Decision

Charity Inquiry: Mermaids

Published 24 October 2024

Applies to England and Wales

The Charity

Mermaids (‘the charity’) is a Charitable Incorporated Organisation (‘CIO’) governed by a CIO Foundation Constitution, registered 20 February 2015 as amended on 21 September 2016 and 16 February 2024.

The charity’s objects are ‘to relieve the mental and emotional stress of all persons aged 19 years and under who are in any manner affected by gender identity issues, and their families, and to advance public education in the same’.

In furtherance of these objects, the charity’s activities include providing information and resources through its telephone helpline and web chat services, facilitating online communities in moderated forums and local groups and holding events including residential weekends and family days for young people and their families. The charity also promotes education and awareness of transgender matters by providing training for individual professionals, public, third sector and corporate organisations.

The charity’s entry can be found on the register of charities.

Background and Issues under Investigation

Historically, the charity states that it began as a “group of concerned parents, coming together to share experiences, find answers and look for ways to keep our children safe and happy”. Since its registration with the Commission in 2015, as a CIO (it was first established as an unincorporated charity in 1999), the charity has grown considerably, both in terms of its profile and income as well as a significant increase in the demand for its services.

For the financial year ending 5 April 2016 its income was £83,775 which rose to £2,294,682 for the financial year ending 31 March 2023.

There are currently 11 trustees, the longest serving of which were appointed in May 2019. Reporting to the trustees is the CEO, appointed on 14 December 2022 (on an interim basis), whose term has now been extended (two-year fixed term) to provide some stability and continuity for staff.

The charity currently employs 37 employees who are supported in delivering its work by approximately 107 volunteers. Its work has expanded from providing services directly to trans children and young people and their families via their helplines and webchats to now also including work promoting equality for trans, non-binary and gender diverse young people through its policy, advocacy and research work. 

In the issue of gender identity and the response to it, particularly in regard to the issues relating to children, there are opposing and divergent views which has led to the charity being subject to significant media, parliamentary and public scrutiny.

In September 2022, the Commission opened a compliance case into the charity following various critical media articles relating to the charity, its trustees, staff and its activities. The Commission had also received a number of complaints from the public in response to those media articles and concerning the charity, notably about the appointment and activities of a now former trustee, the provision of chest binders and the advice allegedly given regarding puberty blockers.

The compliance case examined whether the charity’s trustees were fulfilling their trustee duties in relation to taking reasonable steps to protect people from harm who come into contact with the charity, which included reviewing the charity’s provision of chest binders to children under 18 years of age and whether or not the charity was providing unbalanced or inaccurate information in relation to the risks associated with the use of puberty blockers.

During this case, the Commission identified serious regulatory concerns regarding the governance and management of the charity, including those highlighted in an equity, diversity and inclusion review of the organisation (‘the EDI report’) commissioned by the charity in March 2022. Specifically, the EDI report highlighted significant failings in its governance and management and concerns relating to the charity’s culture, operational management and processes. While the draft report was shared with the trustees in August 2022, the finalised EDI report and serious concerns raised in it were not brought to the attention of the Commission until November 2022.

The Commission’s compliance case also identified that the charity had seen a high turnover of its senior leadership and trustees – the Commission’s records record that the charity has had 41 trustees since its registration, as a CIO in 2015. Furthermore, in November 2022, the Commission was informed of the dismissal and immediate departure of the charity’s now former CEO, who had been in post since January 2015.

On 28 November 2022 the Commission opened a statutory inquiry into the charity (‘the inquiry’) under section 46 of the Charities Act 2011 (‘the Act’).

The scope of the inquiry was to examine:

1. The administration, governance and management (including its leadership and culture) of the charity by the trustees with specific regard to CEO capability and the issues raised by the EDI report.
2. The trustees’ response to the EDI report and how they propose to address significant failings highlighted in the report.
3. Whether the trustees have complied with and fulfilled their duties and responsibilities as trustees under charity law, in particular whether they had sufficient oversight of the charity’s activities and compliance with its policies and procedures and in line with its charitable objects.
4. Whether there has been any misconduct and/or mismanagement by the trustees.

The inquiry closes with the publication of this report.

At the time the inquiry was opened, the charity was engaged in litigation with the Commission regarding the registration of another organisation. The decision to open a statutory inquiry into the charity was made separately to this and was in no way linked to this litigation.

Findings

Administration, Governance and Management (including its leadership and culture) of the charity by the trustees with specific regard to CEO capability and the issues raised by the EDI report

As referenced above, there are opposing and divergent views which has led to the charity being subject to significant media, parliamentary and public scrutiny. In addition to this the charity’s profile has increased significantly since its registration along with its income. With its income of £2,294,685, the charity states that it currently supports over 10,000 individuals every year.

During this period of growth and increasing scrutiny there has been an ongoing challenge for the charity to retain trustees. Since its registration the turnover of trustees has been significant, with there being over 41 trustees in that period. The charity recognises the impact of high levels of board turnover and has attributed this partly to the challenging “socio-political context” in which the charity operates, as well as the significant time commitment demands made on the trustees and the strain on mental health and wellbeing of those exposed to public and media scrutiny.

During a period of rapid expansion, a charity needs a board of trustees that can respond to changing demands in an agile way, flexing and developing the charity’s governance and infrastructure as the charity grows. However, the inquiry found that the charity’s infrastructure did not keep pace with its speed of growth and increasing public profile.

Leadership - oversight and management of the CEO

Just prior to the opening of the inquiry the charity had a staff team led by a Chief Executive Officer (‘the former CEO’) and a Senior Leadership Team (‘SLT’).  The former CEO was appointed around the time of the charity’s registration as a CIO but had had a long history with the charity having been involved for over 20 years as a member of a parents’ group, and had become a trustee. The former CEO was very successful at raising the charity’s profile and led the charity through its subsequent growth and expansion. She was a prominent figure and spokesperson for the charity and on the issue of gender identity.

