Scot Govt amends school toilet guidance to refer to biological sex

Schools are legally required to provide separate toilet facilities for boys and girls “on the basis of biological sex”, the Scottish Government has said.

Previous guidance stated that there was no justification in law for limiting the use of toilets and changing rooms on the basis of biological sex and that gender-confused children “should not be made to use the toilet or changing room of their sex assigned at birth”.

The changes come following the UK Supreme Court ruling that the definition of ‘man’ and ‘woman’ is determined by biology for the purposes of the Equality Act 2010, and a Court of Session declaration that state schools across Scotland must provide single-sex toilets for pupils.

Non-statutory

Revised guidance on ‘Supporting Transgender Pupils In Schools’ explains: “As the law stands, the facilities require to be made available on the basis of biological sex. Education authorities and schools should consider the toilet provision necessary for transgender pupils. This may include the use of gender neutral provision.”

But in an interview with BBC Scotland, SNP Education Secretary Jenny Gilruth indicated that the guidance was not mandatory and suggested local authorities were free to decide on appropriate toilet arrangements for gender-confused children “based on individual circumstances”.

The controversial guidance maintains a ‘trans-affirming’ approach to gender confusion, despite the Cass Review expressing significant caution over social transition, especially before puberty.

It also offers a new definition of the term ‘transgender’, which, it claims, refers to “those whose gender identity differs in some way from their biological sex”. It adds that “for the purposes of this guidance the term ‘biological sex’ is used to mean sex recorded at birth”.

‘Gender-neutral’

Marion Calder of For Women Scotland said it would examine the updates “to be sure the Scottish Government has fully accepted the implications of the Supreme Court judgment”.

Scottish Conservative MSP Pam Gosal MBE commented: “There was nothing confusing about the Supreme Court’s ruling – women and girls are entitled to single-sex spaces. Yet the SNP Education Secretary still can’t tell us whether biological males will be allowed to use girls’ toilets and changing rooms in our schools.”

Executive Director of Sex Matters Maya Forstater warned: “The suggestion that schools can change their toilets to ‘gender neutral’ goes against school building regulations requiring half of all toilet facilities to be for boys (with urinals), and half for girls.”

Legal duties

In April, at the Court of Session, Lady Ross KC issued a court 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 followed the successful outcome of a judicial review launched by parents Leigh Hurley and Sean Stratford, who challenged the decision of Scottish Borders Council to only install ‘gender-neutral’ facilities at their son’s primary school.

Rosie Walker of law firm Gilson Grey, which 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.”