Scottish schools ‘must provide single-sex lavatories for pupils'
Lady Ross KC told the Court of Session in Edinburgh that she would issue a declarator, or court order, making clear that state schools needed to provide separate lavatories for girls and boys based on biological sex.
It comes less than a week after the UK's Supreme Court ruled that trans women are not legally women.
Parents had taken legal action against their councils after finding out their children had to use gender-neutral lavatories at their primary school.
Sean Stratford and Leigh Hurley took legal action against Scottish Borders Council (SBC) over the facilities at the new Earlston Primary School.
Their concerns were dismissed by head teacher Kevin Wilson and the council, which claimed it did not have to consult parents about lavatory policy.
For Women Scotland (FWS), the feminist campaign group that won last week's Supreme Court case against the Scottish Government, supported the parents with their legal action.
FWS said schools across Scotland had installed gender-neutral lavatories despite regulations introduced in 1967 mandating that separate facilities must be provided.
Trina Budge, one of FWS's directors, said SBC had conceded on Tuesday evening that it had flouted the law on school lavatories.
Ms Budge said the council had also agreed that it should not have allowed boys to compete in girls' events in the school's sports day and that pupils should not have been disciplined for misgendering other children.
She predicted it would be the first of many such cases involving public sector bodies in the wake of the Supreme Court ruling.
Lady Ross announced her intention to issue the declarator in a hearing on Wednesday morning.
Court insiders told The Telegraph the final wording had not been finalised.
However, Ruth Crawford KC, representing the council, accepted the terms of the declarator making clear that the bathroom policy had been unlawful.
JK Rowling posted a celebration emoji welcoming the court order and wrote on X: 'School girls' right to privacy and dignity has been reclaimed in Scotland.'
Ms Hurley, 39, works at Earlston Primary as a pupil support worker and first raised concerns in November 2023 about the £16.6 million school supporting the 'social transition' of another pupil.
This included allowing them to take part in sports day races in their preferred gender.
She said she later discovered that her son would face punishment if he 'misgendered' trans pupils and that the school was planning to have no separate lavatories for boys and girls.
She told The Times: '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.'
Mr Stratford, a 42-year-old firefighter, said: 'You're talking about children who still believe in Father Christmas and the tooth fairy. We've won, but common sense says we should never have been in this position in the first place.'
Rosie Walker, their solicitor, said: 'All schools in Scotland will now have to look again at whether their toilets comply with The School Premises (General Requirements and Standards) (Scotland) Regulations 1967, which require half of school toilet facilities to be for boys and half for girls.
'This case, on top of the Supreme Court decision last week, gives focus to the importance of protecting sex-based rights and single-sex spaces.'
In addition to the declarator, 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 council spokesman said: 'Prior to the hearing, SBC had accepted and acknowledged the decision that was being sought was correct and therefore did not seek to defend this in court. Moving forward, SBC will revisit and reconsider the complaint and respond in due course.'
The Scottish Courts and Tribunals Service confirmed that the court order had yet to be finalised.
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