However, on the 25 November 2022 the former CEO’s role was terminated due to a loss of confidence by the trustees in the former CEO’s capability to lead the organisation. The former CEO’s position remains that the trustees had unreasonable expectations of her and the reasons given to justify her immediate dismissal were not fair or reasonable.

As the former CEO was a prominent figure and spokesperson for the charity, her departure prompted significant additional media coverage regarding the charity and the trustees’ oversight and management of her. It also led to speculation around the reasons for the former CEO leaving the organisation as there was a lack of clarity in the charity’s public statements at the time around whether the former CEO had resigned or whether she was dismissed. In making any statements relating to the former CEO, the charity ensured it maintained its duty of confidence and complied with GDPR requirements.

The former CEO subsequently brought a claim of unfair dismissal against the charity, which was eventually settled out of court. The charity issued a statement on the matter, which was agreed in advance with the former CEO and which can be found on their website.

The inquiry interviewed both the former CEO and the trustees about the events that led to the former CEO’s dismissal and reviewed relevant trustee meeting minutes and HR records. As early as March 2022 there was reference to the CEO’s performance in the minutes of trustee meetings and the steps that the trustees were implementing to address the matter. The trustees had serious concerns around the former CEO’s leadership and management.

The trustees received a grievance complaint against the former CEO regarding bullying and harassment and commissioned an independent investigation. The bullying and harassment claim was not upheld.

The grievance investigation report addressed broader topics that did not form part of the original complaint but which raised the possibility of wider cultural issues within the charity. The trustees decided to address these concerns by commissioning an EDI report.

Following receipt of the EDI report, which was shown to the former CEO at the end of August 2022, the trustees tasked her with defined, time-limited tasks focusing on cultural changes so that they could assess her progress and performance.

The former CEO’s position is that the charity was at this time operating in crisis mode due to significant media attention and ongoing regulatory engagement with the Commission and that the trustees were aware of this situation. She believes that time frames and feasibility of completing the tasks set by the trustees were not reasonable. She believes that she was being unfairly held responsible for the significant failings identified in the EDI report and that she was not given enough time to address matters. Cultural shifts such as those required by the charity take time to embed and require a long-term focus.

The former CEO reported directly to the then Chair of trustees who was responsible for managing the former CEO’s performance. The former CEO told the inquiry that issues around her performance came as a surprise. The inquiry found that although there was a formal HR supervision policy which required staff supervision sessions to be conducted regularly (at least every 3 months) and well documented; it was not uniformly implemented across the whole organisation.

The inquiry identified that the then Chair and the former CEO held regular meetings discussing a range of operational matters and an annual performance appraisal of the former CEO was conducted by the then Chair. The former CEO stated that she had on a number of occasions raised the issue of the lack of a formal record of her weekly one to ones with the then Chair of trustees. The then Chair of trustees told the inquiry that they considered that the HR performance supervision process adopted with other staff was not appropriate for a CEO. The inquiry found that the supervision policy did not exclude any specific posts and so the former CEO should have been treated in line with the policy applicable to the rest of the charity’s staff.

When discussing performance, in particular where there are concerns about an individual, it is very important that a record of discussions is kept and that policies are complied with so that there is no ambiguity about what is required of the individual. Furthermore, having sufficient records helps evidence any action to be taken against the individual and reduces the chance of successful challenge. The inquiry acknowledges that the trustees did seek extensive legal and PR advice (including advice both on charity law and on employment law) before dismissing the former CEO but, considers it mismanagement in the administration of the charity that the trustees in post at the relevant time failed to comply with the charity’s internal HR policies or make clear to the former CEO and staff that the role did not fall under the charity’s normal HR management policy.  

Culture - Equity, Diversity and Inclusion review

The charity’s SLT set up a range of staff working groups focusing on specific diversity and inclusion matters. These groups highlighted low staff morale and divisions between staff. As a result, the charity engaged the Social Justice Collective (‘SJC’) in spring 2022 to undertake an equity, diversity and inclusion review of the organisation (which resulted in the EDI report).

SJC is a women and non-binary people of colour collective of organisational change and EDI professionals.

In order to understand the EDI culture at that time and the challenges faced by the charity and determine priority actions to enable the charity becoming an equitable organisation, SJC reviewed the charity’s records and data and ran focus groups with staff and the SLT.

The finalised EDI report highlighted multiple issues of concern relating to the charity’s culture, operational management, and processes. The charity published in full the EDI report’s recommendations on its website in January 2023.

The then Chair of trustees, on behalf of the Board, stated that the review had “revealed an unacceptable situation” and unequivocally accepted all of the report’s recommendations and acknowledged “responsibility for the institutional weaknesses” as highlighted in the EDI report.

The trustees acknowledged in their public statement that “our internal processes also require urgent review. We need structures that acknowledge and confront the issues raised by staff, that prioritise staff wellbeing, and that ensure decision-makers are held accountable. Our managers should understand the structures and behaviours that perpetuate systemic oppression and our staff should feel their personal progression is valued”.

The systemic failings identified by the EDI report are issues that the then trustees should have been aware of and taken steps to resolve at a much earlier point. Leading a charity whose focus is representing a marginalised group, the trustees should have been aware of what best practice looks like when it comes to creating an inclusive organisation. The failure by the trustees’ appointed at the relevant time to understand the culture and dynamics at play within its staff team demonstrates mismanagement in the administration of the charity.  

In response to the EDI report the trustees and the SLT have developed a 3-year action plan (‘the EDI action plan’) to implement the EDI report’s recommendations. The inquiry has been satisfied as to the progress being made by the trustees in meeting its milestones. Out of the 40 objectives set out in the EDI action plan, 90% have been met, with all remaining actions on track for delivery during 2024. The trustees have confirmed to the inquiry that this work will remain a priority to ensure that any changes made are fully embedded at all levels across the organisation.

