MONUMENTALLY TOILET

I can’t remember when I first saw the expression “monumentally toilet” but I remember it was on social media, probably before Covid, that is to say, in another universe. It was a phrase I immediately liked, and I have used it a few times over the years, to the amusement of my friends. Coincidentally it is a phrase that applies perfectly to the draft statutory guidance on the 2010 Equality Act which the Equality and Human Rights Commission sent to the government several weeks ago and on which the government is sitting, presumably having had advice on the potential legal consequences, particularly challenges under human rights law. The EHRC embarked on an unseemly social media campaign to put pressure on the government, pressure which the government resisted. WE can only assume they were waiting for notorious transphobe Kishwer Falkner’s term of office to end before doing anything, What they are likely to do is send the guidance back to the EHRC for them to have a rethink. The guidance has been leaked, we don’t know who by although we can have a good guess. The only thing we can say about it is that it is monumentally toilet.

This is particularly appropriate because the problem is toilets. It seems clear that the drafting of the guidance started from the premise that its purpose was to exclude trans women from single sex toilets. The first thing to say is that the Supreme Court judgment of 16th April in the For Women Scotland case related solely to the meaning of the “woman” in the Equality Act 2010. The case was brought following the 2018 decision of the Scottish government to introduce quota for representation on public bodies, specifically that half of appointments to these bodies should be of women. For Women Scotland sought a ruling that appointments of trans women would not count as appointments of women for the purpose of meeting the target. The Supreme Court concurred and ruled that, for the purposes of the Equality Act, trans women with Gender Recognition Certificates (an important qualifications) were not women. This was actually a ruling of limited scope, and the judges were at pains to point out that they were not expressing an opinion on the broader philosophical question of whether trans women were, or could ever be, women. That was outside their remit.

The judges did, however, discuss the issue of single sex spaces and the circumstances in which transgender people can be lawfully excluded from them. I am unable to see, however, that this changes much. It was possible under the 2011 guidance to exclude trans people from single sex services and spaces where this was a proportionate means of achieving a legitimate aim. In any event a ruling relating solely to trans women with GRCs has no direct application to the vast majority of trans women who do not have GRCs. They were using single sex facilities and spaces not under the protected characteristic of being a woman, but under the protected characteristic of gender reassignment. Post Supreme Court judgement the position remains as it was. Single sex spaces are allowed but not mandated. The exclusion of transgender people from those spaces is, likewise, allowed but not mandated.

This should have been clear. It was, I suppose, predictable that the usual gender critical suspects would start a campaign of gaslighting and misinformation. Sadly, it was also predictable, if even more disappointing, that the EHRC under Kishwer Falkner would take a leading role in the gaslighting.

Within a few hours provisional updated guidance had been issued, based on the entirely false assertion that the Supreme Court judgement banned trans people unconditionally from single sex spaces. This guidance was issued without any consultation with the government and was subsequently withdrawn. By that time damage had been done, with some organisations bringing in bathroom bans for employees (this probably unlawful as workplace facilities are governed by regulations to which the Supreme Court judgement had no application) and customers. Others declined to do this, despite the efforts of noisy pressure groups like Sex Matters. An infrequent chapeau bas here to pub chain Wetherspoons.

Falkner has form in this area. She was trying to bring in a bathroom ban for transgender women a few years ago and it was Equalities Minister Liz Truss, back in the days when she was still rational, who told her that policing toilets was not something the government wanted to get involved in. And it really is about toilets. There are several single sex spaces to which the exclusion of trans people could apply. The difference is that most of these, such as domestic violence refuges and prisons, are not places where people want to be. They are also places where a case for exclusion under the legitimate and proportionate principle could be made, at least in the case of some trans people. Female toilets consist of lockable cubicles so it is hard to see how a ban on trans women using them could be seen as either proportionate or legitimate. They are also facilities that everyone needs to use and a ban on trans people using facilities relevant to their acquired gender would make it difficult for them to leave the house. This is the clear intention of those pushing for a ban. They want to exclude trans people generally, and trans women in particular, from society.

But if all trans people are required to use the facilities if their biological sex further questions arise. Where do trans men go? Trans men, after taking testosterone for a time, will have facial hair and deep voices. Will they be welcome in the ladies? The EHRC have thought of this and produced a list of characteristics that may cause alarm, these including looking too masculine. Trans men who are sufficiently far advanced down the transition road would be effectively banned from both the ladies and the gents. Non gender confirming but cisgendered women are already finding themselves challenged. I have seen online GCs deny that this is happening, but I know it is. It has happened recently to two friends of mine. It is not pleasant. The bathroom ban advocates, you know, the “women’s privacy and dignity” brigade seem quite happy to see other women, and people they regard as women by virtue of their biological sex, excluded, marginalised and humiliated for not performing femininity properly. If you don’t look girly enough, expect to be required to prove you have a right to be on in the ladies’. You will be collateral damage in the trans wars.

The draft guidance has been criticised, in a delicious irony, by veteran TERF Glosswitch aka Victoria Smith, precisely for this reason, that it reinforces traditional standards of femininity. There was a very good response to the draft guidance consultation by ACAS. The EHRC didn’t listen to them. Maybe they should have done as the points they make are good ones three in particular.

They note that workplace toilets are governed by regulations that were not affected by the Supreme Court judgement, as I discuss above, but that the draft code makes no mention of employment. The two surely must be considered together. They also note that one effect of the draft code would be to turn gender neutral accessible toilets into de facto trans toilets. If disabled people’s access to toilets is impaired by the code forcing able bodied people to use them, discrimination claims from disabled people may result. Finally challenging people who someone thinks is trans, when others are not being challenged may itself constitute unlawful discrimination. It has been said so many times before but needs saying again as so many still don’t get it. Introduce a gatekeeping criterion for some users, and you introduce a gatekeeping criterion for everyone. Women will inevitably be the losers if the obsessions of a minority are allowed to dictate public policy.

In short this is a complete mess. It is, to use a favourite expression of mine, monumentally toilet. Let’s hope the government push this back to the EHRC to come up with something better.