Thread 2: Why can't people respect the rules around toilets!?!?

None of this elaborate reasoning about 'default' is in the judgement.

• a passing trans woman is able to make a claim indirect claim of sex discrimination because she is perceived to be a woman.

• a passing trans man may be excluded from women's services if to include them would undermine the purpose for which that service is single sex

So although a passing TW may be preceived to be a woman, excluding her from women's services does not undermine the purpose for which that service is single sex, and therefore there is no basis on which to apply this "principle" that (you believe) exists that a trans woman could be treated as a woman, because that would only be equivalent to the TM example if treating her as a man would undermine the purpose of that particular provision operating under a single sex exemption.

Ignoring that element of the SC's reasoning is your own personal interpretation and IMO not justifiable given that this was their explicit reasoning as to why an "excluding TM from a women's service" scenario might be legitimate.

The only equivalent I can imagine is where including a TW in men's provisions would undermine the objective for the other men, but again as with the TM the rule is not "so you have to go in with the women", it is "I'm sorry, in this case this service is not suitable for you, please use this mixed gender / trans includive alternative". Worst case, if the service is none essential, it may be that TW simply do not have an alternative, in which case they could have a claim to show that they are unfairly discriminated against becuse of the PC of gender reassignment if they can show they have suffered a detriment due to not having suitable provision.

The thing is though, whether transwomen 'exist' is a red herring. I'm perfectly happy to refer to them with female pronouns, treat me respectfully and I'll do the same to you. But, as we are frequently reminded, gender and sex are two different things. Toilets are segregated by sex, not gender, and for very good reason.

We've already had multiple cases of sexual assault by transwomen in toilets, some on children. One minority groups comfort and convenience cannot be prioritised over the other, larger groups safety.

In the highly unlikely event a passing transman (whatever that means, as no objective criteria to measure that by either!) decided to overcome the feelings of distress triggered by being considered female, and attempted to access a women only service, the default would be inclusion. Because the SC says a person's access to single sex services depends on biological sex. So that's clear.
In the even more unlikely event the transman looked so much like a man it wasn't possible to alleviate the distress caused to vulnerable women at the presence of the TM, despite reassuring them the TM was a woman, then the exemption is a fall back. The TM can be excluded lawfully to avoid distress to the women.
However, in the event a TW tried to access a single sex service for women the default is to exclude them. Because single sex = biological sex. If the service provider wished to interpret the legislation as you suggest, they would need to show they had made an exception because the TW passed. So, what criteria should service providers use to support their decision a TW passed?

No, none whatsoever.

They would then be in the grey area left unaddressed by the Supreme Court, which is where they are supposed to go if they cannot use the men's or the women's and there is no unisex provision available.

I guess they would just have to use accessible facilities, there would be no other option. I don't like it, but there it is.

I would love the Supreme Court judgment to prompt a huge rethink about how we design toilet and changing room facilities in the UK. I'd love to see a sensible mix of single sex, unisex and accessible facilities everywhere. The unisex option would also be a great place to put baby changing facilities. All too often they are only in the women's, or in the accessible space which of course makes that space less accessible for those who need it for health reasons.

The UK could really lead the way on this and help other countries to see how trans people's needs can be met without compromising the rights and needs of other groups.

Which wouldn't give them any rights to be in women's however.

Trying to apply that logic to scenarios where there is an explicit upfront decision to treat trans people as the wrong sex even through treating them as their actual sex would not affect the legimate objective is your interpretation which you have arrived at by ignoring the reasons the SC gave for allowing that there may be occasions that trans people are treated as the opposite sex (indirect discrimination) or as not their actual sex (the excluded TM, who the SC did not say would therefore be expected to use male provisions, but simply would not have access to those female provisions.)

Well I think the implication is that passing trans women could be excluded from men's spaces.

Exactly.

He could in theory bring a sex discrimination claim if he experienced discrimination in employment due to an exceptionally dense person someone mistakenly thinking he could get pregnant.

In theory.

Tandora has entirely made up a 'passing TW' exemption.

Passing TM are explicitly mentioned in the judgement. Passing TW (should they even exist) are not.

No, it would not and could not be implemented in the same way.

A rule about who is allowed in which space functions as a blanket rule and does not take the individual into account. So if you are male or are perceived as male by others (the passing trans man) you can be excluded from a female only space.

