Why do we ignore the evidence?

What does it mean to make good law, or good decisions, based on good evidence? Why, so often, do we ignore the evidence - what we know to be true - to instead make decisions based on fear? On "what-ifs"?

This question has come up a lot for me over the last month. I've been heads-down working on a submission to Ia Tangata, the Law Commission's review of the Human Rights Act, and the protections afforded to trans, non-binary, and intersex people from discrimination. The Commission's Issue Paper is a really comprehensive document, and examines pretty much every exception under the Act and asks whether that exception needs to be extended to new grounds like gender, or not.

Of course, this has naturally brought the worst people you've ever known out of the woodwork to express some very normal opinions about all this.

The pieces of this work that seem to draw the most ire are the classics - sport, single-sex spaces, how we define sex, and misgendering.

Single-sex spaces are a perfect example of this issue of ignoring the evidence to make decisions based on fear, on perceived worry, on what-ifs. Because we've got lots of really good evidence that allowing trans people to use bathrooms in public (incredibly dramatic move, I know) does not increase risk or decrease public safety in any identifiable way.

We've got a study from 2018 that examined non-discrimination laws and public accommodations in America and found no relation between these laws and any effect on public safety:

This study finds that the passage of such laws is not related to the number or frequency of criminal incidents in these spaces. Additionally, the study finds that reports of privacy and safety violations in public restrooms, locker rooms, and changing rooms are exceedingly rare. This study provides evidence that fears of increased safety and privacy violations as a result of nondiscrimination laws are not empirically grounded.

Also from 2018, the National Task Force to End Domestic Violence released a national consensus statement, representing hundreds of organisations working to address domestic and sexual violence:

We, the undersigned sexual assault and domestic violence organizations, oppose antitransgender initiatives. These initiatives utilize and perpetuate the myth that protecting transgender people’s access to restrooms and locker rooms endangers the safety or privacy of others. As organizations that care about reducing assault and violence, we favor laws and policies that protect transgender people from discrimination, including in accessing facilities that match the gender they live every day.

They made their experience incredibly clear:

None of those jurisdictions have seen a rise in sexual violence or other public safety issues due to nondiscrimination laws. Assaulting another person in a restroom or changing room remains against the law in every single state. We operate and advocate for rape crisis centers and shelters all over the country, including in cities and states with non-discrimination protections for transgender people. Those protections have not weakened public safety or criminal laws, nor have they compromised their enforcement.

So, bringing it back to Aotearoa, the question becomes: is the (unfounded) fear that allowing a trans woman to pee will cause someone else to be unsafe enough of a reason to restrict trans people's human rights?

Because we've got lots of evidence of the impact otherwise - in 2018, Counting Ourselves found that 2/5 trans people had been told or asked if they were using the wrong bathroom; 1/5 had been verbally harassed while trying to use a public bathroom; and 70% had avoided using a public bathroom in the last 12 months.

This has tangible impacts, as well - these experiences have been associated with increased levels of anxiety, depression, PTSD, suicidality, and self-harm; as well as negative physical impacts including recurrent UTIs, and the possibility of hematuria and chronic kidney disease.

It seems clear to me that this should be incredibly clear - on one hand, we've got good evidence of the negative impacts of withholding this access from trans people. On the other, we've got good evidence that allowing trans people access to bathrooms does not impact on public safety, but we have a fear that it somehow could. Is a fear enough of a reason to withhold rights? Or should we be basing those decisions on what we know to be true?

And, in fact, this raises something quite interesting to the whole review of the HRA - since 2006, successive Governments and public servants have acted as if gender and variation in sex characteristics have already been covered under the Human Rights Act. This gives us eighteen years of experience to draw from - eighteen years of proof that affording anti-discrimination protections to trans, non-binary, and intersex people hasn't caused the end of the world or the downfall of society - it's fine, actually.

Of course, that hasn't prevented the anti-trans lobby from making some truly wild recommendations like:

• mandating the chromosomal testing of every baby in Aotearoa at childbirth, and forcing them to carry a sex passport
• forcing parents to write sworn affidavits as to their child's sex in order to enrol them at school
• rolling back conversion practices protections for trans people
• requiring service providers to exclude trans people by advocating for a system in which "not discriminating could be unlawful"

Submissions are now closed - thanks to everyone who got one in, making sure these out-the-gate voices aren't the only ones heard.

