Unisex loo in primary school discriminates against girls, court rules

The parents of a female pupil at the newly-built East Calder school had raised a judicial review and the ruling issued today concluded that female pupils were indirectly discriminated against, as a result of West Lothian Council's policy.

The judgment told how the girl's family reported that she felt distressed having to use mixed-sex toilet areas in the school.

Judge Lady Poole concluded that the council had failed to comply with legal requirements and ordered it to pay the legal bills of the parents in the case.

A spokesperson for West Lothian Council said the council was "considering its options" and added it "remains committed to ensuring the highest standard of care for the children and young people attending its schools.”

The latest case comes a year after it was reported at least six schools across Scotland were having to create single-sex facilities after previously having none.

The move came after a couple from the Borders took their local authority to court over the installation of only gender-neutral toilets at Earlston Primary School. The judge in that case ruled that Scottish schools must provide single-sex loos.

As a result, other schools in the Scottish Borders, as well as Shetland and Aberdeenshire said they were changing provision by adding separate bathrooms for boys and girls.

In this latest case, the Court of Session in Edinburgh heard the child, who cannot be named for legal reasons, did not like using the school toilets.

She said boys were "too noisy" and had reduced her fluid intake to avoid using the facilities during the school day.

The court also heard the child regularly came home "in pain" because she refused to use the toilet during the day.

Other parents also expressed concerns about the toilets, which prompted the child's parents to go to Scotland's highest civil court, claiming having no single-sex facilities was unlawful.

But lawyers for the local authority argued the provision at the school did not breach the law because boys and girls had separate floor-to-ceiling, lockable cubicles.

Boys and girls have access to the main toilet areas at the school, although boys are not permitted to enter cubicles in the main toilet areas with a female sign on them, and vice versa.

The council said wash basins did not have to be inside separate boys' and girls' toilet rooms and pupils who did not wish to use the main toilet areas could use other available toilets in the school.

Lady Poole rejected the council's arguments, referring to the School Premises (General Requirements and Standards) (Scotland) Regulations 1967.

The judge held that "sanitary accommodation" meant more than the toilet cubicle itself but also included the wider toilet area, including nearby wash basins.

She found that because the main toilet areas required boys and girls to share washing and waiting space, the council had not provided lawful sanitary accommodation for boys and girls.

The toilet provision also breached a requirement of the 1967 regulations that two-thirds of the appliances in the boys' sanitary accommodation should be urinals.

The court found that the arrangements amounted to indirect sex discrimination under the Equality Act 2010.

Lady Poole further accepted girls may face particular issues of privacy, dignity and hygiene when using mixed-sex toilet spaces, especially where they must leave a cubicle and wash their hands in an area also used by boys.

Last year judge Lady Ross, who also sits at the Court of Session, issued a court order making it a legal obligation for Scottish state schools to have separate lavatories for boys and girls.

That followed the Supreme Court ruling on the Equality Act that sex was defined by biology.

The Scottish Government also issued new guidance for councils last year stating that schools must provide separate toilets for boys and girls, but can also provide gender neutral toilets.

West Lothian Council said it had been following previously issued Scottish government guidance on toilet provision. But Lady Poole ruled against the council and granted legal orders against it, including one declaring the toilet provision unlawful.

She wrote: "It is expected that public authorities will take necessary steps to comply with court orders and regularise a position the court has held to be unlawful.

"It is left for the council to decide how it proposes to ensure compliance with the law."

A West Lothian Council spokesperson said: "West Lothian Council has received the court's opinion and will now consider its options.

"In the meantime, the council remains committed to ensuring the highest standard of care for the children and young people attending its schools."