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.