Why Are Trans Men Often Ignored in the Bathroom Argument?

A response to The Pissed off Lawyer

Photo by Juan Marin on Unsplash

Yesterday, a popular LGBTQ rights activist account known as “The Pissed-Off Lawyer” made this post on X.

It is true that gender critical feminists do not often address the issue of trans men in single sex spaces. The Pissed Off Lawyer’s claim that this is because they know they don’t want passing trans men in their spaces with the implication that this is a logical result of defending women’s single sex spaces is not the primary reason, however.

First, let’s consider the kernel of truth in this claim.

Gender critical feminists have argued that women can feel fear, alarm and a sense of violation when somebody who appears to be male appears in a space where women are vulnerable. Women cannot know what his intentions are and they also have the right to an expectation of privacy away from men in such situations, feminists argue. Therefore, even when that individual just wants to pee and is no threat to women at all, he should respect women’s boundaries and not make them feel fearful for their safety or that their privacy has been violated.

This does potentially cause something of a problem when the individual who appears to be male is, in fact, female, because other women are still just as likely to experience fear and a sense of violation. It is no good to say that women can always tell what sex someone is because a small minority of women do naturally or intentionally have appearances that make people perceive them as men and there have been cases of butch lesbians being bundled out of women’s bathrooms. Trans men are particularly likely to be perceived as men if they have a beard because, while humans do have cognitive mechanisms that enable them to correctly sex each other based on very small differences of physiology, the presence of a beard tends to override other indicators.

While this presents a genuine problem, however, it is not one that justifies overruling the drive to protect women’s single sex spaces. Although gender critical feminists do raise the issue of fear and privacy, their primary concern is that of safety from predatory male sex-offenders who will abuse self-ID laws and norms to gain access to women where they are vulnerable and sexually assault them. Women who naturally have more masculine features, women who favour a masculine aesthetic and trans men do not fit this category and so they do not present a danger to women. The fact that they may still make women fear danger is also not something that can be resolved in any way that is ethical by feminist standards or liberal ones. The only solution to this would be requiring all women to present in a typically feminine way which is something that feminists and anybody who supports individual liberty cannot endorse. We are left, as so often, with an imperfect solution that prioritises protection from the greater harm of women being sexually assaulted over the lesser harm of women experiencing mistaken fear and/or women being wrongly accused of being in a place they should not be.

Attempts to find a compromise on this issue have largely focused on trans women and argued for allowing trans women who pass or who have had their penises removed or who are attracted to men into women’s spaces as a way to protect them from violence or hostility in men’s spaces without making women experience fear. I have, in the past, made such arguments myself. However, I have been convinced by good arguments that I was wrong. The issue of “passing” is subjective and does not rule out an individual being a sexual predator seeking access to vulnerable women and the other criteria would rely on genital examinations or mindreading. While I remain sympathetic to passing trans women who just want to pee and who face challenge, hostility or even violence in men’s spaces, people seeking solutions to this should focus on the provision of third spaces and not pass the risk presented by violent men onto women. While trans women who pass and just want to pee can, in practice, use women’s spaces without anybody being harmed or afraid, a consensus on a blanket rule on women’s spaces being sex-based is the only coherent way to protect women from the minority of men who are sex-offenders and will use self-ID rules to offend. (I continue to disagree with feminists who say that even privately owned spaces specifically set up for the inclusion of trans women need to segregate by sex. I agree with feminists who advocate that trans women at risk of male violence and others concerned about this should set up those spaces rather than co-opting women’s).

The problem of women experiencing fear when presented with somebody who appears to be male, but is, in fact, female, in a women’s single sex space is commonly addressed with two main arguments.

When it comes to women who identify as women but could be mistaken for men, the best way to minimise the risk either of them being challenged and thrown out of a women’s space or of other women experiencing fear that a man with unknown intention is in their space is to continue to work for that consensus on women’s spaces being sex-based. By achieving an overwhelming consensus on this on a social level and enforcing it on a legal one, women’s fear of encountering a sexually predatory man in their space will drop. They will then be much more likely to assume a masculine-appearing woman to be a masculine-appearing woman and neither be afraid nor sound an alarm causing her to be forcibly ejected from the space.

When it comes to trans men, the argument often made by gender critical feminists is that they do not require trans men to use women’s spaces but that they are welcome to do so. The clearest argument I have seen made for this was on a thread of Buck Angel’s in which someone argued that the option of having men’s spaces and sports as ‘open’ categories that could include men and women but keeping women’s spaces as single-sex spaces was perfectly ethical from a feminist perspective. When challenged on this being inconsistent, she replied that it was not because feminism does not claim to be for everybody but explicitly focuses on what is in women’s interests. However, she acknowledged that men might not find this satisfactory at all and could very reasonably organise in defence of men’s single sex spaces which she would support in principle, but not with her time which she reserved for addressing women’s issues.

As a liberal, I do not, on principle, prioritise the rights and issues of any group but as an empiricist, I accept that strength differences and statistics around sexual offending make women more vulnerable to predation by men than men are to predation by women. For this reason, it is reasonable to focus more urgently on protecting women’s single sex spaces than men’s. However, if enough men become concerned about people who are biologically female being in spaces where they are undressing and feel that their right to privacy is being violated to form a movement over it, I will support that too. At the moment, the sphere in which I see a significant number of men raising this objection is the gay dating scene. This is an area in which men can become victims of female sex offenders and be tricked into exchanging intimate photos online or even into initiating sexual activity under false pretences which should be recognised as a sexual offence. Both gay men and lesbians should be able to have both dating apps and venues specifically for same-sex attracted men and women without having them shut down on the grounds of transphobia. Other apps and venues do exist that include trans people and are, rightly, not currently under any threat.

I think few people claim that there is a perfect way to protect women’s (or men’s) spaces that can be easily enforced and entirely remove any risk of misperception resulting in an unwarranted fear of sexual violence or the forcible ejection of an individual from a space they have every right to be in. However, using the non-zero possibility of error and negative consequences of that as a ‘gotcha’ and a way to argue for having no safeguards at all, as I believe The Pissed off Lawyer to be doing, is a terrible way to protect anyone.