The inquiry identified no further issues regarding the culture of the organisation other than those raised in the EDI report and accepted in full by the trustees.

The inquiry acknowledges that the charity informed the Commission in July 2022 that it had commissioned an EDI report. However, the inquiry is critical of the trustees in post at the relevant time for failing to bring to the Commission’s attention in a timely manner the results of the EDI report. Despite ongoing engagement with the trustees at that time, which provided an opportunity for transparency, the trustees failed to notify the Commission of the EDI report and its draft findings until November 2022, three months after they received the draft EDI report.

Governance

As a result of the significant growth of the charity since its registration and following the concerns about governance and leadership raised in the EDI report, the trustees commissioned a root and branch review of its governance on 16 January 2023 by the National Council for Voluntary Organisations (NCVO)^{[footnote 1]} (‘the governance review’). The scope of this governance review covered all aspects of governance and was to provide the trustees with recommendations which would enable them to implement best practice which would future-proof the charity.

In April 2023 the governance review was completed, and a copy of the final report was provided to the inquiry. The report set out a comprehensive set of findings and recommendations which has been made available on the charity’s website.

The governance review set out many areas for the trustees to work on and includes a broad range of recommendations, which the trustees have accepted in full. The majority of the recommendations ensure governance best practice, but a number were more significant:

i) Set expectations around communications between trustees and senior staff.

The governance review found that “a trend emerged around transparency and communications” and that there was evidence of “historic communications challenges, with a lack of interaction between the board and senior team, which we do recognise is changing under new leadership in the organisation. However, the continued perception of distance between the board and operations is contributing to a lack of trust in governance and the practice of the board.”

This was also a theme that was highlighted in the EDI Review and one that the current trustees and the CEO are taking steps to address.

ii) Include the complaints policy on the website and demonstrate how to contact the charity with any concerns.

It is good practice to have an easily accessible complaints policy (usually made available via the charity’s website) so that charity members and the wider public can raise concerns directly with the charity. It can also clarify the process and the types of complaints that the charity will engage with, including what it will and will not tolerate in terms of vexatious complainants. As set out below the inquiry received complaints from service users where they had not raised their concerns directly with the charity as they felt that the charity would not take their complaints seriously. The charity states that all complaints that it received were taken seriously and dealt with.

iii) Take steps towards developing a clear strategy for the organisation, underpinned by a theory of change.

As highlighted in the EDI report the lack of a clear organisational strategy or shared vision created confusion and divisions within the staff. For a charity of this size a business plan and strategic objectives are vital to allow staff to deliver against a clear action plan. It ensures that the charity remains focused on achieving its objects within a defined budget and timeframe.

Building on actions already taken following the EDI report, it is noted that work on these recommendations was already underway, or they had been completed by the time the NCVO’s report was published.

As a result of the governance review’s recommendations, the trustees produced an action plan which addresses the areas requiring improvement. The inquiry has monitored the trustees’ progress against this action plan and has seen evidence that all 20 recommendations have been completed.   

The gaps and areas of weakness set out in the governance review, demonstrate mismanagement in the charity’s administration as their governance did not keep up with the pace of growth of the charity.

The NCVO stated its view that: “Our overall reflection from our engagement with the charity is one of trustees who are committed to the organisation and who want to engage in good governance, but who recognise the challenge of high levels of board turnover as well as the highly reactive nature of the board’s work in recent years”.

Public Complaints

As set out in the Commission’s guidance CC47: Complaints about charities the Commission does not act as a complaints service looking at all complaints on behalf of complainants. Charity trustees are responsible for the running of their charity and therefore in the first instance, complaints about the way a charity operates should be raised directly with the charity. The expectation is that the charity then handles the complaint in line with their complaints policy or procedure. 

The charity confirmed to the inquiry that in its handling of complaints, there is a distinction between a complaint from service users and their families and negative and/or abusive commentary on social media labelled as ‘complaints’.

Between September 2022 and July 2023, the Commission received 62 complaints from the public about the charity (this total includes instances of multiple submissions from individuals - there were 54 individual complainants) and 3 submissions in support of the charity. Of these complaints, 45 were from individuals responding to public reporting about the charity and its activities and 17 from individuals (service user/family member etc.) about their experience of the charity and its services. 

The complaints received largely fell under the following themes:

• the charity’s relationship with the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust
• affiliation to private medical practices
• provision of chest binders
• provision of medical advice
• lack of due diligence over staff and trustee recruitment

Out of the 62 complaints submitted to the Commission, 11 stated that they had previously raised their concerns with the charity. However, these complainants were generally unable to provide specific information (including the date of when they had raised complaints with the charity) relating to their engagement with the charity and the charity’s responses. Of those complainants who told the Commission they had complained directly to the charity, the inquiry noted that the complainants had little confidence that concerns would be considered and/or appropriately dealt with by the charity.

Following an assessment of the complaints, the inquiry engaged with specific complainants to request further details and evidence of their concerns and their engagement with the charity and sought their permission to raise the details of their complaint directly with the charity. This was so that the inquiry could determine whether the complaints had been considered and dealt with appropriately and in accordance with the charity’s policies. Only a very small number of complainants subsequently gave their permission to the inquiry to engage with the charity about the nature of their complaints.

The inquiry found that the charity held a Complaints Log of complaints it received from the public, but these figures were inconsistent with the number of complainants who told the Commission they had contacted the charity directly. The inquiry notes that for the period from January 2020 to January 2024, the charity recorded that it received 12 complaints from the public. The inquiry was unable to match any of the complainants that had raised concerns with the Commission to those that had complained directly to the charity.

