The public campaign against the LGB Alliance by established trans-focused charities Stonewall and Mermaids escalated into litigation today with an appeal against the Charity Commission’s decision to award the LGBA charitable status (available here). This follows ferocious objections from the groups to the initial application for registration and a campaign of well publicised subsequent complaints to the commission itself by supporters of both charities, (many of which were dismissed as “emotional”). It seems then that 2021 Pride month will set the stage for an extraordinary legal spectacle of large, multi-million pound trans focused charities seeking to silence and effectively destroy a lesbian/gay/bisexual focused one.
The appeal itself is crowdfunded by and appears to be promoted by the non for-profit company “The Good Law Project” but the grounds of appeal themselves name the charity Mermaids as the entity actually appealing the decision. Passing reference is also made to Stonewall who, following a week of high profile exits from its diversity scheme, make complaint that the LGBA is undermining that scheme. This complaint may be hard to reconcile with Equality Minister Liz Truss’ urging of all government bodies to leave the scheme and a damning report into Essex University which found Stonewall represented the law as it wished it to be. The structure of the people complaining therefore appears to be two multi million pound charities and others speaking through a company which in turn crowd funds donations and will retain any excess donations for trans focused litigation.
In order to argue the case the various participants will need to demonstrate they have “standing” so to do. This term is a legal concept which in broad terms requires a party to show they are sufficiently affected by a decision such that the court should entertain their argument. This issue is always considered as a preliminary point in such cases on the basis there is little point in listening to an argument a party is not entitled to make. This could easily turn out to be the key issue in the case and may well be a real challenge in bringing the appeal as a 2009 case where Deputy High Court Judge Lord Carlisle held in a case involving two peace focused charities that the appellant “happens to be interested in the subject area and objects of the other charity and does not agree with the Charity Commission, but in my judgment that is insufficient” to establish standing. In this case Mermaids may struggle to establish that they are even interested in the same subject area as the LGBA.
The grounds themselves rehearse a number of complaints already dealt with by the Charity Commission and so the appeal, to some extent, represents an attempt at having a second bite of the cherry. Perhaps most strikingly, the grounds appear to claim that anything other than complete agreement with the gender identity position is in and of itself a de facto attack on trans focused charities. The grounds specifically complain that Bev Jackson said in March 2020 “We’re applying for charitable status and building an organisation to challenge the dominance of those who promote the damaging theory of gender identity”. The complaint that this speech is enough to make good the objection may be extremely difficult to establish in law given recent the statements by EHRC chair, Baroness Falkner to the effect that a gender critical position is a protected characteristic and the fact the body recently intervened in the Maya Forstater Appeal Case to protect extremely similar speech and thought.
The core of the complaint appears to be that any dissent from a belief in gender identity is political in nature and therefore outside the objectives of a charity. Logically this may be a difficult argument to pursue as it is based on the premise that one side of a discussion is political, but the contrary Stonewall/Mermaids position is somehow above politics or reasoned discussion. The focus on a “political” objection is also difficult to reconcile with the Charity Commission’s decision at paragraph 44; “Charities with purposes for the promotion of human rights may engage in political activities when enforcing rights against states and challenging decisions of government and public bodies.”
The grounds go onto complain that the LGBA believes that trans people should be excluded from charities and communities, in effect, a demand that all gay charities must incorporate trans objectives. As the appeal is at least in name brought by a trans only charity with no public duties to LGB people this may be a difficult argument to logically sustain particularly when set against the fact that prominent trans figures such as Dr. Debbie Hayton regularly voice support for LGBA.
Somewhat remarkably, the grounds also complain that same sex attracted persons who dissent from the gender identity position do not form a sufficient number of people to warrant charitable status, an argument that is in effect a naked “anti-minority” position on its own terms. Further complaint is made that Mermaids specifically will lose out on funding to the LGBA, given the distinct targets and constituencies of the two charities, how such financial effects might logically follow is not immediately obvious.
In a further twist, the precise position of Stonewall was complicated by an amendment to the crowdfunding website which this morning named Stonewall as supporting the action but went onto delete reference to the organisation, it is presently unclear whether Stonewall openly or otherwise support the case.
Dennis Kavanagh is a legal commentator and barrister (non-practising).
Dennis blogs about LGBT issues and law here