If you’ve been on Gender Critical twitter for long enough, you’ll have seen the phrase “sex-based rights” floating around. Gender Criticals love to use this phrase to imply that trans people are somehow stripping them of these rights, and thus frame trans people (trans women in particular) of not only being anti-feminist, but actually bigoted.
Of course, anyone with a brain (or least those who use it, so this doesn’t include the BBC or the Women & Equalities Committee of the UK Government) knows that this is complete hogwash. The immediate rebuttal is that trans rights are not in conflict with anyone’s rights, because the supposed right being espoused is basically the right to choose who is around you.
While we recognise the right to privacy and personal boundaries (which is why we provide toilet cubicles rather than a communal area, and why the Gender Critical determination to keep a tight hold of communal changing areas seems mad, see my previous article Answering The Staniland Question), that right does not extend to choosing who shares a room with us.
But there is actually a weirder aspect to this oft-repeated claim: In the UK, there is no such thing as sex-based rights.
We’re told that these alleged rights are “hard fought for” (I personally could not find any information on Wikipedia on the Battle of What-a-loo). In reality no such thing exists.
When asked to identify these so called rights legally, one of two things happens. The less experienced simply say “um, um, um” and falter. The more experienced will proudly refer to “The Equality Act” and how it protects “single SEX spaces”, with the reader almost forced to hear the word “sex” shouted by an angry woman demanding to see the manager (the use of “sex” here intends to imply that trans women don’t qualify, because they are not of the female sex; this in itself is a fallacious argument that I’ll go into in another article).
The Purpose of The Equality Act 2010
The Equality Act 2010 is a piece of UK legislation that arrived as a result of streamlining a number of earlier pieces of legislation, one of the earliest being the Equal Pay Act 1970, a piece of legislation documented excellently in the movie Made in Dagenham, which tells (with a small amount of artistic license) the events in which the female workers of the Ford plant in Dagenham, UK going on strike when they learn that they are paid less than their male counterparts for doing the same kind of work. The Equal Pay Act made it illegal to discriminate on the basis of sex/gender for the purposes of determining wages/salary of two or more people undertaking the same kind of work.
The key word there is ‘discriminate’. The Equality Act is not a right-giving act, but rather, an actions-prohibiting act. It defines 9 protected classes which it states may not be used as a metric for discrimination for any purpose.
Sex is one of those protected classes. This means that at the broad top level, you can’t discriminate based on sex, for any reason. If the act stopped there, there would of course be chaos. For one thing, even in the utopian world in which everyone is truly equal, you would still be contending with existing structures which would suddenly become illegal. One such structure is that of single-sex spaces.
The act therefore, goes into detail to define exemptions. That is, circumstances in which it is not a breach of the act to discriminate on the basis of those protected classes.
What is important to understand in this case is that these exceptions are not rights to be asserted by the member of that protected class. They are rights that can be asserted by the provider of a service at the service provider’s discretion.
To understand this, we can imagine the basic scenario of the ladies loos. If we took the broad top-level statement by the Equality Act, then women’s toilets would be illegal, as that is a discrimination based on sex. The Equality Act thus provides an exception for this. Schedule 3, Part 7, Section 26, Paragraph 2, subparagraphs b & c, specifically:
(2) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services differently for persons of each sex if —
(b) the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex, and
(c) the limited provision is a proportionate means of achieving a legitimate aim.
What this is telling us is that you can keep your women’s toilets because it would be impractical to provide the service otherwise. No worries there.
But this law placed on the service provider. Not the member of the protected class using it. This is a very important point, because it’s one that the Gender Criticals always fail to grasp: Nobody has any legal right to demand that there be a single-sex space. A service provider has a right to say it is not practical to provide one, or that it is not practical to provide a unisex space.
The Transgender Question
So where does this leave trans people, and in particular trans women who are forever receiving the ire for supposedly infringing on “sex based rights”?
