Policy adjustments on behalf of trans people that materially reduce the safety of women in communal accommodation are the subject of increasing international controversy. On March 16th, Baroness Nicholson, addressed the UK’s House of Lords to demand the withdrawal of Annex B of the NHS’s 2019 Guidance on “Delivering same-sex accommodation” in UK hospitals. She argued that the dignity, safety and privacy of women needs to be brought back into the centre of public policy and treated as a priority.
To illustrate the problems that arise when gender identity is allowed to over-ride recognition of biological sex, Nicholson recounted the history of a woman who has laid before her all of the particulars relating to her rape in an NHS hospital. This woman reported her assault to her police, who inquired of the hospital and were told there was no male in the hospital, therefore the rape could not have happened. As Nicholson states:
“They forgot there was television, nurses and observers … nonetheless, it has taken a year for the hospital to agree that actually there was a male in the ward and yes, this rape happened. During that year … she’s almost come to the edge of a nervous breakdown because we disbelieved that being raped in hospital [was possible].”
As Nicholson explained, the very idea that hospital policies would have no regard for the safety of women when they are at their most vulnerable comes as “an appalling shock”.
Women have been sexually assaulted in Australian hospitals too. A 2009 study highlighting the problem led to calls for governments to institute single-sex wards throughout the healthcare system. As things stand, the availability of single-sex wards in Australian hospitals might vary from one place to another. In some regional hospitals, for example, maintaining single-sex wards is not always a practical proposition.
However, the case related by Nicholson demonstrates a further problem that arises for women where policies are deliberately designed to obscure biological sex from the picture:
“The result of Annex B is that the hospital trust informed ward sisters and nurses that if there is a male as a trans person in a female ward and a female patient or anyone complains, they must be told that that is not true, there is no male there.”
Annex B is problematic not only because it puts women at risk by allowing biological males into female accommodation – with terrible consequences in this case - but it then compounds the problem by obliging NHS staff to tell “a straightforward lie” in order to obscure the presence of males in female accommodation. The result was that the victim of this rape was then treated by the police as delusional, because the drafters of the NHS Guidelines prioritised the recognition of gender identity over biological sex.
This case is one example of a wider pattern in which problems arise for women not from the law itself but from the “soft law” created when the law is translated into policy. The UK Equality Act, for example, protects transgender individuals who have begun the process of gender reassignment from discrimination but clearly states that communal accommodation “which includes dormitories or other shared sleeping accommodation … for reasons of privacy should be used only by persons of the same sex”.
Similarly, the Australian Sex Discrimination Act prevents discrimination with regard to accommodation on the grounds of “sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding” but s.23 (3)(c) provides an exemption in circumstances where “accommodation [is] provided … solely for persons of one sex or solely for persons of one or more particular marital or relationship statuses”. The intention of the legislators was clear, even if their understanding of the inherent incompatibility of protections for “gender identity” and protections for “sex” was imperfect.
The grey area created where novel “trans rights” (based on gender identity), conflict with “women’s rights” (based on biological sex) is then exploited by policy makers who – either because they are consciously agenda-driven or because they are genuinely ignorant of the protections the law affords women – interpret the law without regard to the rights of women. The UK organisation FairPlay for Women pointed out back in 2018 that private corporations were instituting policies that were detrimental to women and, when challenged, hiding behind “the law” to justify their decisions, as though it actually did require them to allow biological males in women’s spaces.
The disadvantage to women that results from these policy changes can be difficult to detect, because the women affected by it are the first ones threatened with discrimination charges should they complain. They might complain quietly to their friends, but that is as far as they dare.
For example, WFA knows of women in public sector jobs who have used routine anonymous questionnaires about “inclusivity” to raise the issue of mixed-gender toilet facilities only to be shocked to hear their comments read aloud at subsequent team meetings as examples of the sort of hateful bigotry that would not be tolerated in the workplace. Naturally, these women do not respond to their employer’s invitation for the author of these comments to come forward for counselling. The chilling effect of these practices is obvious and probably not unintentional.
Similarly, WFA knows of women asked to commit to “codes of conduct” that signal the intention of authorities to disregard the sex-based rights of women where these conflict with rights claimed on the basis of gender identity. These codes of conduct appear to draw from “templates” (for example, see here and here), which declare that the organisers will:
“prioritise marginalised people’s safety over privileged people’s comfort. We reserve the right not to act on complaints regarding ‘reverse’-isms, including ‘reverse racism’, ‘reverse sexism’, and ‘cisphobia’.
So, for example, women who are required by their employment to go away on a team retreat involving shared accommodation, are asked to affirm their agreement to this “code of conduct” beforehand. Where they are subsequently asked to share a room with a biological male, the clear implication is that any objection to these arrangements would be taken as an example of prioritising their comfort over the "safety" of a transwoman - a complete reversal of the correct policy. Not only would complaints be disregarded but the woman raising the issue would be censured for intolerance. In this way, the “soft law” created by guidelines, and policies and codes of conduct, are being used to intimidate and silence women.
Claire Chandler’s Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 is an example of the push back that is needed to re-establish women’s rights as a legal priority. There is a very clear need for new law that will clarify the grey areas that are currently being exploited by activists to the detriment of women. If enacted, the Bill would re-insert:
“the sex-based definitions of “man” and “woman” which were deleted from the Act in 2013. The removal of these clauses has created a situation where references to “women” can be read to mean either persons of the female sex, or persons of the male sex based on their self-identified gender identity. The re-insertion of these definitions makes clear that “man” and “woman” have specific sex-based meanings.”
Given the vulnerabilities that are being created for Australian women by “soft law” and policies that fail to prioritise women’s safety, it is only a question of time before traumatic experiences similar to those related by Nicholson are repeated here.
Gender identities do not rape women. Male bodies do. If Australian law does not recognise the importance of biological sex, then it cannot offer women the protection for their sex-based rights. Nicholson is correct in asserting that the rights of women to safety, dignity and privacy, need to be restored to their position as a policy priority.