Scottish schools must provide single-sex toilets after parents win landmark legal battle

Daily Record

23-04-2025

A Scottish judge has ruled that all state schools must provide separate male and female toilets, following a landmark case brought by parents against Scottish Borders Council. The decision, handed down at the Court of Session in Edinburgh, came after Sean Stratford and Leigh Hurley challenged the council's policy at Earlston Primary School, where their eight-year-old son had been a pupil. The £16.6 million replacement school opened with only gender-neutral lavatories—something the parents argued breached legal requirements and put children at risk. The council conceded in court that it had failed to comply with its legal obligation under the School Premises (General Requirements and Standards) (Scotland) Regulations 1967, which require the provision of single-sex lavatories in schools. Lady Ross KC, who presided over the case, confirmed she would issue a formal court order, or declarator, clarifying the legal position for all Scottish schools. Rosie Walker, solicitor for the parents and partner at Gilson Gray LLP, welcomed the judgment, stating: "This case, on top of the Supreme Court decision last week, gives focus to the importance of protecting sex-based rights a nd single-sex spaces." She added that the ruling would have 'far-reaching implications' for schools across Scotland. Ms Hurley, 39, who works at the school as a pupil support worker, first raised concerns in late 2023 about the school's broader transgender inclusion policies, which included allowing a pupil to socially transition and participate in sports in line with their gender identity. She later discovered the school planned to have no sex-segregated toilet facilities, and that children could face punishment for "misgendering" peers. 'We just want all children to be safeguarded,' Hurley said. 'We have great empathy for any child, but we just wanted our rights respected at the same time, and that wasn't happening.' The couple ultimately withdrew their son from the school, citing emotional distress and concerns about their younger daughter, who would have also been expected to use gender-neutral toilets once she enrolled. Stratford, 42, said: '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.' The legal action was supported by campaign group For Women Scotland, which recently won a major case at the UK Supreme Court affirming that, under equalities law, "woman" refers to biological sex. Although the Supreme Court ruling did not directly address school toilet regulations, Walker said it helped underline the legal requirement to protect single-sex spaces. She also criticised public bodies for relying on advice from activist groups rather than adhering to the law. 'It's a huge problem that schools and councils have deferred to campaign groups rather than sticking to their legal obligations,' she said. 'This is undoubtedly the first of many cases in which we will see the rights of women and girls upheld by the courts.' Scottish Borders Council has now been ordered to revisit the wider complaints made by the parents, including policies on transgender inclusion and discipline, and must respond within 20 days. A council spokesperson confirmed the matter related to Earlston Primary School but declined to comment further. They added that the council had accepted the legal position before the court hearing and would now review the complaint. The Scottish government said it was considering the implications of both the Court of Session and the Supreme Court rulings. A spokesperson added: "Local authorities have statutory responsibility for the school estate, including provision of toilets. "The Scottish government is committed to ensuring that our Transgender Guidance for Schools remains up to date and fit for purpose. "As with any significant legal or policy developments, we will consider whether the guidance requires to be updated to reflect upon these." Ministers are expected to meet with the Equality and Human Rights Commission later this week to discuss the issue, with new national guidance anticipated in the near future.