Britain’s Bathroom Ban

The UK is in the process of implementing a prohibition on any trans person accessing any single-sex space. Trans people will be barred from using facilities that match their gender (i.e., a trans woman will not be able to use the women’s toilets), but also, it seems, may be barred from using those that match their sex at birth (nor may the same trans woman use the men's toilets). Effectively, this policy will bar trans people from leaving their homes, and as such it is radically oppressive. 

The ban is sweeping: it applies to workplaces, hospitals, schools, shops, restaurants, gyms, pubs, clubs, sporting bodies, schools, services like counseling or a women’s support group, and even voluntary clubs and associations. And it is mandatory: it’s not that these institutions can exclude trans people but they must exclude trans people. 

And this is being done without a vote in parliament, by a Labour government elected on a manifesto pledge to make trans people’s lives easier. 

TERF Island 

Britain’s lurch into such authoritarianism has been remarkably rapid. While foreign mockery of us (and the contempt behind monikers like ‘TERF Island’) is richly deserved, it’s worth noting how recent a development our national descent into gender hysteria is. 

That is not to say the country has always been a utopia of inclusive openmindedness. Far from it. The Britain of my youth was aggressively homophobic and took traditional gender norms largely for granted. Nonetheless, through my teenage years, the attitudes of many changed. So much so that in 2013 a conservative government was able to introduce gay marriage without too much controversy. 

And, for a time, it seemed trans acceptance would follow. In 2004, in order to bring the country into conformity with European Human Rights Law, the UK passed the Gender Recognition Act (GRA). This allows individuals to change their legal gender for (virtually) all purposes, though the process is invasive and onerous, requiring a mental health diagnosis of gender dysphoria and two years living as the gender they wish to be recognised as.

As America began its authoritarian descent, this was one of many issues on which Brits looked across the Atlantic with both horror and a sense of superiority. “A bathroom bill would never be passed in the UK” Labour MP Ruth Cadbury confidently declared in 2016 in response to North Carolina doing so. Prohibitions on toilet access, like what the Tar Heel state had just passed were “malicious, misinformed and directly threaten transgender people.”

Trans rights was not a central issue in our political discourse, and when it did come up in parliamentary debates, sentiment across parties was generally opposed to discrimination. Indeed, in the 2017 election all the major parties—including the then-governing Tories—ran on making the process of obtaining legal recognition under the GRA easier and less invasive. 

At around this time however our press—reactionary at the best of times—latched onto the “issue” with a real fanaticism. The raw numbers are staggering: in the early 2010s there would only be a few dozen articles a year in UK outlets mentioning trans people (60 in 2012 for instance), but it was over a thousand in 2018, and over 7,500 in 2022. The overwhelming majority of these articles were highly negative, with the supposed dangers of trans people to women and children being common themes. 

All the major political parties would then walk sideways on their pledges to make legal transition easier, with one exception. The Scottish National Party, in the face of media hysteria, went ahead and reformed gender recognition in Scotland in January of 2023—but by this point, the rot had set in so deep that the Westminster (national) government caused something of a constitutional crisis by denying the bill royal assent (essentially vetoing it), the first time it had ever overruled the Scottish Parliament in this way. 

A large plurality of Brits (49%) still believe that you should be able to identify as a different gender to the one you were assigned at birth, although that number seems to be falling, and on other questions (such as legal recognition of bathroom access) polling is more negative. With that said, trans rights do not seem to be important in determining how very many people vote, rarely even appearing in voters’ lists of top issues. My (anecdotal) feeling is that many Brits simply haven't thought about it very much. There’s a decent-sized minority who are strongly in support of LGBT rights generally and view the assault on them as disgusting. Another chunk of the electorate who’ve passively absorbed the press campaign will, on occasion, mindlessly repeat certain phrases. And a small number have become very, very radicalized indeed, viewing trans people's existence as an existential threat. 

It was in this environment that Labour won the 2024 election. They had, technically, been elected on a pledge to “modernise, simplify and reform the intrusive and outdated gender recognition law,” but that was quickly shelved out of fear it would play into the hands of a rising far right. Likely for similar reasons, they also made permanent an ‘emergency’ ban on puberty blockers for under 18s the prior government had introduced. The Starmer government, it seemed, just wanted the ‘issue’ to go away. Regardless of how hard, or demeaning, or frighting it made the lives of an already vulnerable minority. They would soon demonstrate the true depths of their indifference.

