There are other things we’d rather be talking about but here we are talking about toilets again. Let’s start with what the law currently says:
The Equality Act 2010 protects trans people under the protected characteristic of “gender reassignment” from the start of social transition. This protection applies regardless of the age of the trans person, regardless of them being under medical supervision and regardless of what it says on their birth certificate. Under the act, trans men have the right to be treated the same as other man and have the right to access male only spaces and services. Similarly, trans women have the right to be treated the same as any other woman and have the right to access female only spaces and services. There is a legal basis for excluding trans people from single-sex spaces or services, however the law is clear in stating that these decisions must be made on a case-by-case basis and it must be a proportionate means of achieving a legitimate aim. It is worth noting that the legal bar for this is incredibly high. You’ll find more information on the Equality Act here.
If the report in The Sunday Times is true, the government is considering restricting trans people’s access to single-sex spaces. But that raises a number of questions:
How would that be policed and by whom? Would people’s genitals be inspected? Would people be expected to carry an ID card? Would every public toilet have to have an attendant to check who is using which toilets?
Any change in the law would affect everyone, not just trans people. What about women who have facial hair due to polycystic ovary syndrome? What about women who don’t conform to stereotypes of what a woman “should” look like? These stereotypes, by the way, often have racist undertones. They’re stereotypes of what a white “woman” should look like. Lots of women already experience issues from other women when they use the toilets, but a change in the law could see them being excluded from public toilets along with trans people.
Women of colour and gender non-conforming women will be disproportionately impacted.
If trans people have no option but to use the toilets that align with what it says on their birth certificates, how would it work for trans men? It would be very easy for a cis man to pretend to be a trans man and sneak into women’s toilets for nefarious means. He wouldn’t even need to pretend to be a woman or change his appearance. Again, how would you police this? Would it be a case that everyone’s ID is checked at the entrance to the toilets? And if so, is the government going to introduce ID cards?
Or if it’s to be policed based on genitals, rather then ID, then will everyone’s genitals be checked? What will be the criteria that have to be met for trans women to use the women’s toilets and trans men to use the men’s? If it’s a case of people with penises use the men’s and people with vaginas use the women’s, how will it work? After stage 1 of phalloplasty, trans men have both a penis and a vagina. Will they go in the men’s or the women’s toilets? Will everyone be checked? Who will check? Imagine that job description. Imagine how much longer the queues for the women’s toilets will be. We can’t see it working. People want to live their lives in dignity and pee in peace.
Imagine they sort the policing of the toilets out. What then? We know that a lot of trans people already avoid using public toilets for fear of being told they’re in the wrong place. But imagine if trans people were literally left with the choice of using a toilet at odds with their identity – something that would put trans women in particular at risk of harm (we surely don’t need to remind you that trans women are at higher risk of being assaulted) – or just not using toilets. A lot of trans people would just avoid going to the toilet.
If trans people can’t use public toilets, they will be limited in how far they can travel away from their homes as well as how long they are out and about for. How can you go to work if you can’t go to the toilet all day? How can you take part in trade union meetings or political activities? How can you socialise outside of your home? How could you go and visit friends and family in another part of the country? It would be akin to a permanent Covid-19 lockdown.
This scenario sounds like a disaster for everyone and not just trans people.
But don’t despair. It hasn’t happened yet. As we mentioned right at the top, trans people’s rights to access single-sex spaces are enshrined in law. To change that, the government would have to change the Equality Act 2010. We can work together to stop that from happening.
Most of all, stay hopeful. We have a multitude of allies.