How Scottish schools are stalling over single-sex toilets despite Supreme Court ruling

The rights of women and girls to private, intimate single-sex spaces cannot continue to be sacrificed because of discredited ideas about gender

It seems there is a large swathe of Scottish civil society that is unable, or unwilling, to accept that the Supreme Court is the highest court in the land. It is the final court of appeal for civil cases in the UK and its word is the law. The judgment on sex and gender, passed down nearly three months ago on April 16, could not be clearer – the terms “man”, “woman” and “sex” in the 2010 Equality Act refer to biological sex.

Every organisation in Britain, from devolved governments to schools, was advised to revisit their equalities policies in light of the judgment, but it seems the Church of Scotland, and now Edinburgh City Council, know better. Earlier this week, the Kirk had to admit it was wrong to insist that biological men could still share female lavatories with girls, based on the partisan and erroneous advice of an LGBT charity and a London-based lawyer.

A concerned mother from Fife had complained that her 11-year-old daughter had to share the female toilets at a church-run community centre with a biological male, only to be told by church officials that it was “lawful and often appropriate” for “women-only spaces to include trans women”. On Monday night, the church backtracked, saying it “supported the right” of women and girls to access single-sex spaces, and suggested trans people should be provided with gender-neutral facilities.

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Members of For Women Scotland celebrate the Supreme Court ruling that the word 'woman' the 2010 Equality Act refers to a biological woman (Picture: Lucy North) | PA

‘Widespread misinformation’

On Tuesday, the Prime Minister no less, took time away from his troubles to say that he not only accepted the Supreme Court’s ruling, he welcomed it, and he insisted that all public bodies must comply with it. “All guidance of whatever kind needs to be consistent with the ruling and we need to get to that position as soon as possible,” he said.

Dr Lesley Sawers, of the Equality and Human Rights Commission (EHRC), followed up with a warning to the Scottish Government and other public service providers that they had a responsibility to ensure compliance with equalities law and that the current “climate of uncertainty and widespread misinformation serves nobody”.

And yet teenage girls in at least one of Edinburgh’s secondary schools are still being forced to share toilet facilities with their male peers. Pupils at James Gillespie’s High School in Marchmont have to share a mixed-sex toilet block, with cubicles arranged facing each other in an open plan space. Parents tell of their daughters waiting until they get home before using the bathroom to avoid the embarrassment of sharing an intimate space with boys.

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A promise made last year by the headteacher to build privacy walls to separate the toilets has yet to be fulfilled. In his latest report to the school’s parent council, dated June 4, he agreed that “more work needs to be done regarding toilets” but insisted it will take a “whole school approach to try and minimise the challenges we have in these areas”. He added: “We are still pursuing the installation of privacy walls beside the toilets as shared previously.”

While he and his team “pursue” the building of a couple of walls, a QR code has been displayed in the toilets so that pupils can report any incidents of bullying – a move which I am sure is of great comfort to any girl who has to deal with menstruation with only a flimsy door, which doesn’t even reach to the ceiling, separating her from a crowd of teenage boys.

Edinburgh to ignore Court of Session?

But surely Edinburgh City Council, responsible for the management of the city’s schools, has updated its advice to schools following the Supreme Court ruling? It may have ignored the Court of Session’s landmark ruling, also in April, regarding Borders Council – when the court decreed that all Scottish schools must provide single-sex toilets, based on regulations passed nearly 50 years ago – but not even Edinburgh is going to ignore the highest court in the land, is it?

It appears it might. Earlier this week, a council spokesperson said: “We’re continuing to consider the implications of the Supreme Court judgment and the Court of Session declarator, along with the interim update on the practical implications issued by the Equality and Human Rights Commission. We look forward to receiving the updated code of practice from EHRC and UK Government which will inform what changes, if any, we need to make to council facilities, policies and procedures.”

What part of the law does the city council not understand? The 1967 School Premises (General Requirements and Standards) (Scotland) Regulations state that “… in every school which is not designed exclusively for girls half the accommodation [number of toilets] shall be for boys”.

Or are council officials confused by the Court of Session’s ruling that mixed-sex schools must have single-sex toilets? Could it be the city council, like the Church of Scotland, prefers to heed the advice of partisan campaigners rather than the law of the land?

‘Couldn’t be clearer’

A spokesperson for campaign group For Women Scotland, who took the historic case to the Supreme Court, was baffled by the council’s response. She said: “We are bewildered that schools are struggling with the implications of the Supreme Court ruling – and also the judicial review regarding Borders Council.

“It couldn't be clearer: schools must act now to protect children and ensure safeguards are robust. We have been telling schools in Edinburgh, including Gillespie’s, that they must act for months now. Waiting for the EHRC’s code of practice won't change a thing and it is unconscionable that, in the interim, girls are needlessly being exposed to harm.”

For a decade and more now, the rights of women and girls to private, intimate single-sex spaces have been sacrificed in the name of progress. But the law is clear. Any public body that continues to stubbornly ignore it, putting young girls at risk for the sake of discredited policies on sex and gender, is surely guilty of gross negligence.