LGB Alliance Charity Registration Challenge

The decision has triggered debate amongst the LGBTQ+ community and beyond, including an appeal brought to the Charity Tribunal against the decision this year.

The case is the first time a charity has appealed another charity's registration in court, and provides a fascinating insight into the ideological debate around the concept of 'charity', and the legal test for charitable status.

Background

The LGB Alliance was set up in 2019 by a group of activists and former supporters of the LGBTQ+ charity Stonewall, who were opposed to Stonewall’s work on transgender rights. Its existence has become a divisive issue in the community, with advocates supporting its #SexNotGender rhetoric as promoting lesbian, gay and bisexual rights, and opponents criticising the alliance for promoting an alleged anti-transgender narrative.

A crowdfunded appeal was launched by the transgender youth charity Mermaids and the Good Law Project against the registration on the grounds that the Commission erred in its decision. The Charity Tribunal took evidence on the issues from counsel of Mermaids, LGB Alliance and the Commission during a six-day hearing in November 2022.

Legal Standing - Preliminary Question

The preliminary question of Mermaids' legal standing to appeal the registration remains outstanding. Standing is an important issue, and will require Mermaids to have demonstrated to the Tribunal that it is "a person who is or may be affected by the decision [to register LGB Alliance as a charity]”. The High Court previously held that an appellant did not have standing to bring a claim against charities based on a strong objection to their activities. As the question of standing is so fundamental, it may go to appeal.

Key Grounds for Appeal

The key grounds to the appeal of the charity registration of LGB Alliance were the following:

• Charity purposes: that the alliance promotes purposes (including an alleged anti-transgender rights agenda) which are distinct from the purposes declared in its articles (which, broadly, focus on the promotion of equality, diversity and human rights for the LGB community)

• Public benefit: that its actual purposes are discriminatory, and do not satisfy the public benefit requirement for charity registration

• Political: that its actual purposes are “quintessentially political” and that the group was working to undermine and impede the work of charities like Mermaids “by promoting the view that they spread disinformation, and by seeking to deprive them of funding”

Commission's Stance

During the Tribunal hearing, the Commission expanded its stance on some of the challenges raised to LGB Alliance's charity registration in its initial registration decision, including:

• Public benefit: LGB Alliance’s purposes in its articles are charitable and meet the public benefit requirement by benefiting a sufficient section of the public ie the LGB community. The consequences of furthering those purposes are not necessarily detrimental to the public.

• Purposes: There was no evidence that LGB Alliance’s purposes did not express its true purposes, or represent a sham.

• Scope of the Commission's registration function: The Commission's role is not to make value judgements about the aims or ideas put forward by any organisation applying for registration. Its role is to decide whether an organisation meets the legal test for charity registration. Iain Steele, counsel for the Commission, said there was a public benefit inherent in having charities with different world views, encouraging debate in this “evolving” area of diversity and equality.

Commentary

The results of the hearing are expected next year, and we will be interested to see whether the Tribunal's determination differs from the Commission's stance, particularly around the core elements of 'charity' and charitable purposes. The courts have previously established that if an organisation has clearly stated purposes, the motives of the founders and activities of the organisation are irrelevant. Such activities would usually only be examined if there is some uncertainty about what the purposes actually are.

In this case, the alliance's purposes appear to be clearly stated and fall within a category of charitable purposes defined by the Charities Act 2011. For this reason, the Commission struggled with the argument that LGB Alliance's purposes as stated did not declare its true objects. As such, the Tribunal may require strong evidence that the alliance is operating a 'sham' in order to satisfy itself that the legal test for charitable status has not been met.

Either way, the alliance is now facing enhanced accountability and scrutiny as a registered charity, as evidenced by a decision by the Fundraising Regulator in September. Charitable status may, in fact, have the effect of limiting the avenues by which the alliance can promote its ideas and narrative.

The public scrutiny of this case has further developed with news last month that the Charity Commission has opened a statutory inquiry into Mermaids' governance and management following safeguarding allegations. This inquiry has added a further dimension to a complex case.

We will be awaiting the outcome of both the Tribunal's ruling and the statutory inquiry with interest.

For advice on the requirements for charitable status, please contact Sinead Corcoran on 020 7665 0919 or your usual contact in the Charities team. Alternatively, please complete the form below.