The inquiry found that the charity’s complaints policy was difficult to find on the charity’s website and that this may have resulted in concerns that complainants would not have their complaint addressed appropriately. The charity trustees informed the inquiry that criticism or comment from beneficiaries or the public, particularly on social media, was often classed as feedback, rather than a formal complaint and were at times therefore not dealt with in line with the charity’s complaints procedure. During the inquiry, the charity’s complaints procedure was reviewed and revised, and from April 2023, is now accessible via the homepage of the charity’s website. The inquiry has examined the charity’s complaints log since April 2023 and is satisfied that the charity is now operating in compliance with its complaints policy.

Due to the number of complainants who were either unable to provide specific details of their concerns or did not give the inquiry permission to raise their complaints directly with the charity, the inquiry was unable to investigate these specific incidents directly. Therefore, the inquiry undertook a sampling exercise of the charity’s communication channels with service users (which included telephone calls, emails, forums and web chats) for the years 2020 through to 2023.

A random sample was selected from across all communication channels using key word classifications covering the following topics which linked to the complaints raised with the Commission about the charity’s services: chest binders, puberty blockers, private health care and GP surgeries (including GenderGP) and GIDS.

The focused sample size, covering 174 individual beneficiary records between January 2020 and March 2023, allowed the inquiry to review the charity’s engagement with its beneficiaries and whether it operated in accordance with its internal policies and procedures. Based on the records reviewed, the inquiry was satisfied that these demonstrated compliance by the charity with its policies and procedures and did not raise any further concerns.

Provision of chest binders

Between 2017 and 26 September 2022, the charity provided a service to its beneficiaries in which it could issue suitable individuals with a chest binder (‘a binder’). Although binders are commonly available and can be purchased without age restriction, the supply of binders by a charity brings with it the authority of the charity’s approval, which may be of influence on children and their families. They are commonly used to flatten an individual’s breasts with constrictive materials to make them more male-presenting.

The charity’s trustees took the decision to pause the service in September 2022 following adverse publicity regarding the service and to protect its staff who had been subject to threatening calls, emails and web chat contacts as a result of the adverse publicity. A formal decision to terminate the service was approved by the charity’s trustee board on 16 October 2023. Several reasons were cited for this decision including the low-level of uptake from the charity’s beneficiaries (under the age of 18) and the risks to the charity’s reputation, staff and volunteers.

The charity provided the inquiry with information relating to the number of occasions on which binders were issued. In total, between January 2021 and September 2022, the charity issued 125 binders – of these, 101 were issued to parents and carers and 24 to unsupported young persons. Unsupported young person is the term used by the charity to refer to a beneficiary under the age of 19 where the charity believes the primary carers are not in support of the young person’s gender identity or expression. Of the 24 binders issued to unsupported young people between January 2021 and September 2022, 15 binders were supplied to young people between ages of 13 to 16 years old, and 9 binders were supplied to those aged over 16 to 19 years.

Complaints received from the public by the Commission included the provision of binders to young persons under the age of 18 without parental knowledge and/or consent. The inquiry has therefore considered this issue further. It has not considered the provision of binders to parents and carers who requested them on behalf of their children or those in their care. In a statement dated 27 September 2022, the Metropolitan Police confirmed that supplying a binder to a young person was not a criminal offence.

The binder service was not advertised or otherwise externally promoted by the charity. The service was only available to young people aged 13 years and above, or parents/carers of those young people who were known to the charity having participated in its forums for a set period of time and who otherwise satisfied eligibility criteria. The existence of the service became publicly known following adverse media coverage which reported efforts by a third-party posing as a beneficiary of the charity seeking to secure a binder. It is the inquiry’s understanding that the binder service was not, and never had, constituted a significant (in terms of volume) activity for the charity relative to its other services and activities.

Although commonly available for purchase, the inquiry noted that the charity provided guidance prior to issuing binders as to potential health implications and how to mitigate the risks. These include shortness of breath, back and/or chest pain, itching, postural issues, shoulder pain, overheating and rib damage. Additionally, a measurement guidance sheet was provided to enable the service user to provide correct fitting size, and the charity cautioned against excessive daily use and use whilst undertaking certain activities, such as exercise. A trained member of staff would assess the young persons’ competency to understand the risks and a written undertaking obtained from the individual to follow safe use guidance before a binder was provided. No advice was given on the possible psychological effects of wearing binders. The inquiry’s own research of publicly available information about the use of binders identified the same potential health implications as those identified and referenced by the charity in its advice to beneficiaries.

The inquiry sought to understand whether there has been any study or research on the impact, including psychological impact, of binding – particularly on those under the age of 18 – and found that there is, to date, limited publicly available information on this social transitioning issue.

However, NHS England and NHS Improvement commissioned ‘The Independent Review of Gender Identity Services for Children and Young People’ (‘The Cass Review’) which saw the publication of its Interim Report in February 2022 and with the Final Report published in April 2024. The Cass Review found that social transitioning may have significant psychological effects on those under 18. Binding is considered as part of social transitioning rather than medical transitioning as it is not something that has to happen in a healthcare setting and it is within the agency of an adolescent to do for themselves. The Cass Review’s Final Report stated that “…in an NHS setting it is important to view it as an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning and longer-term outcomes,” (reference paragraph 12.5 page 158) with the Report acknowledging that better information is needed about longer-term outcomes.

The charity had a policy relating to the binder service, which was regularly reviewed, the latest review being in March 2022 and again in October 2022 (after the service was initially suspended) and included a set of criteria which a member of staff had to be satisfied was complied with before a binder was issued. The policy included a section on the charity’s approach where a young person under the age of 18 wants to bind and is said to be unsupported at home. Additionally, the policy included a disclaimer to accompany instances where a binder was issued to a young person. This stated:

“This chest binder is provided as is, without any guarantees or warranty, in association with the product, Mermaids makes no warranties of any kind, either expressly or implied, including but not limited to the warranty of merchantability, fitness for a particular purpose, or title, or of non infringement of third party rights. Use of the product by a user is at the user’s risk.”

