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.

Logic fail.

"those trans women appear to be biological women so in this case their presence would not be detrimental to the operation of the service as intended as single sex provision" is not the same thing as "those trans men appear to be biological men so in this case their presence would be detrimental to the operation of the service as intended as single sex provision"

Not be detrimental to add some members of an excluded group back in because they are not immediately obviously members of the excluded group is not the same logic as Would be detrimental to not exclude some additional people who are not members of the excluded group but appear to be so.

The SSE are already a broad brush. By excluding a whole sex they already exclude plenty of people who probably could be included without being detrimental to the operation of the service as intended as single sex provision. This is accepted. Therefore there is no basis on which to attempt to start bringing groups back in out of some belief you have the authority to fine tune the exemption to be effective while excluding fewer people.

The alternative scenario of excluding TM in addition to the broad brush exemption of men is justified because the objective is not met unless this is done. It is essential to the objective which makes it justifiable by the objective. The inclusion of TW is not essential to the objective and therefore you cannot use achieveing the objective to justify it because the objective would be achieved by the SSE anyway.

Yes there is, because a space for women and trans women is not a single sex space, therefore the exemption for single sex spaces does not apply.

Which part are you struggling with?

To be honest, this is much further than we need to go in our analysis.

The Supreme Court confirmed that sex means single sex.

That means a single sex space is a space with members of only one sex in it.

A space for women plus trans women is a space for both female and male people, therefore it is not a single sex space, therefore the single sex exemption does not apply.

That is as far as we need to go because it fails at the very first hurdle. Women and trans women do not share a biological sex, or indeed any other protected characteristic.

Now, in theory, if parliament decided it wanted to make gender identity a protected characteristic, and recognised "people of either sex who believe they have a gender identity which corresponds to being a woman" as a gender identity, and introduced this as a new protected characteristic, you could have a space for women and trans women which excludes anyone who does not identify as a woman.

BUT:

1. This is not currently the case and there are no plans to make it so.
2. In order to make it a protected characteristic in law you'd probably need to show some evidence that people are at risk of being discriminated against because they identify as [man/woman/other], as opposed to because they are female, male, or have the protected characteristic of gender reassignment. You would essentially need to show that women and trans women are experiencing the same type of discrimination for the same reasons, or exposed to the same type of risk for the same reasons, and it's not clear that that is the case.
3. If you did make it a protected characteristic, you'd still have to show that there was a valid reason for having a space or service restricted to this particular group, and that excluding people who do not identify as women was a proportionate means of achieving a legitimate aim. This would probably be easier to achieve in terms of a single characteristic association, so for example you could have a "woman gender identity" association in the same way that you can have an LGB association without necessarily needing to worry about providing an equivalent for straight people. But when you are talking about something everyone should have access to, such as toilets for example, having toilets for people with "woman gender identity" would only be proportionate if everyone else was provided for, including women who do not believe they have a gender identity or that they share a gender identity with trans women and consent to using the same spaces as them on that basis. We don't have toilets for gay/straight people, or toilets for old/young people, or toilets for people from different religions. These things aren't relevant to toilet use and it would be far too complicated to create these categories and ensure that no one was left out. Having separate toilets for male/female people and able-bodied/disabled people are the only distinctions that are relevant to toilet use and actually make sense. But I would support adding an additional unisex facility as standard.

@MissScarletInTheBallroom

"To be honest, this is much further than we need to go in our analysis."

Fair enough and 100% agree with that wrt the overall understanding of the SC ruling there's no need to follow every posters' personal will-o-the-wisps. It's just that poor logic really does trigger me!

As you so clearly pointed out in one line what I failed to say in many posts:

A women's single sex space that excludes some TM as well as men is still a women's single sex space. A women's single sex space that includes some TW is no longer a women's single sex space.

And fundamentally that is why the scenarios proposed by Tandora are not equivalent.

A women's single sex space that includes some TW is no longer a women's single sex space.

So you keep insisting but this has not been tested in law, and there is no basis for assuming that if it were tested, it would hold, given the courts reasoning in the recent judgement.

