A landmark ruling given by the UK Supreme Court last Wednesday has set the tone for much thought and for the possible revision of policies that previously granted access to “transgender women” to use women’s restrooms.
The unanimous ruling states that “transgender women” are not legally women and is therefore raising questions around which changing rooms and restrooms transgender “women” should use.
Serious concern in SA
Allowing “transgender women” to use female restrooms has been a serious concern in South Africa, a nation which is in the top five nations with the highest rape and gender-based violence incidents in the world. SA has witnessed and seen the rape and violation of girl children and females in public restrooms. We cannot forget the 2018 horrific rape of a seven year old girl child in a Dros restaurant restroom in Pretoria by Nicholas Ninow a 22-year-old man.
Women, therefore needed to be afforded extra protection and we cannot make it easier for males who have nefarious intentions to gain access to female restrooms.
The 2023 case of convicted Scottish rapist Isla Bryson also dealt with the issue of where to place “transgender women”. Isla Bryson, a transgender “female” was convicted of having raped two women but demanded to be placed in a female prison facility. Concerns were raised about the safety of women held alongside a transgender sex offender in a female jail. The case led to an urgent review and a change of policy which places newly-convicted and remanded transgender prisoners in jails according to their birth/biological sex.
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SA schools transgender and unisex restroom policy
We will wait to see what impact this will have on the courts of SA where schools have already changed policies at schools to allow for “transgender females” to use female restrooms.
I first wrote on the issue of unisex toilets in schools in a 2023 Joy! magazine article entitled “The War on Children). The full article can be accessed using this link: https://joynews.co.za/the-war-on-children/
The Department of Basic education developed guidelines for the inclusion of “diverse sexual orientation, gender identity, expression, and sex characteristics” in schools. The section on bathrooms and change facilities provides for the implementation of unisex toilets and changing rooms. It says: “Schools should provide non-gender specific toilets and change rooms with individual stalls or cubicles that can provide privacy for all users. The key considerations apply to all learners: safety, dignity, and privacy. Under no circumstances shall a learner be required to use a single-user facility because they identify with a non-heteronormative sexual orientation, are transgender, or are gender non-conforming.”
It further states that:
• “Facilities should be labelled sensitively and appropriately.”
• “Schools should formulate a policy for toilets, as well as change rooms, so that there is clarity on engaging with these facilities. Learners must be allowed to self-identify and where there is a clear policy to this effect it makes it easier for learners to feel enabled to access a toilet or use a change room of their choice.”
Impact of the UK Ruling on changing rooms and restrooms
Previously, transgender women in the UK had been allowed to use ablution systems and restrooms that had been allocated to women only. However the recent UK Supreme Court case ruled that ‘the terms “woman” and “sex” that are referred to in the Equality Act refer to a “biological woman and biological sex”. In an 88-page ruling, the justices said: “The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.”
This judgement could have far reaching implications as regards-sex based rights. SA legislators, judiciary and executive members of the government should take heed of this trend and follow suit instead of going the opposite way!
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