There is no legislation that men must use the male toilets and women use the ladies toilets. On private premises the Manager or Licensee has the right to determine entry to the premises and the right to decide who uses which toilet and any other gendered facilities such as changing rooms etc., but it must be remembered that gender reassignment is one of the 9 protected characteristics within the Equalities Act 2010.
The Equalities Act 2010 defines a person as having the protected characteristic of gender reassignment if the person is:
- proposing to undergo;
- is undergoing; or
- has undergone a process or part of a process for the purpose of reassigning the persons sex by changing psychological or other attributes of sex.
It is however often hard to distinguish between those in the early stages of transitioning and those who are transvestites/cross-dressers.
Good practice is to let people use the facilities appropriate to the way they present, allowing them to use facilities appropriate to their expressed gender identity.
It must always be remembered that those who have the protected characteristic of gender reassignment should not be discriminated against.
There has been recent case law. In March 2014 a transgender women from Halifax won her claim for transgender discrimination in the provision of goods and services against a pub which had refused to allow her to use the ladies lavatories and had barred her when she complained. The case highlighted the need for businesses and other service providers to treat all of their customers fairly and equally and demonstrated that there is legal protection for victims of discrimination.
Susan Brooke had lived as a women for over twenty years and had undergone gender reassignment surgery. Susan attended the New Inn in Halifax in July 2012 and went to use the ladies toilets but was followed in by another lady who told her that she should not use those toilets.
Susan spoke to the landlord and explained what had happened but he refused to assist and later barred her from the pub and confirmed that she should not use the ladies toilets and must use the gentleman’s toilets. The Judge in Halifax County Court found she had been discriminated against and subsequently victimised by the pub management. He issued a declaration of discrimination and awarded damages of £1500.
It is also not acceptable to restrict a Trans person to using disabled toilets or other unisex facilities.
In an earlier case Croft v Royal Mail in 2003 it was clarified that those at all stages of gender re-assignment under medical supervision are protected, but the case clarified that it did not follow that all persons are entitled immediately to be treated as members of the sex to which they aspire. In this case it was concluded that there was a period during which an employer was entitled to make separate arrangements for those undergoing the change. In this case a long standing employee who had decided to commence gender re-assignment was asked to use disabled facilities.
- A transsexual person is protected if they have simply told someone they wish to change their sex, are undergoing the process of changing their sex or have already undergone that process;
- When providing goods or services it is unlawful to discriminate against or harass a transsexual person; and
- Good practice is to let people use the facilities appropriate to the way they present.
For further information, please contact Andrew Cochrane.