Admission to women-only spaces, and “case by case” assessment

The current EHRC Code of Practice on ‘Services, public functions and associations’ says that whether or not any given trans-identifying man should be admitted to a women-only space is something that should be decided on a “case-by-case” basis, and it has been argued in court that this is what the law requires. It sounds quite reasonable, in the abstract: people should make nuanced decisions tailored to the individual circumstances, rather than blindly following blanket rules. What’s not to like about that?

The Equality Act 2010 isn’t as clear as it might be on this question – and as a result, the forthcoming EHRC guidance is eagerly anticipated. While we wait for that, I want to walk through how “case by case” might work in practice. I’ll take one everyday example, a gym. 

I want to think about Louise. Louise is a 25-year-old gym employee, sometimes running fitness classes and sometimes doing a stint on reception. She has an industry-recognised Level 3 qualification in Personal Training. She’s a keen competitive windsurfer, and she plays for a local women’s rugby team. 

One day Jill, a trans-identifying male arrives at the gym to take out membership. Jill is wearing make-up and women’s clothes, but has a deep voice and a hint of stubble, and is obviously male. After completing membership formalities, Jill says “You may be able to tell I’m trans. I assume there’s no objection if I use the women’s changing room?” The women’s changing room has a main space with pegs along the walls, communal showers, and a wall of lockers; and a few curtained cubicles for women who want more privacy. Most users change in the main space. 

What’s Louise to do? What are the criteria on which she should decide whether Jill should be allowed to use the women’s changing room? Should she ask whether Jill has a GRC? Or what treatment Jill has had – hormone treatment, or surgery? Or should she treat that as intensely personal information that she can’t possibly ask about? But if so – how else is she to decide? Is she supposed to make an assessment of how successfully Jill “passes” as a woman? Or perhaps how much effort Jill has made to “pass”? Is she supposed to try to guess how likely it is that other users of the changing room will realise that Jill is male? Is her decision just about Jill, or should she also take into account considerations about the demographics of the gym’s membership – how many of the gym’s female users are middle-aged, or members of religious faiths in which modesty is particularly important? Is she supposed to be able to make this assessment on the fly, or should she ask Jill to come back another day after she’s had a chance to consider all the relevant circumstances and ask for any evidence and conduct any follow-up investigations she thinks necessary? And once Louise has made her assessment, are all the other receptionists supposed to abide by it – or do they have to do their own assessment each time Jill visits the gym? Is the “case” in question Jill, or this particular visit by Jill on this particular occasion?

Suppose Louise agrees that it’s ok for Jill to use the women’s changing room. Suppose Richard, who’s been a member of the gym for some years, overhears the exchange and says “Oh! I didn’t know that was allowed. I’m a woman too, actually, so I assume it’s also ok for me to use the women’s changing room?” Richard is dressed – as usual – in male business attire; he pops into the gym in his lunch-hour from the bank over the road where he works. 

Now what? If Louise says yes to Jill but no to Richard, why’s that? Is it because she knows Richard, and has always known him as a man? Is it because Richard is dressed as a man, and is making no effort at all to “pass” as a woman? Should her decision be different if Richard confides in her that he has already transitioned in his home life, and his real name is Madeleine, but he’s still trying to get up his nerve to transition at work; but because he is really a woman – even though presenting as male for work purposes – he should be allowed to use the women’s facilities? Or suppose Richard says he’s genderfluid, and sometimes comes to work in “girl mode” – and asks if it’s ok for him to use the women’s changing rooms on those days? 

It’s obvious – surely – that it’s not fair to put Louise in this position. She can’t be expected to make a “case by case” assessment. That conclusion doesn’t depend on any particular assumptions about her level of education: it’s  no different if she’s working part-time in the gym while she completes her PhD in gender studies. 

So now suppose you’re the gym owner – or if the gym’s part of a big chain, the chain’s general counsel. Louise is still at the sharp end of this: you’ve got to decide how to help her out. What policy are you going to tell her to follow? Are you going to take the decision out of her hands and give it to someone more senior? You could ask trans customers to fill in a form explaining their particular circumstances, and making a case for why they should be allowed to use the facilities provided for the opposite sex. You could ask them to provide evidence; maybe a copy of their GRC; a GP report; testimonials from friends or relatives. And then a manager could make the “case by case” decision on the basis of that information. 

Good luck with that. Your trans customers will complain – with some justice – that the process is slow, humiliating and intrusive. They may object to being asked to produce documentation that other customers don’t have to produce – they may say you have no right even to ask whether they have a GRC. You don’t ask your other customers to fill in a lot of paperwork to explain why they should be allowed to use the facilities they want to use. 

It’s not going to work, is it? Once you go to the trouble of imagining the practicalities on the ground of a “case by case” approach, you can see what an impossible thicket of difficulty it presents.

