Croft v Royal Mail: between a rock and a hard place

They say “hard cases make bad law“. What little case law there is about single sex spaces and transgender people’s access to them falls into that category. 

Croft v Royal Mail was an employment case which considered the issue of toilets and changing rooms. It went to the Employment Appeal Tribunal and then to the Court of Appeal in 2003. The outcome is not popular with anyone, since it does not give a clear answer either way. 

It says that 

“acquiring the status of a transsexual does not carry with it the right to choose which toilets to use” 

Lord Justice Pill, Court of Appeal

But it it also suggests that employers can not solve the issue by simply offering a unisex alternative. The Court of Appeal  said that at some point a male person should be considered transitioned enough to gain access to women’s facilities, even if they had not ‘changed sex’, but it would not say what that point was. 

The Court of Appeal: Lord Justices Pill, Parker and Keene

The case concerned a Royal Mail employee Nicolas Simpson, who later changed name to Nicki Simpson and then Sarah Croft while working  as a van driver at the depot in Leicester. 

Simpson, a father of three, and long-time cross dresser, had worked at the depot for 10 years before being diagnosed with gender dysphoria in 1997 and deciding to transition. 

After a meeting with local managers in August 1998 when a ‘low key’ approach to transition was agreed, Simpson began to attend work “dressed as a woman” (as the tribunal describes it) and requested the use of the name Nicki. Management supported this by briefing colleagues about Simpson’s transition, and about their harassment policy. They offered Simpson use of the unisex disabled toilets “for the time being”. Regional management advised that Royal Mail were prepared to offer access to the  female toilet facilities at an unspecified time in the future saying

“we have to consider two main issues, your own views and preferences, but also the views and preferences of our female employees”

Royal Mail

By January 1999 Simpson (now Sarah Croft) was frustrated that some members of staff were saying “he, him and mate” and argued that having to use the unisex facility was an obstacle to gaining social acceptance.  After four months of sick leave with depression and a several month stand-off with regional management,  in June 1999 Croft left the Royal Mail and filed a claim for constructive dismissal, sex discrimination, and being unduly pressured into consenting to the giving of confidential medical information.

The tribunal found in favour of Royal Mail; that Croft had not been dismissed, that Royal Mail had taken reasonable steps to prevent sex discrimination by staff, and that asking for medical information when an employee is requesting a change or exception to ordinary practice was  reasonable.

This was upheld by the EAT and the Court of Appeal.

But while the Employment Tribunal and Employment Appeal Tribunal tried to draw a clear line at surgery, saying that someone who remained fully anatomically male had no claim on using the women’s facilities, the Court of Appeal reached its conclusion by a different route. It said that people transitioning are not immediately entitled to be treated as members of the opposite sex, but “a permanent refusal of 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.” Nevertheless they said, in this case the employer acted reasonably in providing an “admirably practical solution to what the respondent rightly recognised, and rightly treated, as a delicate issue requiring a low-key and sensitive approach.”

Some things to note about the Croft case:

Female employees expecting privacy were not considered transphobic by Royal Mail or the courts 

The EAT judgment references the views of female employees in several places. It says that the Royal Mail managers had taken a “low key” approach because  in another part of the country there had been a “proposed walk-out by other staff in a similar situation.” The tribunal mentions that a number of female employees had expressed concern to their union representative about use of the female facilities. It describes the sink-and-mirror area linked to the toilet which Croft first proposed to use, as being a space which female employees often used  for changing clothes. “Informal soundings of the staff had indicated that female staff would not be happy with the applicant, who they had known as a man for many years, using their  facility.“ The Tribunal added: “The respondents do have a number of female employees from ethnic minorities, who had specific objections to sharing facilities with the applicant, who they had known as a man and who was still anatomically male.”

The tribunal noted that it is counterintuitive to find that a person who is anatomically male must be treated, for toileting purposes, as female, saying “a voyeur or transvestite might do that.“ 

Croft predates the GRA, but change of legal sex does not solve the problems it raises

The Court of Appeal found that Croft was a man “wishing to become female”, but had not yet reached that point, nevertheless it said the request to use female facilities should be considered.

