Decision

LGB Alliance - Full decision

Published 20 April 2021

Applies to England and Wales

Charity Commission for England and Wales

LGB Alliance

Application for Registration of LGB Alliance

Decision of the Commission 20 April 2021

Background

1.LGB Alliance, a company limited by guarantee (incorporated on 28 November 2019) applied to be entered onto the register of charities on 13 March 2020.

Decision

2.The Commission accepted that LGB Alliance is established for exclusively charitable purposes, in accordance with the legal framework and based on the evidence received, and should be entered onto the register of charities with objects as follows:

2.1.To promote equality and diversity for the public benefit, in particular by:

• the elimination of discrimination on the grounds of sexual orientation;
• advancing education and raising awareness in equality and diversity in respect of lesbian, gay and bisexual people;
• conducting or commissioning research on equality and diversity issues and publishing the useful results to the public; and
• cultivating a sentiment in favour of equality and diversity for lesbian, gay and bisexual people.

2.2.To promote human rights (as set out in the Universal Declaration of Human Rights and subsequent United Nations conventions and declarations) and particularly the rights and freedoms of those who face discrimination on the grounds of sexual orientation, including by:

• monitoring abuses of human rights;
• obtaining redress for the victims of human rights abuses;
• relieving need among the victims of human rights abuses;
• research into human rights issues;
• educating the public about human rights;
• providing technical advice to government and others on human rights matters;
• contributing to the sound administration of the law;
• commenting on proposed human rights legislation;
• raising awareness of human rights issues;
• promoting public support for human rights;
• promoting respect for human rights among individuals and corporations; and
• eliminating infringements of human rights.

2.3.To promote any other purpose that is charitable under the law of England and Wales.

3.The full analysis and reasons for the decision are set out below.

The issues for consideration

4.The issues to be determined in assessing the charitable status of LGB Alliance, by law, are:

• What are the purposes of LGB Alliance?
• Do those purposes fall within the descriptions of charitable purposes in section 3 of the Charities Act 2011 (“the Charities Act”)?
• Are those purposes for the public benefit?
• Is LGB Alliance subject to the control of the High Court in the exercise of its jurisdiction with respect to charities?

The purpose of LGB Alliance

5.The objects of LGB Alliance are set out in Article 2 of its Articles of Association as stated in paragraph 2 above.

6.The terms used in the objects as expressed are clear and certain, they are not indefinite or ambiguous in nature. The stated means of furthering each of the objects are wide ranging and are all capable of furthering the respective purposes of the promotion of equality and diversity and the promotion of human rights.

Do those purposes fall within the descriptions of purposes in the 2011 Act?

7.The first and second objects are capable of being charitable under the description of purposes in s. 3(1)(h) of the Charities Act, purposes for the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity. The third object is capable of being charitable on the basis that it is to further any charitable purpose in England and Wales.

8.The Commission accepts as charitable the promotion of human rights ^{[footnote 1]} (as set out in the Universal Declaration of Human Rights and subsequent United Nations conventions and declarations) throughout the world and recognises that human rights may be advanced in many different ways. To be charitable, purposes which fall within the advancement of human rights must be for the public bene-fit, meaning that they must benefit the public or a sufficient section of the public.

9.There are limitations on the advancement of human rights consistent with the principles of charity law. In particular, in order to be charitable a purpose cannot be political and any political activities must be ancillary to charitable purposes. ^{[footnote 2]}

10.In assessing charitable status, the Commission has taken into account the principles underpinning the advancement of human rights in charity law set out by the First-tier Tribunal in The Human Dignity Trust v Charity Commission. ^{[footnote 3]}

11.The Commission recognised the promotion of equality and diversity for the benefit of the public as charitable in 2003 ^{[footnote 4]}, by analogy with the following purposes, which had been separately recognised either by the courts or by the Commission itself:

• the promotion of equality of women with men; ^{[footnote 5]}
• the promotion of racial harmony; ^{[footnote 6]}
• the moral or spiritual welfare and improvement of the community;
• the promotion of religious harmony;
• the promotion of human rights.

12.The information in support of the application confirmed that LGB Alliance would undertake a range of activities to further its objects including: education; research; public guidance; advice and guidance to government and other policy makers; promoting the development of policy and practice; and advice and support to lesbian, gay and bisexual people.

