I’m dying for a pee….

 As a cis man I sympathise with the women who have to queue to use the ladies’ while we men pop in and out in a moment, though we do have to spend ten minutes loitering outside the ladies waiting for our other halves to finish. 

My wife guiltily admits that if there aren’t too many men about she’ll pop into the gents and use one of the cubicles. If I’m in restaurant with only one loo of each gender, if the gents’ is occupied I’ll use the ladies.  After all, at my age it might be a choice between that and wetting myself. Shocking I know, but there’s nothing illegal about it. 

That’s right, if I, a cis man, pop into the ladies for a quick pee I am guilty of no offence. Apart from possibly embarrassing everyone, including me. 

It follows that a trans woman is perfectly entitled to use the ladies’ too. 

In fact I don’t believe there’s any law about the use of loos. I stand to be corrected, but I believe in privately owned public spaces like bars and restaurants the owner is entitled to ask someone to leave if they have used the ‘wrong’ loo but even then, if they refuse to leave, the only offence is trespass. 

Similarly in publicly owned facilities it’s up to the council what rules to enforce. I believe the same goes for NHS trusts. 

It may be that the new High Court interpretation of the Equalities Act changes this, but to my non-lawyerly eyes it doesn’t look like it. The EA (remember, the ONLY legislation to which the high court ruling applies) is about discrimination. All it does is make it acceptable if you have a good reason to exclude a trans woman on the grounds that she isn’t a woman for the purposes of the act. It doesn’t force anyone to exclude trans women, it just isn’t discrimination if you do. If you read my last post, it seems Lord Sumption, who I think most people would agree is a pretty good lawyer, agrees with me. 

So I am confident that Lady Falkner and the CEHR are quite wrong with their interim guidance that entrance to single sex facilities must be restricted according to biological sex. 

Not long ago Lady Falkner was saying that the NHS now has no choice but to put trans women into men’s’ wards and suggested that the Commission on Equality and Human Rights (“CEHR”) would “go for” the NHS if they didn’t do exactly that. I hope at least she’s reassessed that suggestion. 

Unless approved by the Secretary of State, CEHR guidance has no statutory power but they do have the power (and resources) to litigate. The danger is that the various NHS trusts cave in under the threat of litigation. Ie they’re afraid the CEHR might “go for them” even if the attack has no legal merit. The average NHS trust doesn’t have money to spare to fight law suits.

In the meantime most women won’t notice that quiet lady in the corner of the loo who is touching up her makeup, nor suspect that she used to be a man. And I, when desperate, will pop into the ladies’ if it’s empty.