Last August Arts Council England (ACE) commissioned the Nous Group to independently appraise its employment practices with reference to equality, diversity and inclusion (EDI).  ACE is England’s main arts funder, distributing grants amounting to £892 million in 2021-2022 and core funding 985 National Portfolio Organisations from April 2023, so the review is influential, and will have been studied carefully by arts leaders. What then are its merits ? 

Published in September, CEO Dr Darren Henley claims the review will help ACE to become “a truly inclusive workplace”. At a cost of up to £100,000 (a drop in the ocean given one estimate suggests UK tax payers contributed £212 million for EDI procurements contracts in 2020-2021), Dr Henley believes ‘The report is … thoughtful and full of sensible recommendations.’

I found it made for sorry reading — mostly because Nous’ advice is so weak, contradictory and relentlessly grudging of gender critical views, points I will discuss later. The deeper problem with this review is the authors’ bleak vision; drained of liberal positivism, the report is mired in jostling identity hierarchies, offering up too much hyperbole and little hope.  

The review explores staff experiences on all Equality Act protected characteristics. Here, however, I will comment only on the sex versus gender identity issue upon which the review focusses much of its energy. Whilst legal references, such as discrimination and harassment are used when discussing the Equality Act, concrete staff examples deploy such emotive, indefinable terms as “harm” and “pain”.  

This language encourages constant administrative fretfulness and promotes a pragmatic impasse. The authors despairingly conclude that when it comes to the difference of opinion on sex vs gender-identity, labelled “a major fault line” at ACE causing “evident pain”, “light touch or small interventions are unlikely to reach a positive resolution”. What was the point of hiring this firm if that’s their recommendation?

Further, how should a public body like the Arts Council, born of the determined post-war consensus for “all to live better”, take forward Nous’ irresponsible view that “Good relations are a worthy goal but an obligation towards good relations can harm staff colleagues.” Really? Encouraging colleagues to get on harms them? Surely it is the moral and indeed, legal duty of any employer to foster good relations between its staff (Equality Act 2010 Section 149 1c)?   

How can ACE respond to this earnest assertion: “Philosophical debates reflect substantively different understandings of the human condition and the appropriate structure of society.” Eh? We are just talking about comings and goings at the office, aren’t we? Regrettably, the review is imbued with a miserable, identity-before-humanity world view, positing divisiveness as inclusion.

So, I write this — true, as a disgruntled ex-employee — to advise my old employer, the Arts Council and other well-meaning cultural organisations, you “can do better”, but do be selective when applying this review’s recommendations.

To the detail: Dr Henley blandly introduces the discombobulation at ACE, when the review was commissioned. In Summer 2022, some “colleagues shar(ed) experiences at work that did not live up to our inclusive principles”. I was one of those colleagues. The review refers to “gender critical and non-gender critical staff… contribut(ing) to an environment where… staff…may have felt harassed”. (That’s an understatement! This June I won my claim at an employment tribunal that I had been harassed by a minority of ACE colleagues in May 2022 because of my gender critical beliefs. Although this judgment was made some time before the review’s publication, it is not referred to, even though on average only 11 per cent of claimants win at hearing.  In light of this, it rankles, and should worry arts leaders and grant applicants, to read the authors indulge the legally illiterate views of “many Arts Council England employees” who “do not find (it) … appropriate’ ‘… that staff colleagues who assert gender critical beliefs … should … be treated in line with Equality Act protections …”.

This brings me onto the review’s reluctance to accept that, thanks to the Forstater judgement in June 2021, those who believe people can’t change sex are protected by law.  The authors regularly remind readers they disapprove of this legal reality.  For example, they observe that gender critical ACE staff had “considered setting up … (a) women’s network”. In the end they decided not to for fear “it would attract unwanted controversy”. The authors pontificate this self-censorship is “inappropriate notwithstanding” they note disdainfully “the likely harm that such a group’s existence could cause for other staff colleagues”. 

Perhaps the authors are unaware that recent case law emphasises there is no right not to be offended because interference with free speech is rightly set at a high bar in our democracy. As this review panel does not evidence any legal expertise, and the firm is based in Melbourne, perhaps it is not surprising its legal commentary is patchy at best. What are we to make of this: “The political class in the United Kingdom contributes to heightened emphasis on sex-based rights and trans rights”? Are the authors suggesting parliamentarians should not debate citizens’ rights? Isn’t that their job?  

Statements like “where aspirations and legal compliance are not aligned, it will be necessary for the Arts Council to act within the frame of the law” suggest Nous haven’t quite grasped equality law is a long-term and welcome reality in our country.

And again the hapless recommendation that ACE should “articulat(e) a position on gender reassignment and religion/belief, building on the Equality Act …” is unnecessary and doomed to failure. As I’ve said before, delivering the Equality Act as it stands is challenging enough without public bodies virtue signalling through partial pronouncements.

All that said — here comes “the good” — the gloomy Nous authors understate the positive at ACE.  It is to the organisation’s credit that its gender pay gap is consistently low and significantly lower than the majority of its governing secretariat, the Department of Culture Media and Sport’s, 37 arm’s length bodies.  

Nous does not explore the wide-ranging implications of ACE’s decision to align its data collection to the Office for National Statistics census categories. This change will see significant sectoral impact and reflects Government moves to restrain public bodies’ data collection. Currently arts organisations are tripping over themselves to update endlessly evolving data categories, apparently accounting for new types of human beings, whilst audiences, queried on their way out of venues on everything from their parents’ professions to who they sleep with, sign off with a “prefer not to say”. De-politicising data collection is long overdue.

Most notably, spurred on, one hopes, by the avalanche of cancellations in the sector, ACE has finally decided to find out what on earth is going on, undertaking a survey for arts freelancers and a research project into bullying in the arts, ominously called Keeping Safe.  As many arts workers know only too well, sectoral intolerance is on the rise, and it’s about time ACE acted to defuse political antagonism and protect freedom of expression.

In summary, the review makes the point that its staff contributions are self-selected, which means it may well have been the discontented who bent the ears of the authors, potentially inflating the sense of grievance at ACE.  However, my advice, for what it’s worth, is that division can be addressed through mediation, rather than counselling, and the UK is well-served by the Equality Act, rightly applied, under which everyone is already protected against discrimination at work.  Let’s remember the “pain” and “harm” British workers and arts audiences experienced in 1946 when the Arts Council was established were far more challenging than now.  It is liberal values, rather than “identitarianism”, and professional conduct, rather than “bringing one’s whole self to work”, that is the coherent way forward.