New school toilet guidance ‘not mandatory’, says education secretary

New guidance for Scottish schools on separate toilet facilities is “not mandatory”, a cabinet secretary has said.

Education secretary Jenny Gilruth told BBC Radio Scotland’s Good Morning Scotland that the Scottish Government accepted the Supreme Court ruling on the definition of sex, and the new guidance is in response to the legal requirements.

She said: “The Scottish Government has made it absolutely clear that we accept the Supreme Court ruling, and since April we’ve been taking forward the detailed work that is necessary as a consequence of the ruling.

“Now we know in Scotland all schools are required to provide separate toilets for girls and boys, and in addition, the guidance makes clear that councils should give careful consideration to the individual needs of transgender pupils in light of the school context.”

However, Gilruth said the guidance was not mandatory but advisory for schools.

She said: “No, it’s not mandatory, it’s advisory guidance from the Scottish Government. That’s because of the statutory legal requirements that mean under the 1980 Education Act that our councils run our schools, not the government directly.

“There are not penalties, but of course it is incumbent on the government to update our guidance in line with legal changes.”

New guidance released by the Scottish Government on Monday said that schools in Scotland must provide separate toilets for boys and girls on the basis of biological sex.

Schools were previously told that pupils could use whichever toilet they felt most comfortable in.

The updated guidance follows two landmark court rulings relating to single-sex spaces.

In April, a Scottish judge ruled that schools in the country must provide single-sex toilets to pupils after some provided only gender neutral facilities.

That came a week after the UK’s Supreme Court unanimously ruled that sex under the 2010 Equality Act refers to biological sex.

Gilruth confirmed that while it is up to the schools to make decisions on individual cases, schools are required by law to have separate toilet facilities for boys and girls.

She said: “The school is required by law to have a separate toilet facilities for boys and girls and also to have accessible toilet provisions, and of course the guidance has been updated to recognise the clarification of the definition of sex under the Equality Act 2010 following the Supreme Court judgment.”

Also speaking on BBC’s Good Morning Scotland, Angela Bradley, general secretary of the Educational Institute of Scotland (EIS) said that she believes the new guidance does not “fully address the needs” of young transgender people.

She said: “Considering the nature of the Supreme Court judgment, it would be difficult for the Scottish Government to advise anything other than something which is considered to be compliant with the law.

“The difficulty with it is that it perhaps does not fully address the needs of transgender young people in that many of them will not feel comfortable whatsoever using the toilets that the guidance suggests that they should.

“There’s suggestion in the guidance that perhaps those young people could use disabled toilet facilities or even staff toilet facilities, and neither of those are perfect solutions.”