Transcript
Speaker: very people you're trying to protect, you're harming. It's a bit alarming and baffling to trans and non-binary folks where you like you say you want to help them, but really what you're saying is we really only want to help cisgender women that are feminine and don't seem to care about the rest. Welcome back to another episode of Gender in Focus. Today we're talking about something that sounds a bit mundane, but it turns out to be one of the clearest test cases for how society treats gender diversity in general, and that is public washrooms. In Canada, access based on gender identity is not a new policy.
Speaker: It's been the legal standard since the late nineteen ninety s But in the US, at least 21 states now restrict trans people from using the washrooms that match their gender identity. So the Williams Institute has actually studied what happens under each system. And the results are pretty surprising, I think, for people on both sides of this debate. So Kai and I are going to be digging into what the evidence actually shows, ah why the sex at birth model creates problems, even for the cisgender people that it's meant to protect, and why Canada's approach might be the more practical one, along with being the more compassionate one. So ah hello, Kai, how are you? I'm doing really well. Excited to talk about washrooms. as away Right? it's It's our thing, um our signature thing. But yeah, i think it's just so important. And yeah, I'm really glad we're we're addressing it. Me too. ah I want to sort of note for people who are joining us who are watching rather than just listening that there's a different background for you right now. True. You're looking very glam with your fireplace behind you. That's right. Yes, it is my ah new place.
Speaker: in a new location so um always good times but yeah i now live in canmore alberta which may inspire a lot of questions i know well one rocky mountains you can never lose um but then alberta you know it's uh it's a spicy place there's stuff going on stuff going on here in alberta never a dull moment glad to have you in this province Right. I'm joining you. Yeah.
Speaker: Where you already live. So. So before we get into the research on this, Kai, would you mind just laying out in sort of plain terms what the actual policy difference is between the U.S. and other countries actually sex at birth model versus Canada's sort of gender identity model?
Speaker: Yeah. At first glance, for those who are not trans or non-binary, it's like, what's the big deal, right? Right. Yeah. For many who are cis, the access difference between gender identity and sex at birth are like not a thing, right? Either model works for people for whom their gender is the same as their sex at birth, which is the definition for cisgender. And so oftentimes this can be a bit puzzling. Why the big to-do? And um that's where this difference of how Canada dresses it, based basically on court cases over many decades, as you mentioned, this has already been clarified. Time and time again, there have been, you know, a dozen or so court cases. And every single time the judge is like, well, let's let trans people go where they need to, right? Which is based on gender identity. And very importantly, as it's not based on any surgeries, document changes, anything, it's self-determination. And I think that's a key thing that oftentimes is missing in the conversation.
Speaker: That in contrast to what is emerging in the United States, which is a very m varied, very confusing landscape, I would say, um yes because different states are dealing with it in different ways. And so what we're focused here on today is the 21 states for whom they have explicitly banned trans people from accessing the facilities that align with their gender identity. So I'll use myself as an example, just because it might not be really clear, is that if things are based on gender identity, I'm going as a trans man into the men's washroom. where I belong. If it's based on sex at birth, then I'm going into the women's washroom where i don't belong. And and it creates all kinds of dynamics, which we'll get into. But I think that's really key that people understand that nearly half of the states are taking this approach now, which is very perplexing and very difficult and even traumatizing for trans and non-binary folks.
Speaker: Why has this become such a flashpoint now? Like this, this has been a sort of like in in Canada, this is the 1990s. In my own country, in the UK, it was also I think the 90s where ah it was gender identity. And all of a sudden, we have now changed that and to be despite there being no actual reason to do so other than this being a public, like a kind of political commentary that's ongoing. So why now what's happening?
Speaker: Well, I appreciate that's a very big question. It's a very big question. Apologies. And i I am American Canadian, right? So I do span both countries and follow things very closely. Obviously, you know, I may not know everything, but I'm very concerned ah for my own country and the direction that it's going, and it's going in a very different political direction. where there are factions of politics who um are stoking up fear against a very small my portion of the population, 1% of the population or less, and that there are somehow safe in their mind safety issues at play with trans people accessing in the facilities of their gender identity.
