Transgender Toilet Facilities

The recent decision by the US state of North Carolina to revoke a number of local laws which previously provided protection to transgender and gay individuals continues to make the news.

The most publicised aspect requires individuals who have undergone or are undergoing gender reassignment to use toilet facilities for those of the same sex as that indicated on their birth certificate. This move led to objections from a number of large businesses and celebrities, not least Bruce “The Boss” Springsteen, who cancelled scheduled concerts in the state.

Is the situation different in Great Britain? The short answer is Yes. The reasons are, as you may expect, more complicated.

While there is no specific provision in Great Britain on this issue, there are a number of protections contained within the Equality Act 2010, including the right not to be treated less favourably because of a protected characteristic, with gender reassignment being listed as a protected characteristic.

The Court of Appeal case of Croft (C) v Royal Mail Group Plc (RM) [2003] provides some guidance. C, who was born a man, started working for RM in 1987. C had doubts about her sexuality for a number of years and sought medical advice in 1997. In 1998, C started to undergo treatment, which involved in the first stages counselling, hormone therapy and a “real life test”, which meant living exclusively as a woman. At that stage C had not undergone any surgical procedures. C explained this to RM and started to attend work as a woman, including dressing as a woman and changing her name from Nick to Sarah. C wanted to use the female toilet facilities since she considered herself to be a woman. This was met with objections from other female staff, who had known her as a man for the previous 10 years. RM refused C’s request for the time being and tried to accommodate her by offering the use of the disabled toilet. C alleged that this was less favourable treatment. The situation was further complicated by the fact that the Workplace (Health, Safety and Welfare) Regulations 1992 require an employer to provide separate toilet facilities for male and female employees.

The Court of Appeal decided that C had not been treated less favourably. The Judge acknowledged the difficulties in setting out what can, and should, be done in such situations, stating that the protection afforded to transsexuals:

“… involves not only providing members of the [protected] group with toilet facilities no less commodious than other toilets but considering whether the transsexual should be granted the choice she seeks. I would accept … that a permanent refusal [of] that choice to someone presenting to the world as a woman could be an act of discrimination even if the person had not undergone the final surgical intervention.”

On the other hand, the Judge did not:

“… accept that a formerly male employee can, by presenting as female, necessarily and immediately assert the right to use female toilets. The status of transsexual does not automatically entitle the employee to be treated as a woman, with respect to toilet facilities. The Tribunal has to make a judgment as to when the employee becomes a woman and entitled to the same facilities as other women though that judgment must have regard to the applicant’s self-definition and cannot be determined by the views of other employees.

Essentially, therefore, it is a matter of assessing each case separately, ensuring regular reviews are undertaken to see if any changes or further steps are required. RM was clearly helped by the supportive approach they appeared to take in other aspects of C’s process, with the manager being found to have been “doing his best to resolve a difficult situation both for [C] and the rest of the workforce”. There may be some situations where a pre-operative transsexual can be treated as the other gender – this is perhaps even more relevant since the introduction of the Gender Recognition Act 2004, which enables an individual to legally register as the opposite sex as long as they have lived in the acquired gender throughout the preceding 2 years. There is no requirement for the individual to have undergone, or intend to undergo, any surgical procedures.

While the risk of The Boss pulling out of previously arranged engagements with you are slim, it is important that these matters are approached sensitively and carefully. Unlike in some areas of the US, consideration must be given to such arrangements.

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