The charity confirmed to the inquiry that it took a harm reduction approach when providing binders, as the charity’s position was that young people will purchase and wear binders regardless of whether the charity provides them or not – although this does not take into account the possible persuasive effect on young people being supplied with such products by a registered charity. In a small number of cases binders were provided to unsupported young people but only in very specific circumstances. They were supplied with associated guidance about its safe use by a trained charity staff member, as this was preferable to the likely alternative of unsafe practices and/or continued or increasing dysphoria. The charity highlighted to the inquiry some of the alternative steps taken by a beneficiary if they could not obtain a binder. The charity’s position was based on the experiences of its service users, many of whom reported on the positive benefits of using a binder.

The inquiry obtained and reviewed the charity’s Binder Service Policy (used while the service was in operation). This policy includes a number of conditions that had to be met in order for a binder to be issued, this included:

• the charity’s member of staff must assess the young person as being competent to understand the risks of using a binder and record this
• if the charity’s member of staff is in contact with the parent/carer only, they should explore where the request for a binder has come from and be satisfied that the request has come from the child and make a record of this
• if the charity’s member of staff is speaking to the young person only, the member of staff must try to ascertain whether the young person is supported at home and risk assess whether it could expose the young person to a risk of harm were a binder to be sent there. This review must be recorded on their file
• a trained member of the helpline staff will email out the binder risk sheet which explains the most common risks that binding has. The service user must agree in their return email that they have understood these risks and this must be recorded. The member of staff should also email out the measurement guidance so as to enable the service user to provide correct measurements. Once these measurements are received, the member of staff will use these to measure the binders available to ensure the appropriate size is sent
• the charity’s member of staff must explain that Binding Safety Guidelines would be sent with the binder to help mitigate any risk of physical discomfort
• the service user(s) must agree to follow the Binding Safety Guidelines
• the Binding Safety Guidelines must be sent with the binder and recorded as having been sent on the Binder Register Sheet and charity’s records

The inquiry reviewed the charity’s records regarding its provision of binders, through the sampling methodology set out above, and found that, based on the records reviewed, the charity demonstrated compliance with its Binder Policy.

However, on at least two occasions there was a lack of transparency in its communications with service users. The issue arose when charity staff had concerns over the legitimacy of the requests following their due diligence checks and were concerned that the person requesting the binder was not who they said they were or that they were requesting it for another individual. On both these occasions instead of informing the individuals that they were unable to progress with their request for a binder due to them failing their checks, they informed the individuals that they did not have the correct size binder in stock.

The inquiry was told that they took this approach, again, from a harm reduction perspective. However, a lack of transparency can be problematic and could potentially undermine the credibility of the charity. This is particularly the case here as one of those individuals who they refused a binder for was a third party posing as an unsupported young person in an attempt to test the charity and the robustness of its checks. The impression the third party formed was not that the due diligence checks undertaken by the charity had worked, rather that there was the possibility of obtaining a binder when the correct size binder was back in stock. The press attention that followed from this, significantly damaged the charity’s reputation and could have been avoided. The charity reported this incident to the police as a fraud and transphobic crime.

The inquiry considers that, whilst recognising that binders are publicly available without age restrictions, and that the charity’s policy is primarily stated to be focused on a harm reduction position, there are potential risks involved in the supply of binders. It is recognised that there are some physical health implications that can arise from wearing a binder and which could be exacerbated by prolonged, improper or incorrect use as well as unknown psychological effects caused by social transitioning, as identified by The Cass Review’s Final Report which states “Outcomes for children and adolescents are best if they are in a supportive relationship with their family. For this reason parents should be actively involved in decision making unless there are strong grounds to believe that this may put the child or young person at risk.” (Reference paragraph 12.36, page 164). Parents and carers of those young people provided with a binder by the charity without parental knowledge would have been unable to supervise its use to ensure that the safety advice is adhered to and that any side-effects are properly identified and addressed.

The trustees have told the inquiry that where they have provided a binder to an unsupported young person, they encouraged engagement with parents and carers (or a trusted adult) as they recognise that their support minimises the risk of harm. Furthermore, in all cases including where the charity understands parents and carers remain unsupportive, the charity undertakes a follow-up call to check how the young person is managing with their binder.

The inquiry recognises that there was no legal requirement for obtaining parental consent or knowledge before providing a binder to young people, although views on the matter differ and some people, especially parents, feel strongly that binders should not be provided without parental consent.

The inquiry notes the trustees’ decision to terminate the binder service with effect from October 2023. This followed a suspension of the service in September 2022. Given the potential health risks and the authoritative position of a charity providing such materials to children, if the charity were to seek to resume this service in the future, it is the inquiry’s view that its future policy and controls must reflect the findings of the Cass Review regarding parental involvement or indeed any future NHS/Department of Health and Social Care reports on this issue.

The Commission has issued regulatory advice and guidance to the charity’s trustees on this issue under section 15(2) of the Act.

The charity’s relationship with the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust

GIDS, based in Leeds and London, was the only specialist service in England that provided gender identity services for children and young people. Following the interim findings of the Independent Review of Gender Identity Services for Children and Young People (the Cass Review – interim report), commissioned by NHS England and NHS Improvement in Autumn 2020, it stopped accepting new referrals and the NHS undertook a managed closure of the service which was completed in April 2024 with the publication of the Cass Review’s Final Report. The NHS is in the process of creating a new service for children and young people with gender incongruence.

