Why the Mermaids/Maugham appeal against the LGB Alliance's charity status is a complete non-starter

guest post by @humangaymale

Thanks to JA for the image!

Charities don’t have to agree with each other’s beliefs. They just have to follow the rules about being a charity. Last week, a group of them, led by Mermaids and in conjunction with Jolyon Maugham’s Good Law Project, challenged the decision by the Charity Commission for England and Wales to add LGB Alliance to their register.

The decision was reached after more than a year of investigation and consideration of objections, the result of which was the Charity Commission found that LGB Alliance meets the requirements to be a registered charity and must now follow Charity Commission rules.

So why then are Mermaids, Maugham et al. appealing against this decision? What are the grounds of this appeal? The appeal submission document, which they have shared via a link from their Crowd Justice fundraising page, broadly covers five aspects: 

1) what they think LGB Alliance believes, 

2) what they think are the “true purposes” of LGB Alliance, 

3) the evidence they believe proves LGB Alliance’s “true purposes”, 

4) the public benefit criteria for registering as charity, and

5) their own eligibility (“standing”) to even bring this appeal.

This article addresses each of these aspects in turn.

1) Beliefs

What exactly is it that Mermaids thinks LGB Alliance believes?

The first belief they ascribe to LGB Alliance (7.1) is that people should be described and treated in accordance with their biological sex, irrespective of their stated gender identity/gender expression, or their legal status under the GRA or Equality Act. Furthermore, that it doesn’t matter even if this treatment is hostile, degrading or humiliating. 

They appear to be confusing two things: 1) acknowledging the reality of biological sex, and 2) asserting that someone’s sex is different from their gender identity or expression and that this reality must always be pointed out, even if such remarks are hostile, degrading or humiliating.

Let’s be clear: if gender identity were identical to biological sex, no one could have a gender identity that did not match their biological sex. In other words, it would not be possible to be transgender. Acknowledging the reality of someone’s biological sex in no way precludes an acknowledgement of the gender identity they feel.

A quick look on the LGB Alliance website shows that respect is the first of their values: “We do not condone, endorse, or encourage any abusive or discriminatory behaviour towards any group or individual.” Moreover, in talking about supporting transgender people, the site goes on to say “we fully support trans people in their struggle, for dignity, respect and a life lived free from bigotry and fear. We don’t hate trans people and we don’t wish to see them erased.”

Next, paragraph (7.2) alleges that LGB Alliance believes transgender people should be excluded from gay, lesbian and bisexual communities and charities and that this belief is held on the basis that transgender people are not same-sex attracted.

This misunderstanding similarly misses the point: what LGB Alliance is saying is that sexual orientation is not the same thing as gender identity. Of course, someone who identifies as transgender can be attracted to people of the same sex. There are also times where, for lobbying or social reasons, people with same-sex sexual orientation and people who identify as transgender will choose to come together. However, as these are two groups with distinct sets of needs, it is perfectly reasonable that communities and charities exist that focus on the needs of just one of these groups. Case in point, Mermaids exists for children they believe identify as transgender. Does this not exclude LGB people who don’t identify as trans?

The third belief (7.3) attributed to LGB Alliance is that a range of charities are spreading disinformation about the extent to which transgender people are protected under the Equality Act and about the medical issues associated with gender.

To be fair, this one is broadly true – in that LGB Alliance does believe disinformation is being spread. However, the difficulty Mermaids faces with citing this belief (with the tone of making it an accusation) is that they provide no evidence that the belief is not a statement of fact. They are basically saying they don’t like to have their views or actions scrutinised. 

2) True purpose

Having established what they think LGB Alliance believes, Mermaids and Maugham go on to set out in section 8 what they believe are LGB Alliance’s three “true” purposes.

Firstly, (8.1) to promote its views mainly through social media. This is an odd complaint, given that most charities promote their views through social media. While this isn’t in itself a core purpose, it does form part of the educational aspect for a charity in spreading its message and promoting its work.

Secondly, (8.2) to seek or oppose changes in law to restrict the legal rights and protections afforded to transgender people. As mentioned earlier, LGB Alliance’s support for maintaining the rights set out in law for transgender people is clear on their website as well as in their other statements. Maybe what Mermaids is referring to here is based on what they believe (or misrepresent) the law to be (see the third belief point above)?

The third alleged “true” purpose (8.3) is to impede the work of other charities that work for the benefit of transgender people, by various means including promoting the view that they spread disinformation and seeking to deprive them of funding. Curiously, Mermaids and Maugham appear to believe that another charity trying to raise funds is really doing it to deprive THEM of funding. (Maybe they’ve not noticed the other 165,000+ charities on the register?). In this accusation too, Mermaids and Maugham are expressing their opposition to the work of LGBT+ charities coming under scrutiny. They don’t like to be questioned or challenged (remember, the party line is “No Debate”).

