Trans bathroom ban is discriminatory says High Court

The UK High Court has decided that the interpretation of the Equality and Human Rights Commission’s (EHRC) interim guidance on a bathroom ban for trans people is incorrect.

However, as has always been the case with this deeply transphobic piece of legislation, it is extremely difficult to parse because it is, at its core, nonsensical.

The Good Law Project challenged the EHRC’s interim guidance in the High Court. The EHRC interpreted the Supreme Court’s ruling on Gender Recognition Certificates (GRCs) as the basis for a blanket ban on trans people using single-sex facilities.

Instead, the Good Law Project explained:

The High Court has now said that this interpretation of the law is wrong. Service providers may lawfully allow trans women to use women’s facilities without being forced to open them to cis men. And such facilities may simply be labelled for ‘men’ and ‘women’.

Put simply:

The court has also made clear that it will likely be discriminatory to force trans people to use facilities based on their sex recorded at birth. In short, the law does not require a bathroom ban.

Trans bathroom ban faces more opposition

The new ruling states:

[1] In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.

[2] It is not compulsory for services that are open to the public to be provided on single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

Effectively, in workplaces, it is compulsory to provide single-sex spaces, but it is not compulsory in services that are open to the public.

This means that if you are trans, but not out at work, you must still stop using the toilets of your lived gender at work.

However, the ruling then goes on to say:

[3] In workplaces and services that are open to the public:
[a]
• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean they are no longer single-sex facilities and must be open to all users of the opposite sex
[b]
• In some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities

Then, after effectively telling trans people they may never use the bathroom ever again, it adds:

[c]
• however, where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
[d]
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
[e]

where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men

Shockingly, the ruling also states that trans people should be prepared to be the subject of gossip.

A propensity for gossip is a feature of every workplace. So far as concerns gossip at work, no employee can expect not to be the subject of gossip about something on some occasion. Gossip is usually temporary; it is in its nature to be short-lived, as one subject is quickly overtaken by another. Up to a point, being the subject of comment by others is burden that anyone can expect to bear from time to time, and ought not to be a foundation for legal redress.

So whilst the High Court did decide that services may lawfully allow trans women to use women’s facilities – the fight is far from over.

This also means the EHRC’s exclusionary draft Code of Practice does not accurately reflect the law. Therefore, the Minister, Bridget Phillipson, will have to send it back to be rewritten.

A transphobic and violent society

Judges swear an oath, which states:

Do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.

What is clear is that the judge in this case has no idea of the lived realities of being trans. They also do not seem interested in the rights of trans people who want to keep their biological sex private. The ruling also gives zero weight to the harm done to trans people by excluding them. Judges may swear an oath – but they’re clearly not holding up their end.

The Good Law Project put it perfectly in its critique of how the law if purposely failing trans people:

It doesn’t matter if you have lived as a woman or a man the entirety of your adult life and even your close friends don’t know. It doesn’t matter how you present, what stage you are at in your transition, or what medical treatments you have undertaken. It doesn’t matter that we live in a society that is increasingly transphobic and, increasingly, violently so. It doesn’t matter that, particularly in such a society, trans people might feel that their privacy is a matter of profound importance and no one’s business but their own. It doesn’t matter that there is no evidence that allowing you to use the toilets you have always used will cause harm. It doesn’t matter if forcibly outing you as trans will put you at risk of harm.

The Good Law Project will, of course, be appealing the High Court’s judgment. You can donate to its fundraiser here.

Featured image via Mike Newbry/Unsplash