In the issue 77 February 2003 edition of LELR we reported on the EAT decision in Croft v Consignia plc [2002] IRLR 851. The case involves the use of female toilets by a male to female pre-operative transsexual. The EAT had decided 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 EAT held that a pre-operative male to female transsexual is still legally a man. Therefore Ms Croft's treatment as far as the use of toilet facilities, was not less favourable treatment but represented similar treatment to her colleagues who were also prohibited from using toilets reserved for the opposite sex.
The Court of Appeal have dismissed Ms Croft's appeal against the EAT decision (Croft v Royal Mail [2003] IRLR 592 EWCA Civ 1045). However the Court of Appeal's reason for finding against Ms Croft is different to the EAT. The EAT's reasoning was straightforward - that legally a pre-operative male to female transsexual was a man and therefore there was no discrimination in preventing Ms Croft from using a female toilet.
The Court of Appeal approached the issues by considering section 82 of the Sex Discrimination Act 1975 as amended, which provides that the category of persons who are not to be discriminated against on grounds of gender reassignment includes persons at all stages of gender reassignment under medical supervision. The Court of Appeal accepted that this includes pre-operative transsexuals. However it did not follow that, when considering less favourable treatment on grounds of gender reassignment, that all such persons are immediately entitled to be treated as members of the sex to which they aspire. Thus the court said that merely being a pre-operative male to female transsexual would not enable a person to use a female toilet. On the other hand, permanently refusing someone the use of female toilets, even though they have not undergone the final operation could amount to discrimination.
The court said that employers must consider all the circumstances of each individual case and make a judgment as to when a pre-operative male to female transsexual can use the female toilet. Employers should have regard to their other employees and also the circumstance of the transsexual person and at what stage she has reached in the medical treatment including her own assessment and presentation. However, the employer is not bound by the transsexual's own self-definition - but it is one of the considerations that should be taken into account.
In Ms Croft's case the court said that the circumstances dictated that, for a period of time, Ms Croft should not be entitled to use the female toilet and that the unisex disabled toilet was sufficient for her to use. The time had not yet come when she was entitled to use the female toilet facilities.
Although Ms Croft lost her appeal, the Court of Appeal adopted a more realistic attitude than the EAT's blanket approach that all pre-operative male to female transsexuals, whatever their circumstances, must be treated as men. The Court of Appeal has left it open, in some circumstances, for pre-operative male to female transsexuals to use female facilities. It will require employers to consider all the circumstances, rather than use the crude distinction of pre- and post-operative.