The EHRC excluding trans women from women’s services

The Equality and Human Rights Commission has the power to make trans women’s lives unbearable by permitting women’s services to exclude us. Kishwer Falkner, chair of the EHRC, has indicated they will do this in January.

By the Equality Act, trans women are allowed to use women’s services unless it is a “proportionate means of achieving a legitimate aim” (PMOALA) to exclude us. The exclusion has to achieve something- perhaps more cis women will feel able to use the service. That something has to be “legitimate”, and gender discrimination generally isn’t. The method has to be proportionate- it might benefit a cis woman, but it will discommode a trans woman. Is the loss to the trans woman justified by the gain to others? I don’t like the example in the Explanatory Notes, but it is clearly not an everyday situation like toilets or changing rooms.

If more cis women will feel able to use the service, that should not merely be because of prejudice. There is a lot of prejudice about, but scaremongering about “bodies with penises”, or revulsion at trans lives, is not a good reason for a cis woman to refuse to use the same service as a trans woman. So as the Telegraph reported (link to web archive) NHS trusts say patients should be admitted based on our gender identity, so trans women are admitted to women’s wards. The trusts recognise that much objection to this is transphobic.

The Telegraph headline refers to “pressure from pro-trans activists”, but all the pressure reported comes from anti-trans campaigners, referred to in the article as “women’s groups”. An anonymous government source said those women’s groups want to ensure prisons and changing rooms are kept single-sex, by which they mean excluding trans women. They do not acknowledge that trans women have always been in changing rooms. That’s Telegraph propaganda, to pretend that there is a huge threat from trans activists that there will be a flood of trans in women’s services, and at the same time to berate those NHS trusts which treat us decently.

In 2019, the House of Commons Women and Equalities Committee asked the EHRC for guidance on single sex services and when trans women could be excluded. What does Kishwer Falkner, chair of the EHRC, say?

On 19 October she was interviewed on Woman’s Hour on radio 4. The publicity said this would be about equal pay, a feminist concern, but in fact the whole interview was about excluding trans women. Falkner was keen not to anticipate the guidance. The work is not yet completed, and must take all relevant considerations into account without pre-existing bias, so she did not want to show bias. Bias could be used to challenge any guidance in a judicial review court action.

The Woman’s Hour interview is chilling, in that it never mentions trans women once. The introduction talks of “preserving single-sex spaces” as if they ceased to be single sex if a trans woman might enter, even if none ever did. Falkner colludes with this: she talks of a theatre where “there was no single-sex space for women but for one toilet right in the rafters”.

The toilets in the stalls would not mix women and cis men, and I am surprised that a toilet in the Gods might exclude trans women. However one toilet excluding trans women might be a PMOALA: just in case there are any women attending who need, rather than want, a toilet where no trans woman will ever go, it is provided in an out of the way place so as not to discommode trans women needing the loo. The problem comes if trans women are sent to some out of the way toilet.

There is a problem if we are not clearly informed that we cannot use certain toilets- it would be embarrassing to queue then find at the door I could not go in. But it’s also a problem if there were large clear signs that the business excludes trans women, because that would foment fear and hatred against trans women. If a business says it is dividing loos by sex not gender, I am allowed in, because the Gender Recognition Act s9 says my sex is female. But if a business lets me in, with my GRC, there is clearly no PMOALA to exclude a trans woman who has no GRC. But Falkner says the EHRC will be giving practical guidance and models on implementation.

Falkner says they are considering all kinds of businesses, including retail. That is chilling. In shops there is always a staff member nearby, to prevent theft and to assist customers, and the doors of individual cubicles prevent anyone seeing over. Should I be humiliated by being sent to try on a dress in the men’s section, on the other side of the shop or a different floor?

I would argue Falkner shows bias, and therefore a potential ground for challenge, in that she does not mention trans women in the interview at all. A PMOALA must balance the rights of people affected, the cis women who are not really benefited against the trans women who are excluded, discommoded and humiliated. The BBC interviewer, of course, ignores this, couching it in terms of protecting cis women, whom she calls “women”. Falkner does not challenge that. It is clear bias.

Falkner says there is a loss of “women’s” toilets and facilities. Since all the questions are about trans exclusion, the loss of provision due to government spending cuts is an odd thing to bring up. She seems to use the term “women’s toilets” to refer to toilets that exclude trans women. That is clear bias.

Unfortunately, it is also a clear indication of how bad the new guidance could be.

I don’t know what weight the guidance would have in a court action for discrimination against a trans-excluding business. I will look that up when I see the guidance, and I hope blog on it. I have never been refused entry to a women’s loo or changing room, in a shop or sports centre, and that is only right because I am a woman. That may be about to change.

There would be no change in the law. Businesses would still need a PMOALA to exclude trans women from women’s services. But they might feel prompted and emboldened to exclude us. There is little comfort in knowing that you have a right to court action when you are humiliated on the high street. The legal system is open to everyone in this country, like tea at the Ritz.

