Norway: A woman is accused of harassment for questioning a man who uses the women's changing room at a fitness centre. This is the translation of the case review.

THE ANTI DISCRIMINATION TRIBUNAL

Case 68/2018

A represented by solicitors Hjort DA

against

B represented by Legal Aid for Women (JURK)

Declaration on 17/09/2018 from the Anti Discrimination Tribunal’s members:

Ivar Danielsen

Gislaug Øygarden

Thorkil H. Aschehoug

The concerns

The case concerns questions of harassment based on sex identity or sex expression in the context of the use of the changing facilities at a fitness centre.

The case facts and proceedings

B was registered with male sex at birth. After the law regarding change of legal sex came into place in 2016, B changed legal sex to woman. B has female sex identity. B has not completed sex reassignment treatment.

Both B and A trains at the fitness centre [name]. They first met in the changing room at the fitness centre in July 2016. A then contacted B regarding the use of the women’s changing room. They met again in the changing room in February 2017. The parties are in disagreement about the content of the conversation in February. The situation in the changing room in February was heated and they had one conversation with the manager at the fitness centre after the event. The manager says that A was provoked over the fact a person with a penis was in the women’s changing room, and that A suggested that transsexual people should have their own changing room.

In the beginning of March 2017 B went to the [newspaper] who published the case in a news report [date]. Later the same month the same newspaper published an opinion piece from the women’s group Ottar, which was signed by among others A. The opinion piece was about whether transwomen who have not had reassignment surgery should have access to women’s changing rooms.

B brought the case in for the The Gender Equality and Anti-Discrimination ombud on the 03/05/2017.

The ombud concluded in a statement on the 22.12.2017 that A did not act against the ban on harassment based on sex identity / sex expression towards B during the incident in the women’s changing room in July 2016 or during the opinion piece [date].

The ombud further concluded that A acted against the ban on harassment based on sex identity / sex expression towards B during the incident in the women’s changing room in February 2017.

A appealed against the ombud’s statement concerning the incident in the women’s changing room in February 2017.

The case was transferred to The Anti Discrimination Tribunal for assessment on 22.01.2018.

The case was assessed during The Anti Discrimination Tribunal’s meeting on 28.08.2018. During the assessment the tribunal’s members Ivar Danielsen (Chair of meeting), Gislaug Øygarden and Thorkil H. Aschehoug. The tribunal secretariat was represented by Tone Sørensen and Laila Pedersen Kaland.

Parties notes

A represented by Solicitors Hjort have in the main noted:

A has not harassed B.

A’s words were not intended to offend, and nor could they be seen as offensive. One must expect to receive questions about whether one is in the right changing room, if one uses the women’s changing room and has a male sex expression.

During the first meeting in the women’s changing room in July 2016 A was put out by seeing a person with a penis in the women’s showers. B then said that she was legally a woman. A asked if it had been cleared with the fitness centre whether B could use the women’s showers.

The next time they met in the women’s changing room was in February 2017. A considered if she should then contact the fitness centre’s management directly in order to clarify the rules or to contact B directly. A chose to speak to B, as she had previously contacted the management and had been told that transpeople with male genitalia did not have access to the women’s changing room. A asked B if B had contacted the management regarding showering. Further A said it was fine if B got changed in the women’s changing room, but that she felt it was problematic if B showered there. B then shouted “What the fuck is your problem! This is none of your fucking business!” After this they both went to talk to the fitness centre’s management. The argument in the changing room does not come under the definition of harassment because it has to be seen as a personal relationship which falls outside of what the law is meant to include.

A written reply from the fitness centre’s management regarding whether transpeople with male genitalia are able to use the women’s changing room first arrived on the 07/02/2017, as a response to A’s inquiry on 27/01/2017. At the time of the argument in the women’s changing room A had not been given a different answer from the fitness centre other than that transpeople with male genitalia did not have access to the women’s changing room. This answer was given verbally after she contacted the reception in connection with the first meeting in the changing room.

In a women’s changing room most women will experience it as problematic that a person – regardless of sex identity – with male genitalia would be given access. This is a context that must be given particular importance when considering what happened between A and B. There should have been special consideration given to the fact that it objectively is difficult for many girls and women to shower next to people with male genitalia. B must also surely be aware of this, which has significance for her subjective perception of the situation. For fitness centres there is no formal legislation regarding changing room and shower facilities that legal women (with male genitalia) may demand. The starting point is then that one must adhere to the traditional perception.

