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- #1: A very British bathroom ban
#1: A very British bathroom ban
The British government is stumbling towards a policy every bit as radical as North Carolina's infamous bathroom law. How did this happen, and why?
Io Dodds
May 15, 2025
When the US state of North Carolina passed a transgender bathroom ban in 2016, there was outcry not just in America but across the world.
Musicians, film studios, sports leagues and corporations boycotted the state. The UK's Conservative government "raised [its] concerns" with local leaders. The British Foreign Office even issued a warning to LGBT+ travellers.
Yet now the UK's official human rights watchdog, along with its new Labour government, is asking us to accept a deeply strange proposition: that Parliament had already passed a nationwide bathroom ban six years earlier, in 2010, without anyone even noticing.
That's the upshot of the interim statement released on April 25 by the Equality and Human Rights Commission, which claims that existing anti-discrimination law actually requires trans people to be barred from toilets designated for our gender. It's a policy every bit as radical as North Carolina's now-repealed House Bill 2, only it's being pushed forward with no vote or debate in Parliament and nothing like the same level of public and elite opposition.
As a British trans woman who has been living in and reporting on the USA for 6.5 years, I like to think I have a helpful perspective on both countries. So today, I'd like to invite my fellow Brits to see this situation through an outsider's eyes, and recognise — how can I put this politely? — that it's fucking bonkers.
But first: the headlines!
I wrote about Tesla’s potentially existential dependence on its Shanghai factory operation, and how China’s government could use this leverage — or, perhaps, is already using it — to help it weather Trump’s trade war.
Over the past few months I’ve been reporting closely on the so-called ‘Zizians’ — a loose, fractious network of radical vegans haunted by visions of an AI apocalypse, who split off from Silicon Valley’s ‘rationalist’ subculture over its alleged tolerance of sexual abuse. In a 20-page letter from jail, group member Michelle Zajko described them as victims of a “witch hunt” — and gave us a lot of insight into her beliefs and motivations. (For some extra details, check out my thread on Bluesky too.)
Anyway, let's talk about sex. Specifically, sex as defined in the Equality Act of 2010.
The Equality Act is a comprehensive anti-discrimination law passed in the final months of Britain's last Labour government. Its safeguards for trans people are admirably broad, including not just True Transsexuals who've had The Surgery™ but anyone who is merely "proposing to undergo" a medical or social transition. Egg rights!
Over the past 15 years, however, there has emerged an organised and motivated anti-trans movement — assisted by lawyers linked to the Christian right, and reportedly funded in part by noted literary transvestite JK Rowling — devoted to rolling back trans rights and embedding a restrictive definition of sex across British society. The British media, and much of the elite, has been captured by this ideology, while trans people have been excluded from the debate.
In April, this movement won a major victory. Without hearing a single trans person or organisation, the UK's Supreme Court ruled that "sex", for the purposes of the Equality Act, means exclusively the one you were assigned at birth — even if you have since changed your sex through the magic of modern medicine or the UK's convoluted "gender recognition" process.
The exact implications of this are unclear, and I'm no lawyer. What matters for our purposes is that the decision has limits. It explicitly only defines sex within the scope of the EA 2010, not for all of society. It seems to make it easier for organisations to exclude trans people from changing rooms, hospital wards, and certain other gendered spaces, but it does not — at least on my reading — make that mandatory. As Ian Dunt points out here, it specifically suggests there are cases where trans women do use women's facilities without infringing on others’ “privacy and dignity”. The words "toilet", "bathroom", "loo", or "water closet" appear not once.
The judges were also keen to stress that they were not "removing protection from trans people", and in fact wrote that trans people are still protected from discrimination against their perceived sex, not just their birth sex. "We counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another," said Supreme Court deputy president Patrick Hodge. "It is not."
Then the Equalities and Human Rights Commission said: lmao, hold our beer.
The EHRC is what's known in British politics as a "quango". This sounds like a quirky Australian marsupial, but really just means a "quasi-autonomous" state-backed agency. Its job is to interpret and help enforce the Equality Act in line with past court rulings, so its guidance carries a lot of weight.
The EHRC's interim statement on this ruling is not actually guidance. It certainly doesn't have the force of law. It is, as one friend griped to me, a blog post. We are still awaiting the agency’s new proposed Statutory Code of Practice, which will go up for public consultation next week and will therefore probably be published very soon.
If the Commission sticks to its guns, however, its new rules would require workplaces, schools, public businesses that provide gendered loos or facilities, and even gay or lesbian membership organisations to restrict access on the basis of birth sex alone.
In an interview with the BBC on Sunday April 27, cabinet minister Pat McFadden made it clear that his government agrees. “There isn’t going to be toilet police. But that is the logical consequence of the court ruling and the EHRC guidance," he said. Meanwhile, prime minister Keir Starmer also reversed his previous statement that "trans women are women", despite the judgement explicitly not requiring this.
So let's get this straight. The EHRC and the British government are now asking us to accept the following propositions:
That the Equality Act 2010, which guarantees trans people protection from discrimination, was actually a nationwide transgender bathroom ban.
That this nationwide bathroom ban has been British law for 15 years, but has never been enforced.
That these propositions are true even though nobody at the time believed that Parliament was passing a nationwide bathroom ban.
Isn't this just kind of ludicrous on its face? If all that were true, don't you think there would have been coverage at the time? Maybe some kind of debate? Do you reckon the trans community, and the campaigners who had spent decades working to expand trans rights, might have had something to say?
