So the policy question.
whether or not we are going to agree on a particular theory about sex and gender , the practical challenge will remain- how do ordinary services and facilities operate fairly and sensibly in a society in which transgender people exist and need to go about their lives?
I do not think there is a single answer that applies to every situation. There are circumstances in which maintaining a service by birth sex may be justified. That is why I can understand the rationale of the Supreme Court judgment. What I do not accept is the enormous leap from that judgment to the proposition that every transgender person must now use facilities associated with their birth sex in every conceivable context.
That isn’t what the Court decided.
Sex-separated services exist for different reasons in different contexts: privacy, dignity, comfort, cultural or religious expectations, safety, therapeutic effectiveness, or simply longstanding social convention. A rape counselling group, hospital ward, communal changing room, public toilet and alcoholism support group are not interchangeable. The interests involved are different, and it makes little sense to pretend that the appropriate rule must therefore be identical in all of them.
There is another practical reality which is often strangely denied in these discussions: gender transition can profoundly alter somebody's appearance and the sex others perceive them to be. Of course not every trans person passes. But some plainly do. That isn’t an ideological assertion; it is observable reality. Remember the reallt grotesque reality programme There’s Something About Miriam In fhe early 2000s?
Because of that, a rigid birth-sex rule can sometimes undermine the very privacy, dignity and social expectations that sex separation is meant to protect.
A trans woman who has transitioned, lives entirely as a woman and is perceived by everybody around her as female may create considerably more surprise or disruption by walking into a men’s changing room than by quietly using the women’s. Similarly, a trans man who has developed a beard, male-pattern body hair, a deep voice and an otherwise conventionally male appearance may look extremely out of place in a women’s changing facility.
The Supreme Court itself explicitly recognised this practical problem. It observed that a trans woman who “presents fully as a woman” may feel that she would provoke more objection entering men’s facilities than women’s, and acknowledged that such trans women may in practice use female facilities without compromising other women’s privacy and dignity. The judgment also recognised the converse situation: transition may give a trans man such a masculine appearance or attributes that his presence in a particular women’s service could reasonably be considered inappropriate.
There was a case just the other day of a trans women who has been excluded from her substance misuse support group because of the new EHRC guidance. Desperate for support and frightened that she might relapse, she asked whether she could instead attend the men’s group. The answer there was also no: the service was deliberately organised around men discussing men’s experiences together, and they considered that her presence would be disruptive and uncomfortable for the rest of the group and undermine its purposes. So she is now without the advice and support she needs: how can that be right?
there are so many examples of this type of thing happening now that illustrate very clearly that telling a transgender person, “Use the service for your biological sex” does not necessarily produce a coherent outcome In practice.
The response is sometimes that there should simply be separate transgender facilities. Occasionally that may be possible and appropriate. But as a universal solution it isn’t realistic. There will often be nowhere near enough transgender people locally to sustain an entirely parallel network of toilets, changing rooms, shelters, hospital provision, swimming sessions, support groups and other services. It can also be intensely othering, and requiring somebody to enter a specially designated transgender facility may disclose private information about them every time they use an ordinary service.
Taken to its logical conclusion, blanket segregation can therefore mean that trans people are technically told they have somewhere they are permitted to go while in practice being unable to access large parts of ordinary social life.
That is why I think context and proportionality matter.
There will be circumstances in which exclusion may be reasonable and proportionate. A therapeutic group for female survivors of sexual violence, for example, may raise considerations very different from an ordinary public toilet. Communal accommodation, intimate personal care and some medical services may raise different questions again. Women’s privacy, dignity and safety are legitimate considerations and shouldn’t simply be dismissed.
I also understand that some women feel uncomfortable around a trans woman whom they perceive to be male. I have experienced that discomfort myself. At university I attended a lesbian group where the presence of somebody I perceived as male made me uncomfortable. I don’t think acknowledging that reaction makes somebody wicked or unreasonable. Feelings of discomfort are real, and in some settings they may be relevant to how a service should be organised. But if discomfort alone were enough to determine who may participate in public or social life, almost any minority could be excluded whenever somebody else objected to their presence. The relevant question has to be whether the discomfort reflects a genuine privacy, dignity, therapeutic or safety interest in that particular setting, and whether exclusion is a proportionate way of addressing it.
Most people navigate these situations through ordinary social behaviour. Most trans people don’t want to draw attention to themselves in a changing room or toilet any more than anybody else does. People who know that they are very visibly perceived as their birth sex will often make different choices from somebody who has lived for twenty years being universally perceived as the opposite sex. Some use neutral facilities where they are available. Most people, trans or otherwise, simply want to get changed, use the toilet, attend their support group or receive a service and leave again without anybody taking much notice of them.
Ultimately, I don’t think either extreme produces a workable answer.
“Gender identity always overrides sex, whatever the circumstances” ignores legitimate reasons why genuinely birth-sex sometimes matters.
But also every transgender person must now use birth-sex facilities everywhere” ignores the actual complexity of the Equality Act, the role of proportionality, the enormous variety of services involved and the practical reality of transition.
The more sensible approach, in my view, is context-specific. What is this particular service for? What privacy, dignity or safety interests are actually engaged? Would inclusion genuinely interfere with its purpose? What would exclusion mean in practice for the transgender person? Are there ways of accommodating everybody without defeating the purpose of the service?
Sometimes those considerations may justify exclusion. In many ordinary circumstances they may not.
That is the distinction I think has been badly lost since the Supreme Court judgment. A judgment establishing that facilities/ services can be restricted to birth sex where that is justified and proportionate has been converted into a social instruction to exclude trans people from everything possible!!!
To me this is beyond what i could ever imagine happening somewhere like the UK. Trans people still have to live in society. They have to go to work, swim, travel, go to hospital, recover from addiction, use toilets, change their clothes and seek support just like everybody else. A pluralistic society has to find practical ways of accommodating their dignity and participation alongside the privacy, dignity and safety of everybody else. That requires judgment and proportionality, not blanket rules in either direction