The ban 

The story of Britain’s bathroom ban starts with a UK Supreme Court case: For Women Scotland v The Scottish Ministers (FWS), April 2025 (hereafter, For Women). This, in itself, is unusual. The UK does not have constitutional review. Indeed, our constitution is famously ‘uncodified’—not written down in any one place. The UK Supreme Court does not have a major political role in the way the American one does. 

For Women then is not a constitutional decision, but revolves around the interpretation of a piece of regular law—the 2010 Equality Act. This is the legislation governing anti-discrimination in a number of settings—if, for instance, you were to take an employer to an employment tribunal for racism, you’d do so using the framework it lays out. 

Specifically, the court was being asked if, when the Equality Act says ‘man’ or ‘woman’, should we understand those terms in a way that’s trans-inclusive (for instance, including those who changed with gender under the GRA) or trans-exclusionary (as meaning just biological sex). The act itself does not explicitly provide a formal definition, so in theory it could be read either way. 

In practice, however, it seems obvious that the Equality Act is meant to be read with trans-inclusive definitions. As we have seen, UK law already had a provision for people to change gender for all relevant legal purposes. The GRA definitely did include trans people in its definitions, as did EU law. Reading the Equality Act as using ‘biological sex’ definitions would put it at odds with both.

And yet that is what the Supreme Court did hold, creating a complicated and conflicting new legal reality. It is important however to note what this ruling did not do: It did not change what ‘man’ and ‘woman’ meant for all UK law writ large. They have no power to make such a sweeping change under our system. The ruling was only about the interpretation of one piece of legislation (that when the Equality Act says ‘woman,’ it means ‘biological woman’)—it does not change the meaning of those words in other laws (for instance the GRA). The practical implications of this are far from clear, but we may note that nowhere does the judgement mention bathroom access. 

Almost immediately however, the press and politicians started talking about the case as if it had changed all of UK law. Shortly after the ruling, then Education Secretary Bridget Phillipson claimed that it meant bathroom access "should be on the basis of biological sex—that would apply right across the board to all single-sex provision." Starmer, through a spokesperson, went further;  "A woman is an adult female, and the court has made that absolutely clear." Not only, it seemed, has the ruling defined what a woman was for the purposes of all UK law (it hadn’t), but as a matter of ultimate philosophical truth. The court had told the PM what to think, and now he thought it. 

Also aggressively, and ultimately most consequently, jumping on this overreading of For Women was the Equality and Human Rights Commission (EHRC). This is a relatively obscure body responsible for the promotion and enforcement of anti-discrimination law. An odd place, you might think, for the origin of the most serious rollback of minority rights in my lifetime. But the EHRC’s leadership is politically appointed and has for some time been captured by reactionaries. 

Crucially, the EHRC provides guidance for organizations like workplaces and schools on how to implement anti-discrimination law. In the wake of For Women, they published interim guidance on single-sex spaces meant to serve as something of a stopgap. While short, it was sweeping, for all workplace and services open to the public:

trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex

While starting with the claim that it’s simply an update following For Women’s change in definitions of the 2010 Equality act, this guidance pretty quickly jumps to reading a ‘biological sex’ definition into other legislation—for instance the Workplace (Health, Safety and Welfare) Regulations 1992—and misreading that legislation to boot.

So, should trans men now use the women’s toilets? That hardly seems calculated to increase (cis) women’s feelings of sex-exclusive security. The guidance has considered this and its answer is blunt and shocking: ”the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman [sic]) not to be permitted to use the women’s facilities.”

This guidance was expanded in a proposed Code of Practice. At its best, these documents seem to imagine trans people would use gender-neutral bathrooms. Even this would place the UK at odds with the European Court of Human Rights (to which we are still subject as a signatory of the European Convention on Human Rights), for EU case law has long held that trans people cannot be treated as members of a ‘third sex.’ But what if an establishment has no gender neutral bathrooms? Most public venues do not. Nor is it mandated that they do, and, in any event, it may not be structurally possible to provide additional space in many buildings. The guidance and code simply leave this hanging.