But hey, I like to be thorough. So I searched every single debate on the Equality Act listed in the Parliamentary record (known as Hansard) between 2009/01/01 and 2010/04/08 (the date of royal assent) for the words "transgender", "transsexual", and "reassignment". I found zero allusions to excluding trans people from bathrooms, and several statements implicitly suggesting that MPs had the opposite in mind.
What about the 2004 Gender Recognition Act, which requires that trans people who obtain a "gender recognition certificate" be treated as their new gender "for all purposes" — and which the EA was meant to build on? "It is right and proper that transsexual people should use changing and washing facilities appropriate to their acquired gender," said Conservative MP Andrew Selous while debating it in 2004. And that's from a guy who voted no on the final bill.
Unsurprisingly, the EHRC's current Code of Practice for service providers, published in 2011 and not yet superseded, makes clear that the operators of gendered facilities should "treat transsexual people according to the gender role in which they present", unless they fall under one of the EA's various exceptions.
The very existence of these exceptions illustrates my point. The Act's official explanatory notes say that facility operators may be exempt from "the general prohibition of gender reassignment discrimination" if they can show that excluding trans people is "objectively justified". Why would that be necessary if the EA 2010 was always already a nationwide bathroom ban?
Don't just take my word for it. Ask Jonathan Sumption, a former Supreme Court judge and the author of a rather good history of the Albigensian Crusade, who says the court's ruling in no way requires trans people to be excluded. Or Melanie Field, a former civil servant who helped draft the EA.
So where is this weird idea coming from? Enter EHRC board chair Kishwer Faulkner, formally titled Baroness Faulkner of Margravine, who recently claimed it is "unacceptable" for people to "question the integrity" of her agency. Respectfully, babe, I do have a few concerns.
In theory, the EHRC is meant to be somewhat independent from the government. However, its board of commissioners are directly appointed by a government minister. In 2020 the Conservatives picked Faulkner as its chair, along with four new board members.
Over the next few years, the EHRC became openly sceptical of trans rights. In 2022, Vice News reporter Ben Hunte revealed that senior EHRC staff had met with anti-trans groups and assisted in anti-trans legal cases. Dissident employees reported a growing "anti-LGBT" culture, and said board members including Faulkner had made "transphobic" changes to documents they'd written.
An official probe into staff complaints against Faulkner, including claims about loss of impartiality, was dropped after an intervention by Conservative minister Kemi Badenoch. Faulkner's predecessor, also appointed by the Conservatives, accused the government of undermining the EHRC's independence to push their "particular ideology". Badenoch herself later appeared to admit to stuffing “the positions that mattered most” with "gender critical" (ie, anti-trans) believers in order to curtail trans rights. Who could she mean, I wonder?
Finally, after winning back power in a landslide in 2024, Labour extended Faulkner's term.
You will search in vain in Labour's 2024 manifesto [PDF link] for any mention of a nationwide bathroom ban. Nor will you find, in all of Hansard, any point where Parliament voted for a nationwide bathroom ban that was labelled as such.
Don't get me wrong: here in the USA, it's famously not unknown for the Supreme Court to change people's rights overnight by reinterpreting laws from years or centuries ago. This also happens often via guidance from bureaucratic agencies: just look at the decade-long ping-pong match between Democratic and Republican presidents over whether a 1972 women's rights law also protects LGBT+ people. And to be fair, between now and the passage of House Bill 2 in 2016, the aforementioned anti-trans panic has succeeded in shifting public opinion rightward on this issue.
Still, there's something extremely British — derogatory, I'm afraid — about a government that promised on page 89 of its manifesto to "remove indignities for trans people" stumbling sideways into a frankly Trumpian revocation of human rights based on a questionable legal interpretation by an unelected quango, all while unconvincingly attempting to wash its hands of the decision. Even HB-2 was voted on by a state legislature, and signed by the governor.
"I think a lot of things need a bit more debate, and a lot of things have been subcontracted to organisations that make up the rules," observed pub magnate and unlikely trans ally Tim Martin, who manages a lot of bathrooms. "I'd like it to be debated in Parliament. I'm gonna phone up Keir, and tell him he's gotta do it."
Godspeed, mate, but I don't think Keir Starmer wants to do that. In fact, I think Keir Starmer is very keen to dodge responsibility for this policy. Forget about the EHRC for a moment and consider this from first principles: should the UK have a nationwide anti-trans bathroom ban? Would such a thing be just? Who voted for that? Has Parliament chosen that? And if the answer to these questions is no, shouldn't Labour do something about it?
Because make no mistake, they can. British prime ministers enjoy far more power over Parliament than US presidents traditionally have over Congress. Even if the Supreme Court judgement did require a bathroom ban, that could be reversed via legislation. Starmer and his colleagues may not have predicted or even wanted this outcome, but they created the conditions for it to happen and they have the ability to change it. Whether out of genuine conviction, fear of the media, or on the advice of anti-trans conversion therapy groups, they just don't want to.
Instead we get this absurd charade of mere administrative compliance, with everyone claiming the court has forced their hands. It's bollocks, and nobody in Britain should kid themselves otherwise. Just ask yourself: what would you think if it happened in North Carolina?
This post was fact-checked by two anonymous and knowledgeable people, to whom I am very grateful.