The 2010 Equality Act is without a doubt one of the most famous and celebrated pieces of modern British legislature. Its purpose, in a nutshell, is to protect the marginalised and vulnerable within our society. In the words of Education Secretary Bridget Philipson, ‘The Equality Act enshrines our rights in law so that people can live free from discrimination and harassment’. And yet, for many trans people at the moment, nothing could feel further from the truth.
For those who might have missed it, or who find it all impossibly complicated (because let’s be honest - it is), I will give a brief summary of recent events. In short, the Equality and Human Rights Commission has published an updated Code of Conduct for businesses and services regarding the treatment of trangender individuals. This comes following the Supreme Court judgement last year that ‘sex’ in the Equality Act refers solely to gender assigned at birth. The new Code makes abundantly clear that what might at first appear a somewhat finicky legal technicality in fact has significant - and in my view deeply disturbing - real world implications. According to the new Code, same-sex spaces cannot admit trans individuals who identify as that gender; instead a ‘third space’ must be provided, or the same-sex label dropped.
There are many astute and valid criticisms of the new guidance. For one, trans people are a tiny, tiny minority of the population (around 0.5% according to one estimate); scapegoating a small, largely unrepresented group for society’s ills is an unfortunately common tactic in politics but one with little grounding in reality. For another, multiple studies and reports have shown that banning trans individuals from using their preferred bathroom - for the bathroom debate is central to this issue - leads to absolutely no discernible increase in bathroom-related crimes. In fact, many women's rights groups have actually attacked such bans, suggesting that they distract from the real issue of tackling genuine bathroom violence. What bathroom bans do lead to, however, is greater threat to trans people themselves. No matter the intention behind it, this new guidance will simply be taken by many bigoted people as permission to harass those they perceive not to belong. And the situation for trans people when it comes to public toilets is already dire. According to one US survey, nearly 60% of trans people avoid public toilets because they fear harassment, around 12% have faced either verbal or physical harassment while using them, and 8% have developed physical health problems such as urinary tract infections as a result of avoiding them.
The assertion that a ‘third space’ must be provided for trans people, meanwhile, is patently ridiculous; most organisations will have neither the resources nor the inclination to do this, meaning that in some cases trans people may be left with no facilities to use whatsoever. And this guidance won’t only affect trans people. Its impact will be felt by masc women, femme men and people of colour too (especially women of colour, who are often perceived to have more ‘masculine’ features) - essentially, all those already vulnerable by virtue of their ‘differentness’. Even if you’re none of the above, though, you should still be terrified by this guidance. Because what it is reflective of is a society growing more polarised and insular by the minute - a society moving further and further from the liberalism it claims to revere. We are increasingly ceasing to view people as distinct individuals worthy of rights and protection, instead reverting to the simplistic homogeneity of ‘us’ and ‘them’. This trend is at the heart of so many contemporary issues, from the immigration debate to the Israel-Palestine conflict - and make no mistake, it is dangerous.
By making ‘trans’ a distinct monogroup, the same is necessarily being done of the very women this guidance is designed to protect. But women are not a homogeneous group, any more than trans people are. The experience of a white British woman, for instance, will differ as much from that of a Muslim woman living under the Taliban as the experience of a cisgender woman will differ from that of a trans woman - if not more so. Of course it’s important to protect women’s rights, and of course there are legitimate debates to be had around trans inclusion, particularly in sport - but such debates must be approached from a fundamentally empathetic and liberal perspective, and must acknowledge the complex nature of individuals that a static group identity obscures. Blanket bans are not the way to go on issues as sensitive as this one, and never will be.
The most powerful comment on the new trans guidance came, in my view, from the organisation Revolting Spaces, who responded simply that ‘hospitality venues are not border checkpoints’. Rigidly policing the identity of individuals at every turn is fundamentally incompatible with truly liberal democracy. That we are doing so here and now, in 21st century England, should be an embarrassment to anyone who truly cares about equality.