B represented by The Legal Aid for Women have in the main come to the conclusion:

B experienced being harassed in the women’s changing room by A in July 2016, when she was accosted after showering. A meant that her body was unpleasant and that people such as herself should not be allowed in the women’s changing room.

During the next meeting in the women’s changing room in February 2017, A stated that transwomen should not be allowed in the women’s changing room. B then chose to stand up for herself and asked “What the fuck is your problem?” A insinuated that B was a high risk potential abuser, and that A was being harassed because B was in the women’s changing room. During the meeting with the manager of the fitness centre she was called a biological man by A. B experienced it as very offensive that A insinuated that she was not a woman, and not as much worth as other women.

There are sex segregated changing rooms in Norway, but access isn’t regulated by law. If women with a penis is refused access to the women’s changing room, which changing room should they then use. If the reasoning for women having their own changing rooms is that they’re not safe in a room with men, then it would be strange to force one group of women to use the men’s changing room. Women who are trans experience harassment and violence from men at a much higher rate than women who are cis, and have the same need for a changing room where they can feel safe.

If women who are trans and have not completed / wish to complete / have access to genital surgery are refused access to the women’s changing rooms, then they will not have access to the same facilities as other people in society. This will also lead to great pressure to undergo surgery, also for those who do not want to, as well as being distressing for those women who are trans who don’t have access to such surgery. In the preparatory work to the law regarding legal sex there is considerable emphasis placed on the state not being able to demand that people should undergo surgical treatment, which has sterility as a consequence, in order to be recognized as the sex that they are. It would then be rather strange if having completed surgery should be a criteria to take part in public life on equal terms with everyone else.

The ombud emphasized in their statement that during the second meeting in the women’s changing room, A knew who B was and that she was legally a woman. A also knew that B was upset the first time A approached her. A still approached her. This is harassment, regardless of whether it was A’s intention or not. A should instead have contacted reception at the centre.

The tribunal’s assessment.

The question for the tribunal is whether A harassed B based on her sex identity / sex expression in the women’s changing room at the fitness centre in February 2017. The tribunal is divided into a majority and a minority.

The ombud's decision regarding the parties first meeting in the women’s changing room is not being appealed. The tribunal refers to the ombud's review of this question.

The tribunal’s majority, consisting of members Aschehoug and Øygarden have come to the conclusion that A has not harassed B based on sex identity / sex expression.

The equality and discrimination law came into force on 01/01/2018. This case is concerning incidents prior to this date, therefore the case must be considered according to the then law regarding the ban on discrimination because of sexual orientation, sex identity and sex expression (law of 21.06.2013 no. 58). The law is hereafter referred to as the Act on Discrimination on Sexual Orientation.

Harassment because of sexual orientation, sex identity or sex expression is forbidden, according to the Act on Discrimination on Sexual Orientation § 8. By harassment is meant actions, statements or remarks which seem or is intended to seem offensive, frightening, hostile, degrading or humiliating.

According to the preparatory work to the Act on Discrimination on Sexual Orientation, the ban on harassment should be interpreted the same in all the discrimination laws. Therefore the preparatory work to the general Act on discrimination is relevant for what should be considered harassment.

The law states that it must involve a negative experience of a certain strength and seriousness. According to the preparatory work (Ot. Prp. Nr. 33 (2004-2005) s.108) it isn’t enough that the negative experience only is troublesome and irritating.

People will have different thresholds for what they considers offensive. The ban comprises both intended and unintended harassment. Remarks which appear offensive may therefore come under the ban, even if they were not intended to offend. Single harassment incidents will come under the ban. Factors taken into consideration will be how crude the offensive remarks are, the circumstances surrounding the incident, whether the offended has expressed that the incident was unwanted and so on. The context for the remarks is central to the evaluation. During the evaluation of one concrete case, the subjective experience must be weighed up against the objective norm of what an average person would consider harassment. Another factor in the evaluation considers whether the person accused of harassment have themselves realised or should have realised that the remarks would seem offensive. (ot.prp. nr. 33 (2004-2005) s. 108). The same section also states that the protection against harassment is stronger in employment situations than outside employment situations.

Further it is revealed from the preparatory work to the Act on Discrimination on Sexual Orientation that persons who challenge sex norms have a need for protection against discrimination because they are particularly vulnerable to discrimination and harassment, see Prop. 88 L (2012-2013) chapter 16.5.2, p.177:

“The department show that transpersons challenge traditional ideas concerning sex, sex identity and sex expression. Transpersons are particularly vulnerable and experience violence, harassment and differential treatment which reduces their quality of life and opportunities to participate in society. The protection against harassment because of sex identity ans sex expression comprises a persons self experienced sex, that is to say what isn’t visible to others.”

