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.

So the answer to women being abused in domestic settings is to also make them less safe in public settings? Great.

Slow hand clap Tandora, you continue to show us your true colours.

Most sexual assaults in changing rooms happen in mixed sex changing rooms. Disproportionally so. Basically, if men have access to women who are getting changed, those women are more at risk than if the were in single sex facilities.

Transwomen are not a lesser risk than other men. Any time a transwomen enters a space meant for women only, those women are statistically more at risk.

Stephen White assaulted women in the showers in prison, Katie Dolotowski attacked girls in a supermarket toilet. @Tandora hand-waving risk away is not a valid argument.

The number of women’s safety I am prepared to risk for the comfort of transwomen is ZERO.

Oh dear.

I have told you the school figures. I have also said these have been found to be massively unreported. I also have statistics and examples from around the country. I have FOIs. There are academic articles on the subject.

I haven’t got any evidence of your argument. I would like it though. Please can you provide it to counteract all I have.

You say ‘Yes rape and sexual assault can sometimes, more rarely, happen opportunistically, in public, in an enclosed toilet cubicle or room.’

How many is rare? And what point is it justified? It’s not all ‘opportunistic’ - that implies there’s no pre calculation.

I am glad you are starting to link up design and opportunity. You’re almost there!
Remember single sex toilets are the only ones that aren’t enclosed. BUT if it’s ambiguous then even single sex toilet cubicles become enclosed.

Why do we have a gap under public toilet doors? For health and safety
Why do we get rid of the gap when toilets are mixed sex? For privacy
What are we getting rid of by doing that? Health and Safety

What about nice men Tandora? A sweet caring and gentle man like my husband? A man rendered impotent by cancer? A drag queen who does not identify as a woman but passes as well as a woman?

The law is clear. Once you break that seal Women Only, you are not going to be able to justify including some but not all men.

The TM being excluded AS WELL as all men is not equivalent because the Women Only seal has not been breached.

The TM in that scenario is being discriminated against due to the PC of gender reassignment. What the SC have done is clarified that would be an acceptable exemption as a proportionate way to achieve a legitmate objection.

But you can't flip that round and claim it allows you to privilege TW over other men because of the PC of gender reassignment because the EA does not allow for bestowing privilege, only protection from discrimination. The exemption is a protection to the provider from a claim of discrimination against a PC, not some type of lego brick that can be assembled to create a customised privilege group.

Tl;dr: "no men and also no to a few TiM" could be flipped to "no women and also no to a few TiW" if you could show legitimate purpose, but not to "no men except a few TW" because once you start to subdivide the excluded group you've lost the ability to claim you are excluding because of sex, and then other men can claim discrimination.

so much hatred and bigotry on this thread for such a non-issue. I wonder who society’s scapegoats will be in 30 years time?

Why do you think it's 'hatred and bigotry' to expect men to stay in men's spaces, as per the law?

Still women I guess. Despite us not being a minority I imagine we will still be expected to be subject to the wishes of men and our concerns dismissed as non issues.

What about nice men Tandora? A sweet caring and gentle man like my husband? A man rendered impotent by cancer?

Completely irrelevant.

The law that enables the exclusion of men from women's services isn't justified on the grounds that men aren't 'nice', or that they are sexually able/fertile, any more than the law enables the exclusion of women from men's services because women aren't 'nice' or sexually able/ fertile.

The law enables provision of single sex services on the grounds that there are circumstances in which "where providing a combined service would not be as effective". This is primarily about social conventions, comfortability, cultural constructs of appropriateness, etc.

The law is clear. Once you break that seal Women Only, you are not going to be able to justify including some but not all men

The SC says nothing like 'breaking seals'. I presented a perfectly logical argument of how a provider could defend a discrimination claim while providing a service to women and trans women and not men, based on the actual text and reasoning of the judgement.

So once again, what would be the justification for excluding one group of men from the rules pertinent to all men?

@TheKeatingFive

Women - in the original sex-based mening of the word - have been marginalised, objectified, belittled, prevented socially and sometimes legally from occupying roles that allow us financial freedom. Our bodies are fetishised by men so much society barely even notices it, which in turn normalises voyeurism and sexual abuse. From the worst of rape and murder to the trivial but relentless expectation that men will come first, be heard first, be heard with more credibility, we who are born female live with the weight of this in the world every day, of what happens to us and of just knowing what could happen to us.

