Judge orders schools to provide single-sex toilets in wake of Supreme Court ruling

A judge has ordered that Scottish state schools must provide single-sex toilets for pupils in the wake of last week’s landmark Supreme Court ruling on the definition of a woman.

Sean Stratford and Leigh Hurley brought a judicial review at the Court of Session against Scottish Borders Council after it chose not to include sex-segretated bathrooms at a newly built primary school in Earlston.

With the support of campaign group For Woman Scotland, the couple took the local authority to Scotland’s top civil court, where the council conceded it had a legal obligation to provide male and female facilities.

Ministers are still considering last week’s Supreme Court judgement on the legal protection of single-sex spaces under the Equality Act 2010 and whether any changes will have to be made to toilet provisions.

However lawyers representing the parents said the Earlston Primary case is expected to have “far-reaching implications”.

Rosie Walker, of law firm Gilson Gray, said all schools in Scotland would now have to "urgently review" their facilities.

She added: "This case, on top of the Supreme Court decision last week, gives focus to the importance of protecting sex-based rights and single-sex spaces."

The Scottish Conservatives said the case demonstrated how the SNP’s gender self-identification policy had become “embedded” in Scotland’s institutions.

A court order, known as a declarator, is set to be issued by judge Lady Ross KC to ensure the legal obligations of Scottish state schools are clear.

Ms Hurley first raised concerns in November 2023 over how Earlston Primary was supporting the “social transition” of another pupil, which included allowing them to participate in sports day races in the category of their gender identity.

She said she later discovered that her son would face punishment if he “misgendered” trans pupils and that the new-build school was planning to have no separate-sex lavatories.

She said she and her partner felt they were left with no choice but to pull their child out of the school in order to safeguard him.

Mr Stratford said the issue should have been addressed when they raised it while the school was being built.

In a statement, Scottish Borders Council said: “Prior to the hearing, Scottish Borders Council had accepted and acknowledged the decision that was being sought was correct and therefore did not seek to defend this in court. Moving forward, the council will revisit and reconsider the complaint and respond in due course.”

In a post on X, For Women Scotland, the group behind last week’s landmark Supreme Court ruling which found that the terms ‘woman’ and ‘sex’ in the Equality Act refer only to a biological woman and to biological sex, said it was “thrilled” that Mr Stratford and Ms Hurley had also been “vindicated.”

The campaigners launched their judicial review of toilet provision at a Scottish Borders primary school. Picture: PA | PA

Scottish Conservative shadow equalities minister Tess White said: “This case highlights the SNP Government’s failure to provide adequate guidance to Scotland’s public sector over single-sex spaces.

“The nationalists’ gender self-ID policy has become embedded in our institutions and that has to change immediately, in light of the Supreme Court ruling that it is unlawful.”

First Minister John Swinney repeatedly refused to say whether he believes transgender women are women, when asked during a press conference in Glasgow.

Speaking after a cross-party summit aimed at tackling the far-right, Mr Swinney said the definition of a woman had been “settled” by the Supreme Court.

The country’s top judges ruled the terms “woman” and “sex” in the Equality Act “refer to a biological woman and biological sex”.

The First Minister suggested he did not have time to answer the question, saying: “I don’t think we’ve got space for us all to answer. There will be plenty of opportunities for that.”

This isn’t a technicality, it’s a moment of clarity. Celebrations outside the Supreme Court on April 16 in London after it ruled that woman in law means biological woman (Photo by Dan Kitwood/Getty Images) | Getty

Pressed later on the issue, he added: “That issue has been settled by the Supreme Court.

“The Supreme Court has given us the basis of law for that to be the case and that’s what I accept.”

He said changes to regulations in Scotland will now take place in light of the judgment, although he did not say when.

Alba MSP Ash Regan, who was also on the panel, said the landmark court judgment showed “trans women are not really women”.

The former SNP minister – who quit over her objections to the Gender Recognition Reform (Scotland) Bill – said she was “disappointed” by the Scottish Government’s response to the Supreme Court judgment.

She called on ministers to apologise for the “nonsense that has been perpetrated on to the country”.

Scottish Green co-leader Patrick Harvie, who appeared on the panel alongside his fellow co-leader Lorna Slater, said he does believe a trans woman is a woman.

Scottish Liberal Democrat leader Alex Cole-Hamilton and Scottish Labour leader Anas Sarwar did not answer the question.

It came a day after Sir Keir Starmer said a woman is an “adult female” as he appeared to U-turn on his previous stance on trans rights.