The judges were watching the Goodwin case in the European Court of Human Rights  which was ongoing at the same time and clearly hoped that a change in UK law would solve the problem of determining the moment and criteria for legal sex change. (A later judgment R (Green) v Secretary of State for Justice [2013] is influenced by Croft, and says that a male person remains male “until there is a Gender Recognition Certificate” )

But the GRA does not solve the problem that female employees may still object to showering, changing and sharing toilet facilities with someone they rightly perceive to be male, whatever their gender identity or legal status. This issue ( the “Helen Staniland question”) is also reflected on by the EAT:.

“it seems to us inherently improbable that the terms “men” and “women”  [in workplace regulations] should then be referring to the gender a person might choose for himself or herself as that interpretation would require contemplation of the shower rooms… to be separate, nonetheless possibly having amongst their users, in the women’s facilities, persons still wholly anatomically male and, in the men’s, persons surgically adapted as far as possible to resemble females.”

The case highlights the impossibility of managers using sensitive medical information to judge whether someone can use opposite-sex facilities on a case-by-case basis

Relations between Croft and local managers deteriorated over fumbled requests for medical information,  illustrating the difficulty of knowing what information is legitimate to ask for, and what can be done with it.  Management essentially wanted to know whether Croft had or was intending to have genital surgery, wrongly predicting this was the dividing line for legal sex change. Feeling  this was too sensitive to enquire about directly they asked for consent for the company’s occupational health service to contact Croft’s doctor, saying that any information would be confidential. Croft objected to this, apparently believing that detailed full medical records were being asked for. 

Royal Mail emphasised that access to the  female facilities had to wait for “a suitable period of communication and consultation with the workforce.”  But it is impossible to see how this consultation could have worked; it appeared to be based on an expectation that surgery would provide the assurance needed for female depot staff to feel comfortable, but it would have been inappropriate to share any  information about Croft’s medical treatment with female staff, and nor would it be appropriate for either Croft or female colleagues to strike up personal conversations about genitalia (this could be sexual harassment). 

The courts in 2002 assumed this issue would be vanishingly rare

The Royal Mail said they knew of only 4 other cases of transsexualism out of their 160,000 employees, a rate of .0025%. The EAT said:

“As an employer the Post Office was required to deal with a problem of exceptional rarity, one to which its Human Resource Department and legal advisers would have struggled to find parallels and authoritative guidance. It had to steer between the Scylla of not paying due respect to one employee’s wishes, without intrusive enquiry into deeply personal matters, and the Charybdis of not respecting the wishes of other employees, wishes not, as it seems to us, fairly describable as prejudiced but rather being a manifestation of widely-held views as to a certain form of privacy or propriety. “

The EAT addressed this dilemma assuming that there would be a tiny number of trans people in the population, all undergoing surgical transition, and that most would ultimately succeed in passing indistinguishably as the opposite sex. They said “In the massively preponderant number of cases the employer will have no reason to distinguish between sex and gender” and that “ there will be a tiny proportion where a person “presents” as of one sex but is known by the employer to be of the other.“ 

What they didn’t anticipate was the expansion of the “transgender umbrella” to include the much larger number of cross-dressing males, or the exponential growth in the number of children believing they are born in the wrong body, such that most schools are now facing children demanding to use opposite-sex facilities. 

The Equal Opportunity Commission – arguing against women’s interests

Croft was represented by the Equal Opportunities Commission – the forerunner to the Equality and Human Rights Commission,  with a specific mandate for combatting sex discrimination. 

The case argued by the EOC team was already (pre GRA) for self identified gender to replace sex, saying “anatomical or biological sex was of no concern to the employer. The employer’s only concern was with social gender…biological sex should remain private and there was no need for the employer to be informed of it.”

The Tribunal referred to the “repeated and lengthy attack on Mr Jones (the Royal Mail’s personnel manager for the Midlands)  at the hearing by Dinah Rose QC, counsel for the applicant, who tried, they held, to portray him not only as ignorant of transsexuality but as phobic towards transsexuals. The Tribunal’s finding was:

“In successfully withstanding that battering Mr Jones satisfied us fully that he was doing his best to resolve a difficult situation both for the applicant and the rest of the workforce. Although motivation and inferences are not really a relevant issue in this case, none of the points put forward to us by Miss Rose lead us to believe that there were anti-transsexual feelings in Mr Jones or in other people at a management level in the respondent, although they undoubtedly saw the applicant’s transition as a problem.”

The legitimate unwillingness of female staff to undress with a male colleague was something that managers of the post office depot in Leicester could see clearly, but which the equality professionals would not.