The tribunal note that A have factored in that the tribunal can not process the case as it is a “personal relationship” which the tribunal can not enforce, according to § 2. The tribunal is of the opinion that that the relationship can not be considered a “personal relationship” as the incident in the changing room took place in a public space, others were present and the parties had no personal relation. The tribunal therefore doesn’t consider it unreasonable that the law comes into use.

Whether A harassed B will have to considered after the law’s presumption rule in § 23. It shall be taken into account that harassment has taken place if the circumstances gives “reason to believe” that harassment has taken place and the responsible doesn’t make it seem likely that harassment hasn’t taken place after all.

The tribunals majority takes into account that B felt violated by the remarks made in the women’s changing room in February 2017. The tribunals majority emphasizes that transpeople are vulnerable, and has a need to for particular protection against harassment. In the evaluation about whether harassment has taken place however, the subjective experience must be seen against an objective norm for what an average person would have perceived as harassment in this particular case. The majority’s evaluation is that it is unclear what was really said in the women’s changing room. The majority takes into account that it was a heated situation which both parties contributed to. The manager of the fitness centre confirms that questions were asked about transpeople’s use of changing rooms. The way the majority considers it A’s remarks were not directed against B, against a sex segregated changing room solution which didn’t take into account sex diversity. A’s questions regarding the use of changing rooms must also be seen in light of the fact that A had contacted both the centre’s management and the ombud's to gain clarity as to who may use the women’s changing room. In this context the majority is of the opinion that A’s remarks must sees as information that B was in the wrong place.

Law regarding legal sex does not give solutions to practical challenges for people who have changed legal sex. Use of changing rooms for persons who have changed legal sex is a question which has not been given a legal clarification. In this context the tribunal’s majority is of the opinion that the unclear legal situation causes uncertainty.

The remark that “she is provoked by seeing a penis in the changing room” can be interpreted as being directed at B and not the changing room set up. It’s a remark that could be considered offensive. The tribunal’s majority still find they must consider the situation the remark was made under, where the parties where in an intimate situation in a changing room. As long as the question regarding changing rooms for transpeople is unclear, transpeople must expect reactions by using sex segregated changing rooms. Even though it can be uncomfortable for transpeople to be subject to questions about what they’re doing in the women’s changing room, this does not qualify as harassment. There has to be a certain threshold before one uses such a strong description of a remark. The tribunals’ majority can not see that the remarks were uttered with the intention to offend B. Further the emphasis is on the fact that the parties were in a conflict situation and the threshold for what can be considered harassment is therefor higher. This case did not happen in an employment situation which means the threshold for what can be defined as harassment again is higher. Everything considered, the tribunal’s majority finds that there is “reason to believe” that harassment has taken place, according to § 23.

The tribunal’s minority, consisting of leader Danielsen, have come to the conclusion that B was harassed because of sex identity / sex expression.

The minority agrees with the majority with regards to the legal starting points. The minority is however in disagreement with regards to the concrete subsumption about whether there is reason to believe B have been harassed.

The minority’s reasoning is that the situation in the changing room and following meeting were heated, something which the centre’s management confirms. Based on this the minority takes into account B’s version of what was said. When the minority considers whether B was violated, A’s overall behaviour is taken into account. It’s emphasized that A was aware of the issue of transpeople’s use of sex segregated changing rooms. She was also aware that B had changed legal sex and that B has a negative experience during their first meeting in the women’s changing room. A on the other hand had no need to react another time and ask questions regarding B’s use of the women’s changing room. The minority also emphasizes that the remarks were made around other people, and in an intimate situation. The remarks were suited to offend B’s sex identity, when questions were asked about her right to use the women’s changing room. This goes straight to the core of B’s sex identity. In this evaluation it is also emphasized that transpeople’s is a vulnerable minority who has particular need for a strong protection against harassment. It is the minority’s evaluation that B was harassed by A.

Conclusion

A has not harassed B.

The statement is given under dissent.

Case 68/2018

The Anti Discrimination Tribunal has given the following statement:

A has not harassed B because of sex identity or sex expression.


Ivar Danielsen (meeting chair), Gislaug Øygarden, Thorkil H. Aschehoug 


The original published case review can be found here (in Norwegian): http://www.diskrimineringsnemnda.no/media/2218/68-2018-uttalelse-anonymisert.pdf



Note: I am using sex, not gender in the translation as the word for gender in Norwegian would be "kjønnsrolle" which literally translates to sex roles, aka stereotypes. The case also clearly refers to the physical body rather than clothing.