Making Music has been considering the implications for members of a UK Supreme Court ruling on the definition of 'sex'.
In April, the UK Supreme Court ruled that the terms 'man', 'woman' and 'sex' in the Equality Act 2010 refer to a biological man, a biological woman and biological sex, and therefore that the legal definitions of 'man' and 'woman' do not include transgender men and transgender women. They also reiterated that gender reassignment is a protected characteristic and that the judgement does not remove legal protection against discrimination for transgender people, with or without a Gender Recognition Certificate. The ruling was made as judgement in the case of For Women Scotland Ltd v The Scottish Ministers.
Making Music is committed to the principles of equity and inclusion and believes that leisure time music environments should always be places where people can come together without discrimination to sing and play together. We have been carefully considering the impact of this ruling on our members
The Equalities Act 2010 is relevant to Making Music members as associations and organisations providing services must avoid discriminating against people with protected characteristics, which include sex and gender reassignment. The ruling that the legal definition of ‘sex’ refers to biological sex in the Act could have implications for groups whose membership rules specifically exclude one sex e.g. if the groups’ membership rules state that only women can be members. We don’t think that a group that is defined by vocal range would necessarily be impacted e.g. a male voice choir whose membership rules define it as a group for lower voices, as opposed to for men only.
The ruling could also impact any groups who are responsible for designating facilities (toilets and changing rooms) as single sex spaces e.g. if a group owns or operates their own building. We don’t think groups hiring venues would be responsible for the provision of the facilities in those venues.
However, we are not yet in a position to provide clear guidance to our members on what the impact of the ruling will be. This is because Making Music has previously relied on guidance from the Equalities and Human Rights Commission (EHRC) on how the Equalities Act should be applied. Following the Supreme Court ruling, this guidance is now under review. In a statement published on 25th April the EHRC said they aim to “provide an updated Code of Practice to the UK Government by the end of June for ministerial approval. The Code will support service providers, public bodies and associations to understand their duties under the Equality Act and put them into practice.”
The EHRC statement, published as an ‘interim update’, was intended to highlight the main consequences of the judgements. However, this has not provided the clarity we need to be able to guide members, particularly in situations where the rights of different groups may be in conflict with one another. We have decided to instead wait for the updated EHRC Code of Practice, which we will share with members. We expect that any new guidance will not fundamentally affect the way groups choose to operate, but it may require groups to re-visit the wording of their membership rules, or consider if the venue they hire has appropriate facilities.
It is understandable that the current period of uncertainty will be unsettling to some groups, and to some of their members. Please do contact us if this is an issue for you. Even if we cannot give you a definitive answer to a query, it really helps us to understand specific members’ concerns as we’re preparing guidance.
For further reading:
Press Summary of the Supreme Court Ruling
Equalities and Human Rights Commission interim update 25 April
