Articles - That Friday Feeling

Employment & Discrimination - Robin White, Nicola Newbegin

Service providers caught in the crossfire between advancing transgender rights and feminist activists.

Service providers have to ensure that their operations do not fall foul of the discrimination provisions of the Equality Act 2010.  Since 1999 ‘gender reassignment’ has been a protected characteristic, now under the 2010 Act.  In addition, transgender individuals may obtain a Gender Recognition certificate under the Gender Recognition Act which then requires that they should be treated ‘for all purposes’ in their newly recognised ‘affirmed’ gender.

The existing legal protections are quite tightly drawn.  Under the Equality Act an individual must be ‘proposing to undergo, be undergoing or have undergone’ gender reassignment.  Under the Gender Recognition Act they must provide evidence of their commitment to their affirmed gender to an assessment panel before a certificate will be issued.  However, social mores move on and society appears to be moving to a position where self-definition of gender may become the norm.  That was the recommendation of the House of Commons’ Women and Equalities Committee report in early 2016 and is increasingly the recommendation of government bodies and quangos.  Proposals for alterations to the Gender Recognition Act are anticipated shortly.  That is good for gender diverse individuals but the cynical might be forgiven for wondering if government enthusiasm for such a change, particularly in respect of the GRA, might be because of the cost savings involved in not having an assessment panel in future.

But not everyone is happy with such a proposed move.  Many feminists are protective of the women’s spaces they have fought for over the past century.  Some see advancing trans rights as an assault on women only political shortlists and female ‘safe spaces’ such as women’s refuges and women-only sports sessions.  Just as the gender ‘community’ is diverse, so is the feminist diaspora.  At the extreme end of the range are so-called ‘TERFs’ (‘Trans-Exclusory Radical Feminists’) who believe that trans women, however undetectable they may be after transition, can never be ‘real’ women.  At the more moderate end of the feminist range there remain concerns such as the social conventions about public nudity in, for example, sex-segregated swimming pool changing rooms.

The increasingly polarised nature of the debate ignores more nuanced questions about how trans individuals should be treated at the start of their transition, when the individual is likely to be physically closer to their ‘birth’ gender, as compared with towards their end of their transition, when their physical appearance may well align with their ‘acquired’ gender.  Indeed there are specific provisions in the Equality Act recognising social conventions about public nudity in areas such as changing rooms and permitting provision of equal but sex-separate facilities and services, particularly in respect of communal accommodation.  The Equality Act requires account to be taken of whether and how far the conduct in question is a proportionate means of achieving a legitimate aim, thus itself permitting a more nuanced approach.  In addition, the polarised debate often also ignores the difference between the right to self-identify and the much harder question of which rights should or should not automatically follow from such self-identification.

Following the admission of trans women to a female only swimming session in north London, the ‘Mums Net’ group has been the cradle for a ‘#ManFriday’ protest campaign in which women, who have no intention of undergoing gender transition, self-define as men on a Friday and demand entry to male-only facilities and events.  That was the approach of two women on Friday 16 March 2018 at a swimming pool in Dulwich, whose exploits, including bare-breasted lengths of the pool, were then reported widely in the national press.  It seems likely that their ‘fame’ will inspire imitations.  Receptionists and lifeguards appear likely to have to deal with difficult situations in coming weeks, particularly on Fridays.

How are service providers to meet the legitimate (and legally protected) aspirations of transgender individuals in the provision of services such as leisure centres and swimming pools?  The first line of defence is to have a clear, simply-stated policy on apparently non-gender conforming individuals in respect of which staff have received training and guidance (prior to any situation actually arising) and which can be implemented ‘at the coal face’.  That policy might involve not allowing access to facilities until a (sensitive and private) discussion has occurred with a manager to identify that the individual is truly transgender and to explore ways in which the comfort of most users can be ensured.  The use of ‘village style’ changing facilities with individual changing cubicles does make things easier where sports facilities are concerned.  Policies will need to consider the reality of service provision at particular premises.  Management thought and staff training will, no doubt, be necessary.

And when government proposals to amend the Gender Recognition Act are published, wide engagement with that process, particular by service provision organisations, will be needed to ensure that the final provisions are sensible and workable.

The feminists are to be congratulated for having raised the issues in a visible (and amusing) way.  It is to be hoped that they now engage in the respectful debate that is required.  But Fridays may never be quite the same again.

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