Are the purposes for the Public Benefit?

13.In order to be a charity an organisation in addition to being established for purposes falling within the descriptions of purposes set out in the Charities Act must be established for the public benefit. Sec-tion 4(2) of the Charities Act makes clear that in applying this requirement it is not to be presumed that a purpose of a particular description is for the public benefit. The public benefit is to be demonstrated on the evidence. ^{[footnote 7]}

14.In assessing the charitable status of LGB Alliance the Commission had regard to the law relating to public benefit which was clarified by the Upper Tribunal in Independent Schools Council v Charity Commission. ^{[footnote 8]} The Tribunal identified two aspects of public benefit, the first aspect is that the nature of the purpose must be beneficial to the public and the second aspect is that those who may benefit must be sufficiently numerous, and constitute a sufficient section of the public.

(1)Purpose beneficial to the community

15.The Commission recognised the benefit to the public of the advancement of human rights in its Guidance The Promotion of Human Rights RR12, at paras 10-12.

“There is an obvious public benefit in promoting human rights. For individuals whose hu-man rights are thereby secured, the benefit is immediate and tangible. There is also a less tangible, but nonetheless significant, benefit to the whole community that arises `from our perception that the fundamental rights of all members of the community are being protected. That provides sufficient benefit to the community to justify treating the promotion of human rights as a charitable purpose in its own right.”

16.The Commission, in recognising the promotion of equality and diversity as charitable, noted evidence of public benefit to include the prohibition of discrimination and promotion of equality enshrined within legislation. ^{[footnote 9]} The Commission’s publication Promotion of equality and diversity for the benefit of the public at para 6 recognises

“…that the overwhelming intangible benefit is a fairer and more just society in which people are valued for themselves.”

17.LGB Alliance states that it benefits the public by:

• advancing education and raising awareness of the public on matters relating to equality and diversity;
• providing advice to lesbian, gay and bisexual persons and the wider public about the legal and other support available to them; and
• providing advice to the government on human rights matters, particularly on issues affecting lesbian, gay and bisexual persons, and seeking to ensuring that the law appropriately addresses the needs of lesbian, gay and bisexual persons.

(2)Benefit to the public or a sufficient section of the public

18.The Commission’s guidance recognises the benefit to the community as a whole in promoting human rights and equality and diversity. Where benefit is not to the public generally, it can be to a particular section of the public, provided that this is sufficient section for the purposes of the test. The Commission considers that the beneficiary class for purposes within the promotion of equality and diversity and the promotion of human rights is in many cases the public in general and that public benefit can be delivered by the protection of the rights of a smaller class, in this case lesbian, gay and bisexual people.

19.The information received in support of the application evidenced that LGB Alliance provides benefit to lesbian, gay and bisexual people and the wider public.

20.LGB Alliance can serve the public at large though the publication of material on its website and through its education and awareness-raising activities. To the extent that the purposes and activities are directed towards lesbian, gay and bisexual people these people are a sufficient section of the public to satisfy the public benefit requirement.

21.The Commission was satisfied based on the evidence before it that the purposes of LGB Alliance met the public benefit requirement.

Jurisdiction

22.The statutory definition of a charity requires that it is subject to the control of the High Court in the exercise of its jurisdiction with respect to charities (s.1(1)(b) of the Charities Act). To be a charity LGB Alliance must be established under and in accordance with the law of England and Wales. LGB Alliance is a company registered in England and Wales, and no issue arises on the facts of this case which suggests that it does not meet this requirement.

Objections to Registration

23.The Commission received objections to registration of LGB Alliance, which are in summary, on the basis that the organisation’s purposes:

i. unlawfully discriminate against transgender people under the Equality Act 2010 (the Equality Act);

ii. include some purposes, whether or not stated in its governing document, which are not charitable;

iii. are political, and therefore not charitable;

iv. are not for public benefit;

v. will result in a degree of harm which outweighs the public benefit.

24.The Commission considered each of these objections as set out below.

