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If we legislate to police gender in toilets, then how and at what point do we decide who is and isn’t a woman?

According to a national newspaper today, Boris Johnson’s government is preparing to scrap a review of the Gender Recognition Act; a review which was commissioned by Theresa May because the current system for trans people is costly, lengthy, humiliating and unnecessary. The newspaper report suggests that the government is preparing to set out new ‘safeguards’ to protect female-only spaces including refuges and public lavatories. Though that hasn’t been confirmed by Downing Street, it does tally with the information we’ve been offered by contacts within Parliament over the last few weeks.

The GRA review was launched in 2018 and, as today’s newspaper report states, 70% of respondents supported improving the lives of trans people, despite a drive from anti-trans lobbyists to skew the consultation. Public support for trans people was clear. It is reported today that the Government has chosen to ignore this overwhelming mandate for change and is instead siding with a relatively small but vocal group of activists and their followers, who appear determined to tell trans and cisgender women who they are and what they think. They seek to characterise transgender women as a sexual threat and cast transgender men as duped victims of a patriarchal conspiracy.

Needless to say, while we agree entirely that the patriarchy is harmful to all of us, including men and boys, we are yet to meet a transgender woman who asks for anything more than to be accepted, without innuendo or attack, as a woman. To be allowed dignity, safety and respect.

Why then, is reform presented by some as a threat to women?

Well, the reform of the Gender Recognition Act heralded a move to self-identification, where any trans person might state their true gender on their birth certificate without having to pay £140, gain accreditation from two separate medical experts, provide proof of living in their true gender for a solid two years and offer ultimate judgement of their identity to a panel they never personally meet. 

The argument from the anti-trans lobby goes that allowing transgender women to self-identify without an arduous journey would lead to male sexual abusers pretending to be female in order to infiltrate women’s toilets and changing rooms. 

Firstly, the proposed GRA reforms didn’t threaten to bring about such a scenario, because most gender-segregated spaces already rely on self-identification and those protections have been in place since the Equality Act 2010. Think about it, has anyone ever demanded to verify your gender (however that might be done) before you were allowed use a public toilet? If they have, then they certainly had no right to do so.

None of this sounds remotely progressive and none of it sounds like the empowerment of women.

If we legislate to police gender in toilets, then how and at what point do we decide who is and isn’t a woman? Will all facilities require a gender checking attendant? Do tall, broad or deeper-voiced women face being challenged for ID to prove their gender? Will women with short hair who dress in traditionally-male clothing be asked to prove their sex? Will a woman be forced to show a stranger their body to pass a gender test? What, precisely, would happen if a woman were judged, in one way or another, to be a man? Will she be arrested or fined or removed from the premises? Will all women need to carry a mandatory ‘woman certificate’ or will only trans women be forced to carry proof that they have a GRC? None of this sounds remotely progressive and none of it sounds like the empowerment of women.

As we say in our open letter to the author J.K.Rowling, trans people have been using toilets, trying on clothes in changing rooms, accessing domestic violence facilities, and generally getting on with their lives for as long as single-sex spaces have existed and there is absolutely no evidence we’re aware of, from the police, local authorities, shops, refuges or anywhere else besides, that predators have used the provisions of the Equality Act 2010 to gain access to women’s spaces. None. If even a scrap of such evidence existed, you can be certain the anti-transgender lobby would be promoting it. 

Nobody here is making light of the need for women to be safe

But how can we know – beyond a reasonable doubt – that introducing self-ID won’t lead to male abusers attacking women? Don’t women who’re concerned about conflicting arguments around toilets, refuges and changing rooms have the right to ask questions if we’re to step, collectively, into the unknown? Yes, of course they do and make no mistake: nobody here is making light of the need for women to be safe in such spaces. Anyone supporting trans people and women knows that security and a sense of security are paramount. Everyone deserves to feel protected from potential abuse, including trans and non-binary people.

Here’s the thing though: this isn’t a case of stepping into the unknown at all. In fact, we can simply step into Iceland, Portugal, Malta, Norway, Denmark or Belgium to see what happens when trans people are empowered to self-ID. In fact, we might simply hop over the Irish Sea to the Republic of Ireland, where a Gender Recognition Act allowing self-declaration was passed five years ago. None of these countries have reported a rise in attacks on women in single-sex spaces. None seem to have seen a trend towards men sneaking into changing rooms and toilets pretending to be trans. After all, abusive men don’t need to go through such an absurd process to attack women. Any sexual or domestic abuse survivor knows from experience that abusers are more than capable of carrying out attacks at work, in the home and a myriad of other places. Shouldn’t we be focusing on that?

Let’s go from Ireland to North Carolina in the USA, to see what might happen if gender-policing were enacted here. A law was introduced in the Republican state in 2016, demanding people only use toilets which correspond to the gender stated on their birth certificates. The new law not only caused a rise in transphobia, it also opened up the possibility of increased harassment of women in public restrooms who weren’t transgender but who didn’t dress or present in a ‘feminine’ way. It also meant that transgender men were being forced to use women’s toilets. In the end, a federal judge got rid of the dangerous and completely unworkable legislation in 2019

A subsequent US review of ‘Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms’ stated that people opposed to trans rights:

“…often cite fear of safety and privacy violations in public restrooms if such laws are passed…No empirical evidence has been gathered to test such laws’ effects…This study finds that the passage of such laws is not related to the number or frequency of criminal incidents in these spaces. Additionally, the study finds that reports of privacy and safety violations in public restrooms, locker rooms, and changing rooms are exceedingly rare. This study provides evidence that fears of increased safety and privacy violations as a result of nondiscrimination laws are not empirically grounded.”

To reiterate, trans people and all women are already self-identifying in single-sex spaces. There is no known evidence that male abusers are using this freedom to attack women. Self-ID in a number of countries has not affected women’s safety and has improved the lives of trans people. Policing gender in toilets and changing rooms has a negative impact on the freedoms of all women.

The sad truth as we see it – and we can only state this in plain terms – is that the ‘concern’ being expressed by lobbyists, without basis or evidence, is nothing more than anti-trans bigotry dressed in outdated quasi-feminist clothing. Nobody who believes in equality would seek to enforce the segregation of trans people and the introduction of further obstacles to all women.

We leave you to form your own independent conclusions and encourage you to research this important question for yourself. Whether or not you agree with our position, we thank you for taking the time to read this blog post and we encourage you to share it so that we can step towards a calm and informed conversation while there is still time.

Thank you,

The Mermaids team