Theatres ‘likely to face legal challenge’ if they fail to adhere to new gender guidance

Arts venues that do not follow new guidance issued following a landmark legal ruling on the definition of a woman are likely to face challenges in the courts, according to a prominent arts journalist and cultural historian.

Speaking at a launch event on 6 May for a report examining freedom of speech within the arts sector, Kate Maltby, who is also deputy chair of Index on Censorship, said she would be “amazed” if there were not a test case over a theatre venue refusing to implement legal guidance issued by the Equality and Human Rights Commission outlining what toilet and changing spaces organisations should provide.

The interim advice was published in response to a Supreme Court ruling last month that the terms ‘woman’ and ‘sex’ in the Equality Act refer only to a biological woman and biological sex, excluding transgender women even if they hold a gender recognition certificate.

After the ruling, Maltby described her social media feed as displaying “a succession of theatre venues, many of which are publicly funded, saying straight out that they were simply not going to respect the Supreme Court ruling, particularly when it came to toilet facilities.

“I would be amazed if that is not challenged in the courts,” she said.

‘Impossible to apply’

On 2 May, an open letter signed by more than 2,100 figures in the arts and culture sector called the interim guidance “rushed” and “impossible to apply,” warning that it would “erase a group of minoritised people from public life” and result in “significant social, cultural and economic impact” on an already struggling sector.

The letter, signatories of which are leaders of arts organisations including Bristol Beacon, Bristol Old Vic, Watershed and Welsh National Opera, followed a separate open letter backing trans rights signed by over 1,500 figures from film and TV, including the actors Bella Ramsey, Harris Dickinson and Aimee Lou Wood.

Discussing sector reaction to the ruling Maltby said, “These are venues [that], with sensible people somewhere at the top, are thinking about their bottom line and their balance sheets and their needs.

“I think [they] are actually making, from their own self-interested position, a rational decision, which is that their stakeholders are so [opposed to the ruling] that it is less dangerous for them to flout the law than it is to confront group think in their sector.

“I would be amazed if there is not a test case over a theatre venue refusing to implement the Supreme Court guidance.”

Financial existentialism

Responding to a comment from the science journalist Vivienne Parry, in which she described “a group of arts administrators who are caught in the middle” while being “challenged on all sides by financial existentialism”, Maltby said: “I don’t think you can talk about censorship in the arts without talking about the existential threat to the performing arts industry that was Covid”.

She continued: “Most theatres, concert halls, art galleries that I look at are still dealing with the deficits… Sometimes, they’re Covid loans to commercial producers that still need to be repaid.

“And although it is tempting to simply condemn leadership when it is cowardly, a lot of these leaders of venues… have had huge churn.

“So you get new CEOs who haven’t been there very long, who are there for very short-term handovers, because there was this massive burnout after Covid.

“[A] number of CEOs of theatres who just about got their theatres through that period then just all resigned en masse because they were exhausted.

“So there is a lack of institutional memory and a real aversion to risk. I would be sympathetic [to that].”

Empathy and ideology

Maltby was one of several speakers at the event held by activist group Freedom in the Arts at the RSA in London for the launch of its Afraid to Speak Freely report.

Of the findings, Maltby said, “We’ve gone through a process where anyone who speaks out against conventional, frankly hard left blinds, has been dehumanised.

“Women who raise concerns about transgender ideology, about most basic things, like, ‘could we have a toilet in the Old Vic that men can’t come into?’ [have been so dehumanised] that I think it’s frankly still hard for reports like this to be heard and to be heard empathetically.

“And it is tragic in a sector where empathy is supposed to be the muscle of the actor, the muscle of the artist.”