(i) Alleged unlawful discrimination against transgender people

25.Purposes cannot be charitable if they are unlawful or contrary to public policy. ^{[footnote 10]} If purposes are unlawfully discriminatory under the provisions of the Equality Act, then such purposes will be unlawful and would not be charitable. Even if the purposes themselves do not infringe equality law, an organisation may infringe equality law in implementing or furthering its purposes. If such infringement is a necessary consequence of furthering the purposes, then the purposes will be unlawful.

26.Section 193 of the Equality Act provides an exemption from the prohibitions in that Act where benefits are restricted by reference to persons sharing a protected characteristic in pursuance of a charitable instrument, and where this is either a proportionate means of achieving a legitimate aim or is for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

27.The issue is whether the pursuit of ostensibly charitable objects (promoting the human rights of those who face discrimination on the grounds of sexual orientation and educating the public about equality and diversity of those persons) would necessarily infringe the Equality Act and discriminate against people who share a particular protected characteristic (those who consider that their gender identity might not correlate to the gender they were assigned at birth).

28.Promoting equality and human rights for lesbian, gay and bisexual people is not unlawful or contrary to public policy. A purpose of promoting the equality and human rights of lesbian, gay and bisexual people is not inherently discriminatory and does not necessarily have the effect of inhibiting the rights of transgender people.

29.The Commission recognises that assessing the public benefit of purposes falling within the promotion of equality and diversity and the promotion of human rights may involve complex considerations. There may be competing rights of different groups such that activities to promote the equality and rights of one group may have, or be seen as having, the effect of inhibiting the rights of another. The implications of the High Court judgment in Catholic Care (Diocese of Leeds) v. Charity Commission for England and Wales ^{[footnote 11]} are that an organisation established for purposes which necessitate discrimination in a way that is not justified is not likely to be established for the public benefit, and where that is the case, will not be a charity.

30.In support of its application for registration LGB Alliance stated that “In educating the public about human rights and equality issues relating to the LGB community, LGB Alliance’s position will be there are only two sexes and gender is a social construct, and that this perspective should form part of the discussion about these issues.”

31.Similar views were considered in the decision of the Employment Tribunal in Forstater v CGD Europe & others ^{[footnote 12]} in which the Tribunal held (subject to an appeal) that the absolutist nature of a belief which denied the right of a person with a Gender Recognition Certificate (GRC) to be the sex to which they had transitioned was incompatible with human dignity and the fundamental rights of others. It therefore did not qualify as a belief protected by section 10 of the Equality Act. This decision is informative and provides a helpful analysis of the Tribunal’s approach to consideration of such views. The Tribunal noted the legal framework for its decision to include the following:

• Transgender rights are protected in limited circumstances by s.7 of the Equality Act where persons are proposing to undergo, are undergoing or have undergone a process of reassigning sex by changing physiological and other attributes of sex.
• The ECtHR rejected a purely biological approach to gender (one based only on chromosomal analysis) and considered that a person should be able to live in the gender to which they had transitioned and not forced to identify with their gender at birth (Goodwin v UK 2002 IRLR 664 ECHR).
• The Gender Recognition Act 2004 provides a mechanism for people to obtain a GRC.

32.The fact that a particular belief does not attract such protection does not necessarily compel the finding that the promotion of rights, or the education of the public, in accordance with such a belief cannot be charitable. The question is whether the manifestation of that belief renders the purposes non-charitable.

33.The Tribunal concluded that “the totality of the evidence, that [Forstater] is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment”

34.If the promotion of the rights of one group is to be pursued in a way which invariably involves the denigration of the rights of others, that purpose may not be for public benefit. However, promoting the equality and human rights of lesbian, gay and bisexual people may be pursued without denigrating the rights of transgender people.

35.The Commission looked at whether LGB Alliance’s purpose inevitably involves the denigration of the rights of transgender people and considered that it did not. The Commission noted that LGB Alliance asserts that it engages constructively and respectfully with representatives of the transgender community, has a number of supporters within the transgender community, invited transgender supporters to attend and speak at the meetings it has held and has spoken publicly about its commitment to equality and respect for transgender people. LGB Alliance’s website states that its values include that of respect: “We engage with others respectfully. We discuss, propose, and oppose ideas; we do not attack individuals. Disagreement does not equal hate. We do not condone, endorse, or encourage any abusive or discriminatory behaviour towards any group or individual”

36.LGB Alliance explains its position on the basis that it seeks to protect women and young people in particular. It argues, for example, that some spaces should be limited to biological women where they are potentially at risk. LGB Alliance is also concerned about the support and after care that is provided for young people who are uncertain about their gender identity and when applying for a GRC.

