Girl pupil 'discriminated against' due to mixed sex toilets in primary school
The petition was brought by parents of a primary pupil left distressed after having to use school toilet spaces with boys
A female primary pupil was discriminated against by a school where the main toilets are in mixed-sex areas, a judge has ruled.
The Court of Session also found West Lothian Council had acted unlawfully in its provision of toilets.
Parents of the girl, referred to as Child C, brought the judicial review after their daughter suffered distress at having to share toilet areas with boys.
Boys and girls have access to the main toilet areas at the school, although boys are not permitted to enter cubicles in the main toilet areas with a female sign on them, and vice versa.
In her ruling Judge Lady Poole noted that Child C found the current situation “distressing” and does not like going to the toilet while boys are there.
She has avoided using the toilets during school hours and regularly comes home in pain as a result, and has reduced her fluid intake “considerably” to try to avoid having to use the toilet.
Lady Poole found that the school’s toilet provision is indirectly discriminatory under the Equality Act 2010, and placed girls at a disadvantage.
A West Lothian Council spokesman said the local authority “will now consider its options” having received the ruling.
“In the meantime, the council remains committed to ensuring the highest standard of care for the children and young people attending its schools,” he added.
Lady Poole wrote: “The particular disadvantage is a combination of the additional issues for girls relating to contamination of hands due to their anatomy and physiology, and the general vulnerability of girls having to perform intimate activities in communal areas.
“These give rise to legitimate considerations of privacy, dignity and health and safety.
“The particular disadvantage arising from provision of all toilets as unisex, relating to contamination of hands and the general vulnerability of girls having to perform intimate activities in communal areas, applies to C.”
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The judge concluded: “The court holds that section 19 of the 2010 Act is contravened by the current toilet provision at the school, and there has been unlawful indirect discrimination.”
The court also ruled that the school’s toilet provision breaches the requirements of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967.
It found that because the four main toilet areas at the school do not provide separate spaces for boys and girls containing both appliances and wash basins, they do not comply with the standards for sanitary accommodation in the 1967 regulations.
The toilet provision also breaches a requirement of the 1967 regulations that two-thirds of the appliances in the boys’ sanitary accommodation should be urinals.
The case comes after judges in the UK’s highest court ruled in April last year that the words “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex.
The council said it had been following previously issued Scottish Government guidance on toilet provision.
Lady Poole wrote: “The answer to the council’s submissions is that guidance is not law.
“The council has its own duties and powers conferred on it by legislation. The council is obliged to obey the law, not guidance if that deviates from the requirements of the law.”
The court awarded expenses to the petitioners.
A Scottish Government spokesperson said: “The Scottish government notes the Court of Session judgment involving West Lothian Council and East Calder Primary School. We were not a party in this case but will carefully consider the judgment and any implications.
“Education authorities have statutory responsibility for their school estate, including toilet provision. Our consultation on updating the School Premises Regulations closed on 31 March. The analysis report will be published later this year, and Ministers will consider the findings in due course.”
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