Speaker: The common tagline is, and this is not a correct way of looking at it, is that, you know, men are, in heavy air quotes, men are being allowed into women's spaces. That's the big driving fear is um people think that this is happening when it's actually trans women or trans feminine folk who are accessing women's facilities if that aligns with their gender identity. And, um you know, using the facilities as they're intended and kind of going about usual business. But people have, you know, recast that in a misinformed or disinformed. They're actually intentionally trying to stoke this in some instances. Yeah. And the public, maybe because they don't fully understand the issues and maybe feel a bit of that fear um because they don't actually know a trans or non-binary person, they can kind of take and run with that and not pause to think, ah is this actually true? And so that's where this conversation is so important to break that down a bit more.
Speaker: who The Williams Institute reviewed both the safety record and the lived experience side of this. And we'll share this in the in the show notes as well. um What did they find specifically the documented risk, though, to cisgender people? I think it's important to be evidence-based and that's where I really appreciate the research that Williams Institute and others are are conducting to take a closer look at these things because of course we don't want to turn a blind eye to safety issues. Safety issues are important and so I think it was important that Williams Institute took a closer look. They looked at a few different states, one of them being Massachusetts, which already has this in place. Basically, anyone can access the facilities that align with their gender identity, including trans folks. So this is a really good case study for has anything been the matter since introducing that. And surprisingly, ah it's not an issue, right? right
Speaker: No safety issues have arisen for specifically the focus is cisgender women in women's washrooms, because trans women or trans feminine folk can now also access the women's washrooms legally. Right.
Speaker: um They've already done that since Bastiams have been there, but now are legally supported in doing so. And that's, I think, really important to underscore. They researched all kinds of criminal records to find instances of that. And I think what's really important to pull out of that is there's a lot less violence of strangers against one another than there is domestic yeah violence, right? i think sometimes we don't have the proper focus in our society for actually the real drivers of um violence against women. And it is often by those who are close to them rather than by strangers, especially in washroom settings.
Speaker: So that was a study done, and I think it's really important. Good recording of it to explore it. Be like, if is there an issue? No, there isn't. Okay. And then they did a few other states where they looked at the National Crime Victimization Survey to further understand that. Again, no evidence of that.
Speaker: So that clearly answers the thing and certainly we have um maybe not in-depth studies but we also know that here in Canada as well because the thing is that if there were high numbers of these they would be carefully covered by news too, right? This would be a big freaking deal, right? And not only in the news, and nor in the criminal records, do we find evidence of that. There is this big focus on safety for cisgender women, but i I was wondering what the research showed about what happens to trans people specifically when they are required to use the washrooms matching their sex assigned to birth instead.
Speaker: Yeah, this is where it gets really tricky um for the full gender spectrum, trans women, men, non-binary folks. ah Everyone's having some level of difficulty going into the facilities that align with their sex at birth.
Speaker: This is not surprising because for many they look their gender or how we societally expect for for their gender. And so people raise issues when people don't align in their minds with their expectations for that particular washroom. So just to be explicit, ah in so those states, those 21 states, trans men are required to go into women's facilities.
Speaker: That would include myself. If I went to any one of those 21 states, yeah, who who knows if I would actually do that? um just for everybody's sake, but um certainly that puts me in more risk of you know potential legal action, who knows. But if I were forced into that, we see from the Williams Institute study that 10% of trans men get denied access to women's washrooms. Because some of them have facial hair and they have flat chests and, you know, they're wearing masculine coated ah clothing and et cetera, et cetera, et cetera. And so, yeah, they're getting pushed out. ah But like, where are they supposed to go? Right? Right.
Speaker: Similarly, for trans women, we see some something a little bit lower, but they're getting kicked out of men's if they're required to go into men's, which they don't want to, but, you know, are being forced into it. 7%, so a little bit lower than trans men, are getting booted out of those spaces. They're also experiencing harassment and verbal abuse from folks. And so this does not solve the issue entirely, or at all, really. You've previously described washroom access in general as a sort of double bind where trans people are facing risk under both systems just in different ways. And so I was wondering if you could unpack what that looks like day to day.
