Charity Tribunal Deadlocks on Whether Opposition to Adolescent Gender Transition Treatment Precludes Charitable Purpose

Mermaids supports transgender, nonbinary and gender-diverse children and young people until their 20th birthday, as well as their families and professionals involved in their care.  Transgender, non-binary and gender-diverse children and teens need support and understanding, as well as the freedom to explore their gender identity. Whatever the outcome, Mermaids is committed to helping families navigate the challenges they may face.

The defendants are the Charity Commission, because it granted tax exempt status to another defendant, LGB Alliance whose website explains its mission: 

“We envision a world where lesbians, gay men, and bisexuals live free from homophobia in all social, legal, and political spheres—a world where same-sex orientation is widely accepted, and LGB spaces are both prevalent and easily accessible.  We are part of an international movement confronting a new wave of homophobia that—just like the old one—tries to tell us our same-sex attraction is wrong.  We advocate for LGB people to live free from discrimination or disadvantage on the basis of their sexual orientation, while amplifying the voices of lesbians by highlighting the dual discrimination they experience as women in a male-dominated society. We aim to protect gender-nonconforming children from unscientific ideologies and bodily harm, and to promote freedom of speech through informed dialogue.

Note that LGB Alliance omits the “T” we normally see associated with “LGB.” As in “LGBT (and sometimes Q).”  The “T” is omitted intentionally because the LGB Alliance vigorously opposes transgenderism, and is especially vocal in its support of laws outlawing transgender treatment for adolescents.  I thought the case was about some right wingers suing to deny tax exemption for some left wingers advocating gender dysphoria treatment for kids.  But no! The plaintiffs believe that gender dysphoria treatment is the ultimate expression of homophobia, and thus are aligned with Ron DeSatan and the Ugandan government but only for the purpose of outlawing gender dysphoria treatment for minors. 

After a record setting baseball career, Sammy Sosa transitioned from black to white.  Even great wealth did not immunize him from the desire, that’s how insidious hatred is.  I was disappointed but he’s a grown man.  Would we have no objection if parents enabled this for black kids?  What if white parents adopted a black child and then transitioned her to white?

The best way I can explain LGB’ position is by admitting to one I might take:  if psychologists determined that being born in black skin correlated to higher death, incarceration, and poverty rates, and that transitioning to white skin would alleviate that, I would still conclude that clinics set up to whiten black people’s skin was nothing more than an expression of society’s hatred for black skin and should not be subsidized by tax exemption.  If you wanna be a poor dumb victim of racism, go ahead and be like Michael Jackson or Sammy Sosa.  But if you start teaching or allowing your black kids to transition to white, I might think it my right to get into your personal business, your private home and family conversations, and have a say in whether you may do so.  The solution, I might insist, is to rid society of the hatred that causes racism, not force or permit children to “transition” to a less hated existence.  I might even support laws preventing parents from racially transitioning their children.  LGB sans T thinks the solution to gender dsyphoria is to allow people to express their sexuality in their own skin and genitalia, not undertake expensive and severely life-disruptive therapy to change the  existence so they can express their sexuality towards their own cisgender without being considered homosexual.    

Well, the Charity Commission granted LGB Alliance tax exempt status in March 2020, and LGB immediately ramped up a social media campaign about gender dsyphoria and how transition treatment is a cure far worse than the disease.  LGB Alliance railed about gender dsyphoria nonprofits, especially those like Mermaids that facilitated transition procedures for children.  According to the Charity Tribunal’s opinion, Mermaids alleged a loss of respect and donations because of LGB’s “hateful” advocacy.  So Mermaids sued the Charity Commission and LGB, claiming that providing gender dysphoria treatment for minors is a charitable purpose and that the Charity Commission should not have granted exempt status to LGB because its a hate group. In effect, Mermaids thinks LGB’s opposition to gender dysphoria treatment is an uncharitable purpose, just like I think hate groups’ advocacy expresses an uncharitable purpose.  But I have constitutional law on my side; its settled over here, as it is in the UK, that racial discrimination as a outcome is not charitable.  You can’t say the same for adolescent gender dysphoria treatment. 

In fact, the Tribunal explicitly declined to answer whether opposing adolescent gender dysphoria treatment is a charitable purpose, admitting that the two judges composing the Charity Tribunal disagreed.  One thinks it is charitable the other not, apparently.  Well!  The opinion states that there are procedures to break the tie, but those procedures were unnecessary because the two judges agreed that Mermaids lacked standing.  Here is some interesting dicta regarding the importance of free speech in tax exemption jurisprudence:

15.  At the hearing before us, all parties expressed their wish that the Tribunal would set out its hypothetical conclusion on the second issue even if it ruled against Mermaids on the first. We recognise the significant benefits of avoiding a re-hearing of the second issue should our decision on the first be subsequently re-opened. Nonetheless, and notwithstanding significant time being spent on deliberation in trying to do so, the two members of the panel hearing this appeal have been unable to reach agreement on whether, if Mermaids does have standing, LGBA is a charity within the meaning of the 2011 Act. While a mechanism does exist to resolve a situation where a panel is not unanimous, it concerns the actual decision to be made by the Tribunal. We are unanimous that this appeal should be dismissed on the issue of standing in any event. In those circumstances we consider it inappropriate to set out our individual reasons on a hypothetical issue.

. . . 

 

66. Charitable status does not come with any guarantees of funding nor any freedom from criticism or debate. It is no part of the Commission’s function (nor of this Tribunal) to tell people what to think, or to regulate public debate in a context where there are deeply held, sincere, beliefs on all sides of the discussion.

67. We are reminded of the dicta of Lord Bingham of Cornhill who pointed out, that freedom of thought and expression is an essential condition of an intellectually healthy society. These were sentiments echoed by Sharp P in Miller v The College of Policing [2021] EWCA Civ 1926.

68. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government. We respectfully agree with Lord Bingham that the fundamental rationale of the democratic process upon which our society is founded is that when competing views, opinions and policies are publicly debated and exposed to public scrutiny, the good will over time drive out the bad and the true will prevail over the false. Only when differing views are expressed, contradicted, answered and debated will the legislature be able to obtain the fullest picture of the views held by those they represent in order to create laws that are reflective of and required by society as a whole. We also acknowledge that views change on an individual basis and the consensus held by society on any particular topic will evolve as new voices enter the debate and challenge the established position.

69. We agree with Sharp P that it is just as important when considering the rights of private citizens to express their views within the limits of the law, including and in particular, on matters of public interest where the debate is complex, multifaceted and important.

70. All the above applies equally to charities as it does individuals. Mermaids submits that LGBA has gone beyond the boundaries of civilised debate. In the registration Decision as extracted above, the Commission can be seen to have had similar concerns. In light of the evidence, we consider that these were well-founded.

The Charity Tribunal case — involving a trove of witnesses heard over weeks — was live streamed, sort of like a modern version of the Scopes Trial.  And even JK Rowlings who seems a feminist but has been labeled “transphobic,” tweeted congratulations to LGB, further proving that people are different and these cases are philosophically difficult, to put it mildly. 

 

The Tribunal and later the Charity Commission admonished LGB to play nicer in the future, to stop calling Mermaids stupid homophobic liars, and LGB agreed.  The Court’s opinion on the merits is entirely based on standing, though.  It concludes — I am paraphrasing with language from American standing decisions — that Mermaids have nothing more than a generalized grievance, not a concrete injury;  they didn’t even have a stigmatic injury sufficient for standing.  I will talk about standing to challenge the IRS’s grant of tax exempt status to hate groups, by the way, in a later post.  The Mermaid opinion is really fascinating.   

darryll k. jones