‘Schools have legal duty to provide single-sex toilets’, Court of Session rules

State schools across Scotland must provide single-sex toilets for pupils, a Scottish court has declared.

Lady Ross KC issued the 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 follows 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.

‘Common sense’

Stratford and Hurley urged the council not to switch from single-sex to gender-neutral toilets during a £16.6 million building project to provide new premises for Earlston Primary School.

When both the school and council dismissed their concerns, the parents — with the help of For Women Scotland (FWS) — challenged the lawfulness of the decision at the Court of Session.

Welcoming the outcome, Stratford said: “We’ve won, but common sense says we should never have been in this position in the first place. We brought this to their attention when it was still a building site, so they could have rectified it there and then, and saved them a fortune.”

In response to their initial complaint, the council reportedly informed the parents that the policy had been adopted after the controversial group LGBT Youth Scotland had provided training to the school’s management team.

Safety compromised

Rosie Walker of law firm Gilson Grey, which is representing 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.”

FWS Director Trina Budge commented: “It is a complete disgrace that taxpayers now face a completely avoidable multimillion-pound bill to restore single-sex facilities in schools. Girls’ privacy, dignity and safety should never have been compromised and we hope lessons will be learned from this.”

In 2024, the campaign group found that 95 per cent of the 243 secondary schools it surveyed were unlawfully forcing boys and girls to share mixed-sex toilets.

The meaning of the terms ‘sex’, ‘man’ and ‘woman’ in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate. The Supreme Court

Biology matters

Earlier this month, the UK’s highest court unanimously ruled in favour of FWS’s appeal against Scottish Government guidance that allows men who identify as female to take women-only positions on company boards.

The Justices stated: “The meaning of the terms ‘sex’, ‘man’ and ‘woman’ in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate.”

In an “interim update on the practical implications” of the judgment released at the weekend, the EHRC said that schools “must provide separate single-sex toilets for boys and girls over the age of 8.”

The watchdog added: “Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required.”