The former CEO, in her role as the CEO of the charity, was called upon as a subject matter expert by various bodies including GIDS at the Tavistock and Portman NHS Foundation Trust. The former CEO represented the charity as a stakeholder when GIDS was undertaking research in 2015 and when it was redrafting its service specifications which came into force in 2016. From the documents seen by the inquiry, as well as its inspection of books and records, there is no evidence to suggest that the former CEO’s role was anything other than a stakeholder representing the needs of the charity’s beneficiaries.

Many of the charity’s service users were already under the care of GIDS or were actively looking for medical support. The charity provided young people and their families with information about services provided by the NHS and did on occasion provide feedback to GIDS on user experiences.

Referrals to GIDS could have been made through a range of routes including a GP, Children and Young People’s Mental Health Services, schools or a relevant voluntary sector organisation.

Between 2016 to 2021, the charity made 22 referrals under this pathway. The inquiry has reviewed the charity’s completed GIDS referral forms (redacted) and it is clear that the charity did not make any form of medical assessment when making such a referral, but in conjunction with the young person and their parent or carer, the charity directed them to the appropriate NHS service which specialised in gender dysphoria and incongruence.

The inquiry saw no evidence to suggest that the former CEO or the charity had inappropriate influence or ties to GIDS or that referrals were made without the support and knowledge of a parent or carer.

Provision of medical advice

Concerns relating to the provision of medical advice by the charity, were raised with the inquiry.

The inquiry understands medical advice to be the provision of a formal professional opinion regarding what a specific individual should or should not do to restore or preserve health. Typically, medical advice involves giving a diagnosis and/or prescribing a treatment for a medical condition.

As the charity’s objects do not include the advancement of health or the saving of lives, it is not within its objects to provide medical advice to its beneficiaries. Furthermore, the charity’s staff and volunteers are not, nor do they purport to be, qualified to provide medical advice. It is important that this position is made clear to the people that access the charity’s services and that any information or support provided by the charity cannot be misinterpreted as medical advice.

The charity provides information, via its website, on the available NHS clinical pathways (and, historically, to alternative private medical healthcare providers) and it supports and advocates for young people on the issue of gender affirming care. However, the inquiry has not found, based on the documents and records it has reviewed as part of its sampling exercise, any evidence that staff or volunteers at the charity have provided medical advice.

As set out above, as a voluntary organisation the charity was previously able to refer young people and their families to GIDS for further support and advice in determining an appropriate pathway for treating gender dysphoria.

One treatment option used by GIDS was puberty blockers. Puberty blockers are a medical hormonal intervention which delays the physical changes of puberty such as breast development or facial hair. Though no evidence has been found to suggest that the charity provides individual medical advice on the use of puberty blockers, the charity had a clear positive position on their use. This was set out in the Frequently Asked Questions section on its website – “What is Mermaids’ stance on puberty blockers?”. Prior to the publication of the Cass Review in April 2024, the charity’s published answer to this question stated the following:

“Puberty blockers are an internationally recognised safe, reversible healthcare option which have been recommended by medical authorities in the UK and internationally for decades. They have been used to treat precocious (i.e. early) puberty in children, adults as part of treatment for some hormone-dependent cancers, and for conditions such as endometriosis. They have been prescribed to trans young people since 1988. As noted by GIDS and medical experts, blockers are physically reversible when treatment is stopped. Puberty blockers allow a young person to consider their options while exploring their gender identity, as well as alleviating the distress of gender dysphoria.”

There are a number of side effects of taking puberty blockers which the charity provided links to in its literature and when responding to queries from its beneficiaries, whether by email or on forums.

However, the research on the long-term effects of puberty blockers in young people is limited. The Cass Review’s Interim and Final Reports were unable to provide definitive advice on the use of puberty blockers due to the gaps in the evidence base. In addition, it pointed out that the lack of available high-level evidence was reflected in the NICE evidence review published in March 2021, into the use of puberty blockers and feminising/masculinising hormones commissioned by NHS England, with the evidence being too inconclusive to form the basis of a policy position.

As a result, NHS England announced, on 12 March 2024, that, for new patients at its Gender Identity Clinics, it would no longer routinely prescribe puberty blockers to young people under the age of 18, unless they are part of a clinical trial. This was because they concluded “that there is not enough evidence to support the safety or clinical effectiveness of puberty suppressing hormones to make the treatment routinely available at this time”. This finding and conclusion was repeated in The Cass Review’s Final Report which concluded that “the evidence base, particularly in relation to the use of puberty blockers and masculinising/feminising hormones, had already been shown to be weak. There was, and remains, a lot of misinformation easily accessible online, with opposing sides of the debate pointing to research to justify a position, regardless of the quality of the studies…….Our current understanding of the long-term health impacts of hormone interventions is limited and needs to be better understood”.

Since the publication of the Cass Review’s Final Report, the charity has amended its website. Their Frequently Asked Questions on What is Mermaids’ Stance on puberty blockers now states the following:

“Until Spring 2024, gonadotrophin-releasing hormone analogues (puberty blockers) were prescribed to some trans children and young people by NHS clinicians in England, with varying arrangements in place elsewhere in the UK. They are currently prescribed as a treatment for precocious (early) puberty, some hormone-dependent cancers, and for endometriosis.

In March 2024, NHS England announced that they  would no longer be routinely prescribing puberty blockers, and that future access would only be available through a mandatory research trial. The Cass Review, published in April, appears to recognise that puberty suppression can be helpful for some young people, and recommends that NHS England’s puberty blocker trial be part of a “programme of research” evaluating outcomes of “psychosocial interventions and masculinising/feminising hormones”. Read our statement on the Review here.

While we don’t advocate for any particular pathway, we continue to campaign for access to timely, holistic and supportive healthcare for trans youth, including access to puberty blockers and hormones for those who need them.”

