Case law

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. “

Scylla and Charybdis: between a rock and a hard place

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. 

Case law

Revisiting the Brook case

There is very little case law about single and separate sex services and gender identity. Only one case has been litigated since the Equality Act 2010 was enacted.

In 2014 Halifax County Court awarded £1,500 in damages to S Brook, who was refused access to the women’s toilets of a pub and then barred after complaining.

The case is what is known as a “first instance”, which means it wasn’t appealed and did not create a legal precedent (legal precedents mean that court must follow decisions of previous decisions of the same or higher court in cases that are similar in relation to the facts and the legal issues). * some updated information on this at the bottom of the post (1/6/20)

No transcript of the judgment by Judge Miller is available. Nevertheless it has been reported as a “landmark case” and has been influential. It is leaned on heavily by those who argue that self-declared “gender identity” gives someone the right to access to single sex changing rooms, showers, toilets, hospital wards, dormitories and so on shared with members of the opposite sex.

The site of the landmark case

For example, the Government Equalities Office’s 2015 guide “providing services for transgender customers” produced together with the lobby group Gendered Intelligence cites the case in support of its statement that it would be direct discrimination to “refuse to allow a woman [sic] to use female facilities because staff perceive her to be male.”

The Women and Equality Select Committee report on Transgender Equality saw the case as a demonstration of the “gender reassignment exception” (Schedule 3, paragraph 28), suggesting it cannot be relied on in a case such as pub toilets. The 2018 UK Government Consultation on reform of the Gender Recognition Act cites the case in support of saying that “refusing a transwoman with or without a GRC access to a female toilet in a pub is likely to be unlawful.” This same statement is repeated in a House of Commons briefing paper in January 2020.

However these statements conflict with a straightforward interpretation of sex and the Equality Act; single sex services for women do not have to admit men, and male people who self identify as women remain legally men.

As trans rights activist Dr Harry Josephine recently reflected in an analysis of the law and single sex services:

So, if you’re legally male, you can be excluded from single sex spaces by default. 

Dr Harry Josephine

The Green case

The problem with the Brook case for advocates of “trans inclusive single sex spaces”, is that it disagrees with the judgment in Green v Secretary of State for Justice 2013 (which went to the High Court and thus did create a precedent).

The Green case involved a transwoman prisoner (convicted as Craig Hudson for his part in the torture and murder of his wife and of perverting the course of justice). It wasn’t about single sex services as Green was held in a men’s prison but the question of whether Green, who had a male appearance and genitalia was discriminated against by being denied tights, a wig, prosthetic breasts and vaginas (the prison governor argued that these items are a security risk), as well as difficulty in obtaining other items such as concealer make-up, sanitary towels, hair removal products and outsize women’s shoes and clothing.

The judgment is relevant because it considered whether in a “gender reassignment” discrimination case the appropriate comparator was a person of the same sex or the opposite sex. Comparators are frequently used in discrimination cases as a means to test whether a person was treated less favourably than a similar person without the same protected characteristic. Judge Richardson found in the case of Green that the appropriate comparator was a man who was not transitioning/transitioned:

“He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.”

HHJ Richardson

As Law Professor Alex Sharpe notes in a recent Modern Law Review article, that finding puts a major spanner in the works for any self identifying transwomen who wish to claim discrimination from being excluded from women’s services:

Thus, if a trans woman brought a discrimination claim on the basis of exclusion from a women-only bathroom or domestic violence refuge, her experience would be compared to that of a non-trans man. Obviously, and even applying the ‘proportionality’ test, a non-trans man would have been excluded. The conclusion that must follow is that there has been no discrimination.

Alex Sharpe

In the Brook or on the Green?

So why did the judgment in Brook differ from the judgement in Green?

Alex Sharpe says the reason is that high court judge Jeremy Richardson “must be wrong” (because Sharpe is sure that parliament’s intention in the Equality Act was to allow males to self identify into female spaces). Sharpe says (citing the unrecorded Brook judgment from the lower court) “it seems unlikely that Green would have survived an appeal or that our superior courts presented with such a scenario today would proceed as HHJ Richardson did.”

Harry Josephine joins in the wishful thinking, but also has some more information on the Brook case:

“I have confirmed personally with the lawyers who brought the [Brook] suit that the question of whether or not the woman had a GRC never came up in court. So the judge in Brook 2014 did not consider that the judgement in Green 2013 applied to the case. Interesting! You don’t need a GRC to claim gender reassignment discrimination after all. Perhaps Green 2013 indeed doesn’t apply beyond prison after all.

Harry Josephine

Clare McCann, a barrister who specialises in transgender equality said something similar about the case in a legal opinion to the Women and Equality Select Committee in 2015. She notes that “it did not appear that the defendant pub owner sought to rely on paragraph 28, Schedule 3, of EqA” (which allows gender reassignment discrimination in relation to single sex services). Her theory is that:

Perhaps this was because it was so unlikely that providing separate toilets for men and women and not allowing the trans female customer to use the ladies toilets was a proportionate means of achieving a legitimate aim.

Clare McCann

This she admits is speculation.

Both Sharpe and Josephine are personally, philosophically and professionally invested in the idea that “trans women are women” and that males who identify as women have a right to use women’s services. McCann similarly takes a one sided view about the inclusion of males in women’s spaces, for example writing an article on toilets and gender identity in 2017 which did not mention the impact on women at all.

Since everyone else is speculating on what happened in the Brook case, allow me too to speculate.

But first lets look at what we know about the case.

What happened in the Halifax pub?

The only public record of the case is a 2014 press release from the Kirklees law centre. It says Susan Brook” has lived as a woman for over 20 years and has undergone gender re-assignment surgery.”

