Scottish schools must have single-sex toilets for boys and girls

Scottish schools must provide single-sex toilet facilities for boys and girls, under new guidance by the Scottish Government.

School pupils will be asked to use toilet facilities which correspond to their biological sex, rather than ones they feel most comfortable with.

The Scottish Government has said the refreshed rules will give schools more confidence in the provision of toilet facilities and help them to support transgender children and young people.

The guidance outlines that schools in Scotland must have male and female toilets for biological sex, but extra provisions, which may include gender neutral facilities, should be made for trans students.

It comes after judges unanimously ruled in favour of campaign group For Women Scotland, declaring the words “woman” and “sex” in the 2010 Equality Act refer to a biological woman and biological sex.

The ruling then meant public bodies had to rethink and update their own guidance around facilities like toilets and changing rooms.

A subsequent case against the Scottish Borders Council clarified that primary and secondary schools are required to provide separate toilets for boys and girls on the basis of biological sex.

The updated Scottish Government guidance states that schools should recognise and mitigate the risk of ‘outing’ a young person through the gendered facilities.

It adds that practical arrangements, such as enabling pupils to use facilities outwith breaktimes, can be made to reduce visibility.

It also said schools should consider the impact of any “increased use of accessible facilities to ensure that all pupils who require to use them are able to do so”.

The UK’s Equality and Human Rights Commission (EHRC) previously published advice on school toilets, which said trans women should not be able to access women’s toilets, and trans men should not be able to access men’s toilets.

The EHRC also raised questions over whether mixed blocks were allowed.

The Scottish Government said it is “essential” that schools consider the needs of transgender pupils in light of their local circumstances, school context, and the “need to balance the rights of all”.

“It is not possible for the Scottish Government to provide advice on the outcomes for individual pupils as a result of these individual needs assessments as Scottish Ministers and the Scottish Government do not have the necessary information to do so,” the guidance adds.

“Local authorities, as is the case with any public authority, have a duty not to act in a way which is incompatible with human rights protected under the European Convention of Human Rights (ECHR).

“This applies to all young people, including transgender young people. They all have rights and protections and strengths and vulnerabilities. All young people should experience privacy, safety, dignity and respect.”

Education secretary Jenny Gilruth said: “The Scottish Government has made clear it accepts the Supreme Court ruling and since April has been taking forward the detailed work that is necessary as a consequence of the ruling. That work is ongoing.

“The rights of all children and young people must be respected in our schools.

“We have brought forward updates to guidance to provide clarity and confidence to teachers and staff as they work to support the mental, physical and emotional health of transgender young people in our schools following recent significant legal and policy developments.”