Charity law requires that the information provided by education charities, or those with an object to advance education, is accurate, evidence based and balanced. It is unclear from the charity’s website whether the information provided relating to puberty blockers is provided in furtherance of an educational purpose or its other charitable object to relieve mental and emotional stress.

The Commission has issued regulatory advice and guidance to the charity’s trustees on this issue under section 15(2) of the Act. This includes reviewing the statements published on the charity’s website on the matter of puberty blockers, in particular its statement regarding their reversibility. In reaching a view on the “reversibility” or otherwise of puberty blockers (used by trans young people), we expect the trustees to ensure in coming to any view, that they have complied with their duties and followed our guidance about making proper decisions. The charity should have mechanisms in place to keep their position under review as this is clearly an area of medicine where there is ongoing development and change. The charity has confirmed that they have completed this action, and the Commission can confirm that references to puberty blockers and reversibility have been removed from the charity’s website. 

Lack of staff and trustee recruitment due diligence

Prior to the opening of the inquiry there were numerous media articles on and around 3 October 2022 about a now former trustee of the charity having spoken in 2011 (before his appointment) at a conference organised by a paedophile support group. The charity was unaware of his attendance at this conference until the publication of the media articles and confirmed to the Commission that they had launched an investigation to ascertain how this was not picked up as part of their recruitment procedures. The charity made a statement about this incident, which is available on its website.

This former trustee resigned from being a trustee immediately after the media articles were published. It was also confirmed that this former trustee had only served as a trustee for a short period and had never had any contact with the charity’s beneficiaries.

The inquiry found that the charity did have staff and trustee recruitment procedures and that the trustee recruitment policy was adapted from the staff recruitment policy. The trustees told the Commission that they had undertaken their usual ID, enhanced DBS and background checks but nothing concerning came to light about this individual. However, due to staff sickness not all the charity’s safer recruitment and cross checking of references had taken place, and a level of assurance was placed on the fact that the individual worked for a prestigious educational institution which they presumed had also undertaken their own due diligence.

It was clear that when certain key word internet searches were undertaken, details about the former trustee were found which would have meant that this individual would not have been appointed. 

The trustees confirmed to the Commission that they took steps to review the process and have ensured that they are more thorough across all areas of due diligence. They have developed a more robust list of required searches, keywords and phrases and have outsourced their provision of vetting to a robust education focused provider. In addition, the trustees have taken steps to refresh the searches on all current trustees and have improved trustee induction and introduced a trustee code of conduct.

The failure by the trustees to ensure that the trustee recruitment policy was fully adhered to was mismanagement in the administration of the charity by the trustees in post at the relevant time.

Affiliation to private medical practices

The former CEO told the inquiry that the charity used to inform parents and carers about alternative medical providers for those that wanted to access them. The inquiry found that there had been a relationship with Dr Webberley of GenderGP (a private medical care provider), who attended several residential weekends to discuss the service they offered and to talk to beneficiaries about gender affirming health care more generally.

Following Dr Webberley’s suspension by the General Medical Counsel (GMC), in May 2019 the charity took appropriate action by removing the GenderGP link from its website. Dr Webberley has since been cleared and her fitness to practice medicine has been reinstated.

The inquiry found that the charity’s response to parents or carers when they contact the charity about private healthcare providers, has been consistent since 2019. The charity gives young people and their families information about the support services offered by the NHS only. It does not refer anyone directly to or recommend any particular private healthcare providers. Instead, they refer parents or carers who want more information to their Parent and Carer Forum on the charity’s website, where parents can speak to other parents who are experiencing the same issues (such discussions are not permitted on the youth forums). The charity’s forums are conversations between peer groups defined by the age of the young person or whether they are a parent/carer.

The charity has reviewed and updated its Forum Moderation Guidance to staff on how to respond to posts about GenderGP and private healthcare enquiries and forum moderators take steps to remove inappropriate content.

Data breach

Included in the complaints the Commission received prior to the opening of the inquiry were a number that referenced a data breach which was discovered in July 2019. The charity reported this both to the Information Commissioner’s Office (‘ICO’) and to the Commission at the time.

The Commission’s remit does not extend to investigation of data breaches of this type. The data breach was investigated by the ICO and its findings were later reported on publicly in a Monetary Penalty Notice  issued by the ICO on 5 July 2021.

The ICO found that “Mermaids failed to implement an appropriate level of organisational and technical security to its internal email systems, which resulted in documents or emails containing personal data, including in some cases relating to children and/or including in some cases special category data, being searchable and viewable online by third parties through internet search engine results”. As a result, the ICO imposed a financial penalty of £25,000 on the charity.

The ICO acknowledged that prompt remedial action was taken by the charity in response to becoming aware of the breach.

Cooperation

As they are obliged to, the trustees cooperated fully with the Commission throughout the inquiry, responding promptly to requests for information and gave full access to requested books and records. They fully engaged with service providers to comply with the recommendations and findings of both the EDI Report and the governance review. It is also recognised that the charity has been the subject of intense media scrutiny in recent years, attracting negative commentary and sometimes hostile/abusive comments on social media.

Conclusions

The Commission has concluded that there has been mismanagement in the administration of the charity by the trustees in post at the relevant times.

The trustees have accepted that the charity, historically, had not been governed to the standards the Commission expects. The charity grew considerably in a short period of time and the management and administration of the charity failed to adapt in line with this growth.

The EDI report and the governance review both demonstrated areas where the then trustees failed to manage the charity appropriately.

Regulatory Action Taken

The inquiry interviewed the former CEO on 10 May 2023 to discuss the regulatory concerns which arose during the time they were employed by the charity.

The charity’s trustees and members of the SLT were interviewed by the inquiry on 19 May 2023. The inquiry also met with charity representatives on multiple occasions to inspect charity records and obtain further information and copy documents.