Female-only spaces, opportunities, rights and language allow us the physical space to have respite and support each other, and the cultural, legal and political space to describe what happens to us, share expereinces, understand it and speak clearly to power about the injustice and why it needs to change.

Tell me, why do you hate women so much that you want to take that away from us so some men who will never in reality face any of what we do yet want to live in their own fantasy idea of what it is to be woman do not have to be told "no"?

I am aware that I have mentioned some uncomfortable subjects on this thread - I am just stating the information I have obtained looking at toilet safety over the years. The reason I have discussed these subjects is that’s what the original question was about. There is some incredibly disturbing material out there and I hopefully I have been sensitive.

I am sorry if anyone has felt upset with what I have brought up, but people making policies need to have information to make decisions. That’s why building regs prioritise single sex toilets. But whilst there’s this flux of ‘what do we do?’ It’s really important that health and safety is forefront of design considerations.

That doesn't answer anything.

The law is clear that you can either have unisex provision or female only provision. Anything else would be discriminatory to the men you're keeping out while allowing other men in.

You haven't explained how the argument could work in practise though. Your argument is that a passing TW would not disrupt the service in the way a non passing one would. If you're going to rely on that you have to define what you mean by a passing TW and what consistent criteria services would apply to decide if a TW met the threshold. A situation where service providers stand at the door looking a would be client up and down to decide whether in their subjective opinion a TW looks like a man at all, simply won't do. You must see that?

Anything else would be discriminatory to the men you're keeping out while allowing other men in.

It wouldn't because of the reasoning that I presented based on the logic and text of the judgement. As described above. you can continue to simply assert the opposite if you like, but I'll leave this exchange there as there's not much point in that is there.

Why? The court doesn't define what a passing trans man is for the purposes of excluding them from services? Or what a passing trans woman is for the purposes of an indirect claim of sex discrimination. So why only for this?

I've seen multiple KC's interpret it the way I've expressed it. I reckon I trust their judgement more than Tandora on Mumsnet, no offence 😆

No Tandora you didn't.

In the example of excluding TM, the rule is "all men plus some women who might also cause distress". We are strengthening the provision by excluding some extra people just in case. If we are wrong, those people who were excluded have lost out unfairly, which the exemptions allow for - indeed exist for - but the legimate aim is still met.

In your example of adding back in TW, your rule is "all men except some men who might not cause distress". In this case you are not strengthening the protection, you are weakening it. And if you are wrong, the people who lose out are not the excluded, but the women. Your legimate aim has not been met.

That is why the two scenarios are not the same. Because in the first you are strengthening how you met a legitimate aim and in the second you are weakening it.

In the first all your decisions are based on the needs of the women, the legitimate objetive you are trying to meet.

In the second your decision to include TW was based on the needs of the TW, which is nothing to do with your legitimate objective. Including TW might not hurt your aim (your argument) but it also does nothing to help you achieve it, and therefore you cannot use that aim as a justifucation for including TW but not other men.

Not only are sexual assaults disproportionately likely to occur in mixed sex changing rooms and toilets, but that isn't even taking into account the women who are just not using those spaces because they are mixed sex.

But yes, I'm tired of these repeated claims that it doesn't happen when trans identifying men have been convicted and sent to prison for doing literally this.

Obviously is happens. But if they acknowledged that it happens the discussion would have to move on to how often it is acceptable for it to happen.

The court doesn't need to do that, because passing trans men have been consciously avoiding single sex spaces for years now (they don't want to be in the women's and tend to feel that they aren't safe in the men's) and a discrimination claim would depend on the individual circumstances of the case.

In reality there is pretty much no such thing as a passing trans woman.

In the case of the TM excluded for passing too well, because you are excluding an individual woman in addition to the general exclusion of men in direct support of your legimate aim. It is reasonable to do that on a case by case basis. If the TM says "but I am a woman" and proves it you still have good reason to exclude them.

In the case of the TW suffering indirect discrimination, because the indirect discrimination scenario is itself proof of passing. It is literally "they genuinely thought I was a woman/man and discriminated against me because of it". Doesn't need any explicit upfront definition because it's only tested after the event when the fact it happened (if accepted by the court) is in itself proof the person passed.

The equivalent "women+passing TW" scenario would require that you did not know the TW was a man, and if you had known would have excluded him. That would probably give you a defence against a man claiming discrimination because you had intended to exclude based on sex. The court would have to decide if they believe you or not.

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. This however puts you outside the scope of allowable SSE and means you will not have a defence to discrimination by sex.

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

Right. Exactly the same in my hypothetical scenario.

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.

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.