I would really, really like to see precisely on what grounds anyone thinks a challenge to the European Court of Human Rights could work. A Supreme Court 5-0 decision on the interpretation of the law - that is, not showing a gap in the law as happened with the Goodwin case of 2002 which sparked the GRA - is not going to be overturned or even prodded by the EHRC. There's no human right to a particular toilet. And where rights conflict, the EHRC might just follow the line taken by the Supreme Court.
The fact that Jolyon Maugham's Good Law Project has been raising funds for a completely quixotic endeavour from which the GLP rakes 10%, win or lose (mostly lose, especially on trans issues), when Maugham had previously been assuring people that there was no chance the Scottish Government could lose to For Women Scotland, and has previously said one should just listen to the Supreme Court and shut up, suggests to me that there are cash registers ringing.
One other thought: given how few people have ever received GRCs in the past 20 years (even Stonewall got the number wrong, optimistically doubling it), the reality is that there are just lots of biological men out there who don't get any protection from the GRA. Giving women the chance to have definitively single-sex spaces (there is shared space outside the cubicles: they have mirrors in toilets) seems like a useful clarification of the law.
"Giving women the chance..." shows a lack of understanding, IMO.
So a trans woman, who presents as a woman, who maybe has had surgery, who lives her life as a woman and has done for years, is not allowed into the "shared space" of a women's toilet?
And in the case where a trans woman has got a GRC, which allows her to change her birth certificate to show that they're a woman, how do you define "women"? And how do you legislate?
I think reasonable people can agree that someone who passes utterly convincingly as female will not attract the least attention. But there are many, many males who simply don’t fit that bill. And for some women, that can be traumatising or at least worrying. Why are their preferences to be ignored?
The definition of “woman” was made clear by the Supreme Court. It’s biological for the purposes of the EA, which means for single-sex spaces where those are created with a reasonable aim.
Why should the preferences of cis women who are uncomfortable with trans women (or masculine looking cis women who they believe are trans) be put above everyone else's rights? Should we make sure we cater to the preferences of bigots who feel uncomfortable or traumatised around around people of colour too? What if they were robbed by an immigrant and are now so traumatised they can't be in the same space as anyone they think looks like an immigrant? I'm sure there are some reform voters who'd be happy to bring back racial segregation (the GC movement is already moving on to immigrant men as a threat so its not as ludicrous a comparison as it first seems sadly).
I'm a cis woman. I have zero problem with using the same public spaces as trans women. I'm also a psychotherapist and women with trauma that causes such fear of innocent trans women need trauma treatment not the erasure of a minority group. I'm more worried about sharing a toilet with a gender critical women who might harass or question the feminity of someone else I'm sharing a toilet with than a trans woman checking their make up next to me. Of course Gender Critical women are not without power so maybe they can campaign for an individual toilet just for themselves so they don't have to judge other women's appearances the whole time.
The idea that women will know that only cis women are allowed so no one will question a cis woman who looks masculine is completely laughable. Judging whether other women look trans is literally what GC women spend their time doing.
Why should the feelings of 51% of the population be considered? Because they have a right to the privacy, dignity and safety they require in a world which discriminates against them constantly on the grounds of their biology.
Your being ok with transwomen (i.e. men) in women's spaces cannot be used to make men in women's spaces ok. I don't like men in my sex segregated sexes, and my not liking this trumps your not bothering about it.
Consent is not transferable. In the rush to think well of yourself you cannot consent on my behalf to my boundaries being violated and my rights removed, just becase you want to show your on wat you thiink is the 'right' side. You're choosing to have a blind spot toward women and girls and have no empathy or understanding of why female only spaces were needed in the first place.. Its a vital matter of safety and dignity .. Men attack rape and murder women in the UK at scale, dismantling womens boundaries means any old pervert can say hes a woman to access women, and thats exactly what they've already have done in their droves. That's what you're advocating to enable...its just an appalling wilful ignorance of reality. Watch a rape /DA victim suffering from Rape Trauma Syndrome when she's in an enclosed space with males however he identifies before you cruelly remove her right to places she wont have to endure that. Just so a males feelings dont get hurt. The data is clear, as is the data clearly showing that trans women offend at identical rates to men. Because they are male. Trans women in prison are most often sex offenders, way more so that the rest of the male prison population, and middle age autogynephiles are not the same cohort as a vulnerable gay teen figuring themselves out. Women need and have rights to dignity and privacy away from males, many of us are rape and domestic abuse survivors, not bigots. Some are parents if austistic kids whove been lied to by activists, we've seen the harm this nonsense does. We know where removing safegards leads, you with your luxury beliefs remain oblivious, calling eveyone who's thought it through more and disagrees with you a bigot is daft posturing really. Women can tell who's male, weve evolved over millenia to do so. What we cant however,tell on sight who's a decent person and who's a predator thats why we keep them out. Good men stay out so bad men stand out. Trans women are part of male diversity and women can say no, this is not our problem to solve. You don;t know what youre talking about .
I'm a psychotherapist too. Autistic CYP in particular. Trans ideology and activism has no place in ethical practice when working with children. WPATH is getting being rightly sued now for lying and malpractice.
To live life without harassment, to be able to use facilities like toilets that mean you can participate in public life without having to declare your private health information. I could go on. Other posts have referenced specific human rights legislation.
If you understand that use of toilets affects public life you understand why women want them to be sex-segregated. Also, there is no right for a man to use women's toilets.
But you are sidestepping the whole issue that the Supreme Court has issued a legal opinion, attempting to provide one statement which provides clarity.
Unfortunately, the terms "reasonable people" or "many, many males..." have no standing in law.
You could provide images of a trans woman and say "yes, that one looks like a female" and "no, that one doesn't look like a female" but that is not what this is about. And there are cis women who were born female, live as female, but "look" male. How are you defining?
And why is there such focus on toilets? We are in danger of criminalising people on the basis of how they look, and that is a very dangerous path to tread.
I didn’t say those phrases had standing in law. If people are going to be strict then yes, there will just be single-sex spaces. And if that’s made clear to people, and followed, then why should masculine-looking women (who will, to be clear, be of the same height and bulk as other women) be challenged? Women will know that only women use their spaces.
And why is it so shocking to contemplate males using male toilets? You’re the one who is raising the objections. I was suggesting that reasonable compromise might exist - you seem to be insisting on a hard line. If so, you’re left with following the SC ruling for spaces covered by the EA, where specified by those running the service.
Oh no Jack your fearsome logic has slain me. Oh wait, this was specifically addressed in the Supreme Court judgment itself. I’ll let you find the relevant paragraph since you seem to have missed all the news coverage about it.
And one to reflect on: what do you think the average height difference is between a normal woman and a trans man?
The judgment defines sex as sex at birth. When someone changes their birth certificate there is a note on the full certificate and in the register saying that it has been changed. That person's sex under law remains what it was at birth.
The judgment is about what policies are lawful. The fact that policies might not always be perfectly enforced because people ignore them is irrelevant. The impact of the judgment is that when it is known that someone is a transwoman (and in many settings it will be known), the employer or service provider can exclude them from women's facilities, and the transwoman won't be able to sue for discrimination.
Trans women are the ones having their prostates examined, not the ones with their feet in gynecologists' stirrups, even though latter like aestheticians get grief for refusing to work with trans women.
Hi Peter as a liberalist and a woman I'm adamant that everyone is "sacred to the species" and that everyone has equal rights to live their individual lives as they see fit on the basis that by doing so they do not cause harm to others. I suggest if your opinion is of the contrary you pop yourself in a time machine and return yourself to the stone age of wherever you feel more comfortable, alternatively you educate yourself on the importance of Diversity, inclusion and equality. Have a good day.
Sincerely, Charles, as someone who does ‘pass’ (awful phrase but I understand) as a woman in all contexts thanks to considerable medical interventions - and is <never> challenged in any single sex space - what is your solution to the bathroom question if the suggested ‘bathroom ban’ becomes statutory guidance? Would you like me to use the men’s toilet and risk at best confusion or at worst attack? Or can I keep using the women’s bathroom as I have done for many years and break the law?
You’re a smart guy whose writing I have admired for decades. I do hope you don’t say I should use the disabled toilets. Because that is not the answer - neither practically nor legally as it would require me outing myself which goes against the provisions of the GRA.
I would hope that - as I said in another comment - reasonable behaviour can apply. If you’ve never had problems before, there’s no obvious reason why you should in future. The law tells us not to speed on roads either and yet people do. There are more important topics that this ruling covers - associations and sports and prisons and rape centres, I’d suggest. I guess toilets were the first thing to be brought up because hell, everyone uses those at least once a day. But I’d truly hope you can go untroubled if you haven’t been hassled before.
Unfortunately gender critical women aren't reasonable. I'm speaking as a cis women with zero problem sharing a public space with a trans woman. Also some trans women are autistic and not rule following can be unbearable for them. I'm totally failing to see what the supposed threat trans women are to me. There's no statistical evidence of trans women's toilet or hospital ward use causing increased violence against women. A lot of evidence that trans women are at an increased threat of violence from men than cis women are (and that's already a high bar), which points to offering more protection to trans women not less.
Bully for you if you're happy to share intimate spaces with men. Most women are not.
Why, when almost 99% of all sex crime is committed by males, do you stubbornly refuse to acknowledge the risk to women posed by males given unfettered access? Besides, MoJ stats clearly demonstrate that trans identifying males are four times more likely to perpetrate than be victims.
Just please stop with the lies, gaslight and insufferable insouciant pandering.
Thank you, I’m disagree with you but appreciate the response.
It’s a challenge though because I’d then be wilfully breaking the law every day, which has very significant consequences for my work and my voluntary work. My point being, I shouldn’t have to commit a crime to have a pee. It’s easier to stop speeding than stop using the toilet.
It’s a mess that’s going to take years to resolve, and no one is going to be happy at the end of it.
If it helps, I don't think you'd be breaking the law. The law requires some institutions to provide single-sex spaces and enforce them. The onus is on them. If you use the wrong one then as I understand it they are liable for their lack of enforcement, not you. At worst, you would be breaking their rules and might be trespassing, neither of which is a crime.
I’m genuinely specified by the amount of fuss that is being made about people going to the toilet in the “appropriate” place. Half of Europe has completely mixed toilets and nobody bats an eye. I’ve quite often gone into a toilet where there’s a row of urinals and a man peeing, and it certainly hasn’t traumatized me and it didn’t occur to me to check whether they were trans or cis. Is it just the UK that is uniquely obsessed by this issue?
Jolyon's ECHR case does seem hopeless. There are few details but it appears to be based partly on lack of trans representation at the SC hearing (nonsense because the trans case was put by both Amnesty and the Scottish Government - he seems to be arguing that SC should have allowed the case to be made by a trans individual which is obviously ludicrous). And partly on the claim that due to Goodwin v UK the ECHR requires UK to recognize trans people with a GRC as their acquired sex.
