A unique case: Mermaids v Charity Commission
The First-tier tribunal has dismissed an appeal by the transgender children’s charity, Mermaids, to challenge the Charity Commission’s decision to register the LGB Alliance (LGBA) as a charity.
Anna Glover, paralegal in our sports, education and charities team, outlines the case and considers what this could mean for the charity sector.
Mermaids and LGBA
Mermaids is a registered charity which aims to “relieve the mental and emotional stress of all persons aged 19 and under who are in any manner affected by gender identity issues”.
LGBA is a registered charity which supports lesbian, gay and bisexual (LGB) people to “highlight injustice” and “tackle discrimination” against the LGB community. LGBA was registered by the Charity Commission in April 2021.
The two charities conflict in their positions on gender identity. LGBA hold the view that sex is binary and separates the issues faced by the LGB community from those faced by transgender people.
In contrast, Mermaids support transgender, non-binary and gender-diverse children and young people.
Case timeline
In June 2021, Mermaids appealed LGBA’s charitable registration, arguing that LGBA should not be recognised as a charity due to its “anti-trans” activism.
Under the Charities Act 2011, the Charity Commission has the power to register charities, subject to appeal by the Charity Tribunal. Ordinarily, an appeal is brought by a body that was refused registration. However, standing (i.e. the legal right to challenge the decision) extends to ‘any other person who is or may be affected by the decision’.
In the tribunal, the Court considered whether Mermaids had the standing to challenge the Commission’s decision to register LGBA as a charity and, if it did, whether LGBA is a charity as defined by the 2011 Act.
Mermaids claimed to have standing on the basis that LGBA had mischaracterised Mermaids’ activities and, in doing so, encouraged organisations not to support or work with them. The two charities’ differing positions on gender identity were a focus of the hearing.
The Court’s findings
Considering Mermaids’ position, the Court found that Mermaids did not have the standing to bring a challenge, stating that “it is insufficient that a person disagrees with the decision emotionally, politically or intellectually and as a result is affected emotionally and/or socially, however sincere their concerns”.
In its judgment, the Court distinguished between the activities of LGBA and the activities of their supporters, stating that a charity cannot be held responsible for the actions of a supporter.
As Mermaids did not have the standing to bring the appeal, the second question of LGBA’s eligibility for charitable status did not receive judgment.
Judging panel conflicts
Interestingly, the two-judge panel were “unable to reach agreement on whether, if Mermaids [did] have standing, LGBA is a charity within the meaning of the 2011 Act”.
It is unfortunate that the judges did not set out their hypothetical viewpoints, as the case raises important questions regarding charitable status and the limits on charitable activity.
In a statement following the judgment, a Charity Commission spokesperson said that “it is not the Charity Commission’s role to regulate public debate on sensitive issues… our role is to apply the law”’.
The case marks the first time one charity has challenged the legal status of another and makes clear that a charity does not have the right to prevent another charity’s freedom of expression.
It is understandable that the Court ruled as it did; had it decided against the Commission, this could have opened the floodgates to other charities to challenge organisations with conflicting outlooks.
However, the case does raise an interesting question in relation to when the threshold might be crossed so that a charity is ‘affected’ enough to have standing.
If you have any queries on charity law in general, please contact Samantha Pritchard using [email protected] or 0191 211 7905.