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23rd June 2021

Charities and the Equality Act: Recent developments highlight the need for clarity

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A year on from its initial application to be registered as a charity in March 2020, LGB Alliance (“LGBA”) has successfully been registered by the Charity Commission following an investigation into its charitable purposes and operations. 

However, an appeal against the Commission’s decision has already been lodged by a group of LGBTQ+ charities. The Commission’s decision and this subsequent appeal highlight the need for clarity in this growing area where charities and equality law overlap.

Background

On 20th April 2021, the Charity Commission published an explanation of its decision to admit LGBA onto the charities register. The Commission’s investigation considered whether LGBA met the legal test of being a charity: whether it is an organisation with exclusively charitable purposes for the public benefit and subject to the jurisdiction of the High Court of England and Wales.

Part of this assessment involved scrutiny of the objects contained in LGBA’s governing document. During its investigation, the Commission received a number of objections to LGBA’s registration.

LGBA is a charitable company which, according to its website, seeks to advance the interests of lesbian, gay and bisexual people. Its work is based on the premise that sex in human beings is genetically binary.[1] Such a view is not shared by many groups in the LGBTQ+ community which seek to promote and protect a range of gender identities.

Charity Commission’s Position

Prior to the recent appeal, the Charity Commission found that LGBA was established for exclusively charitable purposes, entering it onto the charities register with the following objects:

  • To promote equality and diversity for the public benefit;
  • To promote human rights and particularly the rights and freedoms of those who face discrimination on the grounds of sexual orientation; and
  • To promote any other purpose that is charitable under the law of England and Wales.

The Commission assessed whether the promotion of human rights in this context is a charitable purpose which benefits the public because a charity may engage in political activity, but it cannot be established for political purposes. It emphasised that there is no presumption in favour of a public benefit under the Charities Act 2011, with each charitable purpose having to be demonstrated on the facts.

It found that the advancement of human rights creates a public benefit not only for those who directly benefit from a charity’s work, but also wider society, through an increased perception that the rights of all members of society are being protected. Therefore, the promotion of human rights and equality and diversity for the public as a whole can be achieved via the advancement of the rights of a smaller group of people.

Objections raised against LGBA’s registration

As part of its decision to register LGBA, the Charity Commission considered a number of objections to LGBA’s registration. The primary objection was that LGBA unlawfully discriminates against transgender people under the Equality Act 2010.

The Commission recognised that if an infringement of equality law is necessary to further a charitable purpose, the charitable purpose will be unlawful. However, the Commission held that promoting equality and human rights for lesbian, gay and bisexual people is not unlawful or contrary to public policy and it is also not inherently discriminatory to the exclusion of transgender people.

In its reasoning, the Commission acknowledged that there may often be cases where the rights of different groups compete or come into conflict. The Equality Act 2010 permits limited discrimination where charitable benefits are restricted to individuals sharing one or more protected characteristics (in this case gender reassignment, sex and sexual orientation) and doing so is a proportionate means of achieving a legitimate aim or is for the purpose of preventing or compensating for a disadvantage linked to the protected characteristics.

The Commission’s assessment of whether restricting charitable activity to a particular class of beneficiaries is proportionate was influenced by the question of whether the manifestation of a particular belief renders a purpose non-charitable. It emphasised that charities can promote the rights of one or more groups, but crucially, they cannot denigrate others in the process as this would breach the Equality Act.

Despite considering evidence of potentially inflammatory language on social media, which has also led to the revision of LGBA’s social media policy, the Commission concluded that LGBA’s charitable purposes do not intrinsically involve the denigration of the rights of transgender people.

Appeal against LGBA’s charitable status

In early June, several LGBTQ+ charities including Mermaids appealed the Charity Commission’s decision on the grounds that it denigrates transgender people. In a recent statement, Mermaids alleged that LGBA has actively campaigned against the work undertaken by LGBTQ+ organisations.[2] The appeal has already attracted significant crowdfunding support.

The recent increase in news regarding trans rights and gender identity in the charity sector demonstrates the need for greater clarity regarding how charitable purposes are implemented in practice. Clearly, there is a very fine line between what may be considered acceptable and what may be considered a manifestation of a belief in a way that renders a purpose non-charitable. A judicial decision may help to provide greater clarity, but also help to protect those whom charities in this area seek to assist while helping to balance the rights of different groups.

If you would like to speak with a member of our Education and Charities team to see whether we can assist with a matter relating to charities, please contact us here.

 

[1] https://lgballiance.org.uk/about/ (8 June 2021)

[2] https://mermaidsuk.org.uk/news/mermaids-appeals-lgb-alliance-charity-status/ (2 June 2021)

Virginia Henley
Virginia Henley

Partner, Head of Charities

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Oliver Silk
Oliver Silk

Trainee Solicitor

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