Why do you think there's any ambiguity in the term 'single sex space'?

Complex question fallacy

If by "the courts reasoning in the recent judgement" you mean the SC ruling, that ruling clarified that sex within the EA is biological.

The SC's suggestion that TM may also be excluded from a women's single sex space does not conflict with that.

The SC's suggestion that a TW may suffer indirect discrimination due to the misapprehesion he was a woman does not conflict with that.

Your suggestion that a TW could be included in a women's single sex space and it would nevertheless remain a women's single sex space does conflict with that.

A space containing a woman and a transwoman is a space containing two people of two different sexes, so cannot be called a single sex space, as this is objectively false. If such a space is to exist it needs to be called something else.

There is no basis in law for saying the first two don't contradict that but the third does since they rely on the use of exactly the same reasoning, as I demonstrated above.

How do you square the SC's clear ruling that sex in the EA is always biological sex with your insistence that the EA allows for "single sex" services that are not single sex by the definition of sex in the EA, given that none of the examples on which you have relied do in fact involve legally treating the trans person as the opposite sex?

There's no 'objectively' about it. The court didn't rule about what sex 'objectively' means, and who is or isn't 'objectively' a woman, and what 'objectively' is and isn't a 'single sex space'. The court ruled on how protections and exemptions based on the protected characteristic of sex apply in the context of the EA 2010.

The law is the SC ruling.

Your "demonstrations" do not rely on "exactly the same reasoning" at all

1. You are taking the SC's scenario of a TW being able to claim indirect discrimination because they suffered a detriment that a biological woman woudl have suffered due to the mistaken belief by the provider that they were a biological women and claiming this means the SC allowed for TW to be treated as a biological woman. This is a misreading. Indirect discrimination is a post-fact redress to an individual detriment that happened to be based on an incorrectly perceived sex. It does not rely on a person being trans, simply on the fact of mistaken sex. The SC gave the specific example of a trans woman to highlight that although under EA law they are not legally the opposite sex and would therefore not have the protection of direct discrimation that members of that actual sex would have, they still had recourse to indirect discrimination just as any other man mistaken for a woman would.

Unless you believe the SC intended to allow for any man to be included under any of the EA's provisions for women, your logic for believing this example implies they intended that to be the case for TW does not hold.

1. You reversed the SC scenario of excluding TM from a SS space in addition to all biological men, which does maintain a biological single sex space, into including TW in a SS space despite being biological men, which does not maintain a biological single sex space. The latter is your own invention not the scenario posited by the SC and it is materially different in that the SC scenarion does not require mixing biological sex and yours does. It is therefore not an equivalent principle at all.

And as such your "demonstrations" do not hold.

Much of what you write here makes little to no sense. For example this:

claiming this means the SC allowed for TW to be treated as a biological woman. This is a misreading.

The judgement doesn't say anything about TW being 'allowed' to be treated as biological women or otherwise. That's not within the remit of the court.
The judgement is about the interpretation of the protected characteristic of 'sex', and it's exemptions.

Again does not require mixing biological sex and yours does.. The judgement does not prohibit the mixing of biological sex, make judgements about what that constitutes in practice, or when or where it may and may not occur. The judgement simply sets out how exemptions to the prohibition of discrimination based on the protected characteristics of sex and gender reassignment should be interpreted.

In each case - when setting out the application of the protected characteristic of sex, the protected characteristic of gender reassignment, and exemptions to unlawful discrimination, the court acknowledges that gender transition and its implications for how a person is perceived may be relevant to how a person is treated in relation to protections and exemptions from discrimination (based on birth sex and gender reassignment).

The EA 2010 provides an exemption to enable discrimination based on the protected characteristic of sex to facilitate the provision of "separate services for men and women where providing a combined service would not be as effective".

A service provider can use this provision to exclude men from its services. They are not required to do so.

A provider may chose to exclude all birth males, including trans women who possess a GRC. The SC judgement specifically clarifies that it is not unlawful to do this.

This does not mean that the provider has to exclude all birth males, if they exclude any birth males. You are interpreting the judgement to mean this, but they did not say this specifically and it has not been tested in law.

