Law fails 'real life' test

Croft v Consignia plc [2002] IRLR 851 
A v Chief Constable of the West Yorkshire Police [2003] IRLR 32

Two recent decisions deal with what can often be sensitive issues surrounding the employment of transexuals. The Sex Discrimination Act 1975 (SDA) makes it unlawful to discriminate on the ground of sex in employment, education and the provision of housing, goods, facilities and services. The Sex Discrimination (Gender Reassignment) Regulations 1999 have extended the SDA to make it unlawful to discriminate on grounds of gender reassignment, but only in the areas of employment and vocational training.

The Regulations do not apply to discrimination in education or in the provision of housing, goods, facilities and services.

In employment and vocational training, section 2A of the SDA protects individuals who are discriminated against because they:

In Croft v Consignia plc the EAT held that an employee who was undergoing male-to-female gender reassignment treatment had not been constructively dismissed or discriminated against on the grounds of sex because the employer would not let her use the female toilets, requiring her to use the gender-neutral disabled toilet.

When a person undergoes gender reassignment, usually prior to surgery, they will undergo a "real life test" which involves presenting him or herself as a member of the opposite sex. Ms Croft, a pre-operative male to female transexual, had been employed for more than 10 years at Leicester sorting centre before she embarked on her "real life test". It was important to her as part of this process to use female toilets, but this was objected to by female staff who had known her as a man. The employers would only let her use the gender-neutral disabled toilet, and eventually she resigned claiming that this amounted to discrimination contrary to the Sex Discrimination Act, as amended by the 1999 Gender Reassignment Regulations.

The government guidance accompanying the regulations suggests that: "The employer and employee should agree the point at which the use of facilities such as changing rooms and toilets should change from one sex to the other. An appropriate marker for using the facilities of the employee's 'new' sex may, for example, be the point at which the individual begins to present permanently in the sex to which they identify. It is not acceptable to insist for the long term on a transexual employee using separate facilities, for example a disabled toilet."

However, the EAT held that as far as toilet facilities are concerned, the regulations are overridden by the Workplace (Health, Safety and Welfare) Regulations 1992, which implement EC Workplace Directive 89/654, and require that "separate rooms containing conveniences are provided for men and women". According to the EAT, that means that an employer is required to assign persons to the use of such toilet facilities as are consistent with what the employer knows or believes to be the legal sex of the person concerned. The legal sex of a pre-operative transexual in the UK is their biological sex at birth and even the European Court of Human Rights in Goodwin v United Kingdom ECHR [2002] IRLR 665 distinguished between "fully achieved and post-operative transexuals" and others. On that basis, Ms Croft's treatment concerning the use of toilet facilities was not considered to be less favourable treatment, but represented similar treatment to her colleagues who were also prohibited from using toilets reserved for the opposite sex. The EAT accepted that the correct comparators when dealing with discrimination against transexuals were employees of either sex who were not transexuals. However in this case the employers had not treated her less favourably than her comparators because in relation to her legal sex the Regulations and Directive had been not been applied differently to her comparators. The position would have been different if Ms Croft had been a post-operative transexual person because she would be entitled to have her gender reassignment recognised in law as per Goodwin. The judgment appears to be an over literal interpretation of the Gender Reassignment Regulations and the case is being appealed to the Court of Appeal.

In A v Chief Constable of the West Yorkshire Police, Ms A, a male to female post-operative transexual, was turned down for a post as a police constable because it was considered that she would not be capable of carrying out intimate searches of women.

The Force admitted that it had treated Ms A less favourably on the grounds that she is a transexual but claimed that it had not acted unlawfully. It argued that conformity of legal and apparent gender was a "genuine occupational qualification" for the job of police constable within the meaning of section 7 (2)(b)(i) of the Sex Discrimination Act 1976 on which an employer can rely where being male (or female) is a genuine occupational qualification for a job because, for reasons of privacy or decency people might reasonably object to a task involving physical contact being carried out by a person of a particular sex.

The Court of Appeal held that in light of the decision of the ECHR in Goodwin, in the field of employment law, a post-operative male to female transexual is entitled to be regarded as female, unless there are significant factors of public interest to weigh against the interests of the individual applicant in obtaining legal recognition of her gender re-assignment. In Ms A's case the West Yorkshire Police Force was bound to treat Ms A as female during the recruitment process and had not been entitled to treat her less favourably on the basis that she was a transexual and there was no possibility for the Force to invoke the genuine occupational qualification defence.