I have equal value as any cis woman. Excluding me by demand or by force is wrong, and if it can be justified at all there must be clear benefit to others proved. That is more difficult than the anti-trans campaigners think.

After eleven years of Tory government, this is institutional capture by the hard Right. The EHRC used to be for equality and human rights, and would seek out cases which could be useful precedents to enhance rights. But with its new “neutrality” policy, it claims to support the protected groups but also the businesses and organisations which might want to discriminate against us. It starts with trans women, but will not end there.

9 thoughts on “The EHRC excluding trans women from women’s services

  1. This is so frightening and dangerous beyond belief
    But there is only ever one side painted in media radio etc
    If you clearly pass who is going to stop you using the loo ?
    Or are special passes going to be issued to 30 million cis gender women only ? I guess they will post notices of criminal sanctions as a threat against us ?
    Stonewall or good law project must challenge this on behalf of trans women surely ?
    No evidence in 11 years since EA 2010 proves this is pure hate taking over and no women prepared to stand up to protect us sickening state of this country outright bigotry and discrimination by the body charged with prevention of discrimination
    Please Clare tell me I ve got this misunderstood or is it like I say it is as it’s clear this is the Tories woke war and strategy in full force all based on lies
    No trans women has ever assaulted or attacked a woman in loos fact

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    • As far as I can tell, this is serious. The chair of the EHRC discussed guidance to be issued in January, telling businesses they could include trans women from women’s services, to include “retail”. On toilets, she mentioned theatres. It is not an easy listen.

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  2. As you say Clare, where will this end? It seems that in the UK and the US it’s one step forward and two steps back with regards to gender diversity. What next? Criminalise homosexuality? Institutionalise the neurodivergent?

    Meanwhile here in Aotearoa, we’re making progress at a snail’s pace. There’s a bill going through Parliament at the moment – Births, Deaths, Marriages, and Relationships Registration Bill (first introduced in 2017) that will permit a person to change the registered sex on their birth certificate based on self identification. People have been able to self identify on other documents such as driver’s licences and passports for almost 20 years. It will remove the need to apply for a change through the Family Court.

    I like the comment made by one parliamentarian during the debate on the bill:
    I know that some of the people listening in tonight won’t understand what it’s all about. They just don’t get it. You know, what’s the problem with birth certificates and sex and official documents and the like? And, you know, that’s a pretty easy position for someone who is cisgender to take, for someone who just exists in the body they were born with and no worries about it. But actually those of us who are cisgender don’t need to understand. All we need to understand is that our trans whānau would like us to make this change to make their lives better. So that is what we are about“.
    There’s more information about the bill in this RNZ article.

    You might also be interested in the disclosures accompanying a Supplementary Orders Paper (SOP) to the BDMR Bill that lays out some background to the changes regarding gender identity in the bill.

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  3. I was horrified to read the article on the BBC website today. Sex that is not consensual is rape – no one needs an excuse not to sleep with anyone else – so what premise are they coming from to justify writing such a long article littered with offensive statements? I objected to it as rabble-rousing against a marginalised group of people in the comment form under the article and will also complain when I have my thoughts together.

    Liked by 1 person

    • I went to the BBC website to see what you could mean. A moment scrolling the main News page found it. I will give a web archive link with this strong content warning: this is the BBC unquestioningly regurgitating the propaganda of a hate group, the LGB Alliance, claiming that trans women hit on lesbians, and call them transphobic if they refuse. Archive link. As a trans person only go there if you are feeling particularly strong, and able to consider a sustained attack. In the lede, we see a mention of “trans women who are concerned about the issue too”, and I wonder who they could mean. I don’t read on but simply ctrl-f on “Debbie”, who has four mentions.

      So, the article mimics balance by quoting a self hating trans woman who is an anti-trans campaigner.

      Please complain. I just can’t. As for the issue they either make up or inflate beyond all recognition, I have written before, can’t find it, on the difference between hitting on someone and not taking no for an answer- repulsive- and what trans women like me actually do. Some of us claim the word “lesbian”, because we are women attracted to women, and say it is transphobic to deny we can call ourselves lesbian because it is tantamount to calling us men. But this is merely linguistic. And I had a lesbian partner, and resented it when she was told she was not a proper lesbian for being with me.

      One problem seems to be that reading the story of the lesbian in a LGBT space who is hit on by a trans woman, who calls her transphobic because she’s not interested, seems as immediate, and as rage-inducing, for some people as actually seeing it happen. It’s an extremely potent myth. I saw somewhere that an anti-trans group was looking for lesbians who had experienced that, and pretty well drew a blank.

      It’s not transphobic for a lesbian to refuse sex with a trans woman. Absolutely not at all. It is transphobic for a lesbian to repeatedly tweet that she is lesbian and that means she could never find trans women attractive, or that trans women cannot be lesbians, or that trans women claiming the word lesbian erases lesbians.

      Liked by 2 people

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