They are essentially accusing LGB Alliance of saying one thing but really doing another. In legal terms, it is an allegation that LGB Alliance is a “sham”, and this was addressed in the Charity Commission decision ruling document back in April. The First-tier Tribunal has previously ruled that you can’t suggest the declared objects in a governing document are not the true objects unless you are making the accusation of a sham. The Charity Commission found no evidence to support allegations of dishonesty or a sham, and this submission from Mermaids and Maugham provides none either.

3) Evidence

So, having summed up the alleged beliefs of LGB Alliance (according to Mermaids), and their “true purposes” (according to Mermaids), let’s look at the evidence for these allegations.

The appeal submission cites seven pieces of ‘evidence’ to back up the allegations in section 8 (and here I’m using quote marks not because ‘evidence’ is the word they use, but because it’s being used not only loosely but incorrectly).

In (9.1) they say that at the LGB Alliance launch event in October 2019, the group resolved to set up an organisation to advocate for trans-exclusionary or gender-critical beliefs. Well, this is half right. The driver for setting up an organisation focused on the rights of lesbians, gays and bisexuals arose from the way gender ideology is negatively impacting them. So, advocating for gender critical beliefs is part of what the organisation was set up to do, in that they say sex is binary and that same-sex sexual orientation is based on biological sex. However, that isn’t the same thing as trans-exclusionary beliefs. Mermaids are conflating two different things and providing no evidence for the trans-exclusionary allegation (clue: because there is none, because LGB Alliance isn’t about trans-exclusionary beliefs). 

In (9.2) they say that LGB Alliance began engaging in political activity, campaigning, and lobbying, and seeking to hamper the work of LGBT rights charities, describing charities like Mermaids as “gender identity lobby groups”. Again, there’s a nugget of truth here, in that LGB Alliance did start campaigning, lobbying etc. However, the fact that Mermaids and other charities disagree with what LGB Alliance thinks and stands for does not equate to LGB Alliance’s work seeking to hamper their work. Many charities have “competing” goals and beliefs. There’s nothing wrong with that. If there were, then a lot of other charities wouldn’t have made it onto the Charity Commission register.

Paragraph (9.3) includes quotations from an early draft of the mission statement which was no longer part of the mission by the time LGB Alliance became a registered charity. What were these (now replaced) heinous words concerning? They talked about focusing on biological sex rather than gender theories which many “regard as pseudo-scientific and dangerous”, and observe that “gender is a social construct which is used to impose often harmful and outdated stereotypes.” These are both statements of fact, neither of which would prevent LGB Alliance from adhering to the charitable objects set out in their application to the Charity Commission, or the rules of being a charity. And as noted, they are no longer part of their mission statement anyway, so this one is doubly irrelevant.

Paragraph (9.4) concerns a quote from a speech that mentioned the “damaging theory of gender identity.” Again, this isn’t anything that precludes LGB Alliance’s charitable objects as approved by the Charity Commission. Or are Mermaids suggesting that the theory of gender identity (gender ideology) is one and the same thing as transgender people? LGB Alliance is very clear that they are never speaking against actual transgender people, but rather the ideology being promoted, supposedly in the name of transgender people.

In (9.5) Mermaids and Maugham explain that they don’t think LGB Alliance is engaging in enough activity that relates to education, human rights, or equality and diversity, and that all their campaigns undermine charities promoting LGBT rights. Leaving aside the fact that LGB Alliance could do a great deal more if so much time weren’t taken up defending themselves against spurious accusations (driven by certain MPs, actors, and fox-bashers), getting set up as a new organisation involves a lot of behind-the-scenes work that most aren’t aware of.

There’s also a lot of great work already being done for such a new charity, including educational content on the website and in webinars, campaigns and lobbying to parliaments on issues affecting LGB people, submissions to parliamentary committees and consultations, supporting similar LGB rights groups in other countries facing homophobia, and a vast amount of individual support given to lesbians, gay men and bisexuals who are contacting LGB Alliance every day about homophobia they face at home, at work, and online. The fact that so much of this is behind the scenes does not mean it isn’t happening.

The odd thing about this piece of “evidence” is that it directly contradicts (9.2). Either LGB Alliance has been campaigning and lobbying, or they’ve not been doing anything. Which is it?