In other "making decisions based on worries not evidence" news this week, a group of ex-Olympians have written to Chris Bishop asking him to repeal Sport NZ's excellent guidelines for trans inclusion in community sport.

Here's what we know:

• trans and non-binary people in Aotearoa engage in community sport and recreation at lower rates than the general population:
  • Counting Ourselves found that 53% of our community engaged with sport or recreation at least once a week, compared with 72% of the general population
  • Only 18% exercised daily, compared with 26% of the general population
• the debate about trans inclusion in competitive sport impacts on access to community sport, either directly through proposed limits on funding or by making it more difficult for trans people to engage when we don't know how we'll be treated
• the Sport NZ guideline addresses community sport, not competitive sport, as the letter's authors openly acknowledge:

“Although Sport NZ are making it clear their policy addresses community sport and recreation it’s hard to imagine you could allow someone to compete under self-identification and then get to a point where they are perhaps considered good enough to be selected for a provincial or representation at more elite level such as national or world championships,” (emphasis mine)

• the open letter's authors could not identify any examples where trans inclusion could cause an issue, and instead have had to rely on big what-ifs such as:

"Imagine Sam Whitelock or Richie McCaw coming back and identifying as a woman and playing rugby – or even the All Blacks playing the Black Ferns. The comparisons are very obvious."

So, what do the guidelines say? Is there anything in them that, as the letter suggests, would prevent NZ sporting bodies from aligning with international regulations? Do they thoroughly override notions of fairness and safety in the name of maximal trans inclusion?

I mean - of course not. The first and second page of the guideline make it pretty clear: "the health, safety, and wellbeing of all participants must be supported" and

At the elite level, sporting codes will generally be guided by the relevant international sporting body who may themselves be influenced by international governing bodies such as the International Olympic Committee. This recognises the requirement at the elite level to ensure that no athlete has a disproportionate competitive advantage. Individuals who wish to compete in these activities have the right to decide themselves if they wish to take the required steps to meet the potentially more stringent eligibility criteria required by international sporting bodies or elite competitions.

When it comes to safety, the guideline is explicit in recommending that sporting bodies have "mechanisms in place to allow players to participate safely and ensure the competition is comprised of an appropriately similar cohort of players, for example, through weight bands and age brackets."

But, I guess, the authors of the letters maybe aren't grounded in the same reality as the rest of us. Here's an excerpt from their letter:

Male-bodied athletes, are undeniably advantaged when matched against natal females. Women’s boxing in Paris showed that where inclusion is prioritised, fairness and safety are compromised.

Hold on, wait a minute - aren't we past this? Aren't we all pretty clear by now that Imane Khelif is a woman? Did they not get the memo? Or are they happy to keep on peddling disinformation because it suits their agenda?

So, here we are, again - lots of evidence that our communities aren't engaging with sport and recreation at the community level because of a number of barriers, and are missing out on a great protective factor for our health and wellbeing. And, on the other hand, a group of people wanting to strike down the national guidelines that would encourage more participation while continuing to ensure safety for everyone and the ability for sporting codes to continue to comply with international regulations.

So, where is the problem? If the authors cannot identify a case where Sport NZ's guidelines might cause an issue; if they point to a cisgender woman being vilified on the international stage because of rumours and disinformation; if they can't even outline why, exactly, the guidelines are a problem other than the fact that they aim to help trans people be included in community sport - why, then, does Chris Bishop reckon "they make some fair points"?

The authors are trying to do the right thing - trying to do what they think is right. But they're basing their approach not on what we know to be true, but instead on some distorted version of reality where trans women are dominating in sports globally and Sport NZ are acting to prevent sporting bodies from setting their own approach. In practice, their recommendations would not improve anything for sporting bodies - because the guideline already allows what they ask for - and instead would further harm our communities for no real good.

This letter is a solution looking for a problem. It will do more harm than good, for no good reason. It's another case of the anti-trans lobby relying on fears and worries rather than evidence because the evidence doesn't support their world view. Whether their fears and values are being manipulated, or they're well aware of the evidence and are choosing to push this fear on others remains to be seen.

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Hope you're all keeping safe and well - spring is here! I'm looking forward to some travel in the near future, which I'm looking forward to writing about! Nearly at the end of the year now!