Single-sex spaces: campaign group set their sights on schools' guidance

The Court has given them permission to appeal, and the Scottish government has 21 days to formally respond. 

This follows the UK Supreme Court’s landmark ruling in April, which clarified that the terms ‘woman’ and ‘man’ in the Equality Act 2010 refers to biological sex, not gender identity or certificated sex. 

FWS argues that the Scottish government’s school and prison guidance is incompatible with both the Supreme Court’s interpretation and existing statutory requirements. In the context of schools, they are challenging policies that permit pupils to use toilets, changing rooms, and participate in PE based on gender identity.

The Court of Session has already ruled that Scottish schools must provide single-sex toilets for their male and female pupils, following action taken by parents whose children only had access to gender-neutral toilets. As a result, Edinburgh City Council has begun removing gender-neutral toilets from schools where they were the only option, citing legal obligations under the School Premises Regulations (Scotland) 1967.

At First Minister’s Questions earlier this week, John Swinney confirmed the government is undertaking “detailed legal work” to align policies with the Supreme Court’s ruling. However, he stopped short of committing to withdraw the contested guidance, stating that ministers are awaiting updated advice from the Equality and Human Rights Commission (EHRC).

EHRC code of practice

On that front, the ECHR has submitted its updated code of practice for services, public functions and associations to the UK government to approve. Once it has been laid before parliament, MPs can challenge it, but if they don't, it passes automatically after 40 days. 

But it's worth repeating: the code is not itself the law. The law is the Equality Act 2010 as interpreted by the Supreme Court. Once the code is approved it will provide guidance. Courts and tribunals must have consider it but aren't bound by it. 

What are the rules about toilets and changing rooms in schools and colleges?

We explained what legal duties schools and colleges owe to their students here: Do schools and colleges have to provide single-sex toilets for their students? Please get in touch if you'd like specific advice.

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