On 18 January 2024, the inquiry issued regulatory advice and guidance to the charity on safeguarding matters under section 15(2) of the Act so that they could continue to effectively discharge their duties to the charity going forward.

On 13 June 2024, the inquiry issued regulatory advice and guidance to the charity which included:

• giving further consideration to the findings and conclusions of the Cass Review Final Report
• ensuring, in furthering its objects, the charity are clear where they are expressing a view on how best to support their beneficiaries and/or where they are providing information in furtherance of their educational object
• ensuring the charity has effective processes/mechanisms in place to promptly update its website to reflect significant developments and changes in the law, care and/or treatment of those affected by gender identity issues and their families
• in the event that the charity was to resume its Binder Service in the future, it should ensure that any decision is made properly and in accordance with the Commission’s guidance - Decision-making for charity trustees (CC27). In such a scenario, the Commission expects to be notified of this decision and the factors taken into consideration by the trustees in making this decision before such a service is resumed. The Commission would also expect that copies of the accompanying policies and controls are provided so as to be satisfied that the trustees are complying with and discharging their legal duties and responsibilities
• where the charity provides information relating to medical interventions (including puberty blockers) they make clear whether this information is based on factual evidence or alternatively is the charity’s view/standpoint. Furthermore, the charity has been specifically advised to review its published position on the reversibility of puberty blockers ensuring that all relevant available information and future guidance about side effects form part of that decision making process. Sufficient records should be retained of the process to evidence proper decision making. The charity has confirmed that it has completed this action, reviewing its website following the Cass Review and removed any references to the “reversibility” of puberty blockers
• review HR appraisal system (to include Trustees/Staff and Volunteers) to ensure consistent compliance with HR policies throughout the charity
• ensuring ongoing changes made as a result of the EDI review are fully embedded at all levels across the organisation
• ensuring that the charity has effective mechanisms in place to keep the charity’s governance under review in order that its governance keeps up with the pace of any future growth of the charity

The Commission will monitor the trustees’ progress against the advice set out above.

Issues for the wider sector

The purpose of this section is to highlight the broader issues arising from the Commission’s assessment of the issues raised publicly that may have relevance for other charities. It is not intended as further comment on the charity in addition to the findings and conclusions set out in the earlier sections of this report but is included because of their wider applicability and interest to the charity sector.

Implementing the findings of the Cass Review

The Independent Review of Gender Identity Services for Children and Young People (‘The Cass Review’) commissioned by NHS England and NHS Improvement in Autumn 2020 published its final report in April 2024. The Cass Review set out its recommendations on a range of issues which affect children and young people who are questioning their gender identity or experiencing gender dysphoria. This has resulted in changes to NHS guidelines, in particular with regard to the clinical approach to care and support.

Trustees who work in this area need to ensure that they have regard to the findings, conclusions and recommendations of the Cass Review and ensure that they have reviewed their charity’s literature, website and guidance in light of them. Furthermore, trustees should have the mechanisms in place to ensure that they keep up to date with any future changes to guidance or legislation.

Handling Complaints

Trustees should ensure that there is a clear mechanism by which members of the public can raise complaints about their charity and its service provision. It is good practice to have an easily accessible complaints policy (usually made available via a charity’s website) so that charity members and the wider public can raise concerns directly with a charity. It can also clarify the process and the types of complaints that a charity will engage with. This transparent approach enables trustees to spot issues early and take steps to improve if necessary. 

Data Protection

The General Data Protection Regulation (GDPR) 2018, applies to ‘personal data’, which means any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier.

The GDPR requires personal data to be processed in a manner that ensures its security. This includes protection against unauthorised or unlawful processing and against accidental loss, destruction or damage. It requires that appropriate technical or organisational measures are used. You can find more guidance in the security section of the Information Commissioner’s Office Guide to the GDPR.

Leadership and Cultural Values

Charity leaders have a responsibility to behave in a way that reflects charitable values and purpose, and does not appear to undermine their charity’s mission. Charity leaders are powerful and highly respected people, in their own organisation and in wider society. They are expected to respect that power and exercise it responsibly to set the tone for their organisation.

An effective workplace culture identifies, deters and tackles behaviour which minimises or ignores harm to all people, including its staff.  Failures to protect people – including a charity’s own staff – from harm should be identified and lessons learned and there should be full and frank disclosure, including to regulators. A perception that a charity is tolerating or downplaying poor behaviour within a charity, even if low level, can lead to a culture where people are unable or unwilling to challenge poor behaviour or raise concerns. All charities should have appropriately tailored internal policies to investigate and address poor behaviour. A failure to implement internal policies (and comply with them) can put assets, beneficiaries and a charity’s reputation at risk.

Ensuring lessons are learned and acted on will protect the reputation of a charity in the long term, it means that donors, stakeholders and the wider public can be confident that a charity operates with integrity and delivers on its charitable purpose. It builds trust between a charity’s workforce, the executive and the trustee board, necessary for the effective delivery of the charity’s purpose. Focusing on avoiding negative or critical media coverage when incidents have happened will not fulfil the trustees’ duty to protect a charity’s good name in the long run, nor serve the shared responsibility to uphold the reputation of charity as a whole.

Managing growth

Charities should ensure infrastructure, governance and resources keep pace with growth. All charities should have appropriately tailored internal policy documents and processes which address the specific risks associated with the kind of activities that are undertaken and ensure their policies are regularly reviewed and remain fit for purpose.

Charitable objects and activities

Charities must never lose sight of why they exist and what their charitable objects are. Trustees must be able to show that an activity furthers their charity’s purpose. If a charity has more than one object, trustees must be clear, when determining the activities a charity undertakes which object it is furthering, and that it is doing so in accordance with charity law.

1. The NCVO is a membership community for charities, voluntary organisations and community groups in England ↩