37.During the course of the registration case, the Commission noted some evidence of social media activity (information that was posted or re-posted on social media) by LGB Alliance and considered that some of the language used may be regarded as inflammatory and offensive. In addition, it was not immediately obvious how some of these postings furthered any of the LGB Alliance’s purposes. The Commission was concerned that, although it promoted the rights of some groups, the activity appeared to involve, at times, demeaning or denigrating the rights (recognised by law) of others.

38.The Commission raised these concerns with LGB Alliance and in response LGB Alliance reviewed and revised its social media policy. LGB Alliance stated that it intended to adopt a less defensive and confrontational approach to social media engagement. The revised social media policy places a focus on the language and tone of the social media posts and states that staff must never: unlawfully discriminate; make offensive, abusive or threatening comments or harass or bully other people in any way or breach any laws or ethical standards.

39.LGB Alliance’s social media activity represents a part but not the totality of its activities in furtherance of its purposes. If LGB Alliance presents its view in such a way that respects the dignity of transgender persons and does not create an intimidating, hostile, degrading, humiliating or offensive environment, then this is capable furthering charitable purposes. If a charity promotes the rights of one or more groups whilst demeaning or denigrating the rights of others, then the Commission may consider taking regulatory action.

(ii) Complaints that LGB Alliance’s purposes include some which are not charitable

40.As described earlier in this decision, the Commission has concluded that the purposes of LGB Alliance, as set out in its governing document, are exclusively charitable.

41.There is some suggestion in the objections to registration that the objects declared in clause 2 of LGB Alliance’s Articles of Association are not its “true” objects. This is, in legal terms, an allegation that clause 2 is a “sham”. In Snook v London and West Riding Investments ^{[footnote 13]}, the Court held that such a situation arose where there had been a common intention amongst the signatories to a document not to establish the legal rights and obligations which it gave the appearance of creating. It is tantamount to an allegation of dishonesty. The First-tier Tribunal in Hipkiss v Charity Commission for England and Wales ^{[footnote 14]} impliedly rejected a submission that one could suggest that the objects declared in a governing instrument did not declare its true objects in the absence of alleging a sham.

42.The Commission found no evidence to support allegations of dishonesty or a sham.

(iii) Concerns that LGB Alliance is established for a political purpose

43.A charity cannot be established with a political purpose, although political activity can be undertaken by a charity where this is in support of the delivery of charitable purposes and is not the sole and continuing activity. The approach of the Court in McGovern v Attorney General ^{[footnote 15]} as follows:

“the mere fact that trustees may be at liberty to employ political means in furthering the non-political purposes of a trust does not necessarily render it non-charitable … in any case where it is asserted that a trust is non-charitable on the grounds that it introduces non-charitable as well as charitable purposes, a distinction of critical importance has to be drawn between (a) the designated purposes of the trust, (b) the designated means of carrying out these purposes and the consequences of carrying them out… similarly, trust purposes of an otherwise charitable nature do not lose it merely because the trustees, by way of furtherance of such powers, have incidental powers to carry on activities which are not themselves charitable”.

“the distinction is thus one between (a) those non-charitable activities authorised by the trust instrument which are merely subsidiary or incidental to a charitable purpose, and (b) those non-charitable activities so authorised which in themselves form part of the trust purpose.”

44.Charities with purposes for the promotion of human rights may engage in political activities when enforcing rights against states and challenging decisions of government and public bodies. A difficulty arises in distinguishing between political purposes and political activities, and whether particular political activities may be ancillary to charitable purposes.

45.Some of the campaigning activities undertaken by LGB Alliance are political in nature where they are directed towards advocating for or against the reform of law. A charity can campaign for changes in law provided that the campaigning is carried out in support of the charity’s purposes, and otherwise in accordance with the legal framework applicable to charities.

46.On the basis of the evidence the Commission was satisfied that LGB Alliance’s campaigning activities are undertaken in furtherance of its stated charitable purposes and are ancillary to those purposes. There is evidence that political activity is not its sole continuing activity but one aspect of its work.

