Gender neutral toilets in primary school breached regulations and indirectly discriminated against girls

Facts

The school opened in 2024 and won various awards for its design. It had two main communal toilets areas for pupils to use with lockable doors opening into an area containing sinks. There were a few other individual toilets in separate rooms with sinks that pupils could also use - two of these contained sanitary products and disposal bins for girls who were menstruating.

Initially all toilets were unisex and children could use whichever toilet they wanted. Following concerns raised by some parents the school put stickers on the toilet doors. Some toilets became single sex, others remained gender neutral. The wash basins continued to be used by boys and girls. 

The parents of a child in year 1 complained to the school about the toilets. They said their daughter didn't like going to the toilet with boys and she tried to avoid going to the toilet at school. This caused discomfort and she regularly came home in pain. They asked if the school intended to provide single-sex facilities and referred to other cases where schools operating similar policies had been found to be acting “illegally”. 

The head teacher said that the school's facilities complied with the relevant legislation (School Premises (General Requirements and Standards) (Scotland) Regulations 1967) and the EHRC Interim Guidance. No further changes were made to the toilet facilities.

Decision

The local authority argued that it had followed the 1967 Regulations by providing ‘sanitary accommodation’ for its pupils by providing separate cubicles for boys and girls. It said the words ‘sanitary accommodation’ only applied to toilets - not to wash basins - and it was lawful to ask boys and girls to share these.  

The court said the Regulations were ‘not a model of clarity’. Sanitary accommodation wasn't defined and, therefore, had to be determined using statutory construction. It found this expression referred to the whole area used for toileting, including wash basins. The provision in the school didn't meet those requirements because girls and boys shared the same wash basins. The school had also failed to provide urinals for boys. 

The court also accepted that the unisex toilet policy indirectly discriminated against girls. Some toilets were restricted to boys or girls, but the washing facilities were not segregated. That put girls at a particular disadvantage compared to boys: it was important that girls could go to a space where they felt safe, knowing no boys would be there. Girls needed privacy to wash because they were more likely to have urine on their hands than boys and, once they started their periods, could also have blood on their hands. It also accepted that girls are generally more vulnerable than boys when having to perform intimate activities in communal areas. 

That disadvantage was not negated by the small number of other toilets containing wash-hand basins available for pupils to use, not least because it ‘might necessitate her standing out from the crowd when going to the bathroom, which can be difficult for young children’. 

For reasons that are not altogether clear, the council didn't attempt to justify its policy, so the court didn't consider this.

This meant that the council had unlawfully exercised its statutory duties and powers in relation to the school.

The court did not accept that the policy harassed the child. Her distress didn't meet the statutory definition,and it wasn't objectively reasonable for the conduct to have the necessary effect because there was other single use toilets she could use.

The court said it expected the council to take the necessary steps to comply with the law. 

What can schools and colleges in England and Wales learn?

While this case was decided in the Scottish courts and relates to Scottish regulations, there are similar regulations that apply in England and Wales which are likely to be interpreted in the same way.

In England section 4(2) of the School Premises (Regulations) 2012 states that:

‘Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time.’

In Wales regulation 3(5)(a) of the Education (School Premises) Regulations 1999 provides: 

‘Except as provided in regulation 4(3), washrooms for male and female pupils who have attained the age of 8 years shall be separate.’

Schools can still provide a unisex option in addition to male and female toilets. If they do the toilet and washbasin should be in the same room and have a fully lockable door.

Earlier this year the government published a short policy paper providing draft guidance about children who are questioning their gender which applies in England. In line with the Supreme Court's judgment in FWS v The Scottish Ministers, it said that schools must not allow: 

• children over the age of 8 to access toilets designated for the opposite biological sex

• children over the age of 11 to access changing rooms designated for the opposite biological sex, or

• allow children to share boarding or overnight accommodation with those of the opposite sex.

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