The reality this creates for trans people is one of constant fear and confusion. Many, many people (both trans and cis) have reported facing verbal and physical abuse when using the toilet that matches their gender identity. Reading these collected testimonials I was struck by just how quickly people took For Women as permission to indulge their worst instincts. 

Some have interpreted the new guidance as meaning they must use facilities that match their birth sex, but of course that too can be terrifying. One trans woman reported this experience attempting to use the bathroom in a shopping center:

I . . . believed I had to follow the EHRC interim update and was followed into the men’s room by a male security officer and told to get out . . . I was already shaking with fear about the possible confrontation that could ensue. The security man and the two other men in the room circled me. I said I believed, according to what the EHRC and our political leaders have said, that I have to be in there now.

Now that he infers I am trans, he starts sniggering at me. The other men in the room join him in laughing at me. I tell him that it isn’t funny and please stop laughing at me. He doesn’t stop . . .  He tells me he doesn’t care what I have to say . . . I felt deeply unsafe, humiliated, hopeless - like nobody cares, violated.

Assuming the shopping center only had male and female facilities, what is this woman supposed to do? The tacit answer seems to be don’t: don’t go to the mall. Don’t feel safe going to the pub, or on a night out. Don’t feel confident that your privacy will be maintained in a job. Don’t ever assume that people around you will protect you if threatened. 

This ‘guidance’ is almost certainly in direct conflict with both UK and EU human rights law. In the coming months, it will be presented to The Minister for Women and Equalities who will decide whether to make it official. This Minister is, as of July 2024, Bridget Phillipson, quoted above, so we might suspect she is inclined to do so. If it is implemented, it will be by Statutory Instrument—a process by which ministers can provide updates or clarifications on existing law with little-to-no participation from parliament. Meaning a massive restriction in the rights of a minority will occur without legislative scrutiny, or even a vote. 

In all this, the government has framed what it is doing as simply going along with the Supreme Court ruling. But this isn’t America where Presidents are regularly checked by the court (or used to be at least). The judiciary does not have the power of constitutional review. Even if they did (which they assuredly do not), this is not a question of higher law, simply the interpretation of lower law. 

The government can, at any point, amend the 2010 Equality Act to clarify it. This could be as simple as passing a revised version with a single sentence added stating that its gender definitions include trans people. They could do this with a simple majority vote.  Nor do they have to accept the EHRC’s guidance, or the EHRC’s interpretation of the supreme court case. And if they do, they don’t have to pass it by statutory instrument, they could allow scrutiny and a vote. 

The UK is essentially a legislative dictatorship. If an incumbent government—especially one with a massive majority—did not want this to happen, it wouldn’t. And yet it is happening. With a weird denial of its own agency, we have a government implementing a sweeping new legal regime—one utterly at odds with both previous British law and our international commitments—while acting like they’re just going along with a clarification of existing law. When the government, in its capacity as an employer, announced it would be banning trans people who worked for them from using the toilet that matched their gender, they did so under the guise of following the instruction of bodies that are constitutionally wholly subordinate to themselves. “That's what the court said and that's what the guidance has said,” Minister for Intergovernmental Relations Pat McFadden responded when asked about the new policy. This is not how the British system works. It’s not how it’s ever worked. 

Implementation

Bathroom bills have always presented challenges in enforcement. Put simply, if access to a toilet is to be strictly conditional on biological sex, how is that to be determined and who is to be tasked with making such a determination? Biological gender is not a neat binary, and, even if it was, we are not as good at guessing it at a glance as most people imagine. Inevitably, any attempt at enforcement will involve cis women being challenged and harassed.

Already in the UK, we have seen an increase in cis women—particularly women who do not meet our stereotypical image of femininity, such as queer women, gender non-confoming women, cancer survivors, and so on—facing hostility and questioning. ““If you’re masculine presenting or butch lesbian, women’s toilets are not a safe space. I’ve been spat on, screamed at and it’s just so sad that this looks likely to get worse,” one UK cis woman reported. (Naturally, the Guardian article I’m citing there felt the need to also include a ‘gender critical’ voice for balance.)

