Protecting ‘Safe Spaces’ or Rolling Back Trans Rights?

Dr Ben Colliver, a Criminology Lecturer at Birmingham City University, looks at legislation changes in the UK and US and how they could impact the lives of transgender people.

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The past week has seen a number of setbacks for transgender communities, particularly in the United Kingdom and the United States.

In the US, it has been a turbulent time with the announcement that President Trump would rescind regulations implemented by President Obama that protected trans communities from discrimination in relation to healthcare. The regulations put forward by President Trump will allow healthcare providers and insurance companies to refuse to provide or cover transition-related care for trans individuals. Discrimination in healthcare has serious consequences and can result in the death of trans people.

For example, Tyra Hunter died after being denied adequate care for her injuries, firstly by EMTs and then by the hospital. The first responders stopped providing medical care after removing Tyra’s clothes and were heard making transphobic and racist remarks. This announcement came during Pride month, and on the 4th anniversary of the Pulse nightclub shooting in Orlando in which 49 people were killed. However, just days after this announcement, the US Supreme Court ruled that people cannot be fired for being ‘gay or transgender’.

Around the same time in the UK, newspaper front pages detailed government plans from a ‘leaked document’ that outlines a number of priorities moving forward. Under Theresa May’s government, a consultation was announced and begun concerning the proposed reform of the 2004 Gender Recognition Act. This Act stipulates the process for gaining legal recognition of gender identity.

Those advocating for reform have long-argued that the current process is dehumanising, expensive and overly bureaucratic. Trans people currently seeking legal recognition of their gender are required to provide two medical reports confirming a diagnosis of ‘gender dysphoria’. A ‘Gender Recognition Certificate’ can then be issued, on the basis that this decision has been approved by a ‘Gender Recognition Panel’, who may never have met the applicant.

The leaked document outlines a number of government priorities including:

  • A crackdown on “quack” doctors to ensure that only reputable medics can give approvals
  • Providing safeguards to protect “safe spaces” for women
  • New national guidelines on toilet provision to replace the current system of local decision-making which has apparently seen a rise in ‘gender-neutral’ facilities.

However, it is important to question whether these priorities really focus on protecting “safe spaces” for women or are more concerned with rolling back existing protections for trans people. It is unclear at this time whether ensuring “safe spaces” for women is inclusive of all women, including transgender women, or whether this will be dictated by ‘biological sex’. There have been calls by some to exclude transgender women from ‘women-only’ spaces, although the practicalities of policing this are unclear, and would arguably have negative and harmful implications for trans women and for cisgender women who do not conform to typical, Western expectations of ‘feminine presentation’.

Social transition – which may include the changing of names, having official documents amended and using facilities appropriate to the person’s self-identified gender – is a key part in obtaining a Gender Recognition Certificate. The exclusion of trans women from ‘women-only’ spaces could conceivably have significant consequences for those who seek to obtain a Gender Recognition Certificate.

The call for stricter regulations of ‘women-only’ spaces has played out on social media platforms and on Twitter and YouTube in particular. Heated conversations have centred on sex-segregated spaces, ‘gender-neutral’ spaces and the risk to women and children. Often, claims are made about the risks that cisgender men pose to women and children, and that implementing the legal self-identification of gender identity would result in cisgender men abusing this regulation in order to access women-only spaces and abuse women and children. However, there are often deeply transphobic claims made, specifically that ‘transgender women’ as a category pose a risk to women and children, and this is often accompanied by the pathologisation of trans people. The risk of sexual and physical violence is central in online discussions around who has the ‘right’ to access women-only spaces.

In our recent article, Adrian Coyle and I provide a critical analysis of how ‘risk’ is constructed in online discussions around ‘gender-neutral toilets’. The central claim is that these spaces are constructed as sites of risk for women and children, particularly in relation to sexual violence. Through drawing upon socially recognisable motifs and constructing women and children as vulnerable, a discussion of space is transformed from a spatial issue to one of morality. More specifically, it becomes difficult to argue against this representation without being accused of condoning and even perpetuating violence against women and children. In this sense, a clear divide between potential ‘perpetrators’ and potential ‘victims’ is established. Whilst some other countries, such as Denmark and Ireland, have already enacted legislation that treats gender as a self-declared category, there is very little empirical data to suggest that this model of gender self-identification results in increased levels of sexual violence against women and children in public spaces.