The right to stand before a court and have a judge hear your case is not a given. Not just anyone can put any question into the legal arena and expect someone to hear it. For a claimant’s case to be valid, they must have an active interest in the matter they have filed before the court and the question must be more than a mere hypothetical. Mermaids and Jolyon Maugham’s Good Law Project were reminded about this principle the hard way in their recent case before the Tribunal. They were sent sprawling at the very first hurdle, with the two judges dismissing the case for a lack of standing, not even getting to the question of whether the case had any merit.
Mermaids’ (the trans-rights charity) challenge concerned the Charity Commission’s decision to give the LGB Alliance (LGBA) charity status. Set up by Bev Jackson and Kate Harris, two prominent lesbian and gay campaigners, the LGBA’s stated mission is to challenge the ‘erasure’ of lesbians and other same-sex attracted people by trans-rights groups. They are concerned that the emerging dominance of the trans movement, with its campaigns like ‘breaking the cotton ceiling’, threatens the rights, if not the existence, of lesbians and gay people. Within this cotton-ceiling campaign, for instance, trans-rights activists are accusing lesbians who choose not to pursue or date trans-women with male genitalia as transphobic. Rather than accepting that person chooses to identify, such lesbians are defining them by whether or not they have a penis. The fact that lesbians are not sexually attracted to penises is neither here nor there.
It is this perceived transphobia that is core to Mermaids’ case. After the judgment, the GLP accepted: ‘The LGB Alliance has a free speech right to attack trans people’; but they questioned whether it should be given the legitimacy and the funding that comes with charity status. Provocative, inflammatory quotes like this might curry favour in the court of public opinion and inspire a deluge of donations, but it doesn’t transfer well to the staid environs of a courtroom. Questions of ethics and questions of law, as philosophers since Socrates have taught, are very different beasts.
For the Mermaids and the GLP to be able to challenge the Commission’s decision, the threshold they needed to surmount was set out in statute. The Charities Act 2011 (the 2011 Act) mandates that the only people who can challenge the Commission’s grant of charity status are the charity and its trustees or ‘any other person who is or may be affected by the decision’. According to Mermaids, they were such a person. Over the course of the LGB Alliance’s existence, it had vocally campaigned against Mermaids’ activities, ‘mischaracterising’ its work and encouraging organisations not to work with them. Mermaids were not an organisation untouched by LGBA, pursuing them out of antipathy to their purposes alone, but an organisation who had been deliberately targeted by them.
Regardless of what your opinion may be on trans rights, the Mermaids, the GLP, or the LGBA, the question of whether Mermaids had standing should be divorced from whether or not they had a good case. For many in the legal sphere, dismissing anything done by the GLP because it is done by the GLP comes naturally, while Mermaids’ enthusiasm for gender transitioning has raised cause for concern. Both organisations (and their supporters) are prone to grandstanding and reductive viewpoints, reducing people to friend or foe. There is little room for nuance or subtlety. This does not mean that Mermaids did not have a right for their case to be heard, however.
Courts are rightly concerned that not any Tom, Dick, or Harry should be able to bring a case before them. The fact that someone is interested in an issue does not mean they have the right to lay litigious siege to an organisation. But if the drawbridge is secured too tightly against such attacks, it makes decision-makers safe from any scrutiny even if some may be merited.
On the question of standing, Mermaids had a reasonable claim. They had been singled out by the LGBA and were challenging the grant of charitable status because of this. Within its judgment, the Tribunal quoted 14 occasions on which LGBA had directly targeted Mermaids in its communication on twitter, and how LGBA had mobilised its resources against the Mermaids work. Despite this, it found that it was bound by an earlier decision, Nicholson (No. 1), where the tribunal held that the person must have ‘an interest that is materially greater than, or different from, the interests of an ordinary member of the public’.
To conclude that Mermaids and Mr Nicholson were somehow equivalent litigants was an absurd decision on the part of the Tribunal. Nicholson was a man who engaged in correspondence with the Charity Commission over a question of charitable status, but who was otherwise an ordinary taxpayer. Mermaids were an organisation with competing views who had been targeted by LGBA. Granting the LGBA charitable status lent greater credibility to their words and actions, enhancing the legitimacy of their attacks on Mermaids. To suggest that this did not affect Mermaids’ legal rights is to elevate the question of sufficient interest for standing to – in the sphere of charities – insurmountable heights.
This does not mean that their legal rights had been violated, or that Mermaids have a valid substantive case. While out and out combat between charities may be a rarity, there is nothing precluding them from competing over a charitable interest, and criticising the aims and ambitions of their rivals. Some of LGBA’s language before the grant of charity status may be regrettable, but the fundamental principle motivating the charity is a vital one. Letting the case proceed would not have interfered with either charity’s free speech rights.
Towards the end of its judgment, this was the focus of the two tribunal judges, who departed from focussing on the question of standing to examine the question of freedom of speech. There was no need to veer off into Lord Bingham’s observation that ‘freedom of thought and expression is a crucial component of an intellectually healthy society’. Mermaids were not challenging the right of LGBA to speak their mind, but challenging the Charity Commission’s decision to legitimate their voice (and their past targeting of Mermaids) by granting them status as a charity. Even if Mermaids’ case was unlikely to deliver much for them, the tribunal should have let them stand and make it.