You are insisting that if it were tested in law it must hold because a provider would leave themselves vulnerable to a discrimination claim based on sex by excluding some birth males and not others. But there is no basis for assuming this, ESPECIALLY because the judgement specifically allows for circumstances in which some birth males, and some birth females, may be treated differently from others of the same birth sex in relation to the application of sex and gender reassignment discrimination claims because of the impact of gender transition on perceived sex.

Exactly the same reasoning as the court uses in the judgement in other contexts could readily be used to defend a discrimination claim brought against a service provider for discriminating against some birth males by excluding some of them and not others.

The only way a man - however he chooses to 'identify' - is allowed to access a facility used by women is if it's been designated as 'unisex'. He can't lawfully access a facility designated for women/girls.

This has never been stated, tested or clarified in law.

@Tandora , have you been following the Sandie Peggie case? The sheer level of abuse she's been through all because she (quite reasonably) objected to a hulking great man getting changing in the female changing room? Don't you have any compassion for her?

I've been trying to follow but it's really hard to get an objective source on what is going on on the trial. Obviously the threads on here are bonkers. The reddit community I'm in is telling quite a different story.

BBC article from today

www.bbc.co.uk/news/articles/cvg98nwrqpdo

Yes, that was egregious by the BBC. I hope they receive a lot of complaints.

The poor woman has had totally fabricated professional misconduct allegations from Dr Upton, told not to speak to anyone (while his version of events is emailed around all the doctors) and put on special leave while he gets “poor thing” messages from senior doctors.

She’s survived sexual abuse from a doctor in her past and wanted to get changed at work away from men and HE is the one supposedly crying and intimidated? She’s 5’3”, he’s 6’2” for Christ’s sake.

I think that's going to be a resounding 'no'.

It was clarified in the recent EHRC interim update. You don't have to like the law but you do have to accept it.

The judgement does not prohibit the mixing of biological sex, make judgements about what that constitutes in practice, or when or where it may and may not occur. The judgement simply sets out how exemptions to the prohibition of discrimination based on the protected characteristics of sex and gender reassignment should be interpreted.

Exactly. The judgement clarifies that the protected characteristic of sex under the EA is biological sex. No if, no buts. Biological sex.

The judgement further acknowleges that people may suffer discrimination based on a PC they do not in fact have if it is perceived that they have it. This is not the same as the SC agreeing they actually have that PC for any purpose whatsoever under the EA, the SC is simply saying that people who do not have a PC may nevertheless be discriminated against because of the perception that they do.

To the degree that this discrimination is lawful, which relies on the SSE, the SC ruling confirms that a person perceived to have it could be discriminated against on that basis if this is necesary to achieve the legimate objective to which that discrimination is proportionate. This is the example of a TM excluded from a women-only space despite being a biological woman.

To the degree that this discrimination is unlawful, the SC ruling confirms that a person perceived to have it could be said to have been discriminated against based on that PC despite not having it and would have recourse in law. This is the example of a TW suffering the same discrimination that would be suffered by an actual woman (a woman under the definition of the EA) despite being a biological man.

A TW prevented from accessing a single sex space is not being discriminated against based on being perceived as a woman, because women's single sex spaces do not discriminate against women, they discriminate against men. He is being discriminated against based on being a man, but assuming the space meets the bar for a SSE, that discrimination is legal.

Therefore none of the SC examples of perceived sex would apply.

The SC has given no example or indication that perceived sex can be used as a reason to include a trans person (or anyone else not of the actual specificed biological sex) in a single sex service that is relying on the SSE in the EA if that person would otherwise be barred by their biological sex. And the vast majority of single sex spaces would need to rely on the SSE exemption if challenged.

The SC has, by specifying that sex in the EA, including the SSE, means biological sex, clarified that if one is operating a single sex service and relying on the EA SSE to make that discrimination legal, one must apply that discrimination based on biological sex (the EA meaning of sex) but can in addition exclude based on perceived sex.

On Twitter you can read Tribunal Tweets who transcribe what is said by all parties, if you would like to hear everything and make up your own mind.