A trans woman making sex discrimination claim would have the benefit of a judge taking into account the specific circumstances of the case.

Regarding single sex spaces, if a man brings a discrimination claim because he has been excluded from a female only space, his claim will succeed if a small subgroup of other males have been granted access to that space because the exemption will have been incorrectly applied.

A man who identifies as a women cannot claim sex discrimination on the basis of perceived sex for being excluded from female single sex spaces because he's being excluded for being male not for being perceived as a woman.

It would be practically implemented in exactly the same way as these provisions would:

• a passing trans man is excluded from women's services;
• a passing trans woman is able to make a claim indirect claim of sex discrimination because she is perceived to be a woman.

The court allows for these things in principle. So too does their logic allow in principle for a service provider to exclude men from a service but not trans women. The logic of the judgement does not justify the absolute principles set out in the EHRC guidance. That is the point.

If a discrimination claim is brought in practice by a man, it will be up to the service provider to justify based on the context that it was a proportionate means of achieving a legitimate aim as it is with all discrimination claims.

Just as all this "if a TM can be excluded that means a TW can be included" and "a TW can suffer indirect discrimination because they passed so well the provider unknowingly thought they were a woman means another provider can have a policy to knowingly include TW if they believe the women using the service will unknowingly perceive them as women" are your imaginary elaborations/ interpretations applying reasoning offered in the judgement in one scenario to completely different scenarios despite the new scenario being one that negates the reasoning of the first.

My "interpretion" is simply laying out my logic as to why your interpretation is - charitably - not the only possible one, and - realistically - unlikely to be what the SC intended nor work as a defense if sued (or given the parlous treatment by the lower courts of women's legal rights to date, on appeal) given the overall purpose of both the EA and the SSE.

After all, the SC didn't explicity say a man who dressed convincingly as an ape could not be included in woman-only spaces as long as it did not undermine the reasonable woman-only provision for a legimate objective, which at the end of the day is legally no different to what you are proposing.

I doubt you would not argue that this lack of ape-specific language makes the SC ruling unclear. It's only "unclear" to you in the case of TW because you have a pre-existing belief that TW are a special class of men who have some objective basis on which to reasonably expect to be treated more like women than other men.

They do not.

All the loopholes you think you have found are scenarios where an external error has been made such that the trans person has been perceived by others as the wrong sex either to their own detriment (indirect discrimination) or could be perceived as such to the detriment of a SSE's legimate objective.

Trying to apply that logic to scenarios where there is an explicit upfront decision to treat trans people as the wrong sex even through treating them as their actual sex would not be to the

Why? Because while you're looking for ways to interpret the ruling that enables you to use TW with passing privilege as the thin end of the wedge, to keep the door to women's services open to TW, some of us are providing services to vulnerable women so need practicality. If you believe the law allows passing TW to use women's services, then how do you believe this can be practically implemented? As a service provider, what criteria would you suggest I use to decide which TW I included and which I refused?

It's a particularly batshit argument given that it has been proven to harm women.

But even if it didn't, the fact that a significant number of women don't want trans women in their single sex spaces should be the only justification we need for excluding them.

Really? Why?

Your whole argument is motivated by your belief that giving TW what they want (access to female-only provisions) doesn't harm women so we might as well do it. In what way is that anything other than centering the men's desires over what the women may or may not want?

It is absolutely obvious to everyone unfortunate enough to have to read your posts.

You never ever consider the perspective of women. Ever.

@Keeptoiletssafe Although I'm pursuing a different thread of the discussion I just want to say how much I appreciate and value your informed posts and the commitment to safety they are coming from.

This is nonsense.

You only think that because you are persisting in considering only the perspective of trans people.

If you make some effort to give even one iota of consideration to the perspective of the women the space is actually for, the ones who don't want to use the toilet/get changed/discuss their rape in front of members of the opposite sex, things might become a little clearer for you.

Go on. Just try. Imagine that women are full human beings in their own right and not merely support humans for men and trans people. Just for two minutes.

Missed the edit window...

You however are looking to explicitly say ahead of time "we knowingly include TW if we believe they would be perceived as female to the degree they would not undermine the legitimate purpose". That is an express statement that you generally exclude by sex but make some exceptions and those exceptions are not in pursuit of the legitimate aim.

