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

[Underbudget]

Darn it the thread filled and I wanted to ask @tandora a question. Is this within site rules to start another to do this as I don't seem to be able to tag her? Feel free to report/delete if it is.

Previous thread here: https://www.mumsnet.com/talk/am_i_being_unreasonable/5372111-why-cant-people-respect-the-rules-around-toilets?page=1

'Tandora · Today 07:51

Eh? Mental health is everyone’s concern that’s why we have a health system.

No one’s rights come “first”- we need to find solutions that respect everyone’s rights.

There is no “female suffering” involved in respecting and including trans people. It will have virtually no impact on your life whatsoever.'

I wondered @Tandora if you'd read my post earlier on that thread, where in my head, children's rights come first? As the basic premise of child protection?

My post (in response to a different poster) if you missed it, was this:

Underbudget · Today 00:51

Slow to reply and expect thread has moved on, but surely you can empathise with a girl victim of csa feeling terrifed at finding themselves alone with a very male bodied person in a public loo between them and the door? Why does that child's feelings mean less than the adult males?
And what if that particular male bodied person WAS a rapist? That people saw entering from the outside but didn't want to "offend" by challenging them. And a child was born from a child as a result?
Doesn't a child's right to safety and protection come before ANY adult's feelings? Especially when a child can be born from rape as a result? As could ONLY happen to a female?
Fellow survivor of CSA here so I can understand you may have issues in thinking around this. I have spent years in therapy due to being overtrusting because my boundaries were fucked.'

I genuinely want to be in a place where all rights are respected, but I can't personally process this risk in any way that makes sense to me. I simply cannot agree with or process that allowing a male bodied person, unsupervised access to a child victim of CSA in a vulnerable space, whether a real or a perceived risk, does not harm that child. As a male, they are not being discriminated against on the basis of their sex, as ALL males are excluded from that situation, rightfully so. No right minded person believes all males are rapists, just as and no right minded person believes all transwomen are. But some of both ARE and that's a fact. I accept that a trans person may feel excluded from having their social transition recognised by not being allowed in the single sex spaces of the gender of their choosing, but equally, a girl in that situation also feels distressed. Why does that adults discomfort trump the discomfort felt by the child? A trans person deserves somewhere safe to go to the loo, but that's not in the women's loos. If that protects just one single child from reliving horrific trauma or worse, then that's what has to happen.

I would truly like to understand your view, ideally in a way that acknowledges the trauma of a child in this situation.

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

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.

This is nonsense.

@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.

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

You never ever consider the perspective of women. Ever.

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'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.

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?

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

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.

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.

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.

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.

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.

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

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.)

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

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.

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?

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.

• 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.

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

None of us believe you have actually read the judgment.

this is all entirely compatible with the reasoning in the judgement. There is nothing in the judgement to preclude this in principle.

Its hardly elaborate to reason that when the SC ruled that single sex services are accessible on the basis of biological sex, this means that people of the sex they are aimed at are entitled to use them by default. So the default position is for a TM to use women's services, unless the exception applies. I think it could hardly be more straightforward.