Teachers must not be left to 'interpret' gender legal rulings after Supreme Court verdict, union warns

Minister urged to provide ‘clarity’ urgently after landmark decisions

A leading education union has warned that teachers across Scotland must not be left “trying to interpret” the law in the wake of the landmark Supreme Court ruling on how women are defined and a significant Court of Session case over the provision of single sex lavatories in schools.

The National Association of Schoolmasters Union of Women Teachers union (NASUWT) stressed it was “vital” the Scottish Government provides “clarity and guidance” to schools and colleges throughout the country “as quickly as possible”.

The recent legal developments are likely to have sweeping implications across the education sector, with the Court of Session case expected to bring about widespread changes in the provisions of toilets in schools around Scotland.

In the wake of that judicial review, brought by parents against Scottish Borders Council after the local authority installed only gender neutral lavatories at a new-build primary, a judge has ordered that schools must provide single-sex toilets for students.

The issue of gender neutral toilets has gained prominence after last week's Court of Session hearing. Picture: Mark Ralston/AFP via Getty Images | AFP via Getty Images

An interlocutor issued by Lady Ross, the judge who presided over the hearing, states that under regulation 15 of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967, save where paragraph 15(1A) of the same regulations apply, mixed sex schools must provide “separate sanitary accommodation for boys and girls”.

The gender critical campaign group, For Women Scotland (FWS), which supported Sean Stratford and Leigh Hurley in their judicial review, has previously pointed to the same 58 year-old legislation when advancing its argument for single-sex lavatories.

Now, Mike Corbett, NASUWT’s Scotland national official, has called on Scottish ministers to make clear that schools and teaching staff are not at risk of misinterpreting the changes.

He said: “The implications of both this week’s ruling and the Supreme Court judgement will need to be considered carefully, and it is vital that the Scottish Government provides clarity and guidance to schools and colleges as quickly as possible.

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“Schools and teachers have an obligation and a desire to ensure all pupils are treated with respect and equality and must not be left in a position of trying to interpret the law for themselves.”

Susan Smith and Marion Calder, right, co-directors of For Women Scotland with campaigners celebrate outside the Supreme Court in London after terms "woman" and "sex" in the Equality Act were ruled to refer to a biological woman and biological sex. Picture: Lucy North/PA Wire | PA

A spokesman for the EIS union said: “School toilet provision should be arranged such that all children and young people, including non-binary learners, girls and boys who are transgender and those who are not, disabled and non-disabled learners, can have their rights and dignity fully upheld and respected.”

It remains unclear how many schools across the country have mixed-sex toilets. But research conducted last year by FWS indicated that around a fifth of secondaries had installed the facilities; around 16 per cent provided a combination of single-sex and mixed-sex toilets, while 5 per cent provided mixed-sex toilets only, according to the group.

In February, ministers announced plans to “refresh and modernise” school premises regulations, which set out the broad minimum standards that school buildings must meet.

Following the Court of Session judicial review, the Scottish Government said it would carefully consider the implications.

A spokesperson said: “Local authorities have statutory responsibility for the school estate, including provision of toilets. The Scottish Government is committed to ensuring that our transgender guidance for schools remains up to date and fit for purpose.

“As with any significant legal or policy developments, we will consider whether the guidance requires to be updated to reflect upon these.”