Speaker: Yes. So that's also a really good point is, again, back to the societal expectations. Not every trans woman or man looks how we expect for how we've devised it in our society, right? So there are feminine appearing trans men and there are masculine appearing trans women. And so, yeah.
Speaker: if they access washrooms based on their gender identity, again, they're going to have harassment. Now, it happens at a lower level than based on the sex at birth model, but there is still harassment. um It would be probably about half as much.
Speaker: So from the Williams Institute, 5% of trans men, when they access men's washrooms, according to their gender identity, they get, um ah you know, ah yeah, they they're denied that access. And for trans women, it's 5% opposed to the in the men's washroom.
Speaker: And so, yeah, we've got a bigger issue at hand that no model can fully solve. And so there's actually something else in addition to just allowing people to have access to the facilities that align with their gender identity. There's a little bit more work to be done even beyond choosing a model or an approach.
Speaker: I want to talk about Canada because we've spent some time talking about the US, Canada's approach of and self-determined gender identity. Why does that hold up better than the rule of a fixed marker like sex assigned a birth?
Speaker: Yes, self-determination works much better. and kind of related to that is that we trust that people are who they are. Like there is a degree of like, you know,
Speaker: trusting people, like um whether they, how they look or, you know, the shape of their body or what's on their ID or whatnot, like all of that aside, just whatever says somebody says they are, that's who they are. And then that's in the end of the story. And there's not as much kind of enforcement and figuring it out. And like, there's a lot of hubbubaloo, And that's a very technical term um in states that have or other countries that have it based on sex at birth. There is a massive amount of not just like policing in the general like um kind day to day sense of like having police people come in and and you know sort things out, although that can be the case.
Speaker: It's people policing each other and, you know, like you're not this or this is this is not right. And, you know, calling staff and talking to other facilities, it's like it's a it's madness ah what's happening. And rather than like we just trust that people are who they are no matter how they look or whatever is on their ID or the shape of their body.
Speaker: End of story. Mm-hmm. It's much more simple. I mean, this has been legally settled in Canada since the 90s, as we said at the beginning. And you mentioned just now about how um the issues still aren't, it's not fixed. like it doesn't And there's some there's a gap there that needs to be sort of filled. And so what I'm curious about what's missing. Presumably it's less of a legal gap and more of a sort of social cultural one in that case. Yeah.
Speaker: Yeah, absolutely. The key thing is determining safety. So that's fair. Safety is really important for everyone. You know, I know the focus tends to be on cis people's safety, but I would want to say trans people's safety is also, we also deserve safety. Yeah.
Speaker: But sometimes gets overlooked. But how do we determine safety? And this is where I think we've had a lot of different approaches, some which people might not have realized this is what they've kind of naturally or by virtue of you know being in a societal milieu, they've adopted without questioning or thinking, is this actually effective? And what we've observed is people determine safety based on how somebody looks.
Speaker: But like that tells you nothing about safety. Like somebody can look, you know, feminine or lovely or whatever and actually be really, really harmful. um And that can almost be distracting in a sense. And I would say not that this is the go-to model, but police force know this and kind of detrain themselves to be so hyper-focused on appearance. Because that cannot that doesn't usually tell them. What does tell you good information is people's actions.
Speaker: And that's really informative. If somebody is just going about their business in a washroom, um there's not really much there. It's not a safety issue. There might be a comfort issue. And certainly as things shift, people might have to sort out comfort and comfort.
Speaker: There's a time and place for that. um It's not to say, you know, I'm expecting people not to be just switch off discomfort. That doesn't happen generally that way. But I think it's important to name it as a comfort issue versus a safety issue.
Speaker: And then if it is a safety issue, it's based on the behavior that person has nothing to do with their gender identity expression. Yeah. It has to do with that person as an individual and and we treat them accordingly.
Speaker: And if there is a safety issue, it's really easy to say this person did X, Y, and z stared, lurked, touched inappropriately. Like we all know the list, right? And sometimes it's written down in policy, which just makes it easier to reference.
