Cloisters column part one – ‘To pee or not to pee….? Toilets and Gender Identity’


Cloisters: Equality and Human Rights in Practice

This is part one of a two-part series on trans rights from leading equality and human rights barristers at Cloisters. Part one explores gender identity and children.  

It has been an important couple of years for trans rights.

Going to the toilet is something most of us do without a second thought (unless we have a disability).  Yet, for many trans people, using a public toilet carries a heightened risk of discrimination, harassment and even assault.  Some don’t feel safe to use public toilets at all.

The toilet has, in fact, become a key battleground for trans rights – particularly in the US.

Cases in the US

Indeed, North Carolina’s incumbent governor, Republican Pat McCrory, lost his bid for re-election on 8 November 2016 to State Attorney-General Roy Cooper, a Democrat.  By all accounts, Pat McCrory should have had the election in the bag; but McCrory, an otherwise successful governor, had become the face of one of America’s most controversial pieces of legislation to pass last year: House Bill 2.  In his campaign, Roy Cooper (now Governor Cooper) vowed to work with the legislature to repeal this law.

Formally called the Public Facilities Privacy and Security Act, House Bill 2 requires individuals to use toilets and changing facilities in schools, public universities, and other government buildings based on the gender listed on their birth certificates. Because of its nature, the measure became known as “the Bathroom Bill.”

State legislators pushed for the Bathroom Bill in response to the City of Charlotte passing an Ordinance allowing trans people to use toilets according to their gender identity. The Bill was described as a measure to prevent sexual predators preying on public toilet users!  But, with no evidence that such a threat even exists, the Bill plays on the stigma surrounding trans people and many believe that it places the trans community in danger of assault themselves.

The financial impact of the Bathroom Bill became one of the main talking points in the governorship election. Democrats claimed the measure cost $500 million in lost business, with the likes of the NBA, PayPal, Deutsche Bank and Google Ventures all pulling their business from the State.

In response to the State’s Bathroom Bill, U.S. Attorney-General Loretta Lynch threatened to withhold public education funds from North Carolina schools, stating that the law violated Title IX (of the Civil Rights Act), which bans discrimination based on sex.

After that, McCrory went on the offensive, filing a lawsuit against the federal government, arguing that the Obama administration had no right to tell public schools in North Carolina who could and could not use girls’ toilets.  The federal government countersued, and since then, the debate over how to balance the needs of trans students with the safety and privacy concerns allegedly expressed by parents and the student body has only grown.

Across the country, more than a dozen lawsuits are now in play and, later in 2017, the Supreme Court is due to tackle the issue in a case concerning a Virginia public school district trying to prevent a 17 year old trans male student (Gavin Grimm) from using the boys’ toilets in his school.

Cases in the UK

The issue of access to single-sex toilets has also been considered closer to home.  In 2014, a trans woman (Susan Brook) won her discrimination and victimisation claim in Halifax County Court against a pub which had refused to permit her to use the ladies’ toilet and, when she stood up for her rights, it barred her from the pub.

In May 2016, a trans woman (Erin Bisson) in Jersey won her claim against Condor Ferries for discrimination after a member of staff told her that she should use the disabled toilet.  Indeed, this decision was the first by the Employment and Discrimination Tribunal in Jersey since the island had passed new gender discrimination laws in September 2015 (prohibiting discrimination because of sex, gender reassignment or intersex).

Universities, schools and other venues have increasingly made provision for gender neutral toilets to ensure that facilities are accessible to all.

You can also read this article as a PDF, or read more articles from Cloisters.

LGBT Consortium 2016 Impact Report

LGBT Consortium

The LGBT Consortium published their third annual impact report, Impact 2016, in January 2017. The report explores the impact of the organisation as well as the impact of the Consortium’s members. The report finds that over four million LGBT people and their families, friends and allies have benefited from the work carried out by members of the Consortium across the UK.

MHT Report and Government Response – The Five Year Forward View for Mental Health

The logo for the NHS

The independent Mental Health Taskforce (MHT) produced an overview of what modern mental health services should be for the NHS in England in February 2016.  This report made recommendations for the six NHS arm’s length bodies to achieve parity of esteem between mental and physical health, recommendations where wider action was needed and focused on tackling inequalities.

The Government responded in January 2017, and accepted the taskforce’s 58 recommendations in full.

The Prime Minister announced additional plans to make progress in relation to children and young people, employment, access to services, and righting the injustices people with mental health problems face:  “because if we are to tackle the issues that many with mental health problems face, we must look beyond the NHS to schools, our universities, our workplaces and in our communities – and look to prevent mental illness in the first place.”

NHS England’s response to their recommendations can be found in Implementing the Five Year Forward View for Mental Health.

Social Mobility Commission Report – Ethnicity, Gender and Social Mobility

The HM Government logo.

The Social Mobility Commission (SMC) published a report on ethnicity, gender and social mobility in December 2016.  The report provided an analysis of the effect gender, ethnicity and socio-economic status have on life chances in the education system and labour market.