47.There is a suitable power in LGB Alliance’s Articles of Association to undertake political activities in accordance with the requirements of charity law. The trustees of LGB Alliance confirmed to the Commission that they understand that their campaigning activities must be undertaken only in the context of supporting the delivery of LGB Alliance’s charitable purposes and they will have regard to the Commission’s guidance on campaigning and political activity.

(iv) Concerns that LGB Alliance’s purposes are not for the public benefit

48.The Commission’s assessment and conclusions on the nature of LGB Alliance’s purposes and whether they are of benefit to the public are at paragraphs 14-22 above.

49.Evidence of public benefit was presented by LGB Alliance in support of its application and include raising awareness and educating the public about equality and diversity issues and providing support to lesbian, gay and bisexual people.

(v) Arguments that the harm resulting from LGB Alliance’s purposes outweighs the public benefit

50.Detriment and harm is an aspect of the assessment of the public benefit requirement. Even though there may be clear benefit arising from the purposes of LGB Alliance, if this is outweighed by detriment or harm to the public by pursuing its purposes, then the public benefit requirement will not be met. The principal legal authority on this issue is the case of National Anti-Vivisection Society v IRC ^{[footnote 16]} where the moral benefits to the community arising from campaigning to prevent live animal experimentation were weighed against the material benefit to humankind arising from medical research. The House of Lords found in favour of the latter and the Society was not found to be charitable.

51.The Upper Tribunal in Independent Schools Council v Charity Commission (paragraphs 105 and 106) looked at the impact of evidence of detriment and harm and said:

… we think that a clear case will have to be made out to show that an object which would ordinarily be charitable is not charitable because of the consequences which it has for society.

The court, we conclude, has to balance the benefit and disadvantage in all cases where detriment is alleged and is supported by evidence. But great weight is to be given to a purpose which would, ordinarily, be charitable; before the alleged disadvantages can be given much weight, they need to be clearly demonstrated. There is, we think, a considerable burden on those seeking to change the status quo.”

52.The Commission noted that there is evidence of some disagreement with the views of the LGB Alliance and allegations of discrimination against transgender persons.

53.The Commission’s public benefit guidance makes it clear that the existence of detriment and harm does not necessarily mean that an organisation cannot be charitable. It is a question of balancing the benefits of the purposes against any detriment and harm of the purposes.

54.The Commission carefully considered the allegations of detriment and the evidence put to it and concluded that the purposes of LGB Alliance, as properly construed in accordance with the legal framework, are charitable and beneficial to the public. The Commission concluded that the consequences of furthering those purposes would not necessarily be detrimental to the public.

55.LGB Alliance has taken action to ensure its social media activity is undertaken in furtherance of its charitable purposes and consistent with its publicly expressed value of respect.

Summary

56.The Commission concluded that LGB Alliance is established for exclusively charitable purposes, in accordance with the legal framework and based on the evidence received. Accordingly, LGB Alliance will be registered as a charity.

57.To the extent that matters considered by the Commission during the course of its registration case or in future constitute matters of regulatory concern, these will be addressed appropriately by the Commission in line with its usual processes. ^{[footnote 17]}

1. The Promotion of Human Rights (RR12) ↩

2. Discussed below. ↩

3. CA/2013/0013 ↩

4. Commission decision Promotion of Equality and Diversity for the Benefit of the Public, 1 July 2003 ↩

5. Halpin v Seer Ch Comm AR 1977 para 34 (Women’s Service Trust) ↩

6. Ch Comm AR 1985 para 24 ↩

7. Re Hummeltenberg [1923] No 1 Ch 237 ↩

8. Independent Schools Council v Charity Commission for England and Wales [2011] UKUT 421 (TCC) ↩

9. Now enshrined within the Equality Act 2010 ↩

10. National Anti-Vivisection Society v IRC [1948] A.C. 31 per Lord Simons at p.65 ↩

11. [2010] 4 All ER 1041 at paragraphs 96-99 ↩

12. [2019] 12 WLUK 516 ↩

13. [1967] 2 QB 786 ↩

14. CA/2017/0004 ↩

15. [1981] 3 All ER 493 at 511 ↩

16. [1948] AC 31 ↩

17. Charity Commission Regulatory and Risk Framework - GOV.UK ↩