The new government guidelines on the provision of services for transgender customers, recently introduced by Nicky Morgan, Minister for Women & Equalities, during Parliamentary Questions in the House of Commons, should be a wake-up call to all those concerned with the safety of women and girls. Although not legislation, this document from the Government Equalities Office, written in collaboration with trans- activist group Gendered Intelligence, is a guide to how transgender people should be treated by service providers. As such it goes further than previous legislation in explicitly placing the rights of a range of male-bodied people above the right to single-sex public facilities for women and girls. Here’s the full list:
“Trans people come from all walks of life and include those who may describe themselves as transsexual, transgender, a cross-dresser (transvestite), non-binary and anyone else who may not conform to traditional gender roles.”
Sex-segregated toilets are not a luxury, they are a pre-requisite for women’s full participation in public life; some countries are still fighting for them as part of the push for women’s equality. The human right to dignity in itself should secure the provision of separate female public facilities, let alone the right to physical and psychological safety.
When our young daughters use toilets and changing rooms at swimming pools, gyms, shops, department stores and other public places, we can no longer expect those facilities to be female-only. Not only that but, according to these guidelines, we can no longer assume that security guards and other public service staff will be prioritising the safety of young girls over the desires of certain men to access their private spaces.
In place of their judgment and instinct, service providers are now advised to “assume everyone selects the facilities appropriate to their gender.” So if a man enters the Ladies, you must assume he is a woman.
Good Practice Point 2 tells service providers: “Try not to assume you can always tell someone’s gender by looking at them or hearing their voice.” So if it’s hulking six footer with a full beard and a bass baritone voice entering the Ladies you still must not “assume” it’s a man.
The Equality Act Schedule 3 Exemptions, Section 29 ‘Provision of Services’ states:
“Exemptions are lawful when the service is for, or is likely to be used by, more than one person at the same time and a woman might reasonably object to the presence of a man (or vice versa). Example: Separate male and female changing rooms or any service involving personal health or hygiene.”
And yet this new guidance tells service providers: “In general, it is very unlikely that any exceptions will apply in ordinary ‘high street’ service provision situations.” So exactly where CAN women and girls expect to be protected?
Further, new guidance as to what constitutes harassment of transgender people includes “making a person feel emotionally or physically unsafe,” although no such consideration is extended to women and girls. As ‘transphobic comments’ are also specified as harassment (with no definition of the term ‘transphobic’) service providers are essentially left with no way of challenging anyone who enters women’s toilets or changing-rooms on any grounds.
Legal protection for women and girls has effectively been replaced by a policy of ‘trust all men.’
We are well aware that predators, by their very nature, will go to any lengths to enter spaces where females gather, and we wring our hands in horror when any slip through the net, so it is unbelievable that we are opening up women’s toilets and changing rooms to any man who desires entry. These guidelines make it so easy: all a predator has to do is claim to be a woman and the law protects him and essentially silences anyone who may challenge him. Cases of men arrested for harmful acts towards women and girls in women’s toilets and changing rooms are well-documented and include secret filming, peeping at women in adjacent stalls, masturbating, indecent exposure and sexual assault.
I am not accusing transgender people of being predators; as a protected category, they clearly have a right to equality and legal protection. What this government document clarifies, however, is that the right to gender identity recognition cancels out the right to safety for women as a sex-based protected group.
This fact is obscured by the conflation of the terms ‘sex’ and ‘gender’ used throughout the guidelines, beginning with an oddly-worded definition which muddles the issue from the start:
“Although the words ‘gender’ and ‘sex’ both have the sense of ‘the state of being male or female’, they are typically used in different ways. ‘Sex’ tends to refer to biological differences, while ‘gender’ tends to refer to cultural or social ones.”
This is a bit vague. ‘Sex’ doesn’t just ‘tend to refer to’ biological differences, it is the only definitive recognised classification of male and female: biological sex is a fact which cannot be changed. The ‘cultural and social’ differences of ‘gender’ are explained later on in the guidelines thus:
“… if someone adopts a new gender role by changing their name, title and pronoun and/or by wearing different clothing, altering their body language, speech and hairstyle, they have reassigned their gender.”
So by this definition, ‘gender’ means the different ways men and women are expected to act and present themselves, an assumption which inevitably rests on superficial stereotypes. The problem is that ‘gender’ is a subjective idea which means different things to different people, in contrast to ‘sex’ which is a biological reality.
It was the 2004 Gender Recognition Act which first conflated the two terms in this factually incorrect statement:
“…if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman.”
The Equality Act 2010 defines the protected characteristic of ‘sex’ as in reference to a male or a female, protected under this category as a ‘man’ or a ‘woman.’ Subsequent Equality & Human Rights Commission guidance ‘Collecting Information on Gender Identity’ in 2012 then explicitly redefines the terms ‘man’ and ‘woman’ as a set of socially constructed roles:
“Gender refers to socially constructed roles, behaviours, activities, and attributes. The terms ‘man’, ‘masculine’, ‘woman’, and ‘feminine’ denote gender.”
If the word ‘woman’, previously defined as an adult human female, is legally treated as a set of socially-constructed characteristics, sex-based rights have vanished. These new government guidelines expose the practical impact of that fact in the daily lives of women and girls. It should not have to take even one incident of a young girl or woman being harassed or assaulted in a public toilet to start the debate about the legality of bestowing new rights on one protected group by redefining another protected group out of existence.