Key findings include:

  • a White British vulnerability to school underperformance;
  • a Black penalty in secondary and higher education;
  • a broken mobility promise for Asian Muslims, particularly women; and
  • female underperformance in STEM subjects.

Recommendations for government, universities, schools and early years providers were made to address the barriers faced by certain groups in society, including:

  • schools should involve and work with parents, particularly those from groups that are least likely to engage in their children’s education, such as poor white British and Gypsy, Roma and Traveller (GRT) groups;
  • schools should avoid setting pupils by ability, particularly at primary level, and government should discourage schools from doing so;
  • schools, universities and employers should provide targeted support to ensure Muslim women are able to achieve their career ambitions and progress in the workplace;
  • universities should implement widening participation initiatives that are tailored to the issues faced by poor white British students and address worrying drop-out and low achievement rates amongst black students.

Download a copy of the report, or read the SMC press release.

Votes for Women, First Mass Petition for Women’s Suffrage – Interactive Teaching Resource

The House of Commons logo.

Parliament’s Education Service produced an interactive teaching resource on the first mass petition for women’s suffrage in January 2017.  The resource explores the first mass petition for women’s right to vote, now widely accepted amongst historians as the start of the organised campaign.

The resource incorporates key curriculum themes for citizenship:  the role of citizens in the development of our political system; the operation of Parliament in law‐making; and the significance of petitions in bringing about change.

Key curriculum themes for the teaching of history are also covered. The resource focuses on the original petition document to develop students’ source analysis skills and provides context for learning about women’s rights in 19th century Britain.

Downloadable worksheets for each region across the UK provide a local focus, and teachers notes are included.

Equinet study: ‘Making Europe more equal: A legal duty?’

Equality Challenge Unit logo

Equinet, the European Network of Equality Bodies, produced a study ‘Making Europe more equal: A legal duty?‘ in December 2016.

The study examines and analyses the design and implementation of statutory duties in equal treatment legislation that aim to go beyond a prohibition on discrimination to promote equality. These encompass preventive duties, institutional duties and mainstreaming duties. The study explores and assesses the role of, and engagement by, equality bodies in their implementation. In doing so, it draws from the experience and perspective of equality bodies involved in implementing such statutory duties.

WEC Report and Government Response – Employment opportunities for Muslims in the UK

The House of Commons logo.

The House of Commons Select Committee on Women and Equalities (WEC) published a report on employment opportunities for Muslims in the UK in July 2016.  This report made 17 recommendations to tackle substantial pockets of disadvantage that exist in this area; including the Government’s approach to integration and opportunity, supporting the aspirations of Muslim women, providing effective support to work and challenging workplace discrimination.

The Government responded in December 2016.

Background information

The Select Committee launched an inquiry into employment opportunities for Muslims in the UK in January 2016.  This inquiry considered what barriers to employment exist for Muslims, alongside the prevalence of discrimination against Muslims in the workplace.  The deadline for written submissions was 28 February 2016.

Submission by the Institute for Social and Economic Research, University of Essex


Equinet report: Innovating at the Intersections

Equality Challenge Unit logo

Equinet, the European Directory of Equality Bodies, produced a perspective ‘Innovating at the Intersections: Equality bodies tackling intersectional discrimination‘ in November 2016.

This Equinet Perspective aims to set out the contribution of equality bodies to intersectionality issues, as well as suggesting ways forward for further developing this work in the future.

It is based on the contribution of 23 equality bodiesfrom 21 European countries, as well as a roundtable discussion of Equinet’s Working Group on Policy Formation and the input of Equinet’s Working Group on Gender Equality. It was authored by Niall Crowley, independent expert.

EHRC report: Protecting human rights: key challenges for the UK’s third Universal Periodic Review

The EHRC logo.

The Equality and Human Rights Commission published a report, ‘Protecting human rights: key challenges for the UK’s third Universal Periodic Review‘, in December 2016.

This report sets out the ongoing human rights challenges in Great Britain across 12 different areas of life, including education, health and privacy. It also provides recommendations to the UK, Scottish and Welsh governments on how to better respect and protect human rights, and fulfil their international obligations.

The Commission submitted the report for the UK’s third assessment under the UN Human Rights Council’s Universal Periodic Review (UPR).

The report is also available in French, in Spanish, in easy read form, and as a video in BSL.

Children’s Commissioner Report – The Support Provided to Young Carers in England

11 Million (the Childrens Commissioner for England)

The Children’s Commissioner for England produced a report on the support provided to young carers in England in December 2016.  The report highlighted that more than 160,000 children in England have formal caring responsibilities – and of these, 130,000 are missing out on support from local authorities.


  • Approximately four out of five young carers may not be receiving support from their local authority;
  • Just over a quarter of young carers have additional care needs of their own;
  • There are young carers under the age of five years;
  • Not all local authorities are taking steps to identify children who may be providing care in their area;
  • 94% of children referred to the local authority as a potential young carer, who were deemed not to require support, had not received an assessment at all;
  • The emphasis on identification and assessment in legislation may lead to support for young carers being overlooked; and
  • Young carers want to enjoy their childhood and for services to listen to them and respect their views.