SNP ‘should rewrite school guidelines on single-sex lavatories'
Judge Lady Ross KC issued a court order on Thursday making clear that state schools north of the border must provide single-sex lavatories for pupils, following a case brought by parents against Scottish Borders Council (SBC).
Rosie Walker, the parents' solicitor, told The Telegraph the SNP Government would now be 'well advised' to rewrite 2021 guidance that claimed there was 'no law in Scotland' that only biological males could use boys' lavatories and vice-versa.
The document also encouraged the provision of 'gender-neutral facilities' and argued that 'where possible' trans pupils should use 'the facilities they feel most comfortable with'.
Ms Walker said she suspected there would be schools across the country that were breaking regulations passed in 1967, which said that separate facilities, including urinals for boys, must be provided.
Although this has yet to be tested in court, she said that schools would also likely be breaking the law if they provided gender-neutral facilities in addition to separate toilets for boys and girls.
This is because the 1967 regulations state that half of a school's toilets must be provided exclusively for the use of each of the two genders, she said.
Her warning came after her clients, Sean Stratford and Leigh Hurley, took legal action against SBC over the new Earlston Primary School only providing gender-neutral facilities.
Their concerns were dismissed by headteacher Kevin Wilson and the council, which claimed it did not have to consult with parents about lavatory policy.
The council this week conceded the case and Lady Ross announced her intention to issue a declarator - a court order - in a hearing on Wednesday morning.
The order, published on Thursday, said that state schools had to 'provide separate sanitary accommodation for boys and girls' in line with Regulation 15 of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967.
It followed last week's Supreme Court ruling that trans women are not women, after a long-running legal battle between feminist group For Women Scotland (FWS) and the Scottish Government.
Ms Wilson, who also worked on the Supreme Court case, said: 'A lot of local authorities have been relying on the Scottish Government guidance issued in 2021.
'That guidance requires being updated in line with the Cass Review (of gender identity services for children) and the FWS case.'
Trina Budge, a director of FWS, said: 'At this point there is so much wrong with the Scottish Government's trans guidance for schools that it should be binned and started again from scratch.
'It is clearly unlawful regarding toilets, but also on changing rooms, sports and overnight accommodation on trips. Disgracefully, it was never updated after the Cass review and still promotes, against best medical advice, social transition for children confused about gender and suggests children who do not use preferred pronouns should be punished.'
Asked about the case after First Minister's Questions at Holyrood, John Swinney said: 'Obviously, there's detail in the decision of the Court of Session yesterday that the government will consider.
'It's obviously an action that involves Scottish Borders Council. It's not an action that involves the government, but it's important that all regulatory issues are properly followed by all public bodies, and the government will look at the judgement and come to its conclusions on that.'
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