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.

@Tandora:

1. What sex is Beth Upton?
2. Is a changing room with Beth Upton and Sandie Peggie in it a single sex space?

When the court says that it would be difficult to establish these conditions you need to then follow the reasoning they offer to understand it/ put it in its appropriate context:

"it is difficult to envisage how the condition in paragraph 26(2)(a) (a joint service for persons of both sexes would be less effective) could ever be fulfilled when each sex includes members of the opposite biological sex in possession of a GRC and excludes members of the same biological sex with a GRC."

This reasoning/ logic - that it would be difficult - is based on the context they are discussing which is an alternative rule whereby the differentiating factor was "certified sex" (possession of a GRC) (this is all the court was ruling on - does sex mean certified sex or bio sex). With this alternative rule, it would be difficult because whether a trans person possesses a certificate or not is an arbitrary measure which is not in anyway related to whether or not a trans person would most appropriately be placed in a female or male space for the purposes of effective service delivery. There are other factors, however, related to transition which are not arbitrary at all - which the court acknowledges elsewhere - e.g. a person's perceived sex after gender transition.

And to clarify, that “difficult if not impossible” comment in the SC was based on the (rejected) case that sex means certificated sex. Since that argument has been rejected because sex means biological sex, it is clear as a matter of law that the provision of single sex services must also be by reference to biological sex.

There is now simply no legal basis for service providers to rely on the separate services exemption under the Equality Act and also allow trans women into female spaces. They can either have mixed sex services (which need to allow all biological males) or single sex services based purely on biological sex.

*a) that the provision of single sex services must also be by reference to biological sex.

b) There is now simply no legal basis for service providers to rely on the separate services exemption under the Equality Act and also allow trans women into female spaces.*

You have made a leap in logic from a) to b) that is not established in the judgment.

“There you go. They literally say it's not "impossible", so the absolute logic people are insisting doesn't hold, they even explicitly say so.”

No - you’re misreading the judgment. See my comment above. That comment in the SC was predicated on the rejected alternative argument that sex means certificated sex. If that were the case, the SC said it would be difficult if not impossible to see how service providers could rely on the exemption. That was part of their reasoning for why sex must mean biological sex.

There doesn’t seem to be much point trying to explain it further, but the judgment really is very clear on that point if you read it.

This reasoning/ logic - that it would be difficult - is based on the context they are discussing which is an alternative rule whereby the differentiating factor was "certified sex" (possession of a GRC) (this is all the court was ruling on - does sex mean certified sex or bio sex). With this alternative rule, it would be difficult because whether a trans person possesses a certificate or not is an arbitrary measure which is not in anyway related to whether or not a trans person would most appropriately be placed in a female or male space for the purposes of effective service delivery. There are other factors, however, related to transition which are not arbitrary at all - which the court acknowledges elsewhere - e.g. a person's perceived sex after gender transition.

None of this means that with with the ruled understanding of sex = 'birth sex' that it would be difficult for a provider to meet the necessary conditions (that a joint service for persons of both sexes would be less effective) while admitting both women and trans women. They could rely on the same logics as used elsewhere in the judgement that this is fulfilled where the gender transition process had impacted an individual's perceived sex.

Yes exactly.

When the court says that it would be difficult to establish these conditions you need to then follow the reasoning they offer to understand it/ put it in its appropriate context:

"it is difficult to envisage how the condition in paragraph 26(2)(a) (a joint service for persons of both sexes would be less effective) could ever be fulfilled when each sex includes members of the opposite biological sex in possession of a GRC and excludes members of the same biological sex with a GRC."
This reasoning/ logic - that it would be difficult - is based on the context they are discussing which is an alternative rule whereby the differentiating factor was "certified sex" (possession of a GRC) (this is all the court was ruling on - does sex mean certified sex or bio sex).

With this alternative rule, it would be difficult because whether a trans person possesses a certificate or not is an arbitrary measure which is not in anyway related to whether or not a trans person would most appropriately be placed in a female or male space for the purposes of effective service delivery. They elaborate on this elsewhere:

Since, as we have explained above, neither possession of a GRC nor the protected characteristic of gender reassignment require any physiological change or even any change in outward appearance, there is no obvious outward means of distinguishing between a person with the protected characteristic of gender reassignment who has a GRC and a person with that characteristic who does not.

There are other factors, however, related to transition which are not arbitrary at all - which the court acknowledges elsewhere - e.g. a person's perceived sex after gender transition.

