Trans people and the toilet wars

Workers’ Liberty supports trans people’s rights. Some left feminists (“sex-based rights activists”, SBRA) see those as threats to women’s rights. The series of which this article is part attempts to thread a path within this hostility. How can left-wing activists reach more agreement?

This article examines access to toilets and change rooms. Following articles will look at debates around sport and prisons, followed by a summary about socialist attitudes.

I use “assigned sex at birth” for biological sex (e.g. assigned female at birth AFAB), and “gender identity” for psychological and social identification. I am a university and gender-affirming health clinic researcher. I identify as a gender-non-conforming man (he/they). Nothing here represents my employers’ stance.

Over the last ten years there has been increasing attention to which public toilets and change rooms trans people are allowed to use — particularly in the US and UK. Prior to that it was largely a matter of social conventions. There was often hostility to trans people, but it was expressed in wanting to exclude them from jobs, from medical care, from having their chosen gender on official documents, from elite sport, etc., not over toilets and such.

In most jurisdictions there have never been laws that restrict who can access women’s toilets — it is a matter of social convention. Even today “bathroom bans” remain uncommon. Since around 2015, a range of US states have passed “bathroom bills”, aiming to stop trans people using these facilities in schools and sometimes some other places, based on the idea that they pose a “threat” to women. What the EHRC proposes in Britain now goes much further than any US state law.

A key argument of the SBRAs is that self-ID for trans people poses safety risks in women-only spaces. Yet there is no evidence of increased physical or sexual assaults in countries which allow people to choose their public gender by self-ID. There is no evidence that trans women (or masculine lesbian women) actually represent a threat to non-trans women in toilets and change rooms.

Some non-trans women may experience discomfort at having those people in the space. Several years ago Australian SBRA academic Holly Lawford-Smith set up a web page for non-trans women (but not trans women) to report their bad experiences. The reports are about women feeling uncomfortable about having recognisable trans women in their spaces; no accounts of those trans women harassing others are visible.

I draw on Julia Serrano’s 2021 online article Transgender People, Bathrooms, and Sexual Predators: What the Data Say. She cites a 2019 peer-reviewed study that used Massachusetts as a case study “to empirically assess whether reports of safety or privacy violations in public restrooms, locker rooms, and dressing rooms change in frequency in localities that have gender identity inclusive public accommodations nondiscrimination ordinances (GIPANDOs) as compared to matched localities without GIPANDOs.” They report that:“By using public records and statistical modeling, we found no evidence that privacy and safety in public restrooms change as a result of the passage of GIPANDOs.”

By contrast, there is much evidence that trans people (and masculine lesbian women) are harassed in toilets and change rooms. Especially in the UK and parts of the US now, there are many reports of verbal harassment and of physical assaults. Serrano cites a 2019 peer-reviewed article. “In our sample of transgender and nonbinary US adolescents, the 12-month prevalence of sexual assault was 25.9%, substantially higher than national rates of 15% among cisgender high school girls and 4% among cisgender boys. After adjusting for potential confounders, compared with nonrestricted youth of the same gender identity and sex assigned at birth, school restroom and locker room restrictions were associated with 1.26 times the risk of sexual assault for transgender boys, 1.42 times the risk for nonbinary youth AFAB [Assigned Female At Birth], and 2.49 times the risk for transgender girls.”

Policing

Policing trans people’s access to toilets can only be by “vigilante” action. Building elaborate medical (or birth-certificate-checking) facilities to vet entrants outside every toilet or changing room is obviously unworkable. So the EHRC ban on trans people can be implemented only by increasing the already-high unofficial harassment of people who look “unusual” and driving them out of large areas of public life. Anyone who does not meet gender stereotypes will be at risk of exclusion or threat.

At a trans expert advisory group meeting I attended, one non-binary AFAB attendee reported being gender-checked in the female toilets. A senior government advisor (also non-binary AFAB) said they only ever felt comfortable going to gender-neutral toilets. Holly Lawford-Smith has advocated for such gender checking, and said it was fine if it meant non-trans women with a masculine appearance got gender checked. This reinforces “passing privilege” where both trans and non-trans women need to “pass” by conforming to social standards of femininity, and means social exclusion for those who can’t or won’t conform.

Forced

A wide “bathroom ban” would also hit trans people who “pass”. They may elude the ban at sports or cultural venues; but at work they may be forced to “out” themselves, and to explain repeatedly to new staff, or hostile older staff, why they use apparently “wrong” facilities.

Much of the SBRA argument replicates earlier tropes about gay men and lesbians being a threat in these spaces, and especially fear campaigns about sexual assault on children. Julia Serrano points to a shift away from gay men being portrayed as the “dangerous people” to trans women. Earlier “moral panics” focussed on black people as the danger, suggesting that desegregation would increase sexual assaults on white women by black men. All these claims have no basis in research, and the anti-black and anti-gay panics have subsided in recent decades.

Most trans people try to avoid public toilets or only go to single-cubicle or non-gendered ones. As they don’t have that option in change rooms they usually use toilet cubicles to have privacy. Trans organisations in Australia advocate for converting single sex toilets into all-gender ones preferably with single cubicles. They also advocate for “labelling what facilities are available … whether the bathroom has toilets, urinals, or change table”.

Such gender-neutral facilities already exist in many places — e.g. in most private homes, and many restaurants etc. Many have to be gender-neutral, because they are designed as places where any parent can take small children.

There is no evidence that trans people using bathrooms aligned with their gender identity poses an actual danger to non-trans women. Some non-trans women feel uncomfortable in sharing these spaces with trans women. But some women feel uncomfortable sharing spaces with lesbian women, and, historically racist white women did not want to share with non-white women.

By contrast, trans women do face danger in using men’s facilities, and do face social exclusion or forced “outing” if they are banned from using women’s facilities in workplaces, swimming pools, cinemas, etc. The social cost of “bathroom bans” far outweighs any gain.