You can run a parallel thought experiment with any other single-sex space you care to think of: the practicalities of attempting a “case by case” assessment don’t get any easier. In some cases they get harder.  If it’s admission to a women’s refuge in the middle of the night, then necessarily the decision is urgent and has to be made in a hurry – and the consequences for other traumatised users of the service are more serious if you get it wrong. In a gym, some of your female users may simply self-exclude if you let males use the female changing rooms. That’s bad enough – a service they value and that is good for them is effectively put out of their reach. But female inmates in prison don’t have the luxury of being able to vote with their feet: if your case by case assessment admits a trans-identifying male, you may be exposing them to chronic fear for the duration of their sentence. If it’s the ladies’ toilets at the nightclub, there isn’t even any plausible moment in the “customer journey” at which a case by case assessment might be made. 

Fortunately, there’s a simple solution. What you need at your gym is women’s facilities, for women only, with no exceptions; men’s facilities, for men only, with no exceptions; and a sufficient number of single-user changing rooms for anyone who for whatever reason – and no-one need inquire what that reason is – isn’t comfortable using the facilities provided for their sex. That way no-one is excluded, no-one is asked intrusive questions – but also, no naked or half-dressed woman will be surprised by the unwelcome presence of a man. Everyone can get changed in peace. 

Note: not all the LFs are comfortable with the use of male pronouns for even a hypothetical a trans-identifying male. But they haven’t censored this blog, because we don’t all agree on everything, and we value dissent.

24 thoughts on “Admission to women-only spaces, and “case by case” assessment”

  1. This is a very useful and well thought through piece that I think perfectly shows the problems with the seemingly simple “case by case” approach.

    My only possible disagreement is in the “simple” proposed solution. Would that there were a truly simple solution.

    You say we simply have a women’s only space that’s open only to women – which sounds great. Except as we know all too well – people disagree about what the word woman means. Do we go with birth certificate? How many gyms check birth certificates and in any case, a female birth certificate no longer means biologically female.
    Do we rely on our eyes – but then of course you are asking Louise to make a case by case assessment.
    Do we check ID – passport etc. But these appear to be almost worthless given the unclear criteria used when people change their declared sex.

    In summary – I’m not saying your proposed solution is wrong – but I’m not convinced it’s simple.

  2. Most established old style transexuals know where they can or cannot pass. I know a local person like that who solves the gym dilemma by not using the changing rooms. She showers at home.

    This is a long post surgery transexual who knows what sex she is.

    1. Did you miss the bit where it says “and a sufficient number of single-user changing rooms for anyone who for whatever reason – and no-one need inquire what that reason is – isn’t comfortable using the facilities provided for their sex.”

  3. I think what this boils down to is that to use woman’s spaces without undermining the purpose of such spaces a trans woman would have to (really, truly, fully) pass as a woman. This is cruel as most trans women will not ever be able to meet this criteria, and such a policy is likely to raise questions about some biological women with e.g. gender non-conforming physiognomy. But maybe that’s the way it’s always been and still must be…

  4. Have you ever stopped to think under your proposal if a trans man who was assigned female at birth, comes in with a full beard, deep voice, and has had a phalloplasty and is required to use the “women’s” space to comply with your policy? You end up humiliating the trans man and freaking out all the women who see a man in a woman’s space. Your entire line of reasoning ignores and erases trans men.

    1. Firstly people are not assigned at birth, they are observed and recorded and secondly they could use the “single user” facilities for their own dignity and those of other women.

    2. Naomi can speak for herself, but I think there’s two differences here:
      1) Men’s spaces aren’t nearly as damaged by intrusion by (at least perceived) members of the opposite sex as women’t spaces are. A woman in a men’s room might be seen as awkward, funny, possibly intriguing but almost never threatening
      2) The transman in your example is passing. If a transwoman fully passes and no one is the wiser there’s almost by definition never going to be an issue, right?

    3. You obviously didn’t read the article did you? Naomi advocates for third spaces for just such people who don’t want to -for whatever reason – go in single sex spaces. A woman with a synthetic-testosterone induced beard can go in the third space, making no one uncomfortable. Problem solved.

    4. I’m not sure what makes you think my proposed solution would require a trans-identifying woman (a “trans man” in your terminology) to use the women’s space. My proposed solution is that there should be a private space that is available for anyone who is going to be uncomfortable using the changing room provided for their sex.

      1. My impression is that trans women are determined to be seen as women, creating a third space will be anathema to many of them because to use this space would indicate that they are different from biological women, they do not want to accept that there is a difference.

