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Sex and Gender

Has the transgender bathroom question finally been answered?

Trying to merge the rights of women and trans people together was never a good idea. It has satisfied nobody, and led to confusion that has fuelled an increasingly toxic debate.

As Keir Starmer still struggles to tell us what he thinks the word ‘woman’ means, some much-needed common sense has been injected into the transgender debate. The Equality and Human Rights Commission has published guidance for providers of single-sex and separate-sex services: in short, it says bathrooms and domestic abuse refuges can be single sex in certain circumstances. This is welcome news for women – and for transgender folk like me.

For too long, lobby groups have ruled the roost in this area, obfuscating language and denying reality. And the inevitable howls of protest in response to this publication have already started. I can understand the upset and anxiety being expressed by other trans people who had been persuaded that they had the right to use services designated for the opposite-sex just because they wanted to. But the resulting free-for-all has led in part to the increased suspicion of trans people. That helps nobody, least of all trans people.

Instead the guidance offers comfort and security to trans people. It reminds everyone that nobody can be excluded on the basis of their biological sex unless it is a ‘a proportionate means of achieving a legitimate aim’. Service providers, it says, need to demonstrate this and ‘balance the impact upon all service users.’ That includes trans people.

Trying to merge the rights of women and trans people together was never a good idea. It has satisfied nobody, and led to confusion that has fuelled an increasingly toxic debate. Women and transwomen are not the same and there are times when we need different services. Thankfully the EHRC is not only aware of that truth, but has had the bottle to point it out.

Without a hint of irony, the guidance explained that: ‘We have used plain English to help explain legal terms. This does not change the meaning of the law.’ The EHRC swiftly adds:

‘We use the term ‘biological sex’ because this is how legal sex is defined under the Equality Act for people who do not have a Gender Recognition Certificate.’

Equality and Human Rights Commission

Maybe Starmer also needs to read this document before his next media interview? It might help him to stop fudging and start clarifying. Those making decisions about who can and can’t use their toilets are not helped by politicians engaging in political sparring; they need straight answers in order to do their jobs.

It’s also worth remembering amidst this angry debate that the EHRC has not changed the law. The Equality Act has been in place since 2010; paragraphs 26 and 27 set out the rules and give examples when providers can provide separate service for each sex or, ‘a service only to persons of one sex.’ The problem in recent years, though, is that confusion over language has led to uncertainty when it comes to separate services for women and men. That is why the EHRC’s use of the term biological sex is so important. Fear of being labelled as transphobic – and possibly losing funding as a result – has led to biology being displaced by feelings.

The guidance goes on to make it clear that: 

‘The exceptions outlined in this guidance therefore do not depend on whether or not an individual has a Gender Recognition Certificate.’

Equality and Human Rights Commission

Once again, this could not be clearer. Separate-sex and single-sex services are permitted because men and women have different biology; that is not affected by a legal fiction created under GRA. Thank goodness that the EHRC is willing to point this out.


Debbie Hayton is a teacher and journalist.

* This article was first published by The Spectator on 5 April 2022: Has the transgender bathroom question finally been answered?

By Debbie Hayton

Physics teacher and trade unionist.

2 replies on “Has the transgender bathroom question finally been answered?”

I think the rest-room issue is a little less controversial in the U.S. than in England because there is an expectation that a trans woman will at least try to look like a woman before she walks into a women’s room. In England, any person can get a certificate saying he’s a woman and thereby use the women’s room (while looking like a man). (Does that actually happen very often?) In the U.S., if a trans women looks similar to a real woman, other users just look the other way.

There have been a couple prisoners here in the U.S. who have sued their prisons to give them sex-change operations (at the government’s expense) because that is what they “need” for their mental health. With the majority of trans women now going without bottom surgery because they can’t afford it (despite whatever their needs are), I find myself wondering why every prisoner who wants it should get it for free at the public’s expense. With the U.S. military handing out free surgeries also, all any trans woman must do to get free surgery is to become a soldier or an inmate. How do you feel about that, Debbie?

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Thanks Debbie again for really clearly defending the law and all women, men and trans people. I read the Equality law, it clearly protects race religion (both impacted if lose single sex spaces cos cant use them) & clearly defined sex as male or female, but lobbyists like stonewall use the words gender instead of sex & gender identity (eg i identify as female while in loo but will be male once i come out! – Self ID only helps sex offenders!) instead of gender reassignment (only 0.008% country have grc meaning can live as sex choose, but dunt mean they are that sex!). This confuses companies schools etc encouraging them to break the law and bully people like my sister, a teacher unable to find a ladies toilet. I cant understand why they are allowed to give schools, gov depts, etc, literature which tells them to break the law. When challenged, policies dropped knowing they were wrong!

I know Stonewall do it for money, not trans people. My daughters fiances brother is trans, hes worried a public backlash to the unfair treatment of women is imminent, as men become angry at how their wives, mothers etc are treated and join their women in a new fight for their basic human rights. As this is 99%+ of the population, extremist groups need to be stopped before they ruin life for everyone, including trans people who could find they are made illegal because some dreadful events happen as a result of extremists, making the country shocked and totally anti trans.. eg already had rapes in gender neutral toilets including of children, rapists in womens prisons, males win womens sports many countries, children talked into transition will sue like the woman who is suing tavistock clinic.

I know most trans just want to get on with their lives in peace like the rest of us. It isnt complicated, there are obvs easy solutions, as so few are trans use unisex single room disabled toilets, (didnt exist when i grew up) about 6million disabled people in uk, only 5000 with grc. Have own sports like the very respectful disabled sports which have raised the profile of disabled people to be seen as highly skilled athletes. Males in female only sports are seen by majority as men cheating, finding a way to win, (as my husband said, well done you beat a women!!) So he’s not interested in womens sports now! kicking women out of own sports, in short time ive noticed male athletes take gold silver bronze in many countries ftom women. It simply stupid and once more people notice, they’ll just lose interest in womens sports completely.

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