The new regime also places employers and any institution with public access in an almost impossible position. Must, for instance, a pub with only male and female toilets have their staff challenge people if they suspect they’re not using the ‘right’ one? On the one hand, they seemingly have an obligation to under the new guidance. Further, the minority of the country who are deeply radicalized against trans people will undoubtedly make complaints if it is not. And our press will make those complaints national scandals. This is not an exaggeration or hypothetical. The UK media recently made a trans employee merely asking a customer if they needed assistance in choosing a bra a major story—describing the event in the most inflammatory language—just to give a sense of where we’re at. The retailer quickly apologized for the ‘distress’ caused to the customer.

On the other hand, how is this pub to train its staff to make such challenges? Presumably on the basis of gender stereotyping, yet this could open them up to legal liability on the grounds of sexism or homophobia under both UK and European law. What if their staff are not comfortable making such challenges? What if the staff are themselves trans and do not wish to participate in a regime many in their community are calling segregation? How should an employer handle a conscientious objector, trans or cis? 

Finally, and perhaps most obviously, how is biological sex to be verified? This ban is sweeping—it will not be enforced in a doctor's office but by bartenders, retail staff, receptionists, teachers, and middle managers. If they have an obligation to exclude trans people, how are they to confirm that? The EHRC Code of Practice does cover this, after waffling on vaguely about privacy for a bit it offers the following example to model what enforcement should look like. I’ll quote it at length because it’s one of the most insane things I’ve ever read in an official government document:  

2.2.7 A trans woman goes to the office of a local support group and makes enquiries with the receptionist about the group counselling sessions they offer. Based on the needs of its service users, the group provides different sessions that are single-sex or mixed-sex. The receptionist reasonably thinks that the trans woman is a biological male and, as there are some other people waiting in the office, asks her to come into a side room to get more details about the support she is looking for. When they are in private, the receptionist explains the different group sessions that are offered and asks the trans woman what her birth sex is. When she confirms her birth sex, the receptionist provides her with the details of the mixed-sex groups she could attend.

2.2.8 If there is genuine concern about the accuracy of the response to a question about birth sex, then a birth certificate could be requested. For the vast majority of individuals, this will be an accurate statement of their birth sex. However, it should be noted that a birth certificate may not be a definitive indication of birth sex. If a person has a Gender Recognition Certificate (GRC) they may have obtained an amended birth certificate in their acquired gender. In the unlikely event that it is decided that further enquiries are needed, such as confirmation as to whether a person has a GRC, then any additional requests should be made in a proportionate way which is discreet and sensitive.

Even on its face this does not seem actionable—receptionists are now going to be conducting investigations into whether the birth certificates they have received reflect biological sex? How should these investigations be handled? When might ‘further enquiries’ be needed? The code clearly envisages at least some circumstances where they are. 

But what if the scenario does not occur in the offices of a support group, but a busy nightclub. Let’s say it's 3 a.m., every part of the space is heaving with intoxicated people, and a bartender ‘reasonably thinks’ someone entering the women’s room is trans. There is no side room to take her; does he ask her biological sex in the middle of the mass of people? If the bartender has “a genuine concern about the accuracy of her response” he is to ask for a birth certificate, and what if the woman does not have hers on her? Is he to deny her entry? Must all of us now carry our birth certificates in case of such a challenge? What if he is provided a birth certificate but suspects it may have been modified by a GRC, must he now neglect customers at the bar to make ‘further enquiries’? The code would appear to obligate him to. 

This is not guidance that cannot be implemented easily, this is guidance that cannot be implemented at all—at least not in any way that’s coherent. The attempt to do so will create confusion and cause serious harm. And this isn’t an accident. Bathroom bans aren’t policies designed for the public to live by, but gut impulses seeking the sanctification of law. The ugliness of their realization follows from the way their proponents think politically.  

The disgust principle 

While anti-trans rhetoric and policy have become a staple of the new right the world over, one thing that distinguishes Britain is the extent to which our progressive outlets and commentators have jumped on the bandwagon. Much more so than the US, our push to exclude trans people from public life has come under the aegis of ‘protecting women and girls.’ Yet the underlying thrust of the arguments is largely the same. While these writers may continue to identify as liberal (and may indeed be liberal on other issues), the way they make the case here is decidedly not. 