But Goodwin was about very specific issues to do with the relationship to the state - the right to obtain documents showing the acquired sex, the right to marry as the acquired sex (same sex marriage was then illegal), the right to claim a pension at the earlier women's age. The court didn't consider the issue of wider social recognition of the acquired sex, nor any potential conflict with the rights of women or gay people.
Obviously women and gay people also have Convention rights, so given that this conflict was central to the SC hearing, any new case at the ECtHR would necessarily have to consider this. And I don't see any reason why the Court would find that the SC’s balancing of these rights was wrong. Especially given the principle of the margin of appreciation - states are allowed some latitude in deciding how to resolve such balancing issues in line with their own social needs, culture etc.
So why did the ECHR right this at the time in the case summary
No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, society could reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them. The Government could no longer claim that the matter fell within the margin of appreciation and the fair balance inherent in the Convention tilted decisively in favour of the applicant.
Again, the Goodwin case was about specific issues that concerned the individual's relationship to the state. People with a GRC still have the right to be recorded on official documents as their acquired sex, to marry as a member of their acquired sex (obviously now of limited relevance), to be granted state benefits as a member of their acquired sex, and not to be legally protected from discrimination. These were the detriments to transgender people addressed by the ECtHR and they remain resolved.
The problem with the "outing" argument is that the ECtHR has made it clear that no medical or surgical interventions can be required for legal gender reassignment. So while at the time of Goodwin, when gender reassignment was linked to surgery, it was arguable that the transgender person would not be identifiable as their biological sex (although Goodwin herself didn't "pass" and had in fact featured in a TV show about "transsexuals"), today there is no connection between GRC status and any physical changes. In law, it is quite possible for a man who has made no changes to his appearance whatsoever to acquire a GRC declaring him a woman. And in fact, the majority of transgender people are easily identifiable by sight as their biological sex, and so if they are presenting as the opposite sex, they are de facto already out. There is no legal basis on which to distinguish between transgender people who "pass" and those who don't, and I can't see how any legal basis could be devised.
On the toilet issue get rid of urinals and offer cubicles only to everyone. Handwashing can then be an open area without problems - unless mirrors scare people. There are plenty of small restaurants which already do this.
Similarly with changing rooms. Most swimming pools have cubicles and showering areas which are used by everyone. Gym changing rooms may need to be altered to match swimming changing areas - provide cubicles.
The last time the UK tried to deny equality to a trans women, that was what the ECHR said :
No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, society could reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them. The Government could no longer claim that the matter fell within the margin of appreciation and the fair balance inherent in the Convention tilted decisively in favour of the applicant.
Now, they are doing something 100 times worse going all the way to toilet ban. The ECHR will again rule against the UK.
Then, the UK will have a choice, to restore the human rights of transgender people or to leave the council of Europe and join Russia as an international pariah state.
It’s not a ban. The ECHR decision on Goodwin led to the GRA of 2005, and we also got the EA of 2010. And the status of transsexuals has not changed as a result of this judgment, which simply points out what the law ALWAYS said, except it had been misinterpreted- on purpose or accidentally - by activist groups eager to make a land grab on women’s rights.
Turns out the women had the law in their side. And the men are taking it _very_ well.
You are rewriting history there. Melanie Field, who played a key role in drafting the Equality Act 2010, has stated that the law was intended to protect transgender people and that the UK Supreme Court’s ruling contradicts its original purpose
So the law changed overnight 2 weeks ago, and now the UK is in breach of its ECHR obligation.
What a civil servant who was involved in the process thought the Act was for is irrelevant for the purposes of statutory interpretation. (Also civil servants don't actually draft legislation, parliamentary counsel, i.e. lawyers, do, so she made her role sound closer to the legislation than it was).
In any case, once the legislation has been drafted, it goes through several readings and committee in the Commons, the same in the Lords, during which time it is amended. Then it goes to the monarch to sign. The SC’s job is to determine the intention of Parliament as an institution - 650 MPs, 800 Lords and the Queen - not the intention of any one individual. Obviously the idea of “intention” when applied to an institution is metaphorical. It's entirely unrelated to what any one member of Parliament intended - after all, some of them will have voted against the Bill and so intended for it not to become law! The debates within Parliament can only be used as a guide to interpreting an Act in very limited circumstances. In general, the intention of Parliament is determined by focusing only on the words of the Act that Parliament passed, on the assumption that every word was chosen with purpose and care, that words have a consistent meaning throughout the Act unless indicated otherwise, and that the words should be understood in the context of the Act as a whole, and the mischief it was passed to remedy.
This is exactly the approach the SC took in this case. Particularly important was the principle that words are used with a consistent meaning throughout the Act. Given that some uses of the words word “woman” clearly indicated biological sex - e.g. in the phrase “pregnant women” - it was an uphill struggle for the Scottish Government to argue that elsewhere in the Act, “woman” referred to “certificated sex.”
The practical affect of the SC judgement will be to constrain the lives of trans people in ways that are obvious and others which will become clear in due course.
I haven't read the Human Rights Act in years. Looking just now at Articles 2, 3, 5, 8 and 11 there would seem to be scope to build a case.
The SC was asked to make a judgement on a narrow question of law. The consequences of their judgement are now starting to play out.
The ECHR won't be asked whether the technical nature of the adjudication was correct. Rather they will be asked to decide whether the affect on peoples lives sets the law as set out by the SC is in breach of HR legislation.
What about the practical effect being to protect women’s lives and livelihoods in multiple ways, in sports and prisons and rape crisis centres? Are their needs so invisible or easily dismissed?
I have no expertise in human rights law. But I struggle to see how a judgment which specifies how rights are allocated between groups can infringe the HRA. And bear in mind that for every right you claim is taken from a trans person, it is given to someone else. In the case of trans men, their maternity rights are conferred instead of removed - so it could even be seen as a net benefit, narrowly.
I mean, in every other single country of western Europe, even those who have had self it for a decade, it works perfectly fine and no one ever complain. There isnt even a debate
Only in the UK where the media are talking about trans people daily did this become an issue.
Solution is therefore to regulate the media so that hate speech can't be printed daily anymore and this non existing issue will disappear.
In Spain there’s a (women’s) movement to repeal it, so don’t speak too soon. And the point here is that this is clarification of the existing law. As the Supreme Court said, sexual attraction isn’t based on holding a certificate.
I hope you’re being ironic about regulating the media. It certainly isn’t a non-issue and censorship won’t make women’s concerns disappear.
There are only 2 countries where the overall majority of feminists do not side with trans people :
The UK & South Korea.
Yes, there are minor isolated people in other country true but that's it.
In south korea, it's because of a very closed "society".
In the UK, i have no idea how it happened, but it's the only place on earth where we see feminist women have far right views on trans people. The slur TERF island did not come out of nowhere.
Doesn’t matter. Laws aren’t made for majorities. They’re made for the citizenry.
Feminists in the UK don’t have “far right” views. If you get your talking points from American left-wing blogs, you’ll be misled. In the UK the drive has always come from centre-left feminists, particularly lesbians, who also reject the far right. Unless you want to call Germaine Greer far right.
It's absolutely remarkable, isn't it? I do, nonetheless, feel bad for people who have been led down the trans path and they need to be compensated somehow. The psychiatric and medical industries which profited need to be held accountable. Maybe that's the legal discussion we should now be having.
Thanks Ian; a very helpful (if slightly depressing) primer on the legal shizzle in all of this. Like a couple of other highly controversial topics, the main obstacle to reason and coexistence are bad faith actors on both 'sides' who are so deeply invested - often for laudable reasons (women-only safe spaces and trans rights; both Good Things on their own terms) - in their activism, that they get to that "if it's Bad for the Other Lot then it must be Good for Us" mindset. As someone not directly affected, it's hard to avoid thinking that the best way I can be an ally to both camps is shutting up and not winding anyone up further....
Ian - as a trans person, thank you for this comprehensive and balanced summary. You’re right about the lack of political courage, it is reprehensible.
I’d only challenge you on one thing: the low number of GRCs is more likely because they’re really hard to get - rightly or wrongly. It requires a diagnosis of gender incongruence by one of a handful of approved psychiatrists which is hard to obtain without waiting many years on the NHS or paying many hundreds of pounds to see the same person privately. Plus two years of documented evidence. And it is now, seemingly, worthless.
On access to services, given my hormone profile I require breast screening so will let’s see how that goes with the NHS. And I am terrified about what will happen next time I’m admitted to hospital.
It will get better, but for now it will get worse.
Jo, I intend this as a respectful and serious question. Do you think the better solution could have been to make the GRC process much more efficient and less costly whilst at the same time focussing it on people who want to transition fully ie surgically? Wasn't it the Scottish Parliament's intention (responding in large part to vociferous trans activism) to make gender self ID the basis of a GRC that in large part triggered the confusion, predictable arguments and ultimately the position you now unfortunately find yourself in?
Long answer: that’s a really complicated question. Fundamentally the perceived (but NOT in any way evidence-based) problem is about trans women in female spaces being a threat to women. (Others will say it’s really about a small but vocal group of people wanting transgender folk to not exist, or be pushed out of existence, but no there’s no benefit in arguing about that.) But it’s CIS men who are the threat, to CIS and trans women. So denying gender self-ID is not the solution (as evidence from two dozen of more countries with self-ID demonstrates). Why should surgery be required to transition unless, well, what surgery are you hypothetically asking for? My point being even having had gender reassignment surgery is insufficient for the Supreme Court.
This is what has always baffled me. If an abuser wants to invade female only spaces to attack someone, they are not doing to seek to change gender (or appear to be). They will attack regardless. There will be edge cases of course but the overwhelming majority of attacks are by cis men.
What changes are mandated? It appears to many of us that these days, no changes whatsoever - physical, surgical, sartorial, tonsorial or behavioural - are required. No male who, for whatever reason, is inclined to enter a single sex female space, need make any effort at all - not even (given that we may not query him in any way) to announce himself.
Are you really suggesting that as males attack females “regardless”, we - what -might as well let any man in? I wonder if you feel the same way about locking your door at night, or when you leave? When they'll rob you regardless, Dougsey?
You clearly state that the “overwhelming majority of attacks are by … men”. You might as well say tall men, sad men, short-tempered men, entitled men … In what way does the dubious, ideological, niche-assigned adjective ‘cis’ mitigate the male pattern offending you describe?
It isn't possible to make GRCs exclusive to people who have or intend to have surgery, the ECtHR has made this clear. The surgery results in complete sterilization and making legal rights conditional on sterilization is a human rights abuse.
