Biological sex determines school loo use says government

Five months after the Supreme Court ruling on biological sex in the Equality Act, the Scottish Government has acted to implement changes in schools.

Previous government guidance had told schools to accommodate transgender pupils by allowing them to choose which loos they felt most comfortable using - even if it meant biological boys were using girls toilets.

Now the new guidance has revoked that advice and told schools that pupils should use the facilities matching their biological sex.

Transgender students can either use the loo which aligns with their biology, or schools can also provide gender neutral toilets.

The updated guidance follows a case in April where 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 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 schools should "consider" facilities for trans pupils which "may include the use of gender neutral provision".

The Scottish Government's move comes just days after a deadline passed on new legal action from campaign group For Women Scotland - who won that Supreme Court judgment - which aimed to see its schools, and prisons, guidance scrapped.

Responding to the announcement, FWS director Marion Calder told LBC: "It was only 10 days ago that Scottish Government lodged paperwork with the Court of Session, claiming the school guidance was entirely lawful. So it's a significant turnaround to now amend sections that form the grounds of the court action.

"We welcome improvements and are glad to see recognition that toilets and changing room provision is on the basis of sex. We will need to consider it with our legal team as to where this leaves our case."

She added: "It's not obvious why it took so long to make changes reflecting the Supreme Court's decision, and at a quick first glance of the new guidance, there appears to be at least some acknowledgement of issues for girls and recognition of the law more broadly.

"But we'll need time to work through the whole paperwork in detail, especially issues regarding changing rooms, sports, and residential trips, just to make sure the Scottish Government has fully accepted the implications of the UK Supreme Court ruling."

The guidance also 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".

It 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".

The Scottish Tories said the new guidance showed the Scottish Government was "dragging their heels" on new rules for single-sex spaces.

Roz McCall, the party's spokeswoman 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."

Education Secretary Jenny Gilruth said: "The Scottish Government has made it 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.

"As Cabinet Secretary, I want every pupil to be able to reach their potential, and every pupil deserves our support to do that. So our guidance means that all of their individual needs will be respected.

"In Scotland, all schools are already required to provide separate toilets for girls and boys. And 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 their school community."

She said the guidance was "helpful" in how schools can support transgender pupils with the change but that managing that lies with "schools and education authorities who must make decisions based on individual circumstances of pupils. So, you know, I, as education secretary, sitting in an office in Edinburgh, don't know the individual circumstances of pupils, and additionally, the power does not rest with me, it rests with local councils.

"So we trust our head teachers, our teachers, to make these decisions, but also to work with pupils and to work with their school community, arriving at a position which best supports their young people."

She added: "Many of my friends work in education, where their schools may have gender neutral provision, they may have boys provision, girls provision, and gender neutral provision, and also accessible toilets. But, of course, it's important that we do trust our education authorities, and in particular, head teachers and teachers to work with schools, to work with individual pupils, to provide them with support."

Asked why it had taken months to change the guidance, she said: "There is a live legal case at the current time that I'm not able to talk about, but regardless of that the government has been very clear since the Supreme Court ruling that we accept the judgement. We have taken forward the detailed work that has been necessary as a consequence.

"I should say the UK government also has a role in relation to updating their guidance, and they have successively delayed some of their updates in that regard.

"We've also got a working group, which has been convened by the permanent secretary, and that's actively considering the implications of the Supreme Court judgement across legislation, guidance, and policy. So this isn't just an education issue. But we've had to move, of course, in education in relation to the Supreme Court ruling. We provided that clarity today in relation to the updated claims."

However campaign group Sex Matters say the new guidance is "still unlawful and unnecessarily complex."

Maya Forstater said: "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.

"It is welcome that the Scottish Government now states clearly in this guidance that it accepts the Supreme Courjudgment in the case of For Women Scotland, and that school toilets provided for boys and girls relate to the two sexes. But it somehow still suggests that a pupil might be able to go through their school career pretending to be the opposite sex without ever being ‘outed’ – that is, recognised as the sex they actually are.

"The guidance offers the bizarre suggestion that this pretence might be maintained by the child using facilities outside normal breaktimes. This is neither practical nor in the child’s best interests, since it will only worsen the child’s dissociation from the unchangeable physical reality of their sex.

"Schools that follow this advice will be doing no favours to confused and unhappy children, who may have other social and mental health problems. They should instead be clear to pupils and parents that it is simply not possible for any school to fulfil its duties to all pupils while pretending that some pupils are the opposite sex."