The incident happened in July 2012 when Brook attended the New Inn pub in Halifax. Brook went to the ladies toilets “but was followed in by another lady who told her that she should not use the ladies toilets.”

Brook spoke to the landlord of the pub “but he refused to assist. He later barred her from the pub and confirmed that she should not use the ladies toilets and must use the gentleman’s toilets.”

Brook has written a short article which gives more context on Brook’s life.

S Brook, 2016

Rather than living for 20 years “as a woman” the article describes many years as a part time cross dresser before Brook “told my GP I would like to change gender in mid 2009”, and had “my operation” in November 2012, followed by breast augmentation in February 2014. The pub incident happened in July 2012.

Up to, and after these operations, Brook’s life story as told in the article is marked by long periods of unemployment, personal conflict, alcohol problems and mental health issues.

My face didn’t fit [in the Royal Air Force] and I was given all the worst jobs, extra duties and ceremonial duties. I found that no matter how hard I tried whatever I did was never right and this led to me being charged on numerous occasions and 2 short prison terms.

I had also begun to drink to the excess during this time which brought more trouble and eventually hospitalisation for rehabilitation purposes.

Having been discharged from the air force I was divorced in early 1991 and moved to Ovenden where I lived for a short period before losing my flat, I was also fired from my job as a security guard at Websters brewery when I notified my employer I intended to undergo gender reassignment.

I was finally offered a flat of my own in 1994 by the council and moved to Mixenden, which brought its own problems caused by prejudice.

From here I was able to start rebuilding my life. I found some casual work in a local garage and after a month or so I told the garage owner that I was transgender before he heard it from a new customer who knew of me. I initially thought he would be prejudiced against me but once I had explained my stance he became a good friend. Even though I now had a firm address full employment still eluded me due to lack of qualifications or experience, or so employers told me.

I had suffered from mild depression for many years and had put this down to my struggle to become the woman I always should have been, but now realised that was not the case. My depression also had a side effect in that I found it difficult to socialise as I would often end up arguing with people over nothing.

Clearly Brook is a troubled and vulnerable person, who was being treated by a doctor for gender dysphoria, but does that mean a right to use spaces provided for the bodily privacy of the opposite sex?

The Equality Act allows provision of single sex services for various reasons including “circumstances where a person of one sex might reasonably object to the presence of a person of the opposite sex” (Schedule 3, paragraph 26 (6). This was the exception that the publican was using (probably unwittingly) in providing men and women’s toilets.

And a woman did reasonably object to the presence of someone she rightly perceived to be male.

My speculation….

So why did Judge Miller not consider the precedent of Green in determining whether the correct comparator for Brook was a man or a woman? Or why did he not consider whether the gender reassignment discrimination exception in Schedule 3 paragraph 28 of the Equality Act could be used as justification for exclusion?

My guess is probably because the publican Barry Tasker did not bring these points of law up. We do not know if he was a litigant in person, or had representation. Either way possibly he went to court thinking the whole thing was ridiculous, and assumed it would be thrown out. He viewed Brook as a man and had treated Brook like any other man; he had done (in his mind) the obvious and right thing in backing up a woman who had been made scared and uncomfortable by the presence of a male in the women’s toilet (I have found no suggestion anywhere that he was disrespectful or derogatory to Brook in doing this). His experience as a publican had probably taught him that having non-negotiable rules about whether adult males are allowed in the women’s toilets was entirely sensible, and his responsiblity was to maintain order in his pub.

Perhaps the idea that discrimination law might be used to force him to treat a man as a woman, in a situation that would humiliate his female customers, and put them at risk just never occurred to him. (And perhaps Alex Sharpe is wrong in thinking that this is what the legislators were thinking when they included “gender reassignment” in the Equality Act; perhaps they just meant that transsexuals should not be discriminated against or harassed in general, in employment and as customers).

What was the judge thinking? Perhaps he consulted the EHRC Code of Practice or other guidance. Perhaps his attention was drawn to the EHRC guide for business, which at the time said specifically a transsexual person should not be given a worse standard of service in a pub by “refusing them access to the toilets appropriate to the sex in which they present.” (this was removed from the guidance in 2018 ). Perhaps he was influenced by the Equal Treatment Bench Book which calls the protected characteristic sex “gender” and advises judges to ignore questions of anatomy and biology, and says that a self identified transwoman should simply be referred to as a woman.

Whatever it was, there was no sign that he considered and dismissed the finding in Green. Nor that he found it was not “a proportionate means to a legitimate aim” to exclude males from women’s toilets.

Rather he seems to have been convinced that “transwomen are women”, or at least that is what you are meant to say, and this made him forget to consider that what was at stake was a workable policy to protect the ordinary dignity, privacy, inclusion and safety of women drinking in the pub.

1 June 2020 Update: I enquired to Kirklees Law Centre for any more information on the case:

They confirmed that the publican was a ‘litigant in person’ (i.e. did not have a lawyer), and also that he did not attend the final hearing. So the case was uncontested – the Judge only went through the the claim and spoke to Brook. “As there was no Defendant present he went no further. Judgement was reserved and sent out later. There are no reasons.”

The mystery of why the publican didn’t defend the case is solved quite prosaically: he attended the preliminary hearing to say to the judge that there was no point to the case, because if damages were awarded he would wind up the company (and that is what he did).

The question of whether discrimination arose from Brook not being allowed to use the female toilet facilities or from Brook being barred from the pub was not raised, nor was there any examination of evidence on the circumstances that led up to Brook being barred that day.

This is the full basis on which the case was decided. It should not be taken as an authority for anything – either formally in law, or informally by presented as so in government documents and guidance.