Scottish schools who introduce mixed sex toilets, showers and changing rooms could be breaking the law according to campaigners - despite new guidance which suggests headteachers could face legal action if they don't have gender neutral facilities.
Leaked draft guidance from equalities watchdog, the Equality and Human Rights Commission, claims that schools leave themselves open to potential law suits if they don't install mixed sex facilities or allow trans pupils to "use the single-sex facilities that align with their gender identity if they wish to do so.”
However feminist campaigners say girls and young women need single-sex toilet facilities, and claim that schools which act on the EHRC guidance are acting against school premises regulations which have operated for more than 50 years.
They also fear the advice could form the basis of new Scottish Government guidance to schools after they announced that previous schools advice from LGBT Scotland was to be scrapped because the "good general principle of inclusivity... risks potentially excluding other girls from female-only spaces. That cannot be right."
Campaigners against mixed sex loos, point to the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 which state that in "every school, which is not designed exclusively for girls, half the toilet accommodation should be for boys."
Susan Sinclair, who runs the Scottish Women blog and has been collating information from Scottish councils on gender neutral toilets, said local authorities "have been re-interpreting the meaning of these regulations, despite them being in force since 1967."
She added: "For 50 years every school across the country had split their sanitary facilities, toilets and wash areas, evenly between girls and boys, but in recent years for some inexplicable reason they are now providing sanitary facilities that are mixed sexed, yet authorities maintain this is in line with the law.
"My view is that if schools had been able to provide long banks of mixed sex toilets with communal wash areas for the last half century, then surely this is exactly what would have been happening, especially as it would be the more cost effective method.
"Yet we are expected to believe that this mixed sex option was always a permitted option within the regulations and local authorities have only recently, en masse across the whole country, began taking the decision to implement these into their new building designs."
Kiri Tunks, co-founder of Woman's Place UK, a women’s campaign group, said: “This guidance shows what a mess we create when we conflate sex and gender. The EHRC seems very confused about the difference and this advice will just muddy the waters further.
“The EHRC is right that publicly funded schools are obliged by the Public Sector Equality Duty to foster good relations between protected characteristics but they also have a responsibility to assess the impact of any changes they make which could affect other protected groups. We are losing confidence in the EHRC's ability to issue robust, practical advice on this question."
The organisation says that as many girls start menstruating in primary school they require privacy and space, that stigma around menstruation leads to girls being reluctant to use mixed-sex toilets and could result in more girls missing school or even risking serious illness. Girls could also avoid drinking during the school day so as to avoid mixed sex facilities, leading to dehyrdataion or bladder infections.
It also claims that sexual bullying is a problem in some schools, with 5,000 cases recorded in three years, and that allowing boys to share girls’ toilet facilities "is likely to exacerbate this". It points to data showing that mixed-sex changing rooms, for example, create an additional risk of sexual assault for women.
The EHRC guidance was leaked to a newspaper on Saturday and also says that schools should allow trans pupils to take part in single-sex sports and PE classes, and again may face legal consequences if they refuse to do so. It also states that single-sex schools should consider admissions of trans students on a “case-by-case approach”.
Entitled Trans pupils: guidance for schools in Scotland on the Equality Act 2010 it urges schools to install gender-neutral toilets, changing and shower rooms wherever possible. On the controversial area of sex categories in sports, the leaked EHRC document encourages schools to “consider ways of enabling all pupils to participate in sports, including competitive events that align with their gender identity.”
The EHRC said that the leaked guidance was only a draft and that finalised guidance to help schools understand their obligations under the Equalities Act 2010 would be shared with schools across England, Scotland and Wales “in due course”.
It claims to have sought views from teachers, education experts, women’s groups and trans group.
However according to campaign group ForWomen.Scot, when they asked to be involved in the consultation they were told it had been closed.
A spokewoman for the group said: "It is of particular concern to us that after it was openly discussed in parliament by Shirley-Anne Somerville, that an approach which risks potentially excluding girls from female-only spaces "cannot be right", seems to have resulted in new guidance which has the same recommendations - only now rubber-stamped by the EHRC.
"We emailed the EHRC after we saw the leaked story to ask if we could submit a response to the consultation but were told it was closed, although we understand the input from stakeholders into the main text of the guidance did not include any Scottish organisations."
The response to ForWomen.Scot said that the text of the "guidance has been finalised, with input from a very wide range of stakeholders. We were not therefor asking for views on the main text of the guidance, as we are satisfied that it appropriately reflects the requirements of the Equality Act.
"We had however asked a small group of stakeholders with a variety of interests including women’s groups, parents, education authorities etc for their views on the “fit” of the guidance within the Scottish context, for example whether it appropriately reflected the Scottish schools and education landscape."
Mermaids, the charity which supports transgender youth in the UK, said it was important that transgender children’s rights “to live their life freely” is respected and supported. A spokesman for the charity said they hadn't seen or "played any part" in the writing of the Scottish guidance, but would be "disappointed" if its publication was delayed.
According to the latest research by Stonewall, the LGBT charity, almost half of all LGBT pupils still face bullying at school, and more than two in five trans young people have tried to take their own life. The charity said such statistics showed that young trans people needed "supportive environment more than ever".
An EHRC spokeswoman said: “This document is a draft. We have been speaking to teachers and education experts, women’s groups and trans groups for their views. This will be an important document for schools to help them support all children and meet their legal duties under the Equality Act 2010."
A Scottish Government spokesperson said: "We want all children to be free from discrimination so they can learn and reach their full potential."