Private Law Theory

ABSTRACT
This chapter attempts to unpack the concept of detriment in charity law by looking at discriminatory charities. It explains that discriminatory charities are commonplace in numerous charity sectors. It does not automatically follow, therefore, that no public benefit can be found whenever there is discrimination. The challenge, then, is how to identify discrimination that is considered detrimental (or harmful), and how to distinguish discriminatory charities that will nonetheless generate net benefit from those charities where the detriment outweighs any benefit. Are there some types of discrimination that charity law ought to consider detrimental, and lacking in public benefit, and some that it should not ? And how should the court go about identifying this in a way that is coherent and avoids accusations of ideological bias? The second part of this chapter explores this question of which discriminatory charities might lack public benefit by considering the detriment or harm associated with discrimination. It identifies two main categories of harm. The first category, material harm, is well-known and generally acknowledged. While addressing material harm may be seen primarily as the role of discrimination law, identifying such harm could also be seen as part of assessing public benefit. This allows a distinction to be drawn between those discriminatory dispositions or organisations that should not be granted charitable status and those that should because they seek to alleviate or remedy disadvantage through, for example, affirmative action measures. The second category of harm associated with discrimination is less considered and more controversial: expressive harm. This is a non-material or intangible harm that could be said to be caused either by the charity itself or by the government granting charitable status to organisations that discriminate. Here, the chapter argues that expressive harm may provide a reason for denying charitable status but that it should be viewed with caution.

Norton, Jane Calderwood, Discrimination as Detriment (July 26, 2024).