Leila Le Fey, 40, admitted brandishing the weapon at shop manager Enoch Adetayo after entering a Budgens store in Brighton in a bid to steal wine at 4am on November 6 last year.
She was sentenced to six months in prison, but this order was reversed when Judge Stephen Mooney heard that she did not have certified evidence of her gender reassignment and would have to be sent to a male-only jail.
The only way Le Fey could ‘prove’ her new gender would be an ‘undignified examination’, which court staff were not prepared to do, her barrister Rebecca Upton said at Lewes Crown Court.
The shoplifter would not be kept in solitary confinement and would be vulnerable in this situation, she added.
Addressing Le Fey, the judge said ‘when you took out the claw hammer it must have been terrifying’, adding that there was ‘no excuse’ to assault Mr Adetayo, who had challenged her when she attempted to steal the wine.
After pulling out the hammer, she had tried to grab another bottle of wine and flee, but police arrived and arrested her, Rowan Jenkins, prosecuting, said.
Ms Upton said her client had battled with drink and drug addictions and had kept herself out of trouble since 2014 before a relapse last year.
Le Fey was given a six-month suspended sentence with 30 rehabilitation sessions after admitting to common assault and possession of an offensive weapon.
Judge Mooney said ‘issues had arisen’ and acknowledged that ‘we live in a society which acknowledges and embraces diversity and allows and encourages people to live the life they want to’.
He continued: ‘Sometimes society does not make the necessary or appropriate adjustments in all ways it can to reflect the adjustments of society as a whole.
“Having reflected again upon the impact an immediate custodial sentence would have, the difficulties there are and the intractable problems the prison service would face, I have reconsidered whether imprisonment must be immediate.’