Parents ‘elated’ after judge rules schools must provide single-sex toilets

Parents in the Scottish Borders say they feel “elated” after a judge ruled that Scottish schools must provide single-sex toilets for pupils.

The local authority had installed only gender neutral toilets at the new Earlston Primary School, which recently opened.

Sean Stratford and Leigh Hurley complained to the council about the policy at the school their son had previously attended, but it was rejected.

The council conceded that they had a legal obligation to provide male and female facilities at the Court of Session in Edinburgh on Wednesday.

The local authority said it had accepted the argument prior to the hearing and therefore did not defend itself in court.

The move comes after judges at the UK Supreme Court last week unanimously ruled that a woman is defined by biological sex under equalities law.

Ms Hurley said she had felt “very emotional and very tearful” since the conclusion of the case.

“It’s felt bittersweet,” she told BBC Scotland News.

“It should never have come this far, we should never have had to do a judicial review.

“We’re grateful to the legal minds that supported us and we’re thankful that we got the result that we got.”

Mr Stratford said he was “delighted” but still felt “a bit of anger as to the way we were treated”.

He added: “It was very clear, and we pointed it out to them that it was very clear.

“It’s the law. This could have been dealt with at such an early stage.”

Ms Hurley said she found out through working at the school that children were allowed to play on the sports teams that matched the gender they identified with.

She asked more questions about this policy in the summer of 2023 and discovered that the toilets in the new school would be gender neutral. She said the school had failed to consult parents on this.

As well as Earlston, Jedburgh Grammar Campus – also in the Scottish Borders – only has gender neutral toilets.

Three new schools being planned and built by Scottish Borders Council are designed to have gender neutral toilets.

Wednesday’s judgement ruled that mixed-sex schools must have single-sex toilets, but they can have gender neutral toilets in addition to that.

BBC Scotland News understands that the Scottish government is confident that the vast majority of schools in Scotland already offer single-sex lavatories.

Ms Hurley said she received “confusing” guidance from the school after she raised concerns. She said she did not understand how the guidance would work.

She added: “We just thought there should be so much more of a holistic approach and I just wanted to understand how we can support everybody.”

Mr Stratford said they had requested risk and equality impact assessments on the council’s decision, but they felt “dismissed” and “treated like we were imbeciles”.

He said in his view, the law was clear but the council kept referring to Scottish government guidance.

Ms Hurley said it would be better to have three spaces that included a gender neutral option.

“We just couldn’t understand why you had to take away the boy’s space and the girl’s space,” she said. “We didn’t understand the need for it.”

She said the case had cost “a lot of money”, but they received some financial backing from For Women Scotland, as well as other donors they did not name.

“I think we’re at a point where schools need more support from the government on this,” she added. “You have to get it right for every child.”

Scottish Borders councillor Julie Pirone said the local authority would be reviewing the toilet provision in all its schools to ensure all children felt safe.

“It’s not a huge review but we need to get it right,” she added.

“I expect it to be small and minor changes of what we’ve got because our new schools are absolutely fantastic facilities.

“But this will make us pause and have a little rethink on the provision we’ve got and make sure they fit in with the legislation and the ruling we’ve had this week.”

After the court ruling, the Scottish government said it would carefully consider the implications of the judgement.

A spokesperson added: “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.”