So none of this means that the SC has specified that with with the ruled understanding of sex = 'birth sex' - that it would be difficult for a provider to meet the necessary conditions (that a joint service for persons of both sexes would be less effective) while admitting both women and trans women. They could rely on the same logics as used elsewhere in the judgement that this is fulfilled where the gender transition process had impacted an individual's perceived sex.

I await with bated breath your explanation of how, when service providers are only legally entitled to provide separate services on the basis of biological sex, they can also allow trans women into female spaces. It’s defeated the greatest legal minds, but I’m sure you can help them out…

RTFT. I set it out earlier.

You set out a bizarre misunderstanding of the meaning and effect of the judgment. But there’s not much point continuing to discuss it with you unless you are prepared to read and try to understand the full judgment.

Here you go. Copied an pasted from earlier in the thread.

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

A service provider designates a service for women and trans women , excluding trans men, to enable more effective service delivery.

A discrimination claim is brought by a man (why would this happen in the real world btw?) to say that he had been subjected to unlawful discrimination because he was excluded from the service because of his sex.

The provider responds -
nope I'm using the single sex exemption - you are excluded because in this context we are providing separate services for men and women because in this instance a combined service would not be as effective.

The complainant says but you are not providing separate services, because 'sex' means 'biological (birth) sex' and woman means 'biological (birth) women' and there are trans women in your service.

The provider responds, yes but 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 whereas your presence would. Therefore our exclusion of you specifically is a proportionate means of achieving a legitimate aim, and is exempt from any claim of sex based discrimination.

This defence is entirely compatible with the SC judgement. Indeed it draws on the very logics used in the judgement. It has not been tested in law.

The same defence would be available to a discrimination claim brought by a non-passing trans woman for being excluded while other trans women were permitted.

Ah - I see the argument. That’s actually just a misreading of the Equality Act.

The default is that you can’t discriminate and provide separate services. However you can provide separate services “for persons of each sex” (meaning biological sex) under para 26 if the relevant conditions are met.

Your argument however conflates the “separate services” and the conditions for being able to provide those services.

If you are allowing “passing” trans women into spaces, you are not providing separate services. The SC is very clear that sex means biological sex for trans women regardless of whether they pass or have a GRC etc.

So in your example, the service provider would not be providing separate services or relying on the para 26 exemption at all. I don’t know where your “would not be detrimental” language has come from, but the point is that there is no para 26 exemption unless there are single sex services in the first place.

Indeed this defence could further be strengthened by pointing out that were this trans woman to be offered the alternative provision for men, that it would severely compromise effective service delivery since the
‘gender reassignment process [had] given [the person] an appearance or attributes to which reasonable objection might be taken in the context of the [sex-specific] service being provided’.
Meanwhile it would be impractical and ineffective for them to offer a third service given the very few trans people they cater to and other important factors. This could then violate protections against discrimination for trans people on the basis of gender reassignment.

I understand perfectly your logic - If you are allowing “passing” trans women into spaces, you are not providing separate services.

but I entirely disagree that it has been tested in law. It's an assumption you are making that is not justified.

I think there is a very reasonable / plausible argument that you are indeed providing separate services, in the very sense in which they were intended - to enable effective service delivery by delivering separate services for men and women, based on the logics I clearly set out . This is entirely compatible with the intentions of the act, the wording of the SC judgement, and relies upon reasoning/ provisions specifically provided for elsewhere which acknowledge the impact of gender transition on perceived sex and the ramifications that has for applying protections/ exemptions based on the protected characteristic of birth sex.

The statutory exemption under paragraph 27 is that a “person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex”

Similarly, the exemption under para 26 is that a “person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex”

(In each case, also subject to the relevant conditions being fulfilled).

The SC didn’t just define “man” and “woman” for the purposes of the EA.

It expressly held: “The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate (para 264).”

Accordingly, there is no doubt legally that allowing trans women (whether passing or not, whether with a GRC or not, whether pre or post surgery) into female single sex spaces would be allowing “men” (for the purposes of the EA) into spaces for biological women. Since “sex” also means biological sex in the EA, the exemptions under paras 26 and 27 are wholly inapplicable - there simply is no service “only to persons of one sex” if you allow both men and women into it.

The statutory exemption under paragraph 27 is that a “person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex”

But that's not the situation I was describing. This is a service provider that does provide services to both services, yet doesn't want to exclude passing trans people from both. It is completely unreasonable and incompatible with the act to suggest there isn't an avenue for this.

I know the judgement defines the meaning of "woman" and "man", just as it does sex. That doesn't contradict any of the above.

