The swimming ponds on Hampstead Heath in London have become the subject of a legal dispute over whether transgender people should be allowed to use the facilities corresponding to their gender identity.

The City of London Corporation, which manages the ponds, has maintained a trans-inclusive policy, allowing trans women to use the women’s pond and trans men the men’s pond. Campaign group Sex Matters has challenged that policy in the High Court, arguing that it is incompatible with the legal definition of sex under the Equality Act. The case has attracted considerable attention because its implications could extend well beyond a couple of swimming ponds.

There’s something about this dispute that I find particularly interesting: the argument isn’t simply about who should be allowed to use a particular swimming pond; it’s also about whose discomfort should determine the rules for everybody else.

There is an assumption that accommodating people who object to trans inclusion is somehow neutral, whereas accommodating trans people is a political statement.

I think that is fundamentally wrong.

There’s another consequence of making institutions enforce trans-exclusive policies. People who oppose trans inclusion no longer have to defend that position themselves; the institution does it for them.

It allows people with transphobic views to hide behind the institution’s rules.

They can use its facilities without ever having to express or demonstrate their own prejudice. If, instead, facilities were free to advertise themselves as trans-inclusive, those who objected would have to make an active choice every time they used one. They could choose not to go, of course, but they could no longer quietly rely on the institution to enforce their prejudice on their behalf.

Inclusion makes the choice visible; exclusion makes the discrimination invisible.