking it for campaigns that support LGB people, adding: “We don’t like being called ‘transphobic’ because we are not.”

Tribunal accepts concerns against LGBA

While the tribunal did not rule on the group’s right to charity status, it did say that concerns raised by the Charity Commission in March 2020 – when LGBA first applied for charity status – had been “well-founded”.

The commission said at the time that the group’s social media posts contained “inflammatory and offensive” language, and that “it was not immediately obvious how some of these postings furthered any of the LGB Alliance’s purposes”. Its messaging “appeared to involve, at times, demeaning or denigrating” the legal rights of others. LGBA agreed to revise its social media policies and the commission accepted its application in April 2021.

Last week’s judgment stated: “Mermaids submits that LGBA has gone beyond the boundaries of civilised debate. In [its] registration decision… the commission can be seen to have had similar concerns. In light of the evidence, we consider that these were well-founded.”

But it added: “Public scrutiny, together with prompt and effective regulation by the commission, will, we find, deter LGBA from crossing the line into what is inconsistent with the law or the regulatory regime in which all charities must operate.”

In a statement shared after the decision, Mermaids highlighted that “key points of our evidence” had been accepted by both judges. “They agreed with us that some of LGBA’s output on social media went beyond the boundaries of civilised debate” and that the group had made “limited” progress in advancing the rights of LGB people.

The judgment stated that LGBA’s activities to support LGB people had been “progressed only to a limited extent” since the commission’s decision to award the group charity status in 2021, though it added: “We note LGBA’s evidence that this was due to both the devotion of time and resources to these proceedings, and what Bev Jackson described as a prior need to ‘secure’ their position by ‘preventing… self-ID [legislation] being imposed on the public without due reflection and consultation” – a reference to the group’s campaign against gender recognition reform in Scotland.

Reaction

LGBT+ Consortium, part of a coalition of LGBTQ+ groups that backed Mermaids’ case including the Good Law Project, said in a statement: “We are proud to have supported Mermaids and the Good Law Project throughout this appeal and firmly believe that charitable status should be reserved for those organisations that work towards a more inclusive society… Our LGBT+ communities will not be divided. We oppose transphobia in all its forms. We stand together.”

Trans Activism UK said the charity commission had “failed to do their due diligence” and cited the “unfathomable amount” of complaints filed with the regulator against LGBA’s “repeatedly hateful and dangerous behaviour”.

Responding to the decision, LGBA chief executive officer Kate Barker said: “We are absolutely delighted with this judgment and with the news that we will retain our charitable status… Two years ago, we were clear that Mermaids had no standing to challenge our registration and today the tribunal has confirmed that we were correct.”

But in a statement shared after the ruling, Mermaids pledged: “[We] will continue to focus on the critical, urgent challenges that trans young people and their families have told us they’re experiencing. This includes accessing healthcare, being safe and affirmed at school, and living their lives with dignity and respect.”