Liberalism, like any ideology, is not merely a set of conclusions but also a framework (or set of frameworks) for thinking about politics. For example, the traditional British liberal framework for thinking about individual rights is the liberty principle. Simply put, for the state to ban an individual’s action it must be causing harm to others. Harm is not specifically defined in the original formulation, but is contrasted with ‘offense.’ So we might reason that a sexual relationship between two men, while it might ‘offend’ others, does not directly harm them, and hence should not be prohibited. This was part of the rationale for the legalization of homosexuality in the UK in 1967. Likewise, a similar appeal to individual freedom could be made for individuals changing their legal gender under the GRA. 

But what if a harm is alleged? Anti-trans campaigners have long argued that making women’s toilets trans inclusive will allow sexual predators to pretend to be trans to gain access. In such cases the liberty principle asks us to engage in a careful consequentialist balancing. Will the harm being prevented outweigh the harm caused by a prohibition? Could the same goals be achieved by other means? Would the prohibition add unduly to the state’s power?

In the case of bathrooms, this framework would ask us to try and measure the harm caused by trans-inclusive access, the harm that will invariably be caused by a bathroom ban, and show that the former is larger than the latter. Not only have I have never seen anyone make this argument credibly, I’ve never seen a ban proponent even attempt it. Every serious attempt to empirically study this has shown no overall statistical relationship between trans access and bathroom crime. Meanwhile the costs are glaring. Both the enforcement costs mentioned above, and also the direct harm to trans people themselves who develop physical health issues (like kidney problems or UTIs) at much higher rates from delaying bathroom use. This is to say nothing of concerns relating to dignity or privacy. 

Anti-trans advocates will gesture towards harm, but in a way that’s anecdotal or, more usually, utterly hypothetical. This is not the core of their argument because they are not making their argument—they are not thinking politically—in a liberal way. The liberty principle is often contrasted with the ‘paternal principle’—you can prohibit something for someone’s own good. But the ‘gender criticals’ are not making this case either—they will sometimes nod to it, as in the case of puberty blockers, but it's not central to them. 

What is central is disgust. Bathroom ban arguments are usually made in a framework I call ‘the disgust principle’. This is that if an action or behavior disgusts you, if you find it weird or uncomfortable, then the state should prohibit it. Much more so than the paternal principle, this is the real-world rival to the liberty principle (although people of course don’t label it as such).  

There are any number of UK commentators who see themselves as center-left or even progressive, but when they come to think and write about trans people do so through the (decidedly illiberal) frame of the disgust principle. Take this article advocating for trans-exclusionary single-sex spaces by Sonia Sohda (a UK writer who fits this profile; Helen Lewis would be another example). “Some things,” Sohda starts by declaring, “are plain common sense.” This is a classic conservative way of making disgust-based arguments—you simply assume the truth of your claim; it’s obvious, natural, something everyone knows. In the second paragraph she vaguely gestures at “statistics showing that voyeurism and exposure are two of the most common male sex crimes” but doesn’t cite them, or relate them to bathroom access, or try to build the sort of case the liberty principle would require. Indeed she only really mentions them to move past them; “most people don’t need” such things to "understand how wrong” a trans-inclusive changing room is. 

Her argument then is simply assuming the truth of her conclusion. At an emotional level however, something more visceral is being appealed to. The article revolves around a nurse—Sandie Peggie—who objected to sharing a changing room with transwomen and was suing her employer on that basis. The core thrust of the argument is:

There is no circumstance in which it could have been appropriate for NHS Fife to put Peggie in this position. The attempted justification is that everyone must adopt the minority belief system that someone’s sex is not a scientific fact but a matter of their gender identity, or some sort of gendered soul. As a personal worldview, that’s someone’s own business, but it is wrong—and, in a work context, unprofessional—to try to force it on others in relation to single-sex spaces, services and sports. That is true whether the fact someone identifies as trans is the product of gender dysphoria—feelings of distress about their sex—or, as it is for some men, a cross-dressing sexual paraphilia.

Basically, what is none-too-subtly being said is that trans people are delusional, at best suffering from a mental illness, at worst male perverts. Again and again, we are brought back to the nurse’s feeling of discomfort changing near a trans doctor (whose feelings of course are never considered). This is the basic premise of the case. Incidentally, the nurse in question was later revealed to be a virulent racist who regularly and casually used slurs. Some might think this would make her a less sympathetic figure, but not to Sonia Sohda, who aggressively defended her even after this came to light. 

