If someone had said to me a few years ago that one of the most controversial subjects I’d ever write on would be women’s freedom to assert their rights to single-sex spaces, services and sports, I’d have thought they were crazy. I wouldn’t have believed that in a mature democracy people would lose livelihoods, be kicked off degrees or be issued with unlawful police warnings after expressing the belief that sex remains materially relevant in society, a moderate and widely shared view that remains the current legal position in the UK. But the bullying tactics of campaigners who believe that the gender with which someone identifies should, without exception, override their sex, plus the lack of leadership across many big institutions, means this is where we have ended up.
The latest entry in the so-mad-you’d-barely-believe-it column is the unsuccessful attempt by the trans charity Mermaids to get LGB Alliance stripped of its charitable status, in a legal fight that has gone on for years and cost both sides hundreds of thousands of pounds. They have opposing views on sex and gender, and what constitutes appropriate healthcare for children questioning their gender.
Mermaids is an established charity – it was awarded a grant of £500,000 from the national lottery fund in 2019 – which has lobbied the NHS to make puberty blockers and cross-sex hormones available to younger children with gender dysphoria.
LGB Alliance is a fledgling “gender critical” gay rights charity that says gender identity cannot replace sex in society. It argues that being gay is a matter of same-sex (not same-gender-identity) attraction and lesbians have the right, without being called bigoted, to assert sexual boundaries that exclude males who identify as lesbians. It is also concerned that gender non-conforming young people struggling with same-sex attraction are being encouraged on to an irreversible pathway to medical transition.
So far, so normal. The charity sector has many organisations that take opposing views: anti-abortion charities co-exist alongside pro-choice ones, for example. Quite rightly: in a democratic society, it would be dangerous for the state to dictate that charitable activity must be limited to people with a sanctioned worldview.
But, as observed by the court of appeal, gender ideology campaigners are far too quick to brand anyone who disagrees as bigoted. Susie Green, until recently Mermaids’ CEO, has mischaracterised LGB Alliance as a “hate group” whose “true purpose is the denigration of trans people”. Little matter that its concerns about puberty blockers are shared by many in the medical establishment and have resulted in decisions to restrict access in countries such as England, Finland and Sweden.
This intolerance for dissent led Mermaids and its supporters to launch a crowdfunder to have the courts overturn the Charity Commission’s decision to register LGB Alliance as a charity. To get the courts to review the decision, Mermaids had to show it had “standing” to take the case – that it was sufficiently affected by it. Without this test, anyone who can raise the funds could tie up charities they disagree with in expensive, lengthy legislative processes.
Mermaids argued it had standing to challenge the Charity Commission decision because LGB Alliance’s charity status allowed it to criticise Mermaids’ work more effectively; and because it is a competitor for charitable funding. The courts last week ruled comprehensively against Mermaids, saying it has “no legal right to operate free from criticism” and “no legal right to funding”.
While LGB Alliance’s social media activity in its pre-charity days is not beyond reproach, this was something the commission raised with it. The charity accepted that there had been lapses in judgment and revised its social media policy: evidence of charity regulation working as it ought, which certainly does not give Mermaids the right to try to strike it off.
So the courts have functioned as a sanity backstop in the gender debate, and not for the first time. There have been several high-profile cases of individuals successfully taking organisations, from employers to the police, to court for unlawfully discriminating against them because of their belief that sex is relevant in law and society. There are many more cases working their way through the system of alleged discrimination by the social work regulator, universities, rape crisis services and publishers.
But it is an abject dereliction of leadership to leave this to the courts to resolve. Legal action comes at a huge financial and emotional cost many women simply cannot afford: LGB Alliance defeated Mermaids but spent £250,000, and Mermaids’ action has impeded its ability to deliver planned services, such as a helpline for young people.
The downside for gender ideology campaigners is that their position has been subject to far more forensic examination in the courts than they previously experienced in parliament or civil society. In court, Mermaids’ chair made the extraordinary claim that it doesn’t “give advice on medical stuff” despite evidence that it has lobbied the NHS to lower the age limit for medical transition and helped draft NHS service specifications. Another witness for Mermaids claimed that anyone can identify as a lesbian, whether or not they are female. In other court cases, Stonewall witnesses have effectively argued that it is transphobic to distinguish between gender identity and sex.
And the extra scrutiny that the case has brought Mermaids means that it, not LGB Alliance, finds itself under statutory investigation by the Charity Commission, following revelations in the press that raise serious questions about its approach to child safeguarding. Some of its staff reportedly supplied children as young as 13 with potentially harmful breast-binding devices without parental consent; it is accused of sharing medical misinformation on its online forums; and one of its trustees resigned after it emerged he had historical links with a group that supports the right of paedophiles to live “in truth and dignity”.
The courts should be the arbiter of last resort. Employers and public services bodies shouldn’t need judges to force them to respect people’s democratic right to express a legitimate and mainstream opinion. But the fact that just last month the NHS Confederation published guidance encouraging hospitals to unlawfully discriminate against women requesting single-sex care shows just how deep the ideological capture and cowardice runs. There will be the need for more exhausting and expensive legal action yet.
• Sonia Sodha is an Observer columnist
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