Tickle, Giggle and Bathroom Shenanigans: The Great Toilet Debate

Toilet Shenanigans

Martha is my friend. She is 29 and when born was classified male. She identifies as a woman now. She certainly looks like a woman, and dresses like one and who knows what she has had done medically or if her breasts are real. I don’t ask. Not Martha or any woman for that matter.

Mark is also my friend. He is 41, and I knew him as Marina until a few years ago. He was a girl at birth, then a woman, had a bunch of kids but now identifies as a man. Again, in my ignorant bliss, I know he’s had some work done down there, and has had his breasts removed surgically, but I don’t care for the details really. His goatee is wispy but charming.

In the absurd overreaction to the Tickle v Giggle case much of the outrage is directed at toilet use. Women’s rights, children’s safety, feminism abandoned, sexual perversion, gender extremism, hate speech and murder! So much angst over toileting I’ve not seen since reading Freud.

Every time “women’s rights” are claimed of course Martha cringes. She knows there’s people behaving “cruelly” who don’t mean her. Women’s rights are, for some, only reserved for those born women. And Mark is also excluded by choice from that mantra, because he’s not a woman (any more).

Ok, so which public toilet should Martha and Mark use according to the outrage spreaders? Martha, presumably, should waltz into the men’s bathroom, past the urinals and grab a closet. Apart from the obvious physical risk, every trip is accompanied by a societal message – you’re not a real woman, you’re just a fake. Your gender identity is a fraud.

Mark, in his dapper men’s attire and trimmed facial hair will, would not, I imagine, be welcome in the women’s toilet. Mark would be a scarier addition to the women’s toilet than Martha. Mmm, is that the outcome that the outraged promote?

Oh, and how will all this be policed exactly? Do we check birth certificates on the way in, or have a “nether regions monitor” to check for scar tissue and strappings? Perhaps tattoos on the inside of the arms. Or is that a bit, you know, Hitlerian?

Oh, and I haven’t asked Martha or Mark what their sexual preferences are these days either. Men, women or both or neither. Up to them really. I’m sure it’s not suddenly children now that their sexual identity has changed. But given that gay men and lesbian women use men’s toilets and women’s respectively it’s hardly relevant. It’s actually the behaviour of people that needs policing, not their gender identity or sexuality.

There’re scores of women killed by men every year. We all know where the danger lies. It’s their male partners, and their male family members, and their male friends. I have read hundreds of reports, research papers, inquiry findings and books on reducing violence against women in domestic and the general context, and none have identified trans women as a priority risk. Not one. The truth is that trans women are not disproportionately prone to committing violent crimes and are significantly more likely to be the victims of violence themselves.

If people want to have private meetings or services for those born women only, I fully support that. For some women their experience makes this desirable and necessary. But the legislation reflects that too – it is discriminatory against trans people but that’s a price they and all of us rightly have to pay. Here’s the most important passage in Tickle v Giggle:

13. Equally, it should be emphasised that this case is concerned with gender identity which is one form only of discrimination covered by the SDA, and with circumstances in which it has not been argued that any of the general exemptions under that Act apply. The latter include general exemptions for services the nature of which is such that they can be provided only to members of one sex (s 32), and the exemptions applying to staff and students in religious educational institutions (s 38) and participation in sports in which competitors’ strength, stamina or physique is relevant (s 42). As these general exemptions make clear – together with other provisions such as the reasonableness test in indirect discrimination cases (s 7B), the exclusion of special measures from the proscriptions on discrimination (s 7D), and the capacity to grant exemptions on application (s 44) – there are circumstances in which discrimination on the ground of gender identity and other attributes protected by the SDA are not unlawful under the SDA. Ultimately, each case of alleged discrimination under the SDA will therefore fall to be determined in its own unique circumstances.

So, there are loads of exceptions that they could have relied on, but didn’t. Because that does not suit the ferment of culture-war outrage this case was designed for and funded to achieve. An exception might have succeeded, and where would the anti-trans movement have parked their bus then? Back at fancy-dress story-time at the library?

I urge doubters to watch this video. It is worth it. It educated me on this issue. I defy you to watch it without your views being impacted too.

https://www.youtube.com/watch?v=LtyLa7wEmLY 

And as for toilets let’s be really clear. If there’s a bearded paedophile out there, born as a male but who magically identifies as a woman just so they can go into women’s toilets and then uses the Giggle case in an attempt to defend a criminal matter well, good luck with that. It will not work.

A few other legal issues:

First, there is absolutely no evidence anywhere in Australia that assaults in women’s toilets have increased due to the amendments to the legislation in 2013 which recognised trans rights.

Second, it has never been an offence of itself for a man to enter a women’s toilet.

Third, discriminating and hate speech against trans women causes harm. Real proven significant damage to vulnerable people including self-harm and suicide.

Fourth, there have been trans women using women’s toilets for many decades.

There may need to be tweaks to the SDA. But I am totally against exceptions to protect the rights of any people to exclude, say Jews, people of colour, trans women or short men from public gatherings. More immediately, I would like to see the exemption that permits private schools to discriminate against hiring gay and lesbian staff completely removed.

Finally, I have had many respectful discussions with friends on this issue, and I am so proud of us that we have been humble, and kind, even in the midst and mist of passionate disagreement and trauma.

As for Mark and Martha – as far as I am concerned, they can use any bathroom, changeroom or toilet they please. Hugs to both, and I am sorry that the fall-out from this case has been so very hard.

This article first appeared on Professor David Heilpern’s Substack page