Section (9.6) refers to communications in which LGB Alliance supposedly “targets” other charities. Leaving aside that this is all from before LGB Alliance achieved registered charity status, none of the comments denigrate the charities. Rather, they disagree with and challenge the positions those charities take – something that is well within the activity permitted by Charity Commission rules. What Mermaids and other charities are objecting to here is any kind of scrutiny of their actions. This is certainly not evidence of what they are alleging in this appeal.

Paragraph (9.7) says that although the objects and purposes as set out in LGB Alliance’s registration application, and further explained on their website, do meet the requirements to be a charity, those objects do not refer to these other things Mermaids and Maugham believe are their true purpose. But of course, why would they refer to these other things when they are not their objects and purpose? This is a repeat of the allegation that LGB Alliance is a sham, and not really believing or doing the things they say they are set up to do. 

Even if Mermaids were correct in what they’re accusing, then as a registered charity LGB Alliance still has to abide by the rules of being a charity. The minute they did anything outside of their established purpose they could be reported, investigated and face losing registered status.

4) Public benefit

To be a registered charity you have to show some kind of public benefit. This doesn’t have to benefit to the whole public, but just a significant enough group. Mermaids allege that LGB Alliance seeks to operate only for the benefit of people who are not transgender AND share LGB Alliance’s beliefs and that this is not a significantly large enough population to meet the public benefit test to be a registered charity. 

Leaving aside the fact that LGB Alliance seeks to deliver benefit to LGB people whether they agree with them or not, (and the question of how it would be possible to lobby for LGB rights that only benefited people who agree with a specific set of beliefs), even if only 1% of LGB people agreed with LGB Alliance’s beliefs (actual or alleged) this would still be a population more than 10 times larger than the population of children Mermaids would describe as being “transgender or gender diverse”. So, if LGB Alliance isn’t working for a large enough population to be a registered charity, then neither is Mermaids.

5) Standing

To take someone else to court you need to establish “standing”. This is the right to initiate the action, and invoke the court’s jurisdiction, based on the alleged negative impact on the appellant being traceable to a respondent’s conduct. Basically, Mermaids must show that the Charity Commission’s decision to register LGB Alliance has a negative impact on them if they want to appeal the decision.

In perhaps the most absurd section of these “grounds of appeal”, Mermaids asserts that if LGB Alliance is a registered charity this negatively impacts on funding Mermaids might otherwise receive; be that grants from trusts or through individual donations. Do Mermaids really think there is any overlap in the Venn diagram of donors to the two charities? Furthermore, the apparent implication Mermaids has overlooked in this assertion is that only one LGBT charity would be allowed to be registered in order to avoid competition for donations. But what of charities for other causes? Surely Mermaids should not exist then and any money they received would just go to NSPCC instead? Or do we get rid of all health-related charities and increase everybody’s taxes to core-fund the NHS? 

Where does all this lead?

The specific action the appeal asks of the tribunal is short and two-fold. Firstly, to quash the decision to register LGB Alliance and remove them from the register. On the (lack of) evidence this seems like a stretch, to say the least. No charity rules have been broken and LGB Alliance meets the criteria to be registered. Secondly, they ask for “any such further other relief as the tribunal considers appropriate.” Hopefully, the tribunal will see this as the nuisance claim it is and the relief that they consider appropriate will be firm guidance to charities such as Mermaids et al. that this is no way for registered charities to behave. No doubt the Charity Commission itself will be working its way through a number of complaints about how certain other charities are acting well outside their own charitable purposes.

This whole appeal is a farce. It is built on a pack of misrepresentations and contradictions. Fundamentally, Mermaids has not demonstrated its standing for such an appeal to even be considered in the first place. If the First-tier Tribunal doesn’t dismiss this appeal out of hand, then the ensuing circus will show how desperate to avoid the spotlight of scrutiny Mermaids and the others have been, and how much they want to simply silence anyone who doesn’t go along with their ideology.

The most surprising thing is the short-sightedness of Mermaids and other charities involved in even bring this appeal at all, seemingly oblivious to the consequences for them. Firstly, if this appeal is successful on the grounds they are contending, then they all face the possibility of being de-registered because they are all competing for funding. Secondly, and what should really concern them more, is what would happen if LGB Alliance were no longer a registered charity. 

Aside from donations going through the roof, LGB Alliance would no longer be subject to the rules of the Charity Commission. They’d be able to spell out in no uncertain terms exactly how Stonewall, Mermaids and the others are damaging women, LGB people, and gender non-conforming kids. They could do and say whatever they wanted without having to be polite or work within strict boundaries of a charitable purpose, and without fear of any kind of oversight or retribution from the Charity Commission. If what Mermaids is alleging is actually true, then is this really a force they want to unleash?

You can follow James on Twitter here.