The Equality Act covers this. Recall from my previous article that a transgender person is covered in the act as the protected class of “gender reassignment”, which is described as “A person who has undergone, is undergoing or is proposing to undergo a process of gender reassignment”. In turn, as no medical process is described, this includes social transition.
The act has the following to say about trans people, with reference to single-sex spaces, in Schedule 3, Part 7, Section 28, Paragraph 1, and Paragraph 2, subparagraphs a, b and c:
(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.
(2) The matters are —
(a) the provision of separate services for persons of each sex;
(b) the provision of separate services differently for persons of each sex;
(c) the provision of a service only to persons of one sex.
What this means is that, yes you can discriminate on gender reassignment (gender identity) for the purposes of single-sex spaces, but it has to be a “proportionate means of achieving a legitimate aim”. Gender Criticals have often tried to conflate this with the notion that “We’re uncomfortable! That’s legitimate!”
Except of course, it is not. As I have stated before, “This makes me uncomfortable” is never a valid reason for making law, and has been demonstrated most infamously in the racial segregation laws, that almost everybody agrees were a terrible idea.
They have also tried to claim that the act describes “protecting dignity” as a legitimate aim, which indeed it does. However, protecting dignity is rather fuzzy notion. Again, the racial segregationists argued that it was undignified for black people to share space with white people; indeed any abhorrent argument can be made in the name of protecting dignity, and in the event of a legal challenge, it would be a court judge that would make that decision.
In that event, it would need to be shown that there has been definite attack on dignity that can be quantified, and such an argument would be unlikely to succeed. In any case, at the level of a one-on-one confrontation in which a service provider with legal knowledge of the act is required to make a decision, it is unlikely they would accept “protecting dignity” as a legitimate aim when a trans person can be shown to be attempting to use the facilities for their intended purpose.
We can see then that there are no “sex-based rights” for members of a particular sex class. There are, in limited forms, sex-based rights for service providers, but they work opposite to how the Gender Criticals would have us (and the media, and the government) believe.
The notion of “hard fought” is also a further proof of their insanity: it’s incredibly anti-feminist.
Spaces were forced upon us, not hard-fought for
Gender Criticals love to paint the idea that women, and especially feminists, have fought for single-sex spaces for centuries, and that the Equality Act is a culmination of that fight. However, this simply isn’t true.
Single-sex spaces existed long before the Equality Act was even conceived, and even well before the Equal Pay Act 1970. But they weren’t fought for over the centuries, but rather the patriarchal social structure meant that women were considered a lower class than men, and thus disqualified from sharing their spaces.
One particularly prominent example is that of the Drawing Room. A number of stately homes (particularly in the UK) have a room called The Drawing Room. Not actually for undertaking artwork, but actually a shortening of The Withdrawing Room. It was a room created for one purpose alone: The men will go and discuss important matters; no women allowed.
Throughout the centuries women have been considered a lesser class; with stereotypes of being less intelligent, more easily distracted, more emotionally invested or easily triggered, etc. Even today, we see the same claims being made; Hilary Clinton was stereotyped by many male politicians as being unsuitable for the 2016 US presidency because “women are too emotional and end up shrieking agrily instead of being diplomatic” (an ironic claim, given how many male politicians since have erupted into emotional outburts simply for being held to account).
Thus, women have been consigned to single-sex spaces at the behest of the men; in their words to avoid “polluting the discussion”. It has been the work of feminists to dismantle single-sex spaces where possible to erase this inequality, not fight for its preservation.
Even in the case of toilets, it was considered dirty for the “noble and dignified men” to share such a space with the womenfolk, who, remember, were considered to be there for sex and babies, and nothing more.
There are legally no such thing as “sex based rights” for members of a sex class in the UK. And no existing single-sex spaces are “hard fought for”. In using these fallacious arguments, the Gender Criticals reveal that they truly are not feminists in any way, but trying to attach legal and historical legitimacy that doesn’t exist onto the case for excluding trans people.
Sadly, the UK media and government have started listening.