Pick a side: Why neutrality speaks volumes when it comes to trans+ inclusion

Whether it's deciphering how exactly to implement the outcome of the For Women Scotland supreme court ruling, or chucking out the “utter woke nonsense” that is ensuring everyone is treated with dignity and respect, there is no denying that organisations have their work cut out. 

It's all so confusing - what can I do?

Take the upper hand, inform yourself, and then inform your client. The supreme court ruling is confusing. Even the legal minds are saying it will lead to nothing but chaos for businesses. While some organisations were quick to move – which spoke volumes about their position on inclusivity – others have been holding their breath hoping for more clarity but that has yet to materialise. 

This is precisely why we created The Circle, trans expertise on demand designed to help navigate these complex, evolving issues with confidence and care. Because despite the headlines screaming that we must act immediately, organisations and their comms teams must hold their nerve. There is no rush. Always remember that trans people are first and foremost human; we all need to pee and a little respect wouldn't go amiss. This is not too difficult, too contentious, or too onerous a concept.

What exactly are we dealing with here?

You can have toilets and they can be gender neutral. But if you have single sex toilets – male or female – then according to the supreme court ruling, you can only use the space according to the sex you were assigned at birth.

What has since become apparent is that – funny old thing – this approach leads to policing gender presentation, after all there is no one way to look male or female. Indeed the demographic most directly impacted by this development? Butch lesbians, who are increasingly being challenged and questioned in women's spaces simply for not performing femininity in the expected way. 

And it gets worse. If as a trans guy you look "too male" you cannot use the men’s toilets but you can’t use the ladies either. If you are a trans woman who sits on the "very female" end of the presentation spectrum (check out the dolls on the cover of November's Glamour magazine) you cannot use the ladies, you must use the men's loos. Yes, that may put you at risk. No, (apparently) being put at risk doesn't matter.

So what of organisations who actively want to be inclusive? Can they do that and remain with the law? Now I come to think of it, isn't there a law which states that trans people have the right to live in the gender with which they identify (the Equality Act 2010)? Yes, that is correct. Won't forcing trans people to use the toilets of the opposite sex contradict that law? Potato. Potato.

The legal tangle (disclaimer: I am not a legal expert, but I have sought legal expertise)

Gender reassignment is a protected characteristic under the 2010 Equality Act, meaning it is unlawful to treat someone less favourably because they have transitioned or are transitioning. However, the supreme court ruling, which defines sex according to biology, allows trans people to be refused entry to certain single-sex spaces – which is contrary to the Equality Act.

There's more. If a trans person has a gender recognition certificate, which renders their previous gender marker confidential and protected, it is illegal to ask someone to disclose their biological sex. Yet the supreme court ruling makes it possible to ask someone their assigned sex at birth. 

Both things cannot be true, and yet here we are. 

The Equality Act says trans people have the right to anonymity. The supreme court ruling requires people to state their gender so they can be directed where to pee. It’s no wonder businesses don’t know which way to turn.

Our job as communications professionals

As communications professionals, our job is to assess the landscape, predict the risks, and decide how best to proceed in such a way that we limit damage to our clients' reputation. While this isn't always possible, there are certain principles we can all follow. The most important of these? Don't be a dick.

All of us – yes, even trans people – deserve basic decency and respect to be able to move through our lives feeling safe. Being able to use the facilities that align with our gender identity is the most fundamental of these.

While the same basic DEI principles apply to trans inclusion as to any other minority group, you must do your homework and plan for a backlash. As we saw with the recent M&S story about a trans woman who allegedly offered to help a mother and her daughter in the bra fitting department – a story which has since been revealed as *spoiler alert* rage bait – misinformation spreads fast, and the media will write about it anyway. So be prepared.

Trans inclusion needn’t be too difficult or too contentious. It's about bringing humanity back into the conversation and coming up with solutions that respect the needs of all those involved.

Aby Hawker is CEO of TransMission PR

Further reading

'I get called Grandma in meetings' - PR industry must tackle its ageism problem

The inversion of Black fatigue and the challenges of DEI in the PR industry

Allyship in the workplace: supporting LGBTQ+ colleagues