  5. As general counsel, would you not commission careful assessments of all the facilities in the group, which assessments would consider the needs, safety, privacy etc of all potential customers. Following which would you not issue information at this gym (a notice at the front desk, website etc) welcoming transgender customers and stating the company’s commitment to the safety and welfare of all customers- then continue to the effect that following careful risk assessment it has been determined that due to the nature of the changing rooms at this site as currently configured we are unable at present to accommodate transgender customers at in the changing rooms of their acquired gender, while preserving the privacy of other customers. However we have set aside [where ] for your use and/or our gym at [xxxx] has [name whatever it has- individual changing rooms/a range state of the art changing facilities suitable for all customers]. Please contact our trained inclusion ambassador / receptionist Louise who will by happy to support you to find facilities to meet your needs.

    Louise would have been trained in advance, know the company position, where to sign post customers , how to reach out for help from colleagues on site or at head office etc. As general counsel you would also be familiar with EqA Sched 3 , p 27, 28 etc.
    And AEA which confirmed that people do not have an automatic right to use the changing rooms of the opposite sex etc. Same immediate result, but structured, more constructive and proportionate.

    1. That all sounds good. As always, we rely on the honesty & integrity id individuals to observe the rules. What should Louise do if it comes to her attention that a trans-identifying gym member is using the single sex area? ‘They’ have been informed of the policy, but they go ahead and enter the SSS anyway. How to handle this tricky situation- poor Louise! It relies on knowing the sex/trans status of the member. If in breach of policy they can be asked to leave, risk losing membership etc. , but how does Louise get to that point?

      1. Very good question.

        This has been made much more fraught than it should have been by the bullying insistence of the trans-activist lobby (which always needs to be carefully distinguished from trans people generally) that even noticing a trans person’s true sex – let alone mentioning it – is transphobic and hateful. But it’s not. If Jill invades the women’s changing room in violation of the gym’s policy, he should be asked to leave. If he says “but I’m a woman”, Louise should say something like “We don’t need to argue about what the word ‘woman’ means. It is obvious that you are a person with a male body, and that means that we don’t permit you to use the women’s changing rooms. Please leave, or I will call [security/the police].”

        Trans activists will claim that Louise can’t possibly tell whether Jill is male or female without inspecting his genitals. This is nonsense, of course. It is very difficult indeed for trans-identifying males to “pass” convincingly as female; and vanishingly rare that any woman – however masculine-presenting – is mistaken more than fleetingly for a man unless she has taken testosterone. In the unlikely event that Jill passes, then she will be able to violate the gym’s policy undetected: Louise won’t face a dilemma, because she won’t realise that Jill is male. Louise’s problem only arises if Jill doesn’t pass.

        But this is a lot to ask of Louise, given the climate that has been created – and especially given the violent threats that have been directed at women who defend women’s boundaries. Organisations that have determined to keep their single-sex spaces single-sex will need to give some thought to how to train and support their frontline staff.

  6. Im really sick of hearing about welcoming ‘trans’ into any where women are – their delusions are theirs and no one else has to pretend otherwise. That goes for women who now believe they are ‘men’.
    trans is nonsense – no one is trans anything.

  7. Can I just make a point that feels like it’s missing from the conversation quite a lot?
    I use a swimming pool and they have a unisex changing room, with cubicles and shared shower space. I see everyone in there, men and women on their own, a trans person with their partner, family units….Everything is fine and no one really thinks much about it. Similarly, when out at a coffee shop or a restaurant, nobody is asking to check whether you can use the space when you want to go to the toilet, you just use what’s available and I never see any fuss.

    It’s not to say that there aren’t obvious complications, such as prisons and refuges, and that IS a conversation to be tackling as a unique and separate topic, but this outrage about the idea that the GRC is really a big deal seems over the top…..On mass, men aren’t just “claiming they are women” and then getting in to frighten or abuse women; there is certainly no greater access for them than there already is for would-be abusers. There is currently no legal checking of gender anyway, and a sign really isn’t going to stop anyone with nefarious intent, trans or otherwise.

    I agree, creating a space for someone who, for any reason, doesn’t want to use a male or female only space, just…makes sense. I think, whether people like it or not, this is the world we are moving towards.

    1. Just because you don’t see a problem doesn’t logically establish there is no problem. You don’t see self-excluders, for a start; you probably don’t clock people (mostly women) who take to subterfuges to avoid proximity to the opposite sex while changing or using the loo, or grit their teeth and try to deal with their trauma or discomfort.

  8. Surely the case-by-case basis is a duty on the service provider is to make an assessment of what is needed to ensure inclusion at their premises. Therefore the case-by-case element refers to the premises, its layout and arrangements rather than case-by-case assessment of service users which would be unlawfully intrusive and invasive.

  9. Just one thought, it’s not all about the changing facilities. Many woman don’t like men staring at them whilst they work out so use woman only gyms .

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