Julie Duane, Solicitor Advocate at CG Professional.
The question which often arises with employers is how they address an employee who is transsexual and/or undergoing gender reassignment and their request to use single-sex facilities in the workplace. Prior to the enactment of the Equality Act and the Gender Recognition Act 2004 the leading case law in this area was Croft v Royal Mail Group PLC  IRLR592. This article seeks to address whether this would still be viewed as good law.
The claimant in this matter was a preoperative male who was seeking to identify as a female within the workplace. As part of their identity, the claimant wished to use the female single-sex facilities but was refused the right to do so. Initially the parties had agreed that the employee could use the disabled facilities, however, the Claimant then sought to bring an action against the employer due to their failure to grant permission to use the female toilets. This is a case which proceeded up to the Court of Appeal and it was held that the employer had not directly discriminated against the claimant.
Is this still good law?
Whilst there doesn’t appear to be any conclusive case law to dispute Croft, there is large speculation as to whether this does indeed remain good law. This is because in accordance with the Equality Act 2010 there is no requirement for medical intervention to take place for an individual to be deemed transsexual.
Moreover, in accordance with the GEO guidance, it dictates that individuals should be free to select the appropriate facilities for the gender in which they identify and that where the individual starts to live in their required role on a full-time basis, they should have the rights to use the facilities of that gender. Understandably employers may encounter difficulties in respect of other employees in how they perceive the individual’s use of these facilities, however, the Guide clearly stipulates that any objection or inappropriate comments made by work colleagues, as a result of the individual using these facilities, should be treated as unreasonable and potentially discriminatory. Employers should, therefore, ensure that their staff are educated in terms of equality and diversity in the workplace and that this information is disseminated to the wider workforce.
Whilst this can be a complex area of law, the Guide is clear in that transsexual employees are entitled to expect support from their employer when raising these types of concerns. This is further supported by the ACAS Code of Practice which determines that an individual should have the right to choose the appropriate facilities for the gender in which they identify and should not be made to use a disabled toilet as an alternative.
If you have any questions regarding the content of this article, or another employment law matter, please do not hesitate to contact a member of the CG Professional Team will be more than happy to assist.