Schools in Scotland must provide separate toilets for boys and girls on the basis of biological sex, the Scottish government has said.

However, updated guidance advises that schools can also provide gender-neutral toilets for transgender students.

Schools were previously told that pupils could use whichever toilet they felt most comfortable in.

The updated guidance follows two landmark court rulings relating to single-sex spaces.

Legal rulings

In April, a Scottish judge ruled that schools in the country must provide single-sex toilets to pupils after some provided only gender-neutral facilities.

That came a week after the UK’s Supreme Court unanimously ruled that sex under the 2010 Equality Act refers to biological sex.

The new guidance for schools, published late yesterday, says that “separate toilet facilities for boys and girls must be provided in schools”.

It adds: “As the law stands, the facilities require to be made available on the basis of biological sex.”

It says that schools should “consider” facilities for trans pupils that “may include the use of gender-neutral provision”.

The guidance warns against the risk of “outing” a young person as trans and urges schools to support young people who “want to live as a boy although their biological sex was female, or they now want to live as a girl, although their biological sex was male”.

It says that denying this would have a “detrimental impact on the young person’s wellbeing, relationships and behaviour”.

The guidance adds: “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.

“Depending on the particular circumstances of individual pupils, schools may require to take legal advice on any approach or proposed approach.”

In its guidance on school uniforms, the Scottish government also says 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”.

‘Lack of clarity’

Andrea Bradley, general secretary of the EIS, Scotland’s largest teaching union, said: “The Scottish government’s revisions to their guidance on supporting transgender pupils in schools provide a welcome acknowledgement that inclusion and wellbeing remain a priority in principle.

“It stresses the right of all young people to experience privacy, safety, dignity and respect, and is clear that education authorities and schools should consider the needs of transgender pupils and consult with them and their families to plan any changes - including seeking legal advice where there are any proposed changes to existing arrangements for individual learners.

“It is vital that education authorities also involve trade unions in discussions of any updates to policies, in particular drawing on the skills of trained equality representatives.”

Ms Bradley added: “Unfortunately, the guidance falls short of providing the clarity schools, teachers, parents and young people so urgently need.

“Decisions will be left up to individual local authorities and schools while the guidance fails to address how significant concerns about the health, safety and wellbeing of transgender pupils will be addressed if pupils cannot use facilities in accordance with their gender identity.”

The Scottish Tories said the new guidance showed the Scottish government was “dragging their heels” on single-sex spaces.

Roz McCall, the party’s spokesperson for children and young people, said: “The Supreme Court ruling was clear, the legal definition of a woman is based on biological sex, and they are entitled to single-sex spaces.

“But instead of enforcing the law, the SNP have confused matters further by producing this contradictory and potentially harmful guidance that will make things more difficult for schools.”

Ongoing work

Education secretary Jenny Gilruth said: “The Scottish government has made clear it accepts the Supreme Court ruling and since April has been taking forward the detailed work that is necessary as a consequence of the ruling. That work is ongoing.

“The rights of all children and young people must be respected in our schools.

“We have brought forward updates to guidance to provide clarity and confidence to teachers and staff as they work to support the mental, physical and emotional health of transgender young people in our schools following recent significant legal and policy developments.”

Ms Gilruth added: “The Scottish government respects the rights of everybody. I want every pupil to be able to reach their potential and every pupil deserves our support to do that. Our guidance means that all of their individual needs will be respected.

“All schools are required to provide separate toilets for girls and boys.

“In addition, the guidance makes clear that councils should give careful consideration to the individual needs of transgender pupils in light of the school context and school community.”

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