On the face of it that sounds like a twisted logic. A biological male now doesn't have the legal right to protected biological female places. A trans woman with a GRC based on a surgical transition could have. I'm not suggesting or promoting surgical transition. That's a choice for an adult to make should they suffer from gender dysphoria. It's also a human rights issue that those suffering from gender dysphoria should have this choice. And their risk to take.
With 'trans' now being such a wide umbrella term it makes discussion even more difficult.
I don't see what's twisted. The point is that you can't make acquisition of a GRC *conditional on* surgery. Whether or not you intend to encourage it, if you create a system in which people can get something they want, but only if they undergo sterilization, then you are de facto encouraging people to undergo it. In any case this was decided by ECtHR a while ago so it's settled. Definitely not an option for UK
As I said, the term trans is now so wide it's confusing rather than aiding discussion. Your language of 'sterilization' is emotive and only one part of the picture. The term 'transexual' preceded 'transgender' and meant someone with gender dysphoria who wanted to transition to the opposite sex as far as possible, including surgery. Transgender now encompasses all and any form of a 'feeling of incongruence between assigned and self perceived gender' - which itself can, apparently, have countless categories. If an adult transexual with gender dysphoria chooses to undergo surgery the least we should do is refrain from throwing the term sterilization about like it covers all circumstances. And this is NOT to condone medicalization (including sterilization) of young, impressionable people trying to find themselves in a difficult world - that's a very different issue. Which comes back to my point about the term 'trans'.
If we're talking about genital surgery then yes sterilization does cover all circumstances. The surgeries involve the removal of the reproductive organs. In any case sterilization is the term used by the ECtHR, and by the transgender activists who campaigned to have the law changed. The fact that these surgeries result in sterilization is the ground on which the Court decided that requiring them would be a human rights violation.
I love the lucid explanation of the Court's reasoning in this article. I don't love the ugly, clumsy and hasty guidance the EHRC has given out so far - but I do see hope that that can be improved.
The article says this is the beginning of an argument, in the courts and elsewhere. We could have had that argument for the last ten years but the slightest question about the meaning and practicalities of trans identity was howled down. Some people who raised questions, mainly women, were hounded from their jobs in a mad McCarthyite way. Only the narrowest, scriptural words were officially allowed to be used in workplaces, the press, schools and universities and the BBC.
Some realities remain:
- trans people are part of the human condition. Their identification of themselves as the opposite
sex is their reality and should be respected as their reality. But it is not their physical reality.
Biology remains - which is partly why the transition process can be so difficult and quite often
harmful to the trans person's health;
-- 'trans' covers a whole range of the human condition. It is not a single thing. It is a subjective
condition, real to the trans person but not physically embodied. Support groups like
Mermaids and Stonewall rightly no longer describe trans people as 'born in the wrong body' or
having 'the wrong sex brain';
- we all know what women and men are, despite academic or partisan attempts to pretend
otherwise. The two sexes are an objective fundamental reality. People know this and won't be
persuaded otherwise (should we be concerned with you know, public opinion and voters now
that debate has become allowed);
- trans people are ordinary people who should have maximum social acceptance compatible with
the interests of other people. But sometimes interests do conflict, particularly where women want
spaces of their own without biological males present. Not usually because they fear assault, but
just because they want privacy and dignity in places where they may be vulnerable. This can have
added relevance for women from some religious or ethnic backgrounds. Because trans people are
normal, ordinary people they do not transcend reality, they do not change sex, and often
think and behave in the same sexed manner as before their transition;
- bad actors will inevitably use the cloak of trans to abuse women's spaces and boundaries. It is
not popular to say, but is true, that some men enjoy cross-dressing and invading women's spaces
while having no trans identity, that is, they see themselves as men, not women. These
are not edge-cases, they are central to the demand for self-ID. There is no obvious way for a
service-provider to distinguish between these space-invaders and 'true trans' people.
The article says there have been very few complaints from women about such problems in their
spaces - guess why? Because women who complained have mostly been brushed off, or
patronised, or even been victimised and punished for complaining;
I cannot offer any perfect answers. But I do know that any answers that emerge from the debate that is just beginning will have to be based in the realities and complexities of human nature.
I think it very much depends on what the single sex spaces are. Women’s crisis centers seem to be a reasonable example, single sex toilet in a department store doesn t. Half of Europe doesn’t have single sex toilets and doesn’t make any fuss about it. There is no evidence of rape or sexual assault to prove that they create a danger to women. I live in France and have done for a very long time and it is simply a non-issue.
Even if it's true that sexual assault is not a threat in toilets (I don't think it is true), other sex crimes such as voyeurism and exhibitionism clearly do happen in toilets reasonably regularly. But regardless, the justification for single-sex toilets doesn't depend on there being any threat. They can be justified on the grounds that most people prefer them for reasons of privacy and dignity. This is perfectly reasonable, whatever happens in other countries (and I've always found toilets to be single sex wherever I've been in Europe). It's also the justification used in the laws we have that mandate single sex toilets in certain contexts.
The judgment does in fact mention toilets in numerous places (paras 42, 52 and 223-4). It refers to them as “sanitary facilities” (did your research extend beyond keyword searching for “toilet”?) In all of these places the judgment says that Parliament clearly intended to allow, and in some cases require, “sanitary facilities” to be provided on a single sex basis for reasons of “privacy and decency.” Para 224 explicitly rejects the idea that privacy and decency could be secured by facilities that admitted both women and transwomen with a GRC. There is no way that any court could now find that making toilets single sex is not a proportionate means of achieving a legitimate aim.
This doesn't mean that single sex toilets are required in all places (and EHRC interim update doesn't say this either). The Equality Act permits but doesn't require single sex toilets. Other legislation requires them in certain contexts (e.g. for employees in workplaces). But there is no general requirement for all public places to have single sex toilets.
However this does not mean that service providers can have single sex toilets but then admit transgender people to those which don't accord with their biological sex. The judgment makes clear (paras 213 and 220) that a service provider cannot legally justify a single-sex facility if it is not in fact restricted to a single sex. In other words, if a service provider’s policy allows transwomen to use the women's toilets, it has no grounds on which to exclude men, because it cannot claim that it's necessary for the facility to be single sex when it is not in fact so.
This means that service providers can, in principle, make all their toilets gender-neutral. But they cannot have toilets divided by sex, and then say that some people but not others can use the opposite sex toilets.
I can't see many service provider making all their toilets gender-neutral, because this would be unpopular with customers in most cases. However if a service provider does do so, it will be vulnerable to indirect discrimination claims if this leads to women being treated differently to men. This would depend on context but for example, if a service provider simply relabeled all its existing toilets gender-neutral, then given that most women would not wish to use the formerly men's toilets due to the presence of men using the urinals, then in effect there would be twice as many toilets available for men as for women, and a woman could claim unequal provision.
Currently, many service providers provide gender-specific toilets. The service provider typically doesn't enforce the rules of who uses which toilet, and enforcement is left to social pressure.
We have learned from the judgement that such male and female toilets are both regarded as mixed-sex spaces by the Equalities Act 2010. However, there is nothing in the judgement that requires a service provider to change their approach. They can still call their toilets anything they like.
It is true that a cis man could pursue a discrimination case against the service provider if it prevented him from accessing the female facilities. However, if there ever was such a case (and do men really want to use women's toilets?), I think it would give Parliament helpful cover to amend the Equalities Act to say that it was legal to operate gender-specific services.
It is true that a service provider could change their approach and operate sex-specific toilets. But that means excluding trans women from female toilets, which can only be done if a proportionate means of achieving a legitimate aim.
Is there a legitimate aim? Everything while undressed happens behind a locked door, and when outside of that door, women would be no more vulnerable that they would be in the hallway outside. Perhaps you can just about make out an argument, but even if so, it seems destined to fail the proportionality test because of the need to take into account the interests of people with the protected characteristic of gender reassignment. Of course, this needs to be tested in Court, and surely it will go up to the Supreme Court again.
If I was a service provider currently operating gender-specific toilets, I would continue to do so until I had received that Supreme Court judgement (or Parliament changed the law). I think that should be a clear option spelled out in the EHRC guidance.
Similarly, If I was a workplace required to provide separate sex toilets by Section 20 of the Workplace (Health, Safety & Welfare) Regulations 1992, I would choose to interpret this as the sex on each person's Human Resources record, until there was a Supreme Court judgement that said this was the wrong way to interpret that legislation. I don't think that can be inferred from this judgement.
BTW, I have re-read the judgement and paragraphs 42 and 52 relate to the replaced Sex Discrimination Act 1975, and paragraphs 223-224 refer to communal accommodation. So I am not persuaded that this judgement gives any steer on toilets.
I know that paras 42 and 52 refer to the SDA. The EA was a consolidating Act that brought together anti-discrimination laws from many previous Acts including the SDA. The SC is reading the SDA to help them understand the EA as it assumes the EA is intended to achieve similar purposes. There is nothing in the EA that suggests privacy and decency are no longer a concern.
On para 224, yes this is a section on communal accommodation. It would be irrational to argue that it is justified to operate communal accommodation on a single sex basis on the grounds of privacy and decency when using sanitary facilities, but there is no legitimate concern about privacy and decency when using sanitary facilities that are not in communal accommodation. This would be absurd on the face of it, and there's nothing in the judgment that suggests the SC thinks this.
I agree that the main legal risk to a service provider who continues to operate single sex facilities on a self-ID basis is not being sued by a man who is excluded from the women's toilets. The main legal risk is getting sued for indirect discrimination by a woman on the grounds that there are no women's toilets. The SC judgment is totally clear that in such a case, the service provider could not claim to be providing women's toilets, because the policy allowing transwomen to use them tenders them mixed-sex.
Yes, maybe the more likely case is indirect discrimination against women. But it comes back to the question of whether it is a proportionate means of achieving a legitimate aim to have toilets that are defined as women's under the EA.
On 224, I disagree. If one dormitory has a men's facilities including pissoirs attached, that might be what makes it indecent to have women using that. 42(b) tends to support this interpretation that it is specifically the men's toilets that give rise to the issue. It might also be the issue in 52.
Also, when sleeping, people often dress differently to the way they do during the day, so the ability to use an attached facility is indeed different in the case of communal accommodation.
I would say that a better read of the SC judgement is that they have been deliberately silent on the question of toilets.
Well we'll have to wait and see if there's a court case but this seems like a very stretched reading to me. But one thing is certainly clear from the SC judgment. You do *not* need to show that it is a proportionate means of achieving a legitimate aim in order to exclude transgender people from a facility designated for the opposite sex. You need to show that it's a proportionate means to achieve a legitimate aim in order to have a single-sex facility in the first place. If a single-sex facility is proportionate, then transgender people of the opposite sex can automatically be excluded. I think it would be very difficult to argue that single-sex toilets are not proportionate. The vast majority of people prefer them.
