Do schools and colleges have to provide single-sex toilets for their students?

The Court of Session in Scotland has said that Scottish schools must provide single-sex toilets for their male and female pupils. 

We examine this case and analyse whether schools and colleges in England and Wales, that only provide gender-neutral toilets or allow students to self-identify and use the facilities where they feel more comfortable, are likely to face similar challenges.  

Facts

When a new school was built in Scotland, only gender-neutral toilets were installed. Parents complained to the Scottish Borders Council responsible for the policy. It rejected their concerns and they challenged the legality of the policy by way of judicial review. 

The case was heard at the Court of Session in Edinburgh, a week after the Supreme Court's decision in For Women Scotland v The Scottish Ministers which held that sex in the Equality Act 2010 means biological sex. 

Legislation

In Scotland, the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 apply. Section 15 deals with the ‘sanitary accommodation for pupils’ (the toilets) and it states that:

‘… in every school which is not designed exclusively for girls half the accommodation [number of toilets] shall be for boys…’

Decision of the Court of Session

The Local Authority didn't attend the hearing at the Court of Session. It accepted that these Regulations imposed a legal obligation on it to provide both male and female toilet facilities and they didn't try to defend the case in court. 

Although the judgment is not yet available, press reports say that the Court of Session held that mixed-sex schools must have single-sex toilets, although they can, in addition, have gender-neutral toilets. 

What can schools and colleges in England and Wales learn?

While this case was decided in the Scottish courts and relates to Scottish regulations, there are similar regulations that apply in England and Wales which are likely to be interpreted in the same way.

In England section 4(2) of the School Premises (Regulations) 2012 states that:

‘Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time.’

This does not mean toilets in cubicles with shared washbasins, which do not protect children's right to privacy from members of the opposite sex when using toilet and washing facilities. 

In Wales regulation 3(5)(a) of the Education (School Premises) Regulations 1999 provides: 

‘Except as provided in regulation 4(3), washrooms for male and female pupils who have attained the age of 8 years shall be separate.’

Schools can still provide a unisex option in addition to male and female toilets. If they do the toilet and washbasin should be in the same room and have a fully lockable door.

The interim update released by the Equality and Human Rights Commission (EHRC), which was published in the wake of the Supreme Court ruling in For Women Scotland v The Scottish Ministers, states that schools should have separate facilities based on biological sex, rather than identity:  

'Pupils who identify as trans girls (biological boys) should not be permitted to use the girls' toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys' toilet or changing facilities. Suitable alternative provisions may be required.' 

The interim update is not statutory guidance. The ECHR has said that it will start a two-week consultation to understand how the practical implications of the Supreme Court's judgment should be reflected in updated guidance. It intends to put this before Parliament before the summer, and once approved, it can be used in evidence in legal proceedings and tribunals and courts must take into account any part of the code that they think is relevant to the issue they are deciding.  

Is the Supreme Court's decision relevant to schools and colleges?  

The Supreme Court had to decide whether someone who had obtained a Gender Recognition Certificate changed their sex for the purposes of the Equality Act. The Scottish Ministers had already conceded (after losing an earlier court case) and people couldn't self-identify into the sex class which aligned with their gender identity if it differed from their biological sex.

The Equality Act sets out specific provisions that apply to schools and further and higher education which allow them to restrict admission to single-sex schools/institutions and single-sex boarding schools. It is now absolutely clear that this means biological sex.  

Schools

In terms of schools, no-one under the age of 18 can apply for a GRC and operating single sex toilets and changing rooms on the basis of self-identification was never lawful for this age group. And it's highly likely that schools in England and Wales who have replaced single sex facilities with gender neutral ones could be subject to legal proceedings like this Scottish case.   

Colleges

Most colleges aren't subject to the same regulations that apply to schools, and they don't have to provide single sex facilities such as toilets and changing rooms. However, the Equality Act permits them to provide separate male and female facilities where: 

• they are likely to be used by two or more persons at the same time, and the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex; and
• providing joint facilities are ‘less effective'; and
• providing separate facilities is a proportionate means of achieving a legitimate aim. 

These exceptions are set out in Schedule 3, Part 7 and if you meet these, it is not gender reassignment discrimination to exclude someone from a separate sex space that does not align with their biological sex (s28). 

The Supreme Court made it clear that protecting the privacy, safety and dignity of women is a legitimate aim. That might be for religious or cultural reasons or because they want privacy when they are menstruating. 

The proportionate response to achieving that aim is to exclude people of the opposite sex from sex segregated facilities. You are not required to undertake a case-by-case analysis and instead can operate a blanket policy that applies to everyone.

In practice this means that: 

If you already have single sex toilets or changing rooms, these must relate to biological sex. If you allow students to use single sex facilities that align with their chosen gender, rather than their biological sex you; 

• could be sued by students and other people using them who object to sharing facilities with members of the opposite sex; and
• by people of the opposite sex who also want to access the facilities.

Converting all of your toilets to gender neutral toilets doesn't ameliorate those risks. Mixed sex facilities may indirectly discriminate against those women who need single sex facilities for their privacy, dignity and autonomy. You may also need to maintain separate sex facilities as part of your safeguarding responsibilities.

We can help

This is complicated and emotive topic. We recognise that schools and colleges have a number of practical issues to address alongside wanting to promote inclusivity and support all students and members of staff. Keep following our updates as we help you navigate this issue. 

Our newsletters

We publish monthly employment and education newsletters. If you'd like to be added to the mailing list, please let me know.