Scottish Schools to Provide Separate Toilets Based on Biological Sex
The Scottish government has issued new guidance mandating that Scottish schools must provide separate toilet facilities for boys and girls based on their biological sex. This update follows two landmark court rulings and replaces previous guidance that allowed transgender pupils to use the facilities they felt most comfortable in.
Context of the Updated Guidance
The updated guidance from Holyrood ministers comes after a ruling in April where a Scottish judge determined that schools must provide single-sex toilets, addressing instances where only gender-neutral facilities were available. This decision followed the UK's Supreme Court unanimously ruling that the definition of "woman" and "sex" in the Equality Act 2010 refers to "a biological woman and biological sex." The new guidance aims to provide clarity and confidence to educators in supporting transgender students while adhering to legal requirements.
Key Provisions of the New Guidance
The core of the new guidance specifies that "separate toilet facilities for boys and girls must be provided in schools" and that these facilities "require to be made available on the basis of biological sex." However, the guidance also advises schools to "consider" facilities for transgender pupils, which "may include the use of gender neutral provision". The document emphasizes the importance of supporting transgender students and avoiding situations that could "out" them, suggesting practical arrangements such as using facilities outside of break times.
- Schools must provide separate toilet facilities for boys and girls based on biological sex.
- Schools should consider gender-neutral facilities for transgender pupils.
- Practical arrangements should be made to support transgender pupils' well-being and avoid "outing" them.
Reactions to the New Guidance
The new guidance has elicited varied reactions. The Scottish Tories, through spokeswoman Roz McCall, criticized the SNP government for "dragging their heels" and creating "contradictory and potentially harmful guidance." For Women Scotland, which pursued legal action leading to the Supreme Court ruling, welcomed the update but indicated they would scrutinize the details regarding sports and residential trips. Conversely, a group of parents of transgender individuals expressed concern that gender-neutral facilities are treated as an "afterthought."
Government's Stance and Implementation
Education Secretary Jenny Gilruth stated that the Scottish government respects the rights of all children and young people and that the guidance aims to ensure that individual needs are respected. She clarified that the guidance is advisory, as local authorities run the schools, and that it has been updated in response to legal requirements. Gilruth emphasized that the government has accepted the Supreme Court ruling and has been taking forward the necessary work since April.
While the guidance is not mandatory, Ms. Gilruth emphasizes that "it is incumbent on the government to update our guidance in line with legal changes".
Further Considerations for Schools
The updated guidance also addresses school uniforms, stating that "forcing transgender young people to wear clothes which do not match their gender identity can be distressing for them and may constitute discrimination under the Equality Act 2010." Furthermore, schools are advised to seek legal counsel when navigating complex individual cases.
Angela Bradley, general secretary of the Educational Institute of Scotland (EIS), expressed concern that the new guidance might not "fully address the needs" of young transgender people, particularly regarding comfort and accessibility of toilet facilities. She noted that suggesting alternatives like disabled or staff toilets are not perfect solutions.
