Mermaids v LGB Alliance: Tribunal rejects attempt to deregister controversial charity
29 July 2023
Despite what the parties and their supporters hoped, this case (Mermaids v The Charity Commission of England and Wales & LGB Alliance  ULKFTT 563 (GRC)) was not – said the Tribunal – about the rights of gender diverse people (as represented by Mermaids) or the rights of gay, lesbian and bisexual people (represented by the LGB Alliance).
On the face of it, the issue decided by the Tribunal (General Regulatory Chamber, Charity) on 6 July 2023 was a narrow one: whether Mermaids was entitled to challenge the Charity Commission’s decision to register the LGB Alliance as a charity. But its ruling – that Mermaids could not – was highly significant as a robust affirmation of the value of debate in a democratic society.
Witness evidence was heard in a small hearing room in central London and relayed on-line about the beliefs and activities of Mermaids and the LGB Alliance. Mermaids, according to Trustee, Dr Belinda Bell, was founded in 1995 to relieve the mental and emotional stress of those age 19 and under (and their families) affected by gender identity issues and to inform the public about the issue. The LGB Alliance was founded in 2019 to support and advise same-sex attracted men and women and was registered as a charity on April 2021.
Mermaids, however, alleges that the LGB Alliance promotes “anti-trans” “gender critical” beliefs and seeks to attack and undermine its own work. The LGB Alliance disagrees with this characterization, but it plainly opposes many “orthodoxies” advanced by Mermaids. For example, the LGB Alliance contends that gender identity theory is motivated by homophobia and opposes the “medicalisation” of gender-dysphoric children. Prescribing children with puberty blockers, it says, and intervening surgically is destroying the lives of young people who are in reality not “trans”, but same-sex attracted.
Within the litigation the Charity Commission opted to take a neutral stand, leaving the LGB Alliance, in effect, to defend its charity registration.
The Legal Framework
Under the Charities Act 2011, the decision to register (and de-register) a body as a charity rests with the Charities Commission, subject to appeal to the Charity Tribunal. Ordinarily an appeal is brought by a body refused registration but standing extends to “any other person who is or may be affected by the decision”. The threshold question was thus whether Mermaids was “affected” by the Charity Commission’s decision.
Having analysed the case law, the Tribunal extracted and applied the following principles from Nicholson v Charity Commission  UKUT 198 (TCC) a decision of Asplin J (as she then was) at paragraph 34:
- whether a person (or body) is “affected” is fact sensitive, to be considered in light of all the circumstances;
- to be affected the person’s legal rights must have been impinged, altered or affected by the Commission’s decision;
- it is insufficient that the person disagrees with the decision, however sincere their concerns;
- the Attorney General may bring an appeal in the public interest but there is no public interest test within the statutory phrase;
- a person’s engagement with the Commission’s decision-making is irrelevant in determining of they are affected by the decision;
- to be affected, the decision must relate to the person in some way.
The Tribunal’s Finding
Mermaids complained that from its inception the LGB Alliance mischaracterized and attacked Mermaids’ work and discouraged other organisations from funding and working with them. The effect of the LGB Alliance’s charity registration, Mermaids asserted, was that “its false claims about Mermaids … are being taken more seriously”. On occasion, before delivering training or corporate engagement talks Mermaids had been contacted, it complained, to be asked if allegations made by LGB Alliance were correct. This illustrated, according to Mermaids, “interference with our work”, reputational damage and potential financial cost.
These facts, the Tribunal found, were insufficient to establish standing. “Charitable status does not come with any guarantees of funding nor any freedom from criticism or debate”, it stated (at paragraph 66). The aims of many charities overlap, it said, leading to inevitable competition for funds to pursue their work.
The LGB Alliance’s activities prior and post registration were no different, the Tribunal found: it was determined to present its views and criticise those it disagreed with, regardless of registration. Accordingly, Mermaids failed to establish a causal relationship between the registration and the effect of the LGB’s Alliance’s activities on it.
Moreover, the decision under appeal did not relate to Mermaids, it was not about Mermaids or its work. Although Mermaids was interested in the outcome of registration (like Mr Nicholson) that did not vest in him, or Mermaids, a right to challenge the decision.
Similarly, the fact that Mermaids profoundly and sincerely disagrees with the Commission’s decision “emotionally”, “socially”, “politically” and “intellectually” is insufficient to provide them with standing to bring this appeal.
To the extent that the LGB Alliance’s criticisms exceed “civilized debate”, as Mermaids alleged, this was for the Charity Commission to regulate – as it had done on the occasion of registration in response to language on social media which it considered inflammatory and offensive.
Subject to those limits, the Tribunal underlined that an essential condition of truly democratic government is the free exchange of information and opinion about the laws and policies which a state should enact. “Views change” it said, and “the consensus held by society on any particular topic will evolve as new voices enter the debate and challenge the established position”.
The Tribunal cited with approval Lord Bingham’s belief that a rationale of the democratic process is to foster public debate of competing views as “exposed to public scrutiny, the good will over time drive out the bad and the true will prevail over the false” (paragraph 68). As he further observed, it is a belief which underpins Article 10 of the European Convention on Human Rights: “freedom of thought and expression is an essential condition of an intellectually healthy society”.
So, Mermaids’ legal action has concluded, but the impassioned debate continues. The effect, for sure is that in one guise or other, the Courts will again be called upon to adjudicate.
Marina Wheeler KC is a barrister at 1 Crown Office Row