Schools must provide separate toilets and changing rooms for boys and girls to be used on the basis of a pupil’s biological sex, the Scottish government has said in updated guidance.
Transgender pupils can no longer use “the facilities they feel most comfortable with”, as was previously the case, but schools were encouraged to offer gender-neutral facilities or access to disabled and staff toilets for the relatively small number of children affected.
The Scottish government reissued the guidance for primary and secondary schools after what gender-critical campaigners described as “intolerable” delays following April’s supreme court ruling that the legal definition of a woman in the Equality Act 2010 refers to biological sex.
The updated guidance also reflects the outcome of a case brought against Scottish Borders council by parents who were unhappy that their son’s primary school had only gender-neutral facilities. A judge ordered that Scottish schools must provide single-sex toilets for pupils.
For Women Scotland, which brought the supreme court case, supported the parents in the Borders case.
The guidance identified the risk of “outing” a young person because of the changed guidance. “This may mean that it is necessary that practical arrangements such as enabling young people to use facilities outwith usual breaktimes, or for particular facilities to be available aligned to the young person’s activities within school, to reduce visibility of them moving across and within the school building to access toilet or changing room facilities,” it said.
Marion Calder, of For Women Scotland, welcomed the update. “We are glad to see recognition that toilet provision is made on the basis of sex,” she said.
For Women Scotland had been pursuing further legal action against the Scottish government for its failure to update its schools and prisons guidance following April’s judgment.
Calder added: “However, we will take some time to look at the updates, especially with those relating to sports and residential trips, to be sure the Scottish government has fully accepted the implications of the supreme court judgment. We will discuss with our legal team the implications of this update on our current legal action.”
A group of parents of trans people based around Edinburgh expressed concern about the new guidance, in particular that gender-neutral facilities were considered an “afterthought or stopgap”.
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A spokesperson said: “There’s never any mention of the proportion of gender-neutral facilities that would be appropriate and we’ve had cases of pupils being turned away from these facilities by staff who weren’t informed.
“If only a handful of toilets are available then it singles children out with questions from their peers. That’s why most trans kids limit their fluids and don’t use facilities in schools, with all the health consequences and stress that brings.”
