New Scottish Government guidance on school toilets is 'muddled' and 'still unlawful'
The Scottish Government has published guidance for schools on supporting transgender pupils, which says schools must have separate boys and girls toilets.
Campaigners have called newly published government schools guidance on single-sex spaces “muddled and ideological” and claim the advice is still unlawful.
Updated guidance on toilets and changing rooms in schools has been awaited since a Supreme Court ruling in April stating the definition of “sex” in law means “biological sex”.
The court action was brought by grassroots feminist group For Women Scotland, which lodged a Court of Session action against the Scottish Government last month over its failure to provide guidance for schools and prisons.
Jenny Gilruth, cabinet secretary for education, announced the government’s new policy for supporting transgender pupils on Monday.
It states schools must provide male and female toilets but may have a third, gender-neutral option “depending on the school community”.
Teachers are encouraged to allow trans-identifying pupils to use toilets outwith normal break times to help them feel more comfortable.
The 64-page document makes clear the implementation of policies to protect pupils is the responsibility of individual councils and urges schools to seek legal advice before changing toilet use.
Susan Smith, co-founder of the campaign group For Women Scotland, said: “A mere 10 days ago the Scottish Government lodged paperwork with the Court of Session claiming their school guidance was lawful.
“So it is a significant turnaround.
“We are glad to see the recognition that toilet provision is made on the basis of biological sex.”
Ms Smith said she was “concerned” there is more work to be done on the guidance and would take time, with FWS’s lawyers, to consider it.
Maya Forstater, CEO of human rights charity Sex Matters, compared the Scottish Government guidance to that of Northern Ireland’s education department, which issued a clear, one-page guidance for its schools.
Calling the guidance “muddled and ideological” Ms Forstater expressed concerns that the document asks teachers “to make decisions which are far outside of the competency of teachers”.
The policy states clearly that the government accepts the Supreme Court judgement in the For Women Scotland case.
She added: “But it somehow still suggests that a pupil might be able to go through their school career pretending to be the opposite sex without ever being ‘outed’ – that is, recognised as the sex they actually are.
“The guidance offers the bizarre suggestion that this pretence might be maintained by the child using facilities outside normal breaktimes.
“This is neither practical nor in the child’s best interests, since it will only worsen the child’s dissociation from the unchangeable physical reality of their sex.”
READ MORE: Edinburgh council produces single-sex guidance for schools as calls grow for Government action
Ms Forstater also suggested the new guidance is still unlawful.
“The suggestion that schools can change their toilets to ‘gender neutral’ goes against school building regulations requiring half of all toilet facilities to be for boys and half for girls,” she said.
“This guidance may be an improvement on what went before, but it is still unlawful and unnecessarily complex.”
Education Secretary Jenny Gilruth said the guidance will “provide clarity and confidence to teachers and staff”.
The guidance makes clear that education authorities and schools must consider the individual needs of pupils who identify as transgender.
It reads: “It is not possible for the Scottish Government to provide advice on the outcomes for individual pupils as a result of these individual needs assessments as Scottish Ministers and the Scottish Government do not have the necessary information to do so.”
The guidance covers what schools should do to support trans-identifying young people from bullying, how they should protect their privacy and gives guidelines on the use of toilets and changing facilities.
It tells school staff that any pupil deliberately using the wrong name or pronoun for a transgender young person is bullying their classmate.
Although it adds: “It should be noted that holding or expressing a gender-critical belief is not in and of itself bullying.”
Bullies, the guidance says, should be encouraged to “identify the feelings that cause them to act this way” and “develop alternative ways of responding to these feelings”.
The Scottish Government guidance also says teachers should educate young people about transgender issues and “work towards creating a culture of respect”.
It goes on to recommend age appropriate resources highlighted in the resources section.
The government said the guidance had been updated in light of the For Women Scotland ruling and the recent decision in the Hurley v Scottish Borders Council court action, which clarified that primary and secondary schools are required to provide separate toilets for boys and girls.
A section on gender-based violence fails to mention the word “girls” and instead talks of “young people”.
Scottish Conservative shadow children and young people minister Roz McCall MSP said: “This looks like yet more evidence of the SNP dragging their heels on this issue.
“Instead of enforcing the law, the SNP has confused matters further by producing this contradictory and potentially harmful guidance that will make things more difficult for schools.
“Their divisive self-ID policies have become embedded in Scotland’s public institutions.”
Ms McCall went on to say First Minister John Swinney must “step up and guarantee single-sex spaces in every Scottish school.”
Alba MSP Ash Regan said: “For Women Scotland have once again shown our government policies and guidance to be unlawful and while I welcome the single-sex toilets and changing rooms provision clarity, this revised guidance still raises many questions.”
Ms Regan added that, six months after the Supreme Court ruling and the Court of Session ruling on single-sex toilets in schools, the government was offering “only a token nod” to legal requirements.
She added: “This looks less like a genuine commitment to clarity and more like a minimal response to For Women Scotland’s legal action seeking to quash unlawful school and prison policies.”
The government document was drawn up with input from LGBT Youth Scotland, a government-funded third sector organisation.
Ms Regan added: “Parents, teachers and pupils deserve guidance rooted in law and evidence, not political spin.”
The Scottish Government said Ms Gilruth had met COSLA, the Association of Directors of Education in Scotland, and teaching unions through the summer as part of engagement on supporting transgender young people in schools.
It added that Equality Impact Assessments and Child Rights and Wellbeing Impact Assessments have been completed and will be published in due course.
Local authorities have statutory responsibility for the school estate, including provision of toilet and changing facilities and will be responsible for implementing the ruling.
Edinburgh City Council last month became the first local authority to consider its own guidance for schools.
The local authority broke ranks to call the Scottish Government’s existing guidance “unlawful” and develop its own policies.
Ms Gilruth said: “The rights of all children and young people must be respected in our schools.
“We have brought forward updates to guidance to provide clarity and confidence to teachers and staff as they work to support the mental, physical and emotional health of transgender young people in our schools following recent significant legal and policy developments.”
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