Regarding the rest you are simply repeating your previous logics and insisting there is "no legal doubt about them", I think we have reached an impasse.

Props to you for sticking with this thread (at least as far as page 4) but how do you square this claim with abundant evidence from other parts of the world that providing private toilet facilities for women drastically reduces the incidence of sexual assault? https://www.ioshmagazine.com/2024/05/10/more-inconvenience-why-lack-sanitary-facilities-leads-violence-against-women

https://www.researchgate.net/publication/361500691_Access_to_Toilets_and_Violence_Against_Women

*But that's not the situation I was describing. This is a service provider that does provide services to both sexes

For exactly the same reasons - harassment/ violence increases because social norms/ conventions around privacy / dignity have normalised separate domains for men and women. These conventions are even stronger and more pronounced in many other parts of the world. In fact, social / cultural strictures around sex segregation tend to be more pervasive/ pronounced in societies with high levels of gender based violence and severe inequalities/ restrictions based on sex.

So, in your example, the service provider is claiming to rely upon the exemption of "providing separate services for persons of each sex.”

The logic still stands. It is not in fact relying upon the exemption of providing "separate services for persons of each sex" if it allows passing trans people into both services. It would be providing mixed sex services because allowing men (for the purposes of EA) into the separate services for women would, by definition, be designating those services as mixed sex. If so, there is no legal basis under the EA for excluding any men from that space.

I just don't see how any other construction survives the SC judgment as a matter of law. But perhaps you can persuade Jolyon Maugham to take on a test case!

(Agree with the props to you for sticking with this thread though!)

Societies with high levels of female inequality do not have higher rates of violence against women BECAUSE they segregate women from men. They have higher rates of violence against women AND they segregate women from men as two aspects of the control of women. The second does not cause the first. Regardless, women in this discussion are positively arguing for their rights to seperate THEMSELVES from men, not to be refused access to spaces reserved for men for no reason other than they are seen as unworthy.

Thanks for providing (yet more) evidence, Award. But it’s clear from this long-running debate, Tandora is determined that men should have unrestricted access to women. Nothing will shake this determination. This also gives men access to children, which is a big attraction to many.

These people are absolutely persistent and never give up. All we can do is stay at the barricades.

Although the male supremacist trans movement made astonishingly rapid and extensive progress in the 2010s, women in the UK have had many victories recently. There is strong and growing resistance here and in other countries. Also, importantly, uninvolved people are increasingly seeing that the ‘be kind’ dogma is very far from kind to most of the population.

But I won’t stay to argue with someone who refuses to acknowledge that women’s and children’s rights outweigh men’s wishes.

Thanks and solidarity to you, Award, and to all our sisters who refuse to give in.

*because allowing men (for the purposes of EA) into the separate services for women would, by definition, be designating those services as mixed sex"

This is what I am disputing - I understand the literal application of the logic but this this hasn't been tested in law.

The court didn't rule on the objective definition of 'mixed sex', they ruled on the legal meaning of 'sex' 'women' 'men' as they appear in the EA. Admitting a trans woman into a female service does not factually make the service mixed sex, the question is does it make it 'mixed sex' in the eyes of the law for the purposes of interpreting legal provisions related to the exemption from (birth) sex based discrimination through the provision of (birth) single sex services. I am arguing that in law this can still be a single sex service, even though the definition of 'sex' is 'birth sex', in cases where the ‘gender reassignment process [had] given [the person] an appearance or attributes' such that they were perceived to be the (opposite) birth sex, BECAUSE in such cases the presence of a trans woman in the single birth sex space is compatible with establishing the (legal) conditions necessary for the provision of separate services to enable more effective service delivery for (birth) women and (birth) men.

In practice, the lawfulness or otherwise of this would have to be tested by a man bringing a discrimination claim against a provider for unlawfully discriminating against him by excluding him from a service provided for women and trans women. Alternatively, a non-passing excluded trans woman would have to bring a claim (either sex discrimination or discrimination based on gender reassignment would be available to her). In both cases I have set out a very plausible legal defence against these discrimination claims, which draws upon the reasoning of the SC judgement, and the intentions of the EA 2010.

This is not theoretical, it is already happening. Service providers have declared their services to be for both women and trans women and are cracking on.

they have higher rates of violence against women AND they segregate women from men as two aspects of the control of women.

I wholeheartedly disagree that it is a unhappy accident that these things co-occur.

Bump.

Any reason why you're avoiding answering these questions, @Tandora?