I think a lot of people actually prefer single gender rather than single sex spaces when you think about it. We can gender other people with relative ease (not saying that we're accurate and those categories tend to be masculine/feminine/androgenous) but to know someone's sex involves intrusive medical examination. It's why there's such an issue over trans men's toilet use because women automatically gender a trans man as male. Also men generally feel uncomfortable with trans women in their facilities as if a man is expecting a single gender space then they feel uncomfortable. I'm over generalising here but we make naturally snap judgements around gender and judge safety, acceptance etc accordingly.
Question: workplaces require single sex facilities and are not requires to offer 3 spaces - only where possible. Trans men are not allowed in men's facilities and can be barred from the women's. Can an employer simply then offer no toilet/shower/change room to a trans man employee?
I doubt it. For one thing, the judgment doesn't say that transmen must be excluded from women's spaces. It says they can be where proportionate. It's not clear to me that it would be proportionate to exclude them from toilets, particularly in a workplace where people know each other, so people would know they weren't a man. I guess in the context of changing rooms it might be proportionate where a transman had had full reassignment surgery with a neophallus. But most people don't do that.
If for whatever reason an employer decided that it was proportionate to exclude a transman from women's facilities and then didn't provide an alternative, that would seem a clear case of indirect discrimination on the grounds of gender reassignment. In practice most workplaces would already have gender neutral toilets because they're required to have accessible toilets, but changing rooms might be more tricky.
The guidance does explicitly say that trans men can be excluded from women's facilities. The EHRC did not elaborate beyond that, so truly not for me to say.
It is also not the case that everyone at an office would know the biological sex (or even the first name) of every other person using the bathroom at an office. Especially if the office in question has many visitors.
Accessible toilets are sometimes located inside the single sex bathrooms.
It is also much less normal to have 3rd space change rooms or showers.
What the judgment says is "this might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided."
This is definitely nowhere near a blanket ban, it is much more limited. For one thing, it suggests that this would only apply when they have medically transitioned to the point that they might be mistaken for a man. It also emphasizes the context of the service being provided. It obviously doesn't specify particular situations because it relies on "reasonable objection," but I think this is far more likely to apply to something like a rape crisis centre or domestic violence shelter than to workplace toilets. IIRC Akua Reindorf of the EHRC said something similar when she was interviewed on the BBC.
As to your other points, yes if a workplace doesn't currently have a third space and decided to exclude a transman from the women's facilities, I think they would have to provide an alternative or they would be indirectly discriminating on the basis of gender reassignment.
Well it doesn't say that you're not allowed to set up such services for trans people. It just says you're allowed to set up women-only services. I struggle to see an objection to this
It didn't. For one thing these passages are about facilities in general, not specifically toilets. But you also need to compare the language. First, on opposite-sex facilities, it says:
"trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex"
This is clear - they should not be permitted, in any circumstances. The law says that if you do permit it, the facilities are not legally single sex and you must allow anyone to use them
Then it says:
"in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities"
This is much less strict. It's only in some circumstances. And it says the law allows this, rather than requires it. I agree it's not entirely clear what the implications are - presumably this will be elaborated in the full guidance. But it's definitely not saying that transmen ought to be excluded from women's facilities in all or most circumstances.
Wouldn't the whole debate go away if everyone felt safe using public facilities like toilets? ie. People treating each other with respect and consideration, is that so hard to achieve?
That's exactly what I thought when I read the title. Women brought the case to clarify a law that had been misinterpreted for too long. Interesting that most of the comments in support are all from men.
I'm a cis women. I don't see innocent trans women as a threat. I see gender critical women who want to police if other people look female enough for them as a bigger threat to other women.
Your use of language means you have fully taken on board the trans ideology. I don't see innocent trans women as a threat either, but how do we know which ones are not? Men commit 99% of sex crimes, and most trans women are fully intact males with a paraphilia. There is a long list of crimes against women committed by men disguised as women who want to get into women only spaces. You may be happy to let them in, but I and many, many other women are not willing to take the chance.
As a psychotherapist, gender dysphoria is real and paraphilia is, to use a technical phrase, some bollocks you've read on the Internet. Many trans women take hormones that inhibit sexual functioning though someone's genitals and sexual functioning isn't really your business. As to "letting them in", trans women have been using public loos and changing rooms etc fine for decades before you went down that online rabbit hole. Yes gender non conforming people are more visible now and I'm sorry that disturbs you but it's really not your business if someone is just getting along with normal life near you.
Also I know it's comforting to think that men need to disguise as women to sexually assault them but they really don't. In fact they're much more likely to be successfully prosecuted if they do that than if they just pick up a drunk women off the street because our legal system is awful. Men are also more likely to get away with sexually assaulting trans people. Why assault a women in an elaborate disguise when you can just walk in and assault them anyway or pick on a more vulnerable woman and be less likely to be prosecuted? That threat level is much lower than your perception. I'm not seeing an statistical evidence to back that assertion up.
I don’t think there is evidence of “a long list”. And if this really were Such a dreadful risk to women I’m surprised that there are no statistics for those European countries, including France, where I live that have completely open mixed toilets in a number of public places.
Current political discourse - consisting of taking a difficult and nuanced issue, and screaming an opinion at the top of your voice into any one of a thousand microphones - does not allow for reasoned discussion.
There is no doubt Starmer breathed a sigh of relief when the court ruling came through. It meant he could shut down the "at least we on this side of the house know what a woman is." Cue guffaws from the surrounding, largely middle-aged, cis supporters who have no experience nor understanding of the issue.
The awful spectacle of Dawn Butler carefully explaining the nuances and difficulties to Simon Clarke on Sky News Politics Hub last week was both hilarious, and yet tragic. How can a sitting MP not even understand the basics on which he is pontificating? The complete silence as his brain tried to even contemplate what she was saying to him was instructional.
I thought that the Gender Recognition Certificate might might have been a way through, in that to 'get' this certificate, the applicant needed to have undergone a process of gender reassignment, whether that be through surgery or by presenting as their new gender over a period of time. This would stop the "suddenly deciding that they were a man / woman" arguments. Clearly, this is not the case.
Entrenched, vocal and aggressive stances from both sides of the debate don't help matters. There needs to be an attempt at understanding from both sides of the issue. Many of my generation are still struggling with the "are we allowed to say black now?" questions, so there's no hope they will get anywhere near getting to grips with trans issues. Tory MP Simon Clarke is clearly one of them, who looked totally befuddled that transgender also applies to women wanting to transition to a male gender.
The debate and arguments will continue, and politicians on all sides will shout their opinions without even a basic level of understanding. I wish all trans people well in their fight for recognition and for understanding. I fear they won't get it from the vast majority of politicians sitting on their backsides quoting slogans.
Thank you, Ian, for this thoughtful and honest article.
The whole article is about a failure of government and we do get a public vote on who makes or at least should be making that legislation. I'm currently off to not vote Labour and have let the local candidate know exactly why.
you do realise that this is a Supreme Court ruling on a law passed 15 years ago, right? The Labour government has had absolutely zero opportunity to do anything about it.
I mean they've had a year to inact any of their trans friendly manifesto commitments and haven't. Conversion therapy is still legal. They could have come out and said straight away that they'd adjust the equalities act to include trans women in the way previous assumed. It's not like they aren't in power with a majority and the ability to write laws.
I heard that the Women’s FA (I think it’s them) has been sending out messages to all trans footballers that they’re not allowed to play anymore. I’m not sure why that in particular has upset me so much… are there even that many?
Is it weird to hope for a legendary trans man to get into women’s football to show how insane it is?
Been waiting a long time to get your take on this whole situation (going back years), really glad you’re giving your voice to it. It’s just so fucking cruel. I hate that someone’s ridiculous boogeymen fears can be used to wreck such a vulnerable population. Where’s the damn humanity?
Why would it be insane for a transman (i.e. female) to play in women's football? That would be perfectly consistent with segregating sports by sex, which is explicitly allowed by both the Equality Act and the Gender Recognition Act. Unless this transman is taking testosterone, in which case they would be excluded from professional football by the same rules banning performance-enhancing drugs that apply to everyone else, there is no reason why a transman ought not to play for a women's side.
“Political courage , moral decency , and strategic foresight “ . The very qualities so conspicuously lacking in both the UK and Australian governments. Thank you , Ian . This is exquisitely well written . ( I loved your reference to “feudal shit and Caligula 😆 ). How I would enjoy a conversation between you and David Marr on this matter , on ABC “Late Night Live” .To include Geoffrey
I’ve just nicked your practical suggestions for government action and sent them to my Labour MP (I did quote you so not an uncredited theft). It’s not a lot but it feels better than nothing, so thank you. As always I appreciate your clarity and focus on what’s actually important here ie our fellow human beings.
Thank you for this. I don't think any politicians have the balls for this fight and cannot understand why, given the alternative. It's as though there's a deeper agenda to destabilise our democracy at play here with the trans community being weaponised by a few bigots. The impact it's having is horrible to watch. Divide and rule...
I would really, really like to see precisely on what grounds anyone thinks a challenge to the European Court of Human Rights could work. A Supreme Court 5-0 decision on the interpretation of the law - that is, not showing a gap in the law as happened with the Goodwin case of 2002 which sparked the GRA - is not going to be overturned or even prodded by the EHRC. There's no human right to a particular toilet. And where rights conflict, the EHRC might just follow the line taken by the Supreme Court.
The fact that Jolyon Maugham's Good Law Project has been raising funds for a completely quixotic endeavour from which the GLP rakes 10%, win or lose (mostly lose, especially on trans issues), when Maugham had previously been assuring people that there was no chance the Scottish Government could lose to For Women Scotland, and has previously said one should just listen to the Supreme Court and shut up, suggests to me that there are cash registers ringing.
One other thought: given how few people have ever received GRCs in the past 20 years (even Stonewall got the number wrong, optimistically doubling it), the reality is that there are just lots of biological men out there who don't get any protection from the GRA. Giving women the chance to have definitively single-sex spaces (there is shared space outside the cubicles: they have mirrors in toilets) seems like a useful clarification of the law.
"Giving women the chance..." shows a lack of understanding, IMO.
So a trans woman, who presents as a woman, who maybe has had surgery, who lives her life as a woman and has done for years, is not allowed into the "shared space" of a women's toilet?
And in the case where a trans woman has got a GRC, which allows her to change her birth certificate to show that they're a woman, how do you define "women"? And how do you legislate?
I think reasonable people can agree that someone who passes utterly convincingly as female will not attract the least attention. But there are many, many males who simply don’t fit that bill. And for some women, that can be traumatising or at least worrying. Why are their preferences to be ignored?
The definition of “woman” was made clear by the Supreme Court. It’s biological for the purposes of the EA, which means for single-sex spaces where those are created with a reasonable aim.
