So, this week, the trans toilet argument hit the press in Jersey, the Channel Island where I live and work. Using our new discrimination laws, a trans woman brought a case against our local ferry company for discrimination. When she asked which toilet she should use, she was directed to the disabled cubicle. She was also misgendered and called “Mr”.
The lawyers, who represented the ferry company, trumpeted the tribunal’s judgement as “landmark”. It is true that this is the first case brought by a trans person at our Employment and Discrimination Tribunal, but the judgement was hardly landmark. It was so slight that it gives other employers seeking guidance in the same circumstance little to work with. It amounted to three recommendations only: the company update their policies, they will always refer to the trans woman as “Ms” and they will update their signage from saying, “ladies” and “gentlemen” to a symbol of a woman and a symbol of a man.
As you can imagine, when the story broke the inevitable backlash of ignorance and phobia washed across social media, the local newspaper, radio and television, whose reportage was mostly badly researched, biased and poor. All the usual ill-informed opinions were trotted out – “ultra-minority groups infringing on the majority’s rights to pee in peace”, “the disabled toilet option is just fine”, “there are only two sexes male and female, use the toilet the matches your birth sex”, “people who choose a sex-change deserve all they get” etc.
The trans community in the island have been contacting the support group that I founded called Trans* Jersey with complaints all week, but not for the reason that you might think. They are complaining about the spotlight that has been placed on them by the case. They are critical of the trans woman’s approach in asking what toilet she should use. They don’t understand why she didn’t just use the ladies like they all do successfully and without experiencing any harassment. The resulting unpleasantness they have seen voiced in the press has made them feel less safe as trans people.
Trans* Jersey has always taken the view that education is better than litigation for a number of reasons: the trans population is tiny, very few people have experience of what it means to be trans, there needs to be teaching before we can expect people to understand; the law is new, people know that they must not discriminate against someone on the grounds of gender reassignment but they don’t know what discriminating against a trans person looks like, they don’t realise that misgendering them is discriminatory, for example; education brings people along with you on the journey, litigation makes enemies not only of the defendant in the case but also of others who may have been “undecideds” regarding trans rights and who could have been allies with a little education, but instead see the legal action as punitive and unfair, and the trans community as unreasonable and litigious.
It must be remembered that the law is a blunt instrument. It does not do nuance well. It’s job is to decide in black and white whether a party is guilty or not guilty. There is no in-between. And it’s job is not to explain, educate or elaborate on its decisions. To go to law successfully, then, you need to be certain that you have a case that is unambiguous and clear to the man/woman in the street. Litigation is, therefore, going to be most successful when the wrong-doing is obvious to your average onlooker, for example, when verbally and/or physically abused and when the discrimination is persistent, affecting well-being and/or livelihood.
The ferry company in this case was not doing either, it’s actions were more nuanced. They were trying to be helpful and answer a passenger’s query, albeit wrongly and insensitively, something that a number of commentators on the case picked up and used against the trans community. The company admitted to a “non- intentional and non-malicious act of discrimination”, which the tribunal accepted. Technically, therefore, the trans woman had a case against them but, like a lot of litigation, the consequences of which to the victim are unintended or not thought through, was it a clear enough case to the man/woman in the street to make it the best course of action to resort to law?
Some may feel that the backlash of anti-trans opinion in the local media this week demonstrates how necessary it is to make an example in the courts of those who discriminate. To me, it demonstrates how much work there is to be done on the education front so that we, as a trans community, reach the same point that other civil rights movements are now at whereby anybody who makes a comment about colour in relation to a black person or a comment about sexuality in relation to a gay person does so in the full knowledge that it is unacceptable and with the intention to bully, harass, abuse and discriminate. We need to get to this point with comments about gender in relation to a trans person, but we are not there yet.
Some may feel that the backlash demonstrates how phobic this island is, if you scratch the surface. I disagree. To me, it has demonstrated the opposite. However sickened and threatened we might feel as a community this week by the opinions expressed, we must remember that those who have been ignorantly vocal this week are, at the moment, a small minority, they do not speak for the majority. I know this because of the hate that was posted on my Facebook page and by the support that I received as a result. The support outweighed the hate by a hundred to one. However, we must not be complacent, this current support could leach away quickly if people start to see Jersey’s trans community as being vexatious litigators.
The genie is out of the bottle now in Jersey and fighting for the bigger issues that affect our community, like healthcare and gender recognition, got a little bit harder this week as people crystallized their opinions about the trans community based on dodgy newspaper articles, ignorant opinions expressed in the media and how they feel about trans people using a public toilet.
More trans notes from a small island next month…