Why are MSPs wasting time on toilets when the country is going down the pan?

It seems I was wrong. It is all about toilets. At least that is what some would like it to be and of course a row about where you stand [sic] on urinals distracts from the real issues in Scotland today. And if proof is needed that the Scottish Parliament’s priorities are wrong then consider that it spent precious time in the Chamber urgently debating the use of toilets in Holyrood when it seems like the rest of the country is going down the pan.

And while for some people working there the issue of what toilet to use, according to your sex, might be a vexed one, with the luxury of 76 cludgies, including 30 single unisex toilets; 22 communal men’s loos; 20 women’s WCs; one female-only single occupancy accessible toilet; one gender neutral toilet and two changing place toilets with hoist and changing bench, along with a couple of single-sex shower units and private changing rooms, there must be one facility that would suit their needs as required without causing offence, disrespect or loss of dignity.

The shockwaves of a legal clarification that has deemed that ‘woman’ and ‘sex’ in the Equality Act refer to a biological woman continue to reverberate, fuelled by a slew of disinformation, scaremongering and a deliberate twisting of facts. And rather than applauding the Scottish Parliament for implementing interim guidance on who should use which toilet on the parliamentary estate, and that is now actually compliant with the law, our parliamentarians disagree.

Far from regaling the virtues of Scotland being ahead of Westminster in its approach to equalities legislation, which would normally be the righteous position of our MSPs, Patrick Harvie argues that this takes us back to the days of yore and that asking men to use the male bathrooms and women to use the female ones, along with the provision of mixed-sex toilets for anyone who wishes to use unisex, is a breach of human rights.

Frankly, it’s incredible that those same so-called progressives, including MSPs who were so willing to trample all over women’s legal rights in an effort to ensure men who think they are women could use women-only toilets, now squeal injustice when it comes to the law being restated and reinstated in terms of women. But this was never about equal rights; it was about putting one set of rights above another. And along the way, women lost out.

But what the Supreme Court did was to reset by clarifying what the law had always said. It is now for others – employers, service providers, clubs, associations, parliaments – to understand the practical application of that coherence and adhere to the law as it is rather than what people wish it to be.

Perhaps it felt too swift for some, like Harvie, that an institution like Holyrood that was only a few months ago banning symbols of women’s suffrage should then be at the vanguard of pressing for women’s legal rights but I applaud the Scottish Parliamentary Corporate Body for acting speedily to exemplify that the law must be followed and particularly by lawmakers.

But instead, 17 of our legislators have signed a letter in opposition to the parliament imposing rules that toilets should be used by the sex of the person they were designed for. Read that back and question whether this is really the pinnacle of what Donald Dewar envisaged when he heralded the opening of the new parliament as a way of finding Scottish solutions to Scottish problems. 

And among the sore losers there is Nicola Sturgeon. She spearheaded the ill-conceived gender recognition reform legislation. She branded its opponents bigots and she met any opposition to her zealotry with scorn. If you weren’t with her, you were on the wrong side of history and even now when the law proves her wrong, she doubles down and says it’s the law that should be changed. If the law doesn’t recognise a trans woman as a woman, then, in her book, the definition of a woman has to change. 

Good God, we have been here before. Let’s not get dragged back by a politician with one eye on the parliamentary exit and the other on book royalties and a swollen bank account. It is nothing but contemptuous of the former first minister to inflame an already vexatious situation by suggesting that the EHRC, the statutory regulator responsible, not for legislating the Equality Act but for ensuring it is adhered to, has overreached. That its initial update in response to the Supreme Court judgment to remind service providers of the law and that trans women (biological men) should not be allowed to use women-only services was an over-interpretation. This, says Sturgeon, could make trans lives ‘unliveable’.

There are concerted attempts, and have been for some time, to portray the EHRC as a transphobic arm of the state. It is not. But it is the target of a deliberately contrived ploy to paint it as the villain of the piece in a political row that has befuddled politicians like Sturgeon for years over what is a woman. 

The EHRC is the statutory regulator responsible for ensuring the law is adhered to. It does not make the law. And it is not, as some would wish it to be, a campaign group. It is currently working on an updated code of practice that will help service providers understand how to operate within the law. But far from that being some holy grail that politicians and activists are building it up to be, it will simply be a helpful guide as to how to operate within the law. It doesn’t replace the law or redirect the law; it simply follows the law. 

All the EHRC has done thus far is produce a very simple bit of updated advice reflecting the court judgment which has already led to three applications for judicial review, none with any real foundation, and prompted the mother of all rows about toilet use. It’s a manufactured drama. 

The law is the law is the law – and no one should be waiting for a go-to guide on how to operate within it. The eventual revised code of practice, currently out for consultation, will be presented to Westminster and it will be up to politicians to approve. But that does nothing to alter the fact that the law is in place now and the Scottish Parliament and others would be wise to work within it.

How will all of this play out in practice? As it did before – by social contract, bound by normal human etiquette that respects dignity, privacy, safety and sense, overlaid by clear legal parameters which are now concise, easy to follow, and will leave no one caught short.