Why should the preferences of cis women who are uncomfortable with trans women (or masculine looking cis women who they believe are trans) be put above everyone else's rights? Should we make sure we cater to the preferences of bigots who feel uncomfortable or traumatised around around people of colour too? What if they were robbed by an immigrant and are now so traumatised they can't be in the same space as anyone they think looks like an immigrant? I'm sure there are some reform voters who'd be happy to bring back racial segregation (the GC movement is already moving on to immigrant men as a threat so its not as ludicrous a comparison as it first seems sadly).
I'm a cis woman. I have zero problem with using the same public spaces as trans women. I'm also a psychotherapist and women with trauma that causes such fear of innocent trans women need trauma treatment not the erasure of a minority group. I'm more worried about sharing a toilet with a gender critical women who might harass or question the feminity of someone else I'm sharing a toilet with than a trans woman checking their make up next to me. Of course Gender Critical women are not without power so maybe they can campaign for an individual toilet just for themselves so they don't have to judge other women's appearances the whole time.
The idea that women will know that only cis women are allowed so no one will question a cis woman who looks masculine is completely laughable. Judging whether other women look trans is literally what GC women spend their time doing.
Why should the feelings of 51% of the population be considered? Because they have a right to the privacy, dignity and safety they require in a world which discriminates against them constantly on the grounds of their biology.
Your being ok with transwomen (i.e. men) in women's spaces cannot be used to make men in women's spaces ok. I don't like men in my sex segregated sexes, and my not liking this trumps your not bothering about it.
Consent is not transferable. In the rush to think well of yourself you cannot consent on my behalf to my boundaries being violated and my rights removed, just becase you want to show your on wat you thiink is the 'right' side. You're choosing to have a blind spot toward women and girls and have no empathy or understanding of why female only spaces were needed in the first place.. Its a vital matter of safety and dignity .. Men attack rape and murder women in the UK at scale, dismantling womens boundaries means any old pervert can say hes a woman to access women, and thats exactly what they've already have done in their droves. That's what you're advocating to enable...its just an appalling wilful ignorance of reality. Watch a rape /DA victim suffering from Rape Trauma Syndrome when she's in an enclosed space with males however he identifies before you cruelly remove her right to places she wont have to endure that. Just so a males feelings dont get hurt. The data is clear, as is the data clearly showing that trans women offend at identical rates to men. Because they are male. Trans women in prison are most often sex offenders, way more so that the rest of the male prison population, and middle age autogynephiles are not the same cohort as a vulnerable gay teen figuring themselves out. Women need and have rights to dignity and privacy away from males, many of us are rape and domestic abuse survivors, not bigots. Some are parents if austistic kids whove been lied to by activists, we've seen the harm this nonsense does. We know where removing safegards leads, you with your luxury beliefs remain oblivious, calling eveyone who's thought it through more and disagrees with you a bigot is daft posturing really. Women can tell who's male, weve evolved over millenia to do so. What we cant however,tell on sight who's a decent person and who's a predator thats why we keep them out. Good men stay out so bad men stand out. Trans women are part of male diversity and women can say no, this is not our problem to solve. You don;t know what youre talking about .
I'm a psychotherapist too. Autistic CYP in particular. Trans ideology and activism has no place in ethical practice when working with children. WPATH is getting being rightly sued now for lying and malpractice.
What ''right" are you referring to?
To live life without harassment, to be able to use facilities like toilets that mean you can participate in public life without having to declare your private health information. I could go on. Other posts have referenced specific human rights legislation.
There is no 'right' to use womens toilets if you are a male, that doesn't exist
If you understand that use of toilets affects public life you understand why women want them to be sex-segregated. Also, there is no right for a man to use women's toilets.
But you are sidestepping the whole issue that the Supreme Court has issued a legal opinion, attempting to provide one statement which provides clarity.
Unfortunately, the terms "reasonable people" or "many, many males..." have no standing in law.
You could provide images of a trans woman and say "yes, that one looks like a female" and "no, that one doesn't look like a female" but that is not what this is about. And there are cis women who were born female, live as female, but "look" male. How are you defining?
And why is there such focus on toilets? We are in danger of criminalising people on the basis of how they look, and that is a very dangerous path to tread.
I didn’t say those phrases had standing in law. If people are going to be strict then yes, there will just be single-sex spaces. And if that’s made clear to people, and followed, then why should masculine-looking women (who will, to be clear, be of the same height and bulk as other women) be challenged? Women will know that only women use their spaces.
And why is it so shocking to contemplate males using male toilets? You’re the one who is raising the objections. I was suggesting that reasonable compromise might exist - you seem to be insisting on a hard line. If so, you’re left with following the SC ruling for spaces covered by the EA, where specified by those running the service.
Actually, reasonable people does have standing. Judgements are made on what a reasonable person would expect, for example.
Which means that trans men would have to use women’s toilets, correct?
Oh no Jack your fearsome logic has slain me. Oh wait, this was specifically addressed in the Supreme Court judgment itself. I’ll let you find the relevant paragraph since you seem to have missed all the news coverage about it.
And one to reflect on: what do you think the average height difference is between a normal woman and a trans man?
Zero, I imagine. I know two transmen, neither really 'pass'.
The judgment defines sex as sex at birth. When someone changes their birth certificate there is a note on the full certificate and in the register saying that it has been changed. That person's sex under law remains what it was at birth.
The judgment is about what policies are lawful. The fact that policies might not always be perfectly enforced because people ignore them is irrelevant. The impact of the judgment is that when it is known that someone is a transwoman (and in many settings it will be known), the employer or service provider can exclude them from women's facilities, and the transwoman won't be able to sue for discrimination.
How do you 'live as a woman'? Esp in absence of pregnancy, childbirth, menstruation, menopause etc?
Trans women are the ones having their prostates examined, not the ones with their feet in gynecologists' stirrups, even though latter like aestheticians get grief for refusing to work with trans women.
You can't is my view it's an utter mess
Women are sacred…to the species.. to society… because of their biology.
Everything ….and everyone …else has to work around that.
Hi Peter as a liberalist and a woman I'm adamant that everyone is "sacred to the species" and that everyone has equal rights to live their individual lives as they see fit on the basis that by doing so they do not cause harm to others. I suggest if your opinion is of the contrary you pop yourself in a time machine and return yourself to the stone age of wherever you feel more comfortable, alternatively you educate yourself on the importance of Diversity, inclusion and equality. Have a good day.
'no harm' is the crux.
Sincerely, Charles, as someone who does ‘pass’ (awful phrase but I understand) as a woman in all contexts thanks to considerable medical interventions - and is <never> challenged in any single sex space - what is your solution to the bathroom question if the suggested ‘bathroom ban’ becomes statutory guidance? Would you like me to use the men’s toilet and risk at best confusion or at worst attack? Or can I keep using the women’s bathroom as I have done for many years and break the law?
You’re a smart guy whose writing I have admired for decades. I do hope you don’t say I should use the disabled toilets. Because that is not the answer - neither practically nor legally as it would require me outing myself which goes against the provisions of the GRA.
It’s a mess.
I would hope that - as I said in another comment - reasonable behaviour can apply. If you’ve never had problems before, there’s no obvious reason why you should in future. The law tells us not to speed on roads either and yet people do. There are more important topics that this ruling covers - associations and sports and prisons and rape centres, I’d suggest. I guess toilets were the first thing to be brought up because hell, everyone uses those at least once a day. But I’d truly hope you can go untroubled if you haven’t been hassled before.
Unfortunately gender critical women aren't reasonable. I'm speaking as a cis women with zero problem sharing a public space with a trans woman. Also some trans women are autistic and not rule following can be unbearable for them. I'm totally failing to see what the supposed threat trans women are to me. There's no statistical evidence of trans women's toilet or hospital ward use causing increased violence against women. A lot of evidence that trans women are at an increased threat of violence from men than cis women are (and that's already a high bar), which points to offering more protection to trans women not less.
Bully for you if you're happy to share intimate spaces with men. Most women are not.
Why, when almost 99% of all sex crime is committed by males, do you stubbornly refuse to acknowledge the risk to women posed by males given unfettered access? Besides, MoJ stats clearly demonstrate that trans identifying males are four times more likely to perpetrate than be victims.
Just please stop with the lies, gaslight and insufferable insouciant pandering.
Thank you, I’m disagree with you but appreciate the response.
It’s a challenge though because I’d then be wilfully breaking the law every day, which has very significant consequences for my work and my voluntary work. My point being, I shouldn’t have to commit a crime to have a pee. It’s easier to stop speeding than stop using the toilet.
It’s a mess that’s going to take years to resolve, and no one is going to be happy at the end of it.
If it helps, I don't think you'd be breaking the law. The law requires some institutions to provide single-sex spaces and enforce them. The onus is on them. If you use the wrong one then as I understand it they are liable for their lack of enforcement, not you. At worst, you would be breaking their rules and might be trespassing, neither of which is a crime.
That’s correct and more another example of the mess.
I’m genuinely specified by the amount of fuss that is being made about people going to the toilet in the “appropriate” place. Half of Europe has completely mixed toilets and nobody bats an eye. I’ve quite often gone into a toilet where there’s a row of urinals and a man peeing, and it certainly hasn’t traumatized me and it didn’t occur to me to check whether they were trans or cis. Is it just the UK that is uniquely obsessed by this issue?
I'd put money on this being a fantasy
Jolyon's ECHR case does seem hopeless. There are few details but it appears to be based partly on lack of trans representation at the SC hearing (nonsense because the trans case was put by both Amnesty and the Scottish Government - he seems to be arguing that SC should have allowed the case to be made by a trans individual which is obviously ludicrous). And partly on the claim that due to Goodwin v UK the ECHR requires UK to recognize trans people with a GRC as their acquired sex.
But Goodwin was about very specific issues to do with the relationship to the state - the right to obtain documents showing the acquired sex, the right to marry as the acquired sex (same sex marriage was then illegal), the right to claim a pension at the earlier women's age. The court didn't consider the issue of wider social recognition of the acquired sex, nor any potential conflict with the rights of women or gay people.
Obviously women and gay people also have Convention rights, so given that this conflict was central to the SC hearing, any new case at the ECtHR would necessarily have to consider this. And I don't see any reason why the Court would find that the SC’s balancing of these rights was wrong. Especially given the principle of the margin of appreciation - states are allowed some latitude in deciding how to resolve such balancing issues in line with their own social needs, culture etc.
So why did the ECHR right this at the time in the case summary
No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, society could reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them. The Government could no longer claim that the matter fell within the margin of appreciation and the fair balance inherent in the Convention tilted decisively in favour of the applicant.
