By Simon White, LGB Business Forum

Debra Allcock Tyler writes that charities are not being sufficiently “innovative’” in finding solutions to trans inclusion, and she feels they are evading responsibility. In truth, a clear and universal solution has always been available: the law.

Not just last year’s Supreme Court judgment, or precedents like Maya Forstater, nor even the forthcoming guidance from the EHRC. It is the Equality Act 2010, which since its inception has protected single-sex spaces where they are a proportionate means of achieving a legitimate aim.

The problem is not a lack of creativity; it is that charities and businesses were, for years, systematically misled by campaigners, consultants and umbrella bodies. These groups offered lucrative training and awards schemes which — in the words of former EHRC commissioner Akua Reindorf — presented the law as “they preferred it to be, rather than as it is”.

Debra is spot on when she says equality guidance should come from the state, regulators and lawmakers. It should not flow from third parties, especially not when they are motivated by profit and an activist mindset to misrepresent the law.

For over a decade, the chief tactic used to uphold illegal practices that discriminate against women and girls is through appeals to emotion and deliberately obtuse misrenderings of the law. Debra’s reference to Girlguiding is a prime example of such rhetorical sleights of hand, claiming as she does that ‘trans kids’ are banned. (They are not: boys are excluded, regardless of their identity — as has always been the case.)

The law is the realm of reason, not passion; its purpose is not kindness but fairness. The courts give short shrift to emotional arguments, as we have seen in countless judgments that have found in favour of women and girls who were denied their rights under the admonishment to “be kind”.

It is not just women and girls who have seen their rights eroded. Lesbians, gay men and bisexuals are among the first to suffer when unlawful activist guidance is implemented unquestioningly in the workplace. (This is particularly galling when those activists do, or did claim to represent LGB people.) Policies based on the untruth that sexual orientation is an attraction to ‘gender’ rather than sex is just one example of how our identity and reality is being redefined, diluted, or treated as secondary to those who claim the legal rights of the opposite sex.

Whatever your stance on inclusion, any organisation that seeks protection from lawsuits, safeguarding failures, and catastrophic reputational damage will do what Girlguiding did, and obey the law. This does not, of course, preclude them from campaigning for legislative change.

Emotion, misrepresentation and activism disguised as impartiality are what got us into this mess. How do we get out of it?

Our first piece of advice to charities and their HR departments is: Don’t panic. The law is not your opponent, but a friend. There is no reason for third sector organisations to worry as they wait for “clarification” from the EHRC. The best way to get ahead of the guidance is simply to apply the law as it’s so clearly stated in the statute book.

The second is to show a little discrimination (in the best sense of the word) when it comes to the organisations to whom you turn for advice. Stonewall, the charity that did most to push a false interpretation of equalities law, may be reputationally and functionally bankrupt, but there’s no shortage of other activist organisations jockeying to take its place.

Thirdly, recognise that employees who shout the loudest do not necessarily have right on their side; rather, they exert a chilling effect that makes other minorities fearful of the consequences of speaking up. Last summer, LGB Business Forum’s Compelled Conformity report found a third of LGB employees face hostility due to their beliefs, and two thirds felt pressure to affirm views they did not hold. That’s not right — and it’s not kind, either.

The suggestion that charities are merely caught in legal crossfire obscures the fact that many actively chose to go beyond the law. In doing so, they placed LGB staff and service users in an impossible position while increasing their own legal risk. A genuinely respectful charity sector is one that can tolerate disagreement, support all protected characteristics in law, and stop mistaking ideological conformity for harmony and inclusion.