(Trans)Forming Single-Gender Services and Communal Accommodations
| Date | 01 October 2017 |
| Author | Peter Dunne |
| Published date | 01 October 2017 |
| DOI | 10.1177/0964663917692027 |
| Subject Matter | Articles |
Article
(Trans)Forming
Single-Gender Services and
Communal Accommodations
Peter Dunne
Trinity College Dublin, Ireland
Abstract
The right of transgender (‘trans’) persons to access gender-segregated space is neither a
new controversy nora conversation which is unique to the United Kingdom. Yet, despite
increasingly charged political debates in North America, the question of trans access to
single-genderfacilities remains largely underexplored by British legal academics. In January
2016, the UK House of Commons Select Committee on Women and Equalities recom-
mended expandingtrans entry into single-genderservices and communal accommodations
underthe Equality Act 2010. Usingthe Committee’s reportas a springboard for debate,this
articleconsiders the right of trans populationsto use their preferredwomen-only and men-
only spaces. Critically analysing the existing possibilities to exclude trans persons from
servicesand accommodations,as well as the policy argumentswhich motivatethis approach,
the article demonstrates how, adopting common-sense, evidence-based reforms, Parlia-
ment can introduce legal rules which both prioritize user safety and respect trans dignity.
Keywords
Balance of rights, body essentialism, discrimination, Equality Act 2010, gender segrega-
tion, legal gender recognition, privacy, reasonable accommodation, transgender,
women-only space
Introduction
In July 2015, Maria Miller MP, Chairper son of the UK House of Commons Select
Committee on Women and Equalities (‘WEC’ or ‘the Committee’), announced the
establishment of a Transgender Equality Inquiry (‘the Inquiry’) (WEC, 2016), to
Corresponding author:
Peter Dunne, Ussher Fellow, Trinity College Dublin, House 39, Dublin 2, Ireland.
Email: pdunne8@tcd.ie
Social & Legal Studies
2017, Vol. 26(5) 537–561
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DOI: 10.1177/0964663917692027
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consider ‘how far, and in what ways [transgender] people still have yet to achieve full
equality; and how outstanding issues can most effectively be addressed’ (WEC, 2016).
The scope of the Inquiry’s investigations and recommendations was broad, touching
upon healthcare, law, education and the media (2015). Its most controversial proposal
addressed single-gender services and communal accommodations. Noting the particular
hardships that transgender individuals experience in public bathrooms, locker rooms and
other segregated facilities, the Committee recommended that people who have obtained
a Gender Recognition Certificate should be allowed to use thei r preferred gendered
facilities. Responding to the Committee’s Report, the feminist scholar, Julia Long,
warned that transgender individuals in segregated space are ‘antithetical to women’s
rights’ and pose a ‘threat to women only spaces and women only services’ (2016). One
Daily Mail columnist remarked that there was now ‘an official [parliamentary] approach
which turns nature, reason and common-sense upside down’ (Littlejohn, 2016).
Every jurisdiction that acknowledges the existence and status of transgender persons
must, at some point in time, determine what legal rights individuals have to use their
preferred gendered spaces. In the United Kingdom, where a comparatively liberal gender
recognition law has been in place for over a decade (Gilmore, 2015: 183), the question of
segregated services ha s a growing sense of immediacy. This i s particularly so in a
context where, owing to mainstream and social media coverage, transgender identities
are ever more visible (Jacobs, 2016; Monroe, 2016). Yet, transgender persons in single-
gender spaces are neither a new controversy nor a conversation which is unique to the
United Kingdom. In her landmark 1974 memoir, Conundrum, the author, Jan Morris,
described her (and others’) uncertainty as to what facilities, and services, she should use
after transitioning to live in her preferred female gender (2002: 107). In North America,
where Time Magazine famously declared a transgender ‘tipping point’ in 2014
(Steinmetz, 2014), access to single-gender bathrooms has long been a source of legal,
political and academic concern (Archibald, 2016; Chambers, 2007). In 2016, the US
Department of Justice, as well as the Department of Education, issued guidelines inter-
preting trans exclusionary laws as impermissible sex discrimination under the federal
Civil Rights Act 1964 (DOJ and JOE, 2016). Even in countries, such as Ireland, Malta
and Sweden, which only reformed their gender recognition laws in 2015, there is an
increasing need to determine what legal rules should apply for single-gender services.
Yet a striking feature of transgender legal scholarship in the United Kingdom is the
absence of meaningful engagement with the segregation question. While debates over
transgender access abound on television, radio and in newspaper opinion columns,
British academics have largely failed to reflect on the rules which should apply. Instead,
most scholarship remains focused on legal gender recognition and the rights of trans-
gender persons within the criminal justice system.
1
In light of the Committee’s recent
recommendations, it is now an appropriate time to begin filling this lacuna, both so as to
consider necessary reforms in the United Kingdom and to offer future guidance for those
who will confront this topic in years to come. This article explores the proper legal
response to transgender use of gender-segregated spaces. It approaches the question
through the lens of the UK Equality Act 2010.
The article proceeds in four parts. Part 1 sets out the broad relationship between
transgender identities and single-gender spaces. It introduces key terms and concepts
538 Social & Legal Studies 26(5)
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