Judge orders Scottish schools must provide single-sex toilets

Key Points

A court order is set to be issued to ensure legal obligation of Scottish state schools ‘made clear’
The order comes after parents won a legal challenge against Scottish Borders Council
Scottish Borders Council has ‘accepted and acknowledged’ that it should provide single-sex toilets
Case comes in the wake of Supreme Court ruling of definition of woman and single-sex spaces

A judge has ruled that state schools in Scotland must provide single-sex toilets for pupils.

The order comes after parents won a legal challenge against Scottish Borders Council after it installed gender neutral lavatories in a primary school.

It follows the Supreme Court ruling last week on the definition of “woman” in the Equality Act and the legal protection of single-sex spaces.

Parents Leigh Hurley and Sean Stratford, whose child attended Earlston Primary School, complained to the council over gender neutral toilets, the punishment of children who “misgender” others and the third was regarding trans children participating in sports day.

All three issues were initially rejected, however, the lawyer representing them, Rosie Walker, lodged a petition for review in January.

A court order, known as a declarator, is set to be issued by judge Lady Ross KC to ensure the legal obligations of Scottish state schools are clear.

Borders Council accepted the decision.

The parents, who pulled their son out of the school, welcomed the Council’s recognition that their gender neutral toilet decision was “unlawful”.

“We spent months trying to raise our worries with the school and the Council but got nowhere,” they said.

“We were made to feel like we were the problem when all we wanted to do was ensure that all children were safeguarded and could use a single sex toilet when they wanted to.

“We were so distressed that a child in primary school was going to be punished for believing that sex cannot be changed. We are delighted that the Council have finally recognised their decision was unlawful but it has taken us almost two years of fighting to get to this stage and the strain on us and our children during this process has been enormous.

Leigh Hurley and Sean Stratford made complaints to the local authority last year. Gilson Gray LLP

“We had to pull our child out of the school because the school were breaking the law, which was devastating but we really had no choice”

The family’s lawyer believes the case will have “far-reaching implications”.

Rosie Walker, head of litigation at Gilson Gray solicitors, said: “All schools in Scotland will now have to look again at whether their toilets comply with the School Premises (General Requirements and Standards) (Scotland) Regulations 1967, which require half of school toilet facilities to be for boys and half for girls.

“This case, on top of the Supreme Court decision last week, gives focus to the importance of protecting sex based rights and single sex spaces.”

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Scottish Borders Council has “accepted and acknowledged” that it should provide single-sex toilets at Earlston Primary School.

The local authority has also agreed to “revisit and reconsider” the other complaints made.

A Scottish Borders Council spokesperson said: “Prior to the hearing, SBC had accepted and acknowledged the decision that was being sought was correct and therefore did not seek to defend this in court.

“Moving forward, SBC will revisit and reconsider the complaint and respond in due course.”

Borders was not the only local authority to have schools install gender neutral toilets.

Facilities at Culloden Academy in Inverness were made open to all at the start of the new term with no choice but to share with both male and female students in 2021. The school was forced to u-turn on the unisex toilets after complaints from parents.

Britain’s equality watchdog has announced new guidance for public bodies, employers, and the NHS about single-sex spaces will be published this summer in the wake of the Supreme Court judgement last week.

The Supreme Court’s ruling went against the previous guidance from the Scottish Government and followed a lengthy legal challenge by women’s rights campaigners For Women Scotland over the interpretation of anti-discrimination legislation.

Scottish Ministers will also be meeting with the Equality and Human Rights Commission (EHRC) on Thursday to discuss its progress towards issuing updated guidance for public bodies and employers by the summer.