This too is typical of ‘disgust principle’ reasoning: once you have identified an object of disgust to be prohibited, everything else becomes secondary. It can make people pathological—more than one British transphobe has made it their entire personality and wrecked their own life in the process (just look up Graham Linehan’s spectacular descent into madness). Even in less obviously deranged cases it’s still just a much worse way of thinking politically. The goal of the liberty principle is to find universal rules that allow us all to get the most of the things we want in life. The goal of the disgust principle is to have the moral authority of law validate your disgust. 

The liberty principle asks us to think both about big values like freedom and very small-grain, careful, often boring, details. We must both assert and live big values, and do the dry work of thinking through their practice. The disgust principle does neither. There is no overarching philosophy behind when one ought to find something repellent, or strange. That different people might find different things weird is never considered. Nor is what application and institutionalization would look like. The details, it is usually imagined, with a hand wave towards ‘common sense’ will take care of themselves. 

What does Sohda think trans Brits should do now? In an article celebrating For Women, as an afterthought, she recommends they “put a stop to an ideological crusade” and “instead advocate for gender-neutral third spaces.” Perhaps if they ask really nicely, accommodation will eventually be made for them to exist in public, albeit having to constantly out themselves. How any of this is to work in the meantime is left unaddressed. This complete lack of thought is a predictable consequence of thinking in this way: The disgust principle almost invariably leads to laws that are uncertain, incoherent, and very difficult to enforce. 

But then, for some, this is the point. 

Global fascism

Trans people for some time have talked about elimination, or genocide, as being the goal of the anti-trans movement. I think we have to take that seriously. We’ve covered the centrist government, and the fellow travelers in the purportedly progressive press, but what of those who’ve always been pushing this? What’s their angle? 

The answer is, unfortunately, quite obvious. They do not want trans people to exist and are increasingly open about this. This is a goal in itself for fascist movements. People often wonder why Nazi Germany devoted precious resources to the Holocaust that could have gone to the war effort. The question itself misses the nature of fascism—the extermination of Europe's Jews was a war aim: it was one of the primary things the regime was trying to achieve. 

Without in any way denying or obfuscating this, it’s also worth noting that anti-trans propaganda has clearly been useful to fascism in its worldwide resurgence over the last decade. 

For one thing, the ‘debate’ itself is clearly a recruitment tool of the far right. Imagine someone not especially political, let’s call him John. Perhaps he has uniformed eclectic views, or maybe even vaguely considers himself on the left. One day he encounters a video of Jordan Peterson railing against the mandatory use of pronouns. He’s not thought about this issue before, but hearing about it now, it does sound a bit ridiculous. He watches more, and from there finds Ben Shapiro—the tone and tenor are more intense now, his disgust response is activated through questions like “can a woman have a penis?” and endless images of trans people looking unsettling. He is asked to process that response through the disgust principle (obviously such weirdos should not use the women's toilets). 

John finds something cathartic about being asked to hate others in this way. So he keeps coming back for more content. As he does, he’s introduced to a broader theory about how insane the modern left is, how radical, how they’re destroying everything. From there he will be exposed to more directly fascist content, people at first subtly, then overtly, fearing for the future of the white race. 

I think what is happening—and Britain provides a clearer timeline to see this—is that traditional conservative media and political parties are replicating the recruitment pathway that they’ve seen work online. As little as six to seven years ago, trans people were not really on their radar as an issue. But conservative staffers, or people who write for the Telegraph, are all deeply online. The US fascist pipeline has both radicalized them, and shown then how useful demonizing trans people can be to get the punters in. 

Further, to the fascist, the uncertainty, incoherence, and issues in enforcement of anti-trans policies all work to their advantage. There is a reason liberalism has always insisted on clear, transparent, and universal rules. The fear that comes with never quite knowing where you stand—particularly for minority groups—is something that directly aids authoritarians. 

This is both an intrinsic and instrumental goal. Fascists believe having this fear is a good in its own right—that those beneath you in the social hierarchy should be afraid, should be constantly unsure of themselves, depending on the whim of their betters. They think it’s good for the fabric of the state when the boundaries of citizen and non-citizen, man and woman, are consistently and aggressively enforced. When even the ‘true citizenry’ have to always be on edge about their place, and hence have to consistently reassert their loyalty to the new social order. 

