From The Times with a share token
https://www.thetimes.com/article/4e7c7355-1798-45fb-bb9b-07aca88ff612?shareToken=cae6858191832b0bea95fd18bfa5819c
Judge rules Scottish schools must provide single-sex lavatories
Parents win legal fight after head teacher dismissed concerns over only gender-neutral facilities
A judge has ordered that Scottish schools must provide single-sex lavatories for pupils after parents won a legal fight against a council which insisted on installing only gender-neutral facilities.
In a case hailed as the “first of many” in which the rights of women and girls will be upheld following last week’s Supreme Court ruling, Scottish Borders council conceded it had been wrong to flout the law by installing no sex-segregated bathrooms at the new Earlston Primary School.
Lady Ross KC said she would issue a declarator, a court order, making legal obligations on Scottish state schools clear after Sean Stratford and Leigh Hurley brought a judicial review over their concerns around transgender policies at Earlston, where their son Ethan, eight, was a pupil.
Stratford and Hurley had complained about the lack of separate-sex facilities at the replacement school, which recently opened and cost taxpayers £16.6 million, as well as trans inclusion policies around sports days, and potential punishment that their son would face if he “misgendered” other pupils.
Their concerns were dismissed by Kevin Wilson, the head teacher, and later Scottish Borders council, which claimed it did not have to consult with parents about the lavatory policy.
The parents went to court with the support of For Women Scotland, the campaign group which last week won the landmark Supreme Court ruling declaring that for the purposes of UK equalities law, biological men could not become legally female.
On Wednesday morning at the Court of Session, Scotland’s top civil court in Edinburgh, Ruth Crawford KC, representing the council, accepted the terms of the declarator making clear that the bathroom policy had been unlawful.
Hurley, 39, who still works at Earlston Primary as a pupil support worker, first raised concerns in November 2023 about the school supporting the “social transition” of another pupil, which included allowing them to participate in sports day races in the category of their gender identity.
She said she later discovered that her son would face punishment if he “misgendered” trans pupils and that the newbuild school was planning to have no separate-sex lavatories.
“We just want all children to be safeguarded,” Hurley, from Earlston, Berwickshire, said. “We have great empathy for any child, but we just wanted our rights respected at the same time, and that wasn’t happening.
“In the end we felt we had no choice but to pull our child out of the school, which left him devastated. As a parent, you have a right to choose where you send your children to school and ultimately we were forced out, because they were breaking the law.
“We’re hoping that following this ruling, this nonsense will stop, adults pay attention and properly safeguard all children within a school setting.”
While last week’s Supreme Court ruling did not directly impact on legal regulations related to bathrooms in Scottish schools, the parents’ solicitor, Rosie Walker, who also worked on the Supreme Court case, said the judgment had made clear that single-sex spaces must be protected.
She added that Scottish Borders council had completely misunderstood the Equality Act, which the Supreme Court case did relate to, and had found itself in legal jeopardy as it had “ignored sex-based rights in attempts to deal sympathetically with trans children”.
Stratford, a 42-year-old firefighter, claimed that when he complained the head teacher criticised his parenting methods, questioning how he was preparing his son for “the diverse world we live in”.
The couple had particular concerns about their daughter Ivie, three, who would be starting at a school where she would have to share communal lavatories with boys.
“You’re talking about children who still believe in Father Christmas and the Tooth Fairy,” he added.
“We’ve won, but common sense says we should never have been in this position in the first place. We brought this to their attention when it was still a building site, so they could have rectified it there and then, and saved them a fortune.
“We’ve suffered through this, the kids have suffered, so now we want to know who is going to take accountability. They knew they were breaking the law.”
According to For Women Scotland, schools across Scotland have installed gender-neutral lavatories despite regulations passed in 1967 mandating that separate-sex facilities must be provided, including urinals for boys.
However, controversial Scottish government guidance for schools issued in 2021 states it is a “social convention” that people use lavatories in line with their biological sex.
While it says bathrooms for boys and girls should be provided, it backs the expansion of gender-neutral spaces and states “where possible” trans pupils should use “the facilities they feel most comfortable with”.
The guidelines also urge schools to support the social transition of pupils, who they say can declare as trans “at any age” and that teachers should respond to pupils who say they are trans by asking for their new name and pronouns.
In its response to the parents, Scottish Borders council said the management team at the school had undertaken training from LGBT Youth Scotland, an activist organisation which has successfully lobbied for trans inclusion policies in schools.
It defended its policies by claiming the Equality Act prohibited any discrimination against those with “protected characteristics”, but omitted sex from a list of those covered by the law.
After the hearing Walker, of Gilson Gray LLP, said it was a “huge problem” that bodies, such as councils and schools, had deferred to activist groups on contentious issues around gender rather than sticking to the law.
“While the Supreme Court ruling did not affect the law in this case, it has brought focus on to the fact that single-sex spaces have to be respected,” she said. “It has changed the climate and the debate about these issues.
“This is undoubtedly the first of many cases, following the Supreme Court ruling, in which we will see the rights of women and girls upheld by the courts.”
She added: “The reality is that public bodies are subject to the Equality Act and they cannot outsource their responsibility to comply with it to campaigning bodies.”
The Scottish government’s guidance is now “desperately in need of review”, she added.
As well as the declarator on single-sex spaces in schools, the council will now have to reconsider the other aspects of wider complaints made by the parents and issue a new response within 20 days.
A spokeswoman for Scottish Borders council said: “We can confirm the matter relates to Earlston Primary School, recently opened, but are unable to give any further comment beyond that at this stage.”