Again, the Goodwin case was about specific issues that concerned the individual's relationship to the state. People with a GRC still have the right to be recorded on official documents as their acquired sex, to marry as a member of their acquired sex (obviously now of limited relevance), to be granted state benefits as a member of their acquired sex, and not to be legally protected from discrimination. These were the detriments to transgender people addressed by the ECtHR and they remain resolved.
What about Grant then ?
"This lack of recognition had breached her right to respect for her private life."
In what universe does segregated toilet & other place do not breach the ECHR since you force trans people to out themselves multiple times a day.
The problem with the "outing" argument is that the ECtHR has made it clear that no medical or surgical interventions can be required for legal gender reassignment. So while at the time of Goodwin, when gender reassignment was linked to surgery, it was arguable that the transgender person would not be identifiable as their biological sex (although Goodwin herself didn't "pass" and had in fact featured in a TV show about "transsexuals"), today there is no connection between GRC status and any physical changes. In law, it is quite possible for a man who has made no changes to his appearance whatsoever to acquire a GRC declaring him a woman. And in fact, the majority of transgender people are easily identifiable by sight as their biological sex, and so if they are presenting as the opposite sex, they are de facto already out. There is no legal basis on which to distinguish between transgender people who "pass" and those who don't, and I can't see how any legal basis could be devised.
Seeing the number of time the "we can always tell" bridage get it wrong for a cis women, this is a no issue.
>> In law, it is quite possible for a man who has made no changes to his appearance whatsoever to acquire a GRC declaring him a woman
Seeing how hard & slow the process is, it's very unlikely a man would go though that to do something illegal.
On the toilet issue get rid of urinals and offer cubicles only to everyone. Handwashing can then be an open area without problems - unless mirrors scare people. There are plenty of small restaurants which already do this.
Similarly with changing rooms. Most swimming pools have cubicles and showering areas which are used by everyone. Gym changing rooms may need to be altered to match swimming changing areas - provide cubicles.
The last time the UK tried to deny equality to a trans women, that was what the ECHR said :
No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, society could reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them. The Government could no longer claim that the matter fell within the margin of appreciation and the fair balance inherent in the Convention tilted decisively in favour of the applicant.
Now, they are doing something 100 times worse going all the way to toilet ban. The ECHR will again rule against the UK.
Then, the UK will have a choice, to restore the human rights of transgender people or to leave the council of Europe and join Russia as an international pariah state.
It’s not a ban. The ECHR decision on Goodwin led to the GRA of 2005, and we also got the EA of 2010. And the status of transsexuals has not changed as a result of this judgment, which simply points out what the law ALWAYS said, except it had been misinterpreted- on purpose or accidentally - by activist groups eager to make a land grab on women’s rights.
Turns out the women had the law in their side. And the men are taking it _very_ well.
You can just say that you're a transphobe at this point, it's pretty obvious. At least you would be honest.
Why? To do so would be to defer to the manipulative language of those who wish to see women's single sex rights removed.
You are rewriting history there. Melanie Field, who played a key role in drafting the Equality Act 2010, has stated that the law was intended to protect transgender people and that the UK Supreme Court’s ruling contradicts its original purpose
So the law changed overnight 2 weeks ago, and now the UK is in breach of its ECHR obligation.
What a civil servant who was involved in the process thought the Act was for is irrelevant for the purposes of statutory interpretation. (Also civil servants don't actually draft legislation, parliamentary counsel, i.e. lawyers, do, so she made her role sound closer to the legislation than it was).
In any case, once the legislation has been drafted, it goes through several readings and committee in the Commons, the same in the Lords, during which time it is amended. Then it goes to the monarch to sign. The SC’s job is to determine the intention of Parliament as an institution - 650 MPs, 800 Lords and the Queen - not the intention of any one individual. Obviously the idea of “intention” when applied to an institution is metaphorical. It's entirely unrelated to what any one member of Parliament intended - after all, some of them will have voted against the Bill and so intended for it not to become law! The debates within Parliament can only be used as a guide to interpreting an Act in very limited circumstances. In general, the intention of Parliament is determined by focusing only on the words of the Act that Parliament passed, on the assumption that every word was chosen with purpose and care, that words have a consistent meaning throughout the Act unless indicated otherwise, and that the words should be understood in the context of the Act as a whole, and the mischief it was passed to remedy.
This is exactly the approach the SC took in this case. Particularly important was the principle that words are used with a consistent meaning throughout the Act. Given that some uses of the words word “woman” clearly indicated biological sex - e.g. in the phrase “pregnant women” - it was an uphill struggle for the Scottish Government to argue that elsewhere in the Act, “woman” referred to “certificated sex.”
Anyone who has a diagnosis of transsexualism on their medical records is, by definition, "beyond sex"
Hi Charles.
The practical affect of the SC judgement will be to constrain the lives of trans people in ways that are obvious and others which will become clear in due course.
I haven't read the Human Rights Act in years. Looking just now at Articles 2, 3, 5, 8 and 11 there would seem to be scope to build a case.
The SC was asked to make a judgement on a narrow question of law. The consequences of their judgement are now starting to play out.
The ECHR won't be asked whether the technical nature of the adjudication was correct. Rather they will be asked to decide whether the affect on peoples lives sets the law as set out by the SC is in breach of HR legislation.
What about the practical effect being to protect women’s lives and livelihoods in multiple ways, in sports and prisons and rape crisis centres? Are their needs so invisible or easily dismissed?
I have no expertise in human rights law. But I struggle to see how a judgment which specifies how rights are allocated between groups can infringe the HRA. And bear in mind that for every right you claim is taken from a trans person, it is given to someone else. In the case of trans men, their maternity rights are conferred instead of removed - so it could even be seen as a net benefit, narrowly.
I mean, in every other single country of western Europe, even those who have had self it for a decade, it works perfectly fine and no one ever complain. There isnt even a debate
Only in the UK where the media are talking about trans people daily did this become an issue.
Solution is therefore to regulate the media so that hate speech can't be printed daily anymore and this non existing issue will disappear.
In Spain there’s a (women’s) movement to repeal it, so don’t speak too soon. And the point here is that this is clarification of the existing law. As the Supreme Court said, sexual attraction isn’t based on holding a certificate.
I hope you’re being ironic about regulating the media. It certainly isn’t a non-issue and censorship won’t make women’s concerns disappear.
There are only 2 countries where the overall majority of feminists do not side with trans people :
The UK & South Korea.
Yes, there are minor isolated people in other country true but that's it.
In south korea, it's because of a very closed "society".
In the UK, i have no idea how it happened, but it's the only place on earth where we see feminist women have far right views on trans people. The slur TERF island did not come out of nowhere.
Doesn’t matter. Laws aren’t made for majorities. They’re made for the citizenry.
Feminists in the UK don’t have “far right” views. If you get your talking points from American left-wing blogs, you’ll be misled. In the UK the drive has always come from centre-left feminists, particularly lesbians, who also reject the far right. Unless you want to call Germaine Greer far right.
The facts of biology are not a 'far right view'. 'Terf Island' is not a slur; it was coined as an accolade.
Please desist with twisty-twisty; it's manipulative and unbecoming.
Did we not “need to know” about women’s concerns or their human rights? You seem to have forgotten to mention them.
It's absolutely remarkable, isn't it? I do, nonetheless, feel bad for people who have been led down the trans path and they need to be compensated somehow. The psychiatric and medical industries which profited need to be held accountable. Maybe that's the legal discussion we should now be having.
Thanks Ian; a very helpful (if slightly depressing) primer on the legal shizzle in all of this. Like a couple of other highly controversial topics, the main obstacle to reason and coexistence are bad faith actors on both 'sides' who are so deeply invested - often for laudable reasons (women-only safe spaces and trans rights; both Good Things on their own terms) - in their activism, that they get to that "if it's Bad for the Other Lot then it must be Good for Us" mindset. As someone not directly affected, it's hard to avoid thinking that the best way I can be an ally to both camps is shutting up and not winding anyone up further....
Ian - as a trans person, thank you for this comprehensive and balanced summary. You’re right about the lack of political courage, it is reprehensible.
I’d only challenge you on one thing: the low number of GRCs is more likely because they’re really hard to get - rightly or wrongly. It requires a diagnosis of gender incongruence by one of a handful of approved psychiatrists which is hard to obtain without waiting many years on the NHS or paying many hundreds of pounds to see the same person privately. Plus two years of documented evidence. And it is now, seemingly, worthless.
On access to services, given my hormone profile I require breast screening so will let’s see how that goes with the NHS. And I am terrified about what will happen next time I’m admitted to hospital.
It will get better, but for now it will get worse.
Jo, I intend this as a respectful and serious question. Do you think the better solution could have been to make the GRC process much more efficient and less costly whilst at the same time focussing it on people who want to transition fully ie surgically? Wasn't it the Scottish Parliament's intention (responding in large part to vociferous trans activism) to make gender self ID the basis of a GRC that in large part triggered the confusion, predictable arguments and ultimately the position you now unfortunately find yourself in?
Short answer: no.
Long answer: that’s a really complicated question. Fundamentally the perceived (but NOT in any way evidence-based) problem is about trans women in female spaces being a threat to women. (Others will say it’s really about a small but vocal group of people wanting transgender folk to not exist, or be pushed out of existence, but no there’s no benefit in arguing about that.) But it’s CIS men who are the threat, to CIS and trans women. So denying gender self-ID is not the solution (as evidence from two dozen of more countries with self-ID demonstrates). Why should surgery be required to transition unless, well, what surgery are you hypothetically asking for? My point being even having had gender reassignment surgery is insufficient for the Supreme Court.
This is what has always baffled me. If an abuser wants to invade female only spaces to attack someone, they are not doing to seek to change gender (or appear to be). They will attack regardless. There will be edge cases of course but the overwhelming majority of attacks are by cis men.
What changes are mandated? It appears to many of us that these days, no changes whatsoever - physical, surgical, sartorial, tonsorial or behavioural - are required. No male who, for whatever reason, is inclined to enter a single sex female space, need make any effort at all - not even (given that we may not query him in any way) to announce himself.
Are you really suggesting that as males attack females “regardless”, we - what -might as well let any man in? I wonder if you feel the same way about locking your door at night, or when you leave? When they'll rob you regardless, Dougsey?
You clearly state that the “overwhelming majority of attacks are by … men”. You might as well say tall men, sad men, short-tempered men, entitled men … In what way does the dubious, ideological, niche-assigned adjective ‘cis’ mitigate the male pattern offending you describe?
It isn't possible to make GRCs exclusive to people who have or intend to have surgery, the ECtHR has made this clear. The surgery results in complete sterilization and making legal rights conditional on sterilization is a human rights abuse.