This is an explicit goal of both historic and contemporary fascism. Hitler, prior to the invasion of the Soviet Union, imagined its government would fall quickly, but that the "German settlers” on this new land would face constant rebellion, incursions, and terrorism. That they would live in fear. And this was the outcome he wanted. “Too great a feeling of security provokes, in the long run, a relaxation of forces. I think the best wall will always be a wall of human breasts.”

The legal incoherence is, likewise, I suspect also the point. The British right has long set blocking refugees from the country in opposition to international law. If human rights mean we can’t deport people to the Taliban, then so much the worse for human rights. When this anti-trans guidance invariably clashes with EU law, I strongly suspect the right will argue that we have to opt out of it. In an age of rising fascism, this is a very dangerous step indeed—removing one of the very few legal checks our system has.  

Finally, for the far right, high enforcement costs, even if for no obvious benefit, are a feature not a bug. “This is ridiculous” cries the earnest, progressive liberal. “To enforce these rules you’d need a massive, unaccountable secret police!” The reactionary centrist blithely ignores this, or dismisses it as exaggeration, as they do anything that unsettles their delicate conformist sensibilities. But the fascist smiles dryly. A secret police, you say? 

In the US, it's been recognised for some time that fully realising conservative goals of a closed border, or no undocumented people in the country would pose massive enforcement challenges. Even attempting to do so partially would be a colossal waste of resources. But this, for fascists, is the point. They both like playing up anti-immigrant fears, getting people to think in a fear- and disgust-based way, but also the institutional effects of this. Immigration enforcement became a huge coercive apparatus outside of the usual checks and balances, one structurally and culturally set up not to see its victims as people. When the fascists took over, they did not need to create a new secret police—they had one made for them in ICE. They simply expanded the definition of who was not ‘entitled’ to be in the country. 

We might wonder if, in abandoning the rights of a minority to a bathroom ban, others in society are creating the tools that will lead to their own oppression. If the EHRC guidance is seriously enacted, we’ll get people used to being taken to one side and asked for a birth certificate, to having their lives investigated if ‘suspicious.’ What will be made of this (formal and informal) apparatus of control when handed over to a global movement obsessed with harassing women? One whose stated goals are banning abortion, ending women’s suffrage, legalising domestic violence, and repealing no-fault divorce. If you are a UK resident (of any gender or gender identity), it's worth taking a moment and asking yourself how you would respond to being challenged, to being asked for documentation to use the toilet, to having your life investigated if not believed. Seriously, what would you do? This is not a hypothetical, but the legal regime we are entering. It will fall heavier on some than others, but we will all be subject to it. 

We know the conservative British press are basically in the tank for fascism at this point. But it’s the lack of institutional opposition that is so depressing. If the goal of our centrist government and centrist columnists was to ensure their fascist replacements had all the tools they needed to rule on day one, it is difficult to see what they’d do differently. 

The road ahead

This episode shows just how fast fascism can overrun a society that is unwilling to stand against it. Only eight years ago it was unthinkable that Britain would implement a bathroom ban like some US red states were. Now we have the most authoritarian ban of any peer nation and a Labour government is implementing it without a vote. We’ve sacrificed the basic rights of a minority group without a fight, given the illiberal right a significant victory, and laid the foundations for future fascism.

It also provides a very clear counterpoint to the article of faith shared by many commentators, on both sides of the Atlantic, that a rising far right can be understood as a backlash to ‘woke.’ As often as not, what they mean by ‘woke’ (or ‘the illiberal left,’ or ‘cancel culture,’ or ‘social justice ideology’) is something to do with trans people. These pundits (reactionary centrists, as I call them) never perceive the right as having agency—as actively doing things—the right is supposed only to react to provocations from liberalism. 

“Most people don’t buy your newfangled gender ideology” the reactionary centrist scoffs with unearned self-satisfaction. “You’ll never win elections unless you drop that silliness.” Yet a mere eight years ago every major party in the UK was running on a trans-inclusive platform without obvious backlash. Trans people did not suddenly invent themselves in the Year of Our Lord 2018. Nor did advocacy on their behalf suddenly take on a more strident tone—if anything, the reverse. What changed was an aggressive top-down campaign from political and press elites. The absolute hysteria into which Britain has descended is not a result of our liberal institutions championing trans rights too aggressively. Rather, it shows what happens when they abandon them altogether—when there is no opposing force to modern fascism’s propaganda push.