Knowingly including passing TW might be very nice for the TW and might even not prevent you achieving your legitimate objective for actual women (1) but it does not directly support that objective and therefore the fact you are able to include some men would undermine any defense that you have to be single sex and you would lose the SSE.

(1) though I personally find it hard to square supporting women with knowingly deceiving women - your legimate objective would always be at risk of the women finding out and feeling utterly deceived and betrayed

I think this is the most problematic part of the judgment but I can see the logic.

Your starting point needs to be, "Who is this space or service actually for?"

So in the context of a single sex space, your female changing room is for female people who need to get changed without male people present.

You have your group sharing a protected characteristic. They are people who share the protected characteristic of sex, i.e. in this case they are all female.

Then you need to apply the law to figure out whether this situation meets the criteria to be able to apply the exemption in the Equality Act. There probably hasn't been a lot of analysis about which of the criteria we are applying to justify single sex changing rooms, because society as a whole generally accepts the legitimacy of single sex changing rooms. But let's say you are relying on the justification that the users of that space might reasonably object to the presence of the opposite sex. Is it reasonable for women to object to the presence of the opposite sex when they are getting changed? Clearly, yes, as a society we believe that that is reasonable.

Then you also need to be able to demonstrate that this is a proportionate means of achieving a legitimate aim. The legitimate aim is to ensure women's safety and dignity, and it is proportionate because men are also provided for. (You can also refer to the justification that you are providing the same space to both sexes and that it is more effective to do so on an equal but separate basis.)

So if this space is for female people, to ensure their safety and dignity when they are getting changed by having no male people present, all your analysis needs to be focused on that group of people and the impact on them.

The mistake many people make is approaching it from the point of view of a trans person who is being excluded. But the space is not for trans people, it is for female people, and so you need to approach it from the point of view of those female people.

So, does the space serve its purpose from women's point of view if men are allowed in? No, clearly not. The purpose would be completely defeated.

Does the space serve its purpose from women's point of view if trans women are allowed in? No, for several reasons. Firstly, there is no way to distinguish between a genuine trans woman and a man who is just claiming to be a trans woman in order to access a women only space. If you are letting trans women in then you have no ability to exclude a man who decides to call himself a trans woman purely for the purposes of accessing that space. Secondly, even if there were a way to distinguish between a genuine trans woman and a man who is just pretending to be one, the women in that space are still likely to perceive the trans woman as a man. They will still be able to see that the trans woman has a male body. They will still be able to see that the trans woman can physically overpower them. Many of them will still be uncomfortable with the presence of a trans woman in the space. None of them will have any way of knowing whether the trans woman still has a penis or whether they have a gender recognition certificate. And an individual trans woman does not represent any less of a statistical risk to women than an individual man does. So the space is no longer serving its purpose as a female only space, and the use of the exemption can no longer be justified because it is no longer actually achieving the legitimate aim.

But what about trans men?

Once again, you have to think about it from the perspective of the female users of the space.

The law is clear that if a trans man does not pass, they should be able to use a female only space. No woman is likely to be intimidated by finding someone like Elliot Page in the women's toilets. We can tell they are female even if they have no breasts and a little beard. But if a trans man does pass, to the extent where the female users of that space cannot tell that he is female, the impact on them of him being in that space is the same as if a regular man were in there. Thus, the space is no longer serving its purpose or achieving the legitimate aim.

Where the judgment falls down is that it says that in these circumstances a passing trans person (who will almost always be a trans man than a trans woman because the effects of testosterone on the body are irreversible and so trans men stand a much better chance of passing than trans women do) should not use a single sex space for either their own or the opposite sex, but they should not be in a position where there is no space for them to use. It does not elaborate on what the passing trans person is supposed to do if no unisex space is available.

In reality I think this is the situation most passing trans men are already in. The trans men who have posted on here have said that they tend to avoid single sex spaces altogether and seek out unisex spaces or use accessible ones where necessary.

But I do not like the principle that a small group of people is uncatered for, even if it is due to their own decision to drastically change their physical appearance.

In this case you are not strengthening the protection, you are weakening it

Why? There's nothing on this in the judgement. All this 'strengthening' and 'weakening' reasoning is your imaginary elaborations/ interpretations, they have nothing to do with the reasoning offered in the judgement.

a discrimination claim would depend on the individual circumstances of the case.

Right. Exactly the same in my hypothetical scenario.