In the aftermath of the Supreme Court decision on how the words ‘woman’ should be interpreted in the Equality Act (2010), the Equality and Human Rights Commission (EHRC) has taken it upon itself to issue guidance on how toilets can be used. This specifies that trans women should use men’s toilets and trans men should use women’s toilets, an argument which of course rests on the basis that all use of public toilets should be segregated by sex.
The people responsible for issuing this guidance no doubt thought that it would simplify matters, but in fact it does the opposite. There is no law anywhere in Britain mandating that toilets be segregated, and there’s a good reason why such a law has never been passed. Toilet use is socially complicated, and that’s the case even before we get to the issues facing trans people.
Taking children and babies into public toilets
If you’re a woman looking after boys, or a man looking after girls, what do you do when you’re out and about and they need to go to the toilet? Legally, you’re supposed to be with them. Most mothers will feel that it’s not safe to send their young sons unsupervised into the men’s toilets, and most fathers won’t want to take their daughters in there even if they’re present too. As a result, boys are generally taken into the women’s toilets, often complaining loudly, and men are often found standing awkwardly by the washbasins there as they wait for their girls.
Men have been complaining for years that there are rarely any baby changing facilities in their toilets. When looking after babies, they generally have no choice but to use the women’s. This is well understood and most people cope. Nobody accuses them of secretly using their babies as cover in order to spy on women.
Disabled toilet access
Although adapted toilets for disabled people are theoretically gender-neutral spaces, in practice that’s not always the case. About 10% of the time, they’re inside the facilities labelled male or female. On other occasions (despite what regulations say) they don’t exist at all, or they’re unusable because staff have decided to treat them as store cupboards.
In situations like these, disabled people often need to take carers with them in order to use what facilities are available. Since carers are most likely to be partners or spouses, and most people settle down in mixed-sex relationships, this, again, means men going into the women’s toilets and women going into the men’s.
Although conversations around trans toilet access often include a lot of rhetoric about protecting the vulnerable, this doesn’t seem to include disabled people, who are assumed to be just fine in gender-neutral facilities – and, in fact, the evidence suggests that this is true, just as it shows that cis women are fine in spaces that trans women are using. But what many disabled people are not fine with is having to wait, because many common conditions that cause disability also make toilet needs urgent and difficult to control.
This means that if trans people feel they have to use disabled facilities because those are the only places where they won’t be challenged, disabled people will suffer. Building more such toilets could be an answer, but it’s not a short-term solution, and given how little progress has been made after decades of disabled people’s campaigning, it seems unlikely to happen at all.
When the queue is too long
Although it’s not as distressing or restrictive as it is for disabled people, most women have some understanding of what it’s like to have to cope with an urgent need to get to the toilet. When, at busy events or in busy pubs, urinals mean that men can do their business quickly. But when the queue for the women’s toilets is 20 long, many women take it upon themselves to walk boldly into the men’s and see if the cubicles there are free. Sometimes men complain, but they’re usually not too serious about it and, again, everyone copes.
Health and safety issues
Being able to access public toilets when needed isn’t a trivial consideration – it’s essential in order to be able to use leisure and entertainment facilities or, in many cases, go to work or spend a day shopping. Studies have shown that trans people are disproportionately likely to have urinary tract infections because, due to transphobia, many of them have always been hesitant to use public facilities. Now that’s getting worse. Since the Supreme Court judgement, trans women report getting stopped or treated with hostility a lot more often. Butch lesbians and cis women who just happen to be tall are saying the same thing.
While most trans men very much prefer to use the men’s toilets – and, of course, having stubble or a beard also makes it likely that one will attract hostile attention when going into the women’s toilets – there are contexts in which some do not, at least early in transition, because they feel unsafe there. The same is true for some young cis men who happen to look naturally feminine. They fear sexual assault – and if that’s a worry for them, you can imagine what it’s like for a lone trans woman with a wholly feminine appearance.
Women at risk
If the aim of the debate around toilet access is to protect women from male abuse, then no woman should be forced to put herself at risk like that, regardless of what Supreme Court judges she’s never met may think about her birth certificate. No woman, regardless of her birth status or physical appearance, should have to choose between the danger of sexual assault in the men’s toilets or the prospect of being challenged for using the women’s.
Furthermore, the EHRC doesn’t seem to have thought through how such challenges will work. Who will decide if a woman is feminine enough to use the women’s toilets? Will all women be obliged to carry papers at all times in case they get caught short?
The reality of many trans women’s experiences is that, especially where men are involved, stepping up in an attempt to position themselves as heroes, such challenges can easily give way to violence. This can be shoving or throwing a punch, or – all too often – it can involve groping of breasts or genitals in an attempt to find ‘proof’. The EHRC’s guidance will increase the risk of such assaults – and, of course, being cisgender won’t keep women safe from them. It’s far more likely that cis women will be sexually assaulted in this context than as a consequence of sharing public toilets with trans women.
As so often, people trying to simplify and clarify longstanding practice which has worked well for over a century have succeeded only in making it more complicated. People are suffering as a result, right now, and women are in danger. It’s time for the posturing and petty point scoring to stop. It’s time for the introduction of level-headed guidance that takes lived reality into account.