Speaker: But then we don't have to go into or know or have to figure out anybody's gender identity. It's just this person is off base. done yeah i really i really liked the way you worded that and that distinction that you're drawing between policing behavior versus policing appearance um is i kind of want to look at the way there's that and then how that also can affect cis people because it's not just trans people that are affected by this notion of policing how somebody looks
Speaker: yeah It's so um prevalent. And I think it's kind of a bit of a mystery for folks for whom their gender identity matches their gender expression. So if some a woman is feminine or a man is masculine,
Speaker: they might be like, what's the big to do? But if you have a cisgender person, a cisgender woman that looks masculine, she's having a whole lot of trouble. And not just right now, although I think it's escalated for her, but actually before too, like common stares, comments, questions, um you know, hand wringing, like she's gotten a lot of that information.
Speaker: And now it's become a bit of a flashpoint and it's she's getting wrapped up in this trans investigation business. And it's horrible like for anyone to have that kind of ire and attention, negative attention from fellow facility users when you're just trying to go about your business. Yeah. And, you know, sometimes urgently, you're just like, holy smokes, let me be. sure.
Speaker: Do you think that that's a sort of underappreciated part of this debate? That this isn't just like a a cis versus trans trade off? I see it in certain circles, but I don't know how far it's reached the public. to know who else is being wrapped up in this. um And that actually the majority of issues will be experienced by cisgender women that don't conform to gender norms. And because just by virtue of the population, trans population is small. So you're actually, the very people you're trying to protect, you're also, you're you're harming.
Speaker: Like, full stop. It's like, it's a bit baffling to, alarming and baffling to trans and non-binary folks where you like, but wait a second, you say you want to help them, but really what you're saying is we're really only want to help cisgender women that are feminine and don't Anyone outside that is stuck.
Speaker: least seem to care about the rest, right? And that's really sad and tragic. And and our movement has generally included um nonconformity because of that very reason. There's kind of shared challenges around that. And so this is really awful for so many people. ah It's really this whole notion of focusing so heavily on sex assigned at birth has changed such much wider implications beyond just washrooms. And so i I wanted to talk about the examples that we've seen, particularly in the States of where this policy is sex at birth being the model to go by really making it one, quite difficult to enforce, but two, putting trans people in this sort of impossible situation where ah they they just can't win. oof
Speaker: there's at least one story. ah There's more, but there's one that kind of comes to mind. And this poor trans woman, you know, going about her business, like, you know, was pulled over by the police. I think it was like a taillight or something minor, right? Like just pointing something out. And it wasn't speeding, right? It's like just something on the the body itself. And,
Speaker: And yeah, they she's pulled over. She has been reissued an ID in her sex at birth, right? So not what would be reflective of her gender identity. So there's an M on her driver's license for male.
Speaker: And the police officer's like, this is not correct. And she's like, tell me about it. She's like, agreed I agree with you. But also, you know, this is um the state policy here and driver's license where were reissued to a whole lot of trans folks.
Speaker: ah So I feel for the folks in that state. um And so he's like, this is wrong. She's like, yeah, she tried to explain I'm trans and there's complexity around that in this state right now. um You know, he doesn't quite know how to do this, um because I'm sure he wasn't trained on it, right? For sure.
Speaker: best guess, like, you know, how to implement this, how to handle it, how to process, et cetera. And then, um I think gave her a ticket for whatever thing was wrong with her car. And then she later died during the interaction, but later got, um, I think it was a misdemeanor or something a little bit more serious for,
Speaker: fraudulent activity, like basically misrepresenting herself because her idea was quote wrong, but it was correct according to the state procedure. But some, anyways, so she's like, well, pfft.
Speaker: What am I supposed to do? yeah You know? And so it's just like, you kind of feel like, like a dog chasing your tail and like, no action is correct in the eyes of the state or in the arms of the various arms of the state that obviously are not talking to one another or coordinating or training anything. making anything consistent, I don't think there's probably huge appetite for that. ah that I really feel for her and and for all the other trans people that are stuck in this. It's impossible. There's nothing you can do to do the right thing, like in the eyes of the state. It's impossible for you to, it's making it very, very difficult to just exist in life in public, yeah having these policies. Yeah.
