The bathroom is an old battlefield
This was originally published in Law Society Gazette
I am a gay man. A husband, father, lawyer and business leader. I am rarely excluded and almost always safe. It hasn’t always been this way. Many arguments have been levelled against my right to equality and inclusion over the years, arguments contained within religious edicts, hateful legislation, court judgments, institutional bias and deeply enshrined homophobia. As against me and others like me, many of these arguments have fallen away (for now, at least). I am safer and more included than ever before, because I demanded it, and because others fought for me. I joined the board of Stonewall earlier this year to help advance similar demands for those in our LGBTQ+ community who need it most.
A striking feature of many of the arguments that Stonewall needs to help counter is that they are not new. The targets may have shifted in recent years, with trans people now most immediately in the line of fire, but the arguments are as old as the hills.
Take the ‘bathroom wars’, for example. The Equality and Human Rights Commission’s updated Code of Practice on services, public functions and associations has been laid before parliament. It gives flesh to the bones of the Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, which held that ‘sex’ in the Equality Act 2010 means biological sex. The code states that single-sex services may lawfully be operated on the basis of biological sex, and that admitting trans women into women-only spaces may cause those spaces to lose their single-sex character (the same goes for trans men in men-only spaces).
The coverage that followed has fallen quickly into the now-familiar grooves of the ‘bathroom wars’. The public toilet has, once again, been transformed from a place to relieve oneself into a place at which civilisation is said to be at stake.
Some legal history tells us that the bathroom wars are not new, and they are not just about trans people.
It was argued against women seeking to enter the legal profession that law offices had only men’s toilets and should not be expected to adapt to accommodate women. As the First 100 Years project established by interviewing senior women in the law, ‘as recently as the 1970s, lack of washroom facilities for women was used as a pretext not to hire female lawyers’. Those words are now printed on a limited-edition toilet roll, one of which is on display at the Supreme Court.
Travel back to the Jim Crow South of the US, or to apartheid South Africa, and the same instrument is in use. The ‘Whites Only’ and ‘Slegs vir Blankes’ lavatory signs were about who counted, and who could be made to feel, in the most personal of bodily moments, that they did not. Both regimes have been condemned by history. Both were defended, in their day, on grounds of privacy, hygiene, sexual safety and what segregationists called the ‘ordinary feelings’ of the majority.
From the 1950s to the 1980s, UK police forces deployed plain-clothes officers, sometimes referred to as the ‘pretty police’, in public toilets, instructed to invite propositions which would then result in arrest. Many gay men paid fines, lost careers, were outed to their families, or worse.
Up to the 1990s, the ban on gay people in the armed forces focused on the ‘unit cohesion’ that would supposedly be destroyed if heterosexual soldiers were obliged to share facilities with gay colleagues. The ban was overturned after the European Court of Human Rights (ECtHR) found it incompatible with the UK’s treaty obligations. The Ministry of Defence has since concluded that lifting the ban has been a significant achievement.
I respect the arguments that my comparisons fail, that sex is not race or sexuality, and that women have a unique interest in privacy from male bodies in undressed spaces. I take this seriously. My answer is twofold.
First: the interest exists, but the categorical exclusion of an identified minority from public facilities is a sledgehammer for a problem the evidence does not support. Trans-inclusive policies have not been shown to make anyone unsafe; trans people are far more likely to be a victim of harassment and violence in single-sex spaces than a perpetrator.
Second, and more importantly, every generation believes that its exclusion is the genuinely justified one. The white women who walked out of factories in 1940s America rather than share lavatories with black women had become convinced that they would catch syphilis from shared facilities. The partners of London law firms who told women in the 1960s that the firm lacked the facilities for them were not lying about the absence of a ladies’ lavatory. The British generals who told the ECtHR in the 1990s that gay servicemen would corrode unit cohesion were not consciously inventing a problem. They were doing what each generation does: dressing a discomfort up as a principle, and then dressing the principle up as a binding code of division.
The judgment in For Women Scotland and the new Code of Practice describe laws that must be navigated carefully by service providers and employers. However, the law clearly does not require what some of the loudest voices in this debate are now demanding: a generalised, performative campaign of expulsion. I believe in trans inclusion. I also believe in women’s safety and privacy. I do not say that these things never come into tension. But I do say this: the bathroom is an old battlefield, and we have a good record of looking back, a generation or two later, and being embarrassed by who we tried to march off it.