On the face of it that sounds like a twisted logic. A biological male now doesn't have the legal right to protected biological female places. A trans woman with a GRC based on a surgical transition could have. I'm not suggesting or promoting surgical transition. That's a choice for an adult to make should they suffer from gender dysphoria. It's also a human rights issue that those suffering from gender dysphoria should have this choice. And their risk to take.
With 'trans' now being such a wide umbrella term it makes discussion even more difficult.
I don't see what's twisted. The point is that you can't make acquisition of a GRC *conditional on* surgery. Whether or not you intend to encourage it, if you create a system in which people can get something they want, but only if they undergo sterilization, then you are de facto encouraging people to undergo it. In any case this was decided by ECtHR a while ago so it's settled. Definitely not an option for UK
As I said, the term trans is now so wide it's confusing rather than aiding discussion. Your language of 'sterilization' is emotive and only one part of the picture. The term 'transexual' preceded 'transgender' and meant someone with gender dysphoria who wanted to transition to the opposite sex as far as possible, including surgery. Transgender now encompasses all and any form of a 'feeling of incongruence between assigned and self perceived gender' - which itself can, apparently, have countless categories. If an adult transexual with gender dysphoria chooses to undergo surgery the least we should do is refrain from throwing the term sterilization about like it covers all circumstances. And this is NOT to condone medicalization (including sterilization) of young, impressionable people trying to find themselves in a difficult world - that's a very different issue. Which comes back to my point about the term 'trans'.
If we're talking about genital surgery then yes sterilization does cover all circumstances. The surgeries involve the removal of the reproductive organs. In any case sterilization is the term used by the ECtHR, and by the transgender activists who campaigned to have the law changed. The fact that these surgeries result in sterilization is the ground on which the Court decided that requiring them would be a human rights violation.
I love the lucid explanation of the Court's reasoning in this article. I don't love the ugly, clumsy and hasty guidance the EHRC has given out so far - but I do see hope that that can be improved.
The article says this is the beginning of an argument, in the courts and elsewhere. We could have had that argument for the last ten years but the slightest question about the meaning and practicalities of trans identity was howled down. Some people who raised questions, mainly women, were hounded from their jobs in a mad McCarthyite way. Only the narrowest, scriptural words were officially allowed to be used in workplaces, the press, schools and universities and the BBC.
Some realities remain:
- trans people are part of the human condition. Their identification of themselves as the opposite
sex is their reality and should be respected as their reality. But it is not their physical reality.
Biology remains - which is partly why the transition process can be so difficult and quite often
harmful to the trans person's health;
-- 'trans' covers a whole range of the human condition. It is not a single thing. It is a subjective
condition, real to the trans person but not physically embodied. Support groups like
Mermaids and Stonewall rightly no longer describe trans people as 'born in the wrong body' or
having 'the wrong sex brain';
- we all know what women and men are, despite academic or partisan attempts to pretend
otherwise. The two sexes are an objective fundamental reality. People know this and won't be
persuaded otherwise (should we be concerned with you know, public opinion and voters now
that debate has become allowed);
- trans people are ordinary people who should have maximum social acceptance compatible with
the interests of other people. But sometimes interests do conflict, particularly where women want
spaces of their own without biological males present. Not usually because they fear assault, but
just because they want privacy and dignity in places where they may be vulnerable. This can have
added relevance for women from some religious or ethnic backgrounds. Because trans people are
normal, ordinary people they do not transcend reality, they do not change sex, and often
think and behave in the same sexed manner as before their transition;
- bad actors will inevitably use the cloak of trans to abuse women's spaces and boundaries. It is
not popular to say, but is true, that some men enjoy cross-dressing and invading women's spaces
while having no trans identity, that is, they see themselves as men, not women. These
are not edge-cases, they are central to the demand for self-ID. There is no obvious way for a
service-provider to distinguish between these space-invaders and 'true trans' people.
The article says there have been very few complaints from women about such problems in their
spaces - guess why? Because women who complained have mostly been brushed off, or
patronised, or even been victimised and punished for complaining;
I cannot offer any perfect answers. But I do know that any answers that emerge from the debate that is just beginning will have to be based in the realities and complexities of human nature.
Fetishists are also part of the human condition and there is overlap here.
I think it very much depends on what the single sex spaces are. Women’s crisis centers seem to be a reasonable example, single sex toilet in a department store doesn t. Half of Europe doesn’t have single sex toilets and doesn’t make any fuss about it. There is no evidence of rape or sexual assault to prove that they create a danger to women. I live in France and have done for a very long time and it is simply a non-issue.
Even if it's true that sexual assault is not a threat in toilets (I don't think it is true), other sex crimes such as voyeurism and exhibitionism clearly do happen in toilets reasonably regularly. But regardless, the justification for single-sex toilets doesn't depend on there being any threat. They can be justified on the grounds that most people prefer them for reasons of privacy and dignity. This is perfectly reasonable, whatever happens in other countries (and I've always found toilets to be single sex wherever I've been in Europe). It's also the justification used in the laws we have that mandate single sex toilets in certain contexts.
The judgment does in fact mention toilets in numerous places (paras 42, 52 and 223-4). It refers to them as “sanitary facilities” (did your research extend beyond keyword searching for “toilet”?) In all of these places the judgment says that Parliament clearly intended to allow, and in some cases require, “sanitary facilities” to be provided on a single sex basis for reasons of “privacy and decency.” Para 224 explicitly rejects the idea that privacy and decency could be secured by facilities that admitted both women and transwomen with a GRC. There is no way that any court could now find that making toilets single sex is not a proportionate means of achieving a legitimate aim.
This doesn't mean that single sex toilets are required in all places (and EHRC interim update doesn't say this either). The Equality Act permits but doesn't require single sex toilets. Other legislation requires them in certain contexts (e.g. for employees in workplaces). But there is no general requirement for all public places to have single sex toilets.
However this does not mean that service providers can have single sex toilets but then admit transgender people to those which don't accord with their biological sex. The judgment makes clear (paras 213 and 220) that a service provider cannot legally justify a single-sex facility if it is not in fact restricted to a single sex. In other words, if a service provider’s policy allows transwomen to use the women's toilets, it has no grounds on which to exclude men, because it cannot claim that it's necessary for the facility to be single sex when it is not in fact so.
This means that service providers can, in principle, make all their toilets gender-neutral. But they cannot have toilets divided by sex, and then say that some people but not others can use the opposite sex toilets.
I can't see many service provider making all their toilets gender-neutral, because this would be unpopular with customers in most cases. However if a service provider does do so, it will be vulnerable to indirect discrimination claims if this leads to women being treated differently to men. This would depend on context but for example, if a service provider simply relabeled all its existing toilets gender-neutral, then given that most women would not wish to use the formerly men's toilets due to the presence of men using the urinals, then in effect there would be twice as many toilets available for men as for women, and a woman could claim unequal provision.
Currently, many service providers provide gender-specific toilets. The service provider typically doesn't enforce the rules of who uses which toilet, and enforcement is left to social pressure.
We have learned from the judgement that such male and female toilets are both regarded as mixed-sex spaces by the Equalities Act 2010. However, there is nothing in the judgement that requires a service provider to change their approach. They can still call their toilets anything they like.
It is true that a cis man could pursue a discrimination case against the service provider if it prevented him from accessing the female facilities. However, if there ever was such a case (and do men really want to use women's toilets?), I think it would give Parliament helpful cover to amend the Equalities Act to say that it was legal to operate gender-specific services.
It is true that a service provider could change their approach and operate sex-specific toilets. But that means excluding trans women from female toilets, which can only be done if a proportionate means of achieving a legitimate aim.
Is there a legitimate aim? Everything while undressed happens behind a locked door, and when outside of that door, women would be no more vulnerable that they would be in the hallway outside. Perhaps you can just about make out an argument, but even if so, it seems destined to fail the proportionality test because of the need to take into account the interests of people with the protected characteristic of gender reassignment. Of course, this needs to be tested in Court, and surely it will go up to the Supreme Court again.
If I was a service provider currently operating gender-specific toilets, I would continue to do so until I had received that Supreme Court judgement (or Parliament changed the law). I think that should be a clear option spelled out in the EHRC guidance.
Similarly, If I was a workplace required to provide separate sex toilets by Section 20 of the Workplace (Health, Safety & Welfare) Regulations 1992, I would choose to interpret this as the sex on each person's Human Resources record, until there was a Supreme Court judgement that said this was the wrong way to interpret that legislation. I don't think that can be inferred from this judgement.
BTW, I have re-read the judgement and paragraphs 42 and 52 relate to the replaced Sex Discrimination Act 1975, and paragraphs 223-224 refer to communal accommodation. So I am not persuaded that this judgement gives any steer on toilets.
I know that paras 42 and 52 refer to the SDA. The EA was a consolidating Act that brought together anti-discrimination laws from many previous Acts including the SDA. The SC is reading the SDA to help them understand the EA as it assumes the EA is intended to achieve similar purposes. There is nothing in the EA that suggests privacy and decency are no longer a concern.
On para 224, yes this is a section on communal accommodation. It would be irrational to argue that it is justified to operate communal accommodation on a single sex basis on the grounds of privacy and decency when using sanitary facilities, but there is no legitimate concern about privacy and decency when using sanitary facilities that are not in communal accommodation. This would be absurd on the face of it, and there's nothing in the judgment that suggests the SC thinks this.
I agree that the main legal risk to a service provider who continues to operate single sex facilities on a self-ID basis is not being sued by a man who is excluded from the women's toilets. The main legal risk is getting sued for indirect discrimination by a woman on the grounds that there are no women's toilets. The SC judgment is totally clear that in such a case, the service provider could not claim to be providing women's toilets, because the policy allowing transwomen to use them tenders them mixed-sex.
Yes, maybe the more likely case is indirect discrimination against women. But it comes back to the question of whether it is a proportionate means of achieving a legitimate aim to have toilets that are defined as women's under the EA.
On 224, I disagree. If one dormitory has a men's facilities including pissoirs attached, that might be what makes it indecent to have women using that. 42(b) tends to support this interpretation that it is specifically the men's toilets that give rise to the issue. It might also be the issue in 52.
Also, when sleeping, people often dress differently to the way they do during the day, so the ability to use an attached facility is indeed different in the case of communal accommodation.
I would say that a better read of the SC judgement is that they have been deliberately silent on the question of toilets.
Well we'll have to wait and see if there's a court case but this seems like a very stretched reading to me. But one thing is certainly clear from the SC judgment. You do *not* need to show that it is a proportionate means of achieving a legitimate aim in order to exclude transgender people from a facility designated for the opposite sex. You need to show that it's a proportionate means to achieve a legitimate aim in order to have a single-sex facility in the first place. If a single-sex facility is proportionate, then transgender people of the opposite sex can automatically be excluded. I think it would be very difficult to argue that single-sex toilets are not proportionate. The vast majority of people prefer them.