Speaker: And that's ah either an intended side effect or just an inadvertent side effect is that it's too much for people to figure out. The risk is too great. I will add that if you have intersecting identities, that raises the bar even more. What if you have precarious immigration status or you're racialized or you're disabled? Like those risks go way up. And so you're like, never mind, I'll stay home. That's safer. But then we go social contact and, you know, career progression and fun, you know, like there's so much, there's such a high cost to this for trans and non-binary folks that, um you know, we've kind of carved out this little pocket of washrooms, which is essential for participating in social life and in public life. But, you know, there's IDs and it's just like compounding on each other impacts that really just confound life um for trans and non-binary folks.
Speaker: I want to go back to ah that ah distinction between behavior rather than appearance as the focus um specifically looking at workplaces now or I don't know venues or anything like that um if they were wanting to design a washroom policy from scratch around the focus on behavior as opposed to appearance what would that look like what what things should be focusing on Yeah, it's a really good um tool to use and may even be possible within kind of a legally backwards place or a state, right, in the United States. So just source of inspiration, obviously, you have to double check all that. You know, every state is so vastly different sometimes. But yeah, is a code of conduct, right? Like,
Speaker: ha like commonly agreed upon but maybe not spelled out ways that we engage or you know be with one another in shared spaces and to have those clearly delineated spelled out um not you know based on on you know gender or gender identity or sex at birth like just having people focus on you can go in the the washroom you know that lines with your gender identity or you know wherever you need to go, but here agreed upon ways that we are in those spaces, right, can help. And then it's really clear when there is an issue,
Speaker: how how, when, and where to pull in staff for further support, right? Because then, you know, how to report something to be like, okay, this was off, this behavior, or this lack of behavior, and, um you know, pulling in staff then to delineate that is just, like, super straightforward. um And then also staff know what to do, too, in turn, like, you know, kind of an order of scale almost, right? Some things are more egregious than others, right? And so you need a plan for if this happens, then this, you know, is the corresponding response. And so all of that can help clarify um in a way that is really easy for facility users and for staff that are intervening in cases of misconduct. Right. And like I mentioned, we we typically know what those those things are, but there might be some site-specific things that, you know, a common list doesn't cover. I'm thinking things where, you know, physical labor is more the focus right you know and there might be unique aspects that of conduct there um versus in a financial institution might be different things right so i think it's it's helpful to to to do like um to clarify that that difference if there is one
Speaker: But so the the the ones the code of conduct is easy. It's like, it's not acceptable to stare, use photography, um impede access, ah yell at, um touch somebody without their consent, you know, um ah stare underneath the, especially if there are gaps in the doors, you know. The basics. Yeah. But sometimes you need to clarify those things, right? Because there can be subtle, not like huge differences, but there can be subtle cultural differences that it is good to out outline it so everybody's on the same page.
Speaker: Mm-hmm. For an organization listening to this episode who wants to get the Washington policy right, what is the absolute first thing they should be looking at? It's good to to have the conversation to see what that shared list is. um And in doing so, it's helpful to review if there is an incident list, like a broader incident, not specific to trans and non-binary, but things have happened in the washrooms, what has been that record over the years and what would help to clarify certain conduct related things that have already happened and are on your radar and now you want to put pen to paper um But also just speaking more generally of an organizational culture that you want to create. Certainly it's not just within the washroom, but beyond. And just to how to delineate there or write it down can be helpful as well. One last thing that I didn't mention is that um kind of dissuading people from...
Speaker: being overly appearance focused, right? To determine somebody's, you know, if they're quote in the right place, right? Just that looks doesn't give you that information.
Speaker: People look in a whole variety of different ways, different bodies, shapes, sizes, colors, et cetera, abilities, right? And we don't want to be limiting that access based on our perhaps limited understanding of folks.
Speaker: Mm-hmm. Thank you so much, Kai. I'm so glad that we're talking about this because it's so relevant to what we're seeing like unfold right now. So thank you so much. Yeah, thank you. It was a great conversation.
Speaker: Sweet. Well, we'll see you next week. Bye for now.