Those who buy the ‘reaction to woke’ narrative assume that there would be a political payoff for abandoning trans people. This is arguably the core claim of their worldview. But there hasn’t been. Nothing has been gained in any of this. It did not benefit Labour in the polls. Rather, it appears to have undermined their godawful position even further. This is, I feel the need to note, exactly what my model of the world would expect. 

Ultimately, we’re here because any path that avoided this would have required a fight. It would have involved being screamed at by angry, insane radicalized idiots. And powerful people in politics and the press decided that they weren't up for that. This is the most charitable account I can give of their behavior. Again, they chose to implement this ban.

I take no satisfaction in this condemnation. I’ve become something of a critic of this government, but that’s not where I’d instinctively like to be. I want left unity. In the US case I’ve (partially) defended the Democrats from left criticism and suggested ways progressives can better work within the coalition. I would like to be able to make a similar case for Labour.

Moreover, I can count four generations on my British side who have never done anything other than vote Labour. I have never done anything else. I suspect I would find it physically difficult to put a mark next to anyone else on a ballot. I volunteered for them when I was younger. I have an emotional and identitarian attachment to the party in a way I just don’t with the Democrats, despite over a decade in US politics. 

I have nothing to say for Labour here. Working through this article has really made me sit with what the party I once loved has become. I could speculate about their motivations, but ultimately it’s the result that matters. They’re doing an awful, evil thing based on a self-evidently foolish strategy, one that has repeatedly failed for them. And they’re doing it without even the pretense of values. One day they believed in trans rights, the next day they didn’t. I was curious if Ruth Cadbury, who described bathroom bans as malicious and confidently predicted one would never happen in the UK, had anything to say now that one is a reality. She’s still an MP, but as far as anyone can tell she has not said anything. I contacted her office to ask if she had changed her views. As of time of publication, she has not responded. The unthinkable is now not only thinkable, but not even worthy of comment. 

What should happen? What would I say to anyone from the government who might be reading this? First, there’s still time to scrap this bill. My case here is mostly a negative one: don’t do this! There is an open letter among MPs to allow parliamentary scrutiny of new guidance. If you are an MP, sign it. If you are a UK voter, find your MP and ask them to sign it. I think the most basic of questions will show that this guidance cannot serve as coherent law.

And to show that I too can be a pragmatist, if a principled opposition is too much political courage to ask for, just use the traditional politician’s kill switch: process. The guidance needs more study on what implementation would look like, you could say. We're going to do further consultation. Kick it into the long grass. 

In the longer term, it would be nice to have a government that actually implemented the manifesto we elected them on only a year ago. It is a sign of how fast things are deteriorating that this feels basically unthinkable now. 

As much as anything, I’d like to see a government that Gets It. Gets that the rights of the quarter of a million trans people in the UK are not a distraction from the work of governing, that the protection of minorities is one of the principal goals of good governance. Gets that the fascist resurgence is real and cannot be appeased. And that trying to meet them halfway will not save you. As I write this 100,000 Brits gathered in a far-right rally to hear Elon Musk advocate the violent overthrow of the government. Yet that same government can’t find the wherewithal to move their communications off Musk’s website X. 

At the risk of immodesty, I would suggest the government should listen to those of us who have been warning from the beginning that this strategy would not work. And I’d suggest that they should ignore the advice of reactionary centrists who imagine turning on trans people to be a panacea for all political problems. The reactionary centrists will never learn but simply find new ground to give, other vulnerable groups to abandon. And even if I were wrong on strategy (I’m not), the moral cost here is just too great. Legislating that hundreds of thousands of our fellow citizens cannot safely leave their homes, and that the rest of us must be complicit in this oppression, is evil.

We do not have to do this. This is a choice the government is making to oppress hundreds of thousands of us. They are making a choice to try and appease fascism rather than fight it. It is also a choice the rest of us are all making to either ignore it, go along with it, or mutter some disapproval and move on. 

And we can all choose differently. 

Featured images is Restroom Sign, by Mark Buckawicki