I think a lot of people actually prefer single gender rather than single sex spaces when you think about it. We can gender other people with relative ease (not saying that we're accurate and those categories tend to be masculine/feminine/androgenous) but to know someone's sex involves intrusive medical examination. It's why there's such an issue over trans men's toilet use because women automatically gender a trans man as male. Also men generally feel uncomfortable with trans women in their facilities as if a man is expecting a single gender space then they feel uncomfortable. I'm over generalising here but we make naturally snap judgements around gender and judge safety, acceptance etc accordingly.
Question: workplaces require single sex facilities and are not requires to offer 3 spaces - only where possible. Trans men are not allowed in men's facilities and can be barred from the women's. Can an employer simply then offer no toilet/shower/change room to a trans man employee?
I doubt it. For one thing, the judgment doesn't say that transmen must be excluded from women's spaces. It says they can be where proportionate. It's not clear to me that it would be proportionate to exclude them from toilets, particularly in a workplace where people know each other, so people would know they weren't a man. I guess in the context of changing rooms it might be proportionate where a transman had had full reassignment surgery with a neophallus. But most people don't do that.
If for whatever reason an employer decided that it was proportionate to exclude a transman from women's facilities and then didn't provide an alternative, that would seem a clear case of indirect discrimination on the grounds of gender reassignment. In practice most workplaces would already have gender neutral toilets because they're required to have accessible toilets, but changing rooms might be more tricky.
The guidance does explicitly say that trans men can be excluded from women's facilities. The EHRC did not elaborate beyond that, so truly not for me to say.
It is also not the case that everyone at an office would know the biological sex (or even the first name) of every other person using the bathroom at an office. Especially if the office in question has many visitors.
Accessible toilets are sometimes located inside the single sex bathrooms.
It is also much less normal to have 3rd space change rooms or showers.
What the judgment says is "this might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided."
This is definitely nowhere near a blanket ban, it is much more limited. For one thing, it suggests that this would only apply when they have medically transitioned to the point that they might be mistaken for a man. It also emphasizes the context of the service being provided. It obviously doesn't specify particular situations because it relies on "reasonable objection," but I think this is far more likely to apply to something like a rape crisis centre or domestic violence shelter than to workplace toilets. IIRC Akua Reindorf of the EHRC said something similar when she was interviewed on the BBC.
As to your other points, yes if a workplace doesn't currently have a third space and decided to exclude a transman from the women's facilities, I think they would have to provide an alternative or they would be indirectly discriminating on the basis of gender reassignment.
I mean trans people also need access to rape crisis centres and DV shelters
Well it doesn't say that you're not allowed to set up such services for trans people. It just says you're allowed to set up women-only services. I struggle to see an objection to this
I mean the EHRC literally included it in the section on workplace toilets. I am not being ridiculous. I can't see a different interpretation.
It didn't. For one thing these passages are about facilities in general, not specifically toilets. But you also need to compare the language. First, on opposite-sex facilities, it says:
"trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex"
This is clear - they should not be permitted, in any circumstances. The law says that if you do permit it, the facilities are not legally single sex and you must allow anyone to use them
Then it says:
"in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities"
This is much less strict. It's only in some circumstances. And it says the law allows this, rather than requires it. I agree it's not entirely clear what the implications are - presumably this will be elaborated in the full guidance. But it's definitely not saying that transmen ought to be excluded from women's facilities in all or most circumstances.
This article justifies my subscription even if you never write anything else Ian.
Wouldn't the whole debate go away if everyone felt safe using public facilities like toilets? ie. People treating each other with respect and consideration, is that so hard to achieve?
When women are being raped in them or filmed, yes. And the supreme court case was about the definition of a woman, nothing to do with trans.
That's exactly what I thought when I read the title. Women brought the case to clarify a law that had been misinterpreted for too long. Interesting that most of the comments in support are all from men.
I'm a cis women. I don't see innocent trans women as a threat. I see gender critical women who want to police if other people look female enough for them as a bigger threat to other women.
Your use of language means you have fully taken on board the trans ideology. I don't see innocent trans women as a threat either, but how do we know which ones are not? Men commit 99% of sex crimes, and most trans women are fully intact males with a paraphilia. There is a long list of crimes against women committed by men disguised as women who want to get into women only spaces. You may be happy to let them in, but I and many, many other women are not willing to take the chance.
As a psychotherapist, gender dysphoria is real and paraphilia is, to use a technical phrase, some bollocks you've read on the Internet. Many trans women take hormones that inhibit sexual functioning though someone's genitals and sexual functioning isn't really your business. As to "letting them in", trans women have been using public loos and changing rooms etc fine for decades before you went down that online rabbit hole. Yes gender non conforming people are more visible now and I'm sorry that disturbs you but it's really not your business if someone is just getting along with normal life near you.
Also I know it's comforting to think that men need to disguise as women to sexually assault them but they really don't. In fact they're much more likely to be successfully prosecuted if they do that than if they just pick up a drunk women off the street because our legal system is awful. Men are also more likely to get away with sexually assaulting trans people. Why assault a women in an elaborate disguise when you can just walk in and assault them anyway or pick on a more vulnerable woman and be less likely to be prosecuted? That threat level is much lower than your perception. I'm not seeing an statistical evidence to back that assertion up.
I don’t think there is evidence of “a long list”. And if this really were Such a dreadful risk to women I’m surprised that there are no statistics for those European countries, including France, where I live that have completely open mixed toilets in a number of public places.
Current political discourse - consisting of taking a difficult and nuanced issue, and screaming an opinion at the top of your voice into any one of a thousand microphones - does not allow for reasoned discussion.
There is no doubt Starmer breathed a sigh of relief when the court ruling came through. It meant he could shut down the "at least we on this side of the house know what a woman is." Cue guffaws from the surrounding, largely middle-aged, cis supporters who have no experience nor understanding of the issue.
The awful spectacle of Dawn Butler carefully explaining the nuances and difficulties to Simon Clarke on Sky News Politics Hub last week was both hilarious, and yet tragic. How can a sitting MP not even understand the basics on which he is pontificating? The complete silence as his brain tried to even contemplate what she was saying to him was instructional.
https://uk.news.yahoo.com/labour-mp-leaves-former-tory-104845438.html
and
https://www.youtube.com/watch?v=U5rFjbdi6lc
I thought that the Gender Recognition Certificate might might have been a way through, in that to 'get' this certificate, the applicant needed to have undergone a process of gender reassignment, whether that be through surgery or by presenting as their new gender over a period of time. This would stop the "suddenly deciding that they were a man / woman" arguments. Clearly, this is not the case.
Entrenched, vocal and aggressive stances from both sides of the debate don't help matters. There needs to be an attempt at understanding from both sides of the issue. Many of my generation are still struggling with the "are we allowed to say black now?" questions, so there's no hope they will get anywhere near getting to grips with trans issues. Tory MP Simon Clarke is clearly one of them, who looked totally befuddled that transgender also applies to women wanting to transition to a male gender.
The debate and arguments will continue, and politicians on all sides will shout their opinions without even a basic level of understanding. I wish all trans people well in their fight for recognition and for understanding. I fear they won't get it from the vast majority of politicians sitting on their backsides quoting slogans.
Thank you, Ian, for this thoughtful and honest article.
“There needs to be an attempt at understanding from both sides of the issue.”
Ben Summerskill, CEO of Stonewall until 2014, had a letter in The Guardian the other day in which he says that Stonewall’s post-2015 strategy of ‘no debate’ over trans rights was a mistake. (https://www.theguardian.com/society/2025/apr/30/stonewall-policy-of-no-debate-on-trans-rights-was-a-mistake).
But now women (particularly lesbians who spearheaded this case) need to make an attempt at understanding?
96% of lesbian support trans people.
You are talking about 4% of lesbian who spearheaded this case
And they won. Court cases aren’t decided by a public vote, and the number of people wandering around as though they are is astonishing.
The whole article is about a failure of government and we do get a public vote on who makes or at least should be making that legislation. I'm currently off to not vote Labour and have let the local candidate know exactly why.
you do realise that this is a Supreme Court ruling on a law passed 15 years ago, right? The Labour government has had absolutely zero opportunity to do anything about it.
I mean they've had a year to inact any of their trans friendly manifesto commitments and haven't. Conversion therapy is still legal. They could have come out and said straight away that they'd adjust the equalities act to include trans women in the way previous assumed. It's not like they aren't in power with a majority and the ability to write laws.
Yes, a minority won and is imposing its view on the majority. A travesty of justice for a "civilized" country.
So you wouldn’t have been a Civil Rights supporter in the US, then?
I heard that the Women’s FA (I think it’s them) has been sending out messages to all trans footballers that they’re not allowed to play anymore. I’m not sure why that in particular has upset me so much… are there even that many?
Is it weird to hope for a legendary trans man to get into women’s football to show how insane it is?
Been waiting a long time to get your take on this whole situation (going back years), really glad you’re giving your voice to it. It’s just so fucking cruel. I hate that someone’s ridiculous boogeymen fears can be used to wreck such a vulnerable population. Where’s the damn humanity?
Why would it be insane for a transman (i.e. female) to play in women's football? That would be perfectly consistent with segregating sports by sex, which is explicitly allowed by both the Equality Act and the Gender Recognition Act. Unless this transman is taking testosterone, in which case they would be excluded from professional football by the same rules banning performance-enhancing drugs that apply to everyone else, there is no reason why a transman ought not to play for a women's side.
Oh fuck off
?? Charming
Quinn (a Canadian footballer) is transgender and non-binary. They played football in the women’s category at the Olympics.
Quinn is female, for the record.
“Political courage , moral decency , and strategic foresight “ . The very qualities so conspicuously lacking in both the UK and Australian governments. Thank you , Ian . This is exquisitely well written . ( I loved your reference to “feudal shit and Caligula 😆 ). How I would enjoy a conversation between you and David Marr on this matter , on ABC “Late Night Live” .To include Geoffrey
Robertson would be the trifecta.
What's the basis for 'most people don't care'?
Polling shows that most people ARE against males with a trans identity using female toilets and entering female sports.
I’ve just nicked your practical suggestions for government action and sent them to my Labour MP (I did quote you so not an uncredited theft). It’s not a lot but it feels better than nothing, so thank you. As always I appreciate your clarity and focus on what’s actually important here ie our fellow human beings.
Hi Ian, thanks for this considered and thoughtful article. The reporting of this ruling was unbelievably irritating.
Great work producing a clear treatment of complex issues. Much hard work must have been involved. Thank you.
Thank you for this. I don't think any politicians have the balls for this fight and cannot understand why, given the alternative. It's as though there's a deeper agenda to destabilise our democracy at play here with the trans community being weaponised by a few bigots. The impact it's having is horrible to watch. Divide and rule...