Judge: ‘Toilet policy at Scots primary school disadvantaged girls’

The provision of gender-neutral toilet facilities at a Scottish primary school unlawfully discriminated against girls, the Court of Session has ruled.

Parents of a girl at the school petitioned the Court over concerns that the main toilet areas at East Calder Primary School in West Lothian were not single-sex.

Judge Lady Poole decided that the school’s policy to provide mixed-sex toilet blocks with communal sinks breached legal duties to provide separate lavatory spaces for girls and boys and amounted to indirect discrimination under the Equality Act 2010.

Girls disadvantaged

During the proceedings, the family’s advocate, David Welsh, told Lady Poole that the girl “has been refusing to use the toilets in school”. He added: “Instead, she has been forcing herself to wait to use the toilet when she returns home.”

East Calder’s gender-neutral facilities were, he reported, an “intimidating, humiliating and hostile environment”. He also said that it was “reasonable for this girl to want to be able to go to the toilet without boys being there”.

Welsh added: “The school is trying to treat everybody the same, but has put one particular group, girls, at a disadvantage.”

Janys Scott KC, representing the council, claimed the facilities were legal as some cubicles carried ‘gendered stickers’. Consequently, she argued, setting up separate gendered lavatories was unnecessary. Children, she stated, had also been told they “could use the staff toilets if they didn’t want to use the toilet block”.

Distress

Setting out the factual background, Lady Poole acknowledged that the girl in question found “the current toilet provision distressing” and as a young child “is unlikely to be able to express herself in as articulate a way as some older children”.

She continued: “Her feelings about this are strong enough that she has been avoiding going to the toilet in school and holding it in until she gets home. When she gets home she has to rush to use the toilet.

“She regularly comes home in pain as she refuses to use the toilet in school. She has reduced her fluid intake during the day considerably to try to avoid having to use the toilet.”

Safe spaces

The judge explained that under the School Premises (General Requirements and Standards) (Scotland) Regulations 1967, “separate provision of ‘sanitary accommodation’ is required for boys and girls, which comprises not only water closets and urinals, but also wash basins near them”.

She ruled that the “existing provision in the school does not meet those requirements because sanitary accommodation is not provided separately for boys and girls, half for each”.

The court accepted the parents’ claim that all toilet facilities in the school were unisex, as wider toilet areas — including waiting spaces and wash basins — were “not segregated”.

Lady Poole said it was “important that girls could go to a space where they could feel safe, knowing that boys were not there” and the school’s failure to provide such safe spaces indirectly discriminated against the female pupil according to provisions set out in the Equality Act.

Legal precedent

Last year, at the Court of Session, Lady Ross KC issued an order reminding schools of their legal duties under the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 to ensure that there are an equal number of facilities for both girls and boys.

The order, to which Lady Poole referred, followed the successful outcome of a judicial review by Leigh Hurley and Sean Stratford, who challenged the Scottish Borders Council’s decision to only install ‘gender-neutral’ facilities at their son’s primary school.

Gilson Grey, who represented the parents, said: “The court order makes clear that the 1967 regulations apply to all state schools in Scotland.

“There is no provision for gender-neutral toilets in the regulations. Any school not complying will be in breach of the regulations and could face a legal challenge from parents.”