After almost two years of litigation and deliberation, a tribunal ruled that the law does not allow transgender children’s charity Mermaids to challenge the charitable status of the LGB Alliance (LGBA), the “gender critical” gay rights organisation set up to represent gay, lesbian and bisexual people on the issue of gender identity.

The ruling was described variously as a “seminal moment for pluralism” (Times), a “lesson in tolerance for the toxic trans lobby” (Mail), a victory for free speech (Spectator), “freedom of thought” (Mail) and “scientific truth” (Spiked).

Mermaids’ appeal against the Charity Commission’s (CC’s) decision to award LGBA charitable status was based on the argument that by publicly criticising Mermaids’ work, the group had caused harm to trans people. It also claimed that LGBA’s opposition to its lobbying “has caused significant interference with our work, consequences for our reputation, and potential financial cost to us”.

From the very first day of LGBA’s existence, the organisation has been exposed to the worst excesses of cancel culture. Some politicians abused parliamentary privilege to make defamatory attacks on the group. Media outlets carried misleading stories about it and refused it a right of reply. Campaigners tried to prevent the organisation from finding space to hold its annual conference. Arts Council England even withdrew a grant to LGBA to make a film about gay life in Britain during the Queen’s reign, with staff at the taxpayer funded quango likening the group to the Klu Klux Klan.

“It is astonishing,” wrote Janice Turner in the Times, “how Mermaids, and the wider LGBTQI+ sector, whose abbreviation includes the ‘T’ for trans, could not tolerate the tiniest of opponents. Mermaids has 18 staff, has received millions in public money including a £500,000 National Lottery grant, and its fund-raising cookies are sold in Starbucks; LGB Alliance has three staff paid with small private donations.”

Mermaids’ case was of course backed by Jolyon Maugham’s Good Law Project. Earlier this year, Mr Maugham published a book which Prof Yuan Zi Zhu, reviewing it for the Times, described with commendable restraint as “unbearably boring”. Its title? Bringing Down Goliath: How Good Law can Topple the Powerful.

The appeal was intended to address two issues: whether Mermaids had the legal right (known as “standing”) to challenge the decision of the Commission to register LGBA as a charity; and, if it did, whether LGBA meets the definition of a charity as set out by the Charities Act 2011.

That’s the equivalent of an overhand right delivered during a world title fight

In fact, standing was the only issue the tribunal ruled on, a point that Pink News was quick to spot, with the pro-trans news site subsequently describing the ruling as one that did little more than allow the “‘gender critical’ group” to “escape judgement on a technicality”.

Not so, says the Barrister Barbara Rich — standing is in fact “an important element in a scheme created by Act of Parliament” (ConHome). As per the Charities Act 2011, an appeal over a decision to register any given organisation as a charity may only be brought by persons who are eligible to ask judges to do so. This is “standing”. Who has it? The Attorney General for one, along with various other groups, including “any other person who is or may be affected by the decision”. Mermaids submitted that it fell within that category.

The key phrase there is “affected by”. In its strictly legal sense, the term is interpreted narrowly to mean situations where there may, actually or potentially, be a direct effect on a person or organisation’s legal rights arising from the CC’s decision to register a new charity.

Mermaids had sought to argue that the decision to grant LGBA charitable status gave the group access to funds that made its activities more effective, in particular as regards interference with Mermaids’ endeavours. The “height of the factual case put on behalf of Mermaids”, as the ruling puts it, was that LGBA’s “false claims” about Mermaids were now being taken more seriously and that “people might well think twice about publicly supporting us, working with us, or applying for jobs with us, given the climate LGB Alliance has created”.

It’s fair to say the panel wasn’t impressed with that line of argument, ruling that Mermaids had “no legal right to operate free of criticism, or from having it said that it is undeserving of public money in comparison to another charity”. Elsewhere, the ruling is similarly strong on the importance of freedom of expression, noting 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”.

In judicial terms, that’s the equivalent of an overhand right delivered during a world title fight by a Tyson Fury who’s just remembered he’s got a table booked at The Savoy in 40 minutes’ time. In just a few short paragraphs, Stonewall’s “no debate” mantra, which maintains that dissent is abuse and words equal violence (thus justifying physical violence in response), is summarily despatched.

Exhausting, expensive litigation has allowed the process to become the punishment

All of which left Mermaids with only its hurt feelings to cling to — the sense that people had been emotionally “affected by” the LGBA’s words and deeds. So what? The issue at law was not how many fluid ounces of tears may or may not have been shed into pillows in the small hours of the night, but whether a person or organisation’s legal rights had been affected by the CC’s original decision. As the judgement points out, “the fact that Mermaids and those they support have been affected emotionally and/or socially is insufficient to provide them with standing to bring this appeal, no matter the depth of the feelings resulting from the Decision or the strength of their disagreement”.

Writing in the Spectator, Brendan O’Neill suggests that the case against LGBA has now been comprehensively dismissed. Has it, though? The judge who made the initial December 2021 ruling, that evidence and legal argument on both standing and the full merits review of the CC’s decision should be heard together, thought an appeal on standing was foreseeable.

According to Barbara Rich, an appeal upwards through the tribunal and court system would have to reach the Court of Appeal, with a permission filter at each stage, to have any prospect of changing the current interpretation of “affected by”.

English charity law has always been pluralistic in its accommodation of a range of beliefs. If a less narrow version of “affected by” were subsequently to be established on appeal, it would risk weaponising concepts like “insult” and “offence”, gifting activists in charities up and down the country an opportunity to challenge the charitable status of any groups they happen not to like for purely ideological reasons.

What, meanwhile, of LGBA? Tying the group up in exhausting, expensive litigation for the past two years has effectively allowed the process to become the punishment. Its legal fees now stand at more than £250,000, which means that funding applications for a planned helpline and a history project have been put on hold. Were it to materialise, an appeals process would surely prove even more time-consuming and expensive — and all the while, the group would remain in existential limbo until all appeals were exhausted.

You can contribute to LGBA’s CrowdJustice fundraiser here.