Exclusive:Edinburgh council describes Scottish Government school toilet single-sex guidance as unlawful
Edinburgh City Council has called Scottish Government schools toilet guidance ‘unlawful’ as it awaits guidance on single-sex spaces
Edinburgh City Council has become the first local authority to describe government guidance on single-sex spaces as unlawful.
Following a Supreme Court judgment on the legal definition of “sex”, schools still do not have updated guidance from the Scottish Government on toilet and changing room facilities.
Borders Council was recently taken to court over its failure to provide single sex facilities in the new Earlston Primary School.
In a response to a request for information about provision in Edinburgh schools, senior council staff appeared to criticise the current Scottish Government guidance on how to support transgender young people.
Asked if it would continue to use the 2021 handbook, the council said it would use the guidance “in all respects other than those which are in conflict with the law”.
The Scottish Government has not said when new guidelines will be available and repeated a previous statement that “as with any significant legal or policy developments, we will consider whether the guidance requires to be updated to reflect these. This consideration is underway.”
Schools are currently following a non-statutory document from 2021 called “Supporting transgender young people in schools: guidance for Scottish schools”.
The response from Edinburgh’s council said: “An updated version of that guidance, taking account of the For Women Scotland judgment, is anticipated to be published by the Scottish Government in due course.
‘Conflict with the law’
“While that guidance is awaited, The City of Edinburgh Council is continuing to implement the 2021 guidance in all respects other than those which are in conflict with the law as stated in the For Women Scotland judgment.”
Alba MSP Ash Regan welcomed the City of Edinburgh Council's move to provide schools with clear guidance on toilet and changing facilities as the new academic year begins.
"This is a welcome step from the City of Edinburgh Council.
“Clear, lawful policy will protect pupils, give certainty to schools, and safeguard the council from costly legal challenges.
"Edinburgh has done the right thing - providing lawful clarity that protects pupils, reassures parents and staff.
"This stands in stark contrast to the Scottish Government, which has dragged its heels and left outdated, non-statutory guidance in place - leaving councils across Scotland exposed."
The Freedom of Information response details that Edinburgh has four primary schools, one secondary school and one additional support needs school with no single-sex toilets facilities for pupils.
All schools have single-sex toilets for teachers and staff.
Scottish Borders Council lost a judicial review brought by the parent of a primary school child after it failed to provide single-sex toilets.
The court confirmed that every state school in Scotland must provide such facilities.
Ms Regan said the same legal vulnerability still exists for other local authorities that continue to rely on the Scottish Government's 2021 non-statutory guidance, which critics say is incompatible with the law.
"The Scottish Government must stop prevaricating on their legal duties, which is placing public bodies, including councils, in legal, financial and reputational jeopardy,” she said.
“The Scottish Parliament acted swiftly before the summer to ensure facilities upheld legal obligations and provided an appropriate choice of facilities for all staff.
“Now Scottish Government ministers must step up to urgently do the same."
Confusion over guidance
The MSP also raised concerns over the ongoing confusion from the lack of clear government guidance, leading to disparity among councils.
Aberdeen City Council, in response to the same question, said: "While the Council recognise the decision of the Supreme Court, the decision did not indicate that the guidance is unlawful and we will continue to use it as resource in supporting any young person who is considering transitioning."
Ms Regan is now calling for the Scottish Government to make an urgent statement to local authorities that school facilities must reflect the settled legal position and ensure safeguarding across Scotland.
"Every child in Scotland has the right to single-sex facilities in school - that's not a debate, it's the law," she added.
"Following unlawful guidance from the Government exposes councils to litigation. Edinburgh's approach will provide necessary clarity to staff, families, and pupils, while ensuring compliance with the law from day one of term."
A City of Edinburgh Council spokeswoman was asked about the Freedom of Information response.
She said the council continues to support transgender and non-binary pupils while awaiting new national guidance and an expected Code of Practice from the Equality and Human Rights Commission.
“In the meantime, we have looked at what changes needed to be made in our schools ahead of the new school term, and we have started the process of implementing these changes,” she added.
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