Scottish Government Consultation

Last year the Scottish Government opened a public consultation for possible changes to the regulations that govern school toilets and many objections to the option of introducing gender neutral toilets were made. Strong calls from the Children and Young People’s Commissioner Scotland (CYPCS) emphasised the importance that “school toilet facilities (be) compliant with human rights duties and informed by International standards”, with specific warnings where “infrastructure and management standards of school toilets are poor there is a risk of a breach of children’s rights under the UNCRC”. The government thereafter published the analysis of these responses and their plan to draft new Regulations for parliamentary approval in early 2018 was never progressed.

The CYPCS’s submission was strongly evidenced, citing both child rights law and research they undertook on school toilets, ‘Flushed with Success’, which most importantly included the views of children. The evidence highlighted the profound effect that school premises can have on children and young people’s educational opportunities and experiences.

Main points learned included:

1. There is evidence that poor standards and qualities of school toilet infrastructure and management is an ongoing issue that is important to children and young people

2. Children and young people who dislike using school toilets because of hygiene or privacy concerns or who experience bullying may be more afraid to use school toilets if they are not well managed, which results in negative physical and emotional health impacts

3. Children and young people may find engagement with school and learning challenging when their sanitary, privacy or safety needs are not appropriately met, either through inadequately resourced or managed toilets, lack of privacy or/and free access to toilets when required. Example: Lack of private space in which to adjust headscarves.

4. Adolescent girls, children more at risk of bullying or who lack confidence and children and young people with disabilities or health issues may be affected disproportionately.

The CYPCS strongly recommended that

“The regulations must be supported by statutory guidance, informed by children and young people, on the management, resourcing and upkeep of school toilet facilities compliant with human rights duties and informed by International standards (WASH in Schools). “

‘WASH in Schools‘ International Standards require schools have ‘child and gender friendly toilets’ i.e. separate facilities for girls. It stresses that privacy and safety are recognised world wide to be of particularly high importance for adolescent girls, who suffer disproportionately when these requirements are not met.

 “Lack of privacy: When reaching puberty children start to develop awareness on their own development and physical changes. This awareness creates a need for gender-related privacy which becomes particularly evident when using toilets and even more so for girls who are menstruating. If no privacy is provided, children will choose to not use the facilities and rather look for an informal private place to use or wait until after school hours

(Sexual) harassment in toilets : Harassment and rape of adolescent girls at schools is a serious and wide-spread problem. Worldwide, 40-47 percent of sexual assaults affect girls age 15 or younger.

Where privacy is an important issue, safety seems to be even more important for adolescent school girls. “

The Government analysis included comments from other respondents such as

‘child’s right to privacy, dignity and safety were under threat from the disaggregation of sex specific spaces such as toilets. ‘

‘The impact of ‘forcing’ them to share these facilities with people of the opposite sex, but who identify as the same sex is considerable and will negatively impact the rights of all’

‘all toilets cannot be gender neutral due to the vulnerability of young female students.’

The publication continued:

‘There was a question as to whether all toilets being gender neutral was appropriate, with the recognition that many young girls already feel vulnerable using current facilities at school. Female only toilets were considered more than just a sanitary facility but also a place where privacy can be gained, where a child can feel safe and where they can deal with developmental issues such as menstruation”

The Government have clearly reconsidered their plans to amend these regulations in light of CYPCS alerting them to the UN Convention on the Rights of the Child Article 2 violation in respect of the discrimination of girls within educational settings:

“gender discrimination can be reinforced by practices such as a curriculum which is inconsistent with the principles of gender equality, by arrangements which limit the benefits girls can obtain from the educational opportunities offered, and by unsafe or unfriendly environments which discourage girls’ participation.”

The Government document concluded with:

“The additional consideration given to children and young people not identifying with their biological gender was broadly welcomed as was the potential provision of gender neutral toilet and washing facilities. The need for gender specific facilities was an area of continuing debate.”

There’s absolutely no doubt that there is a need for a debate on ‘gender neutral’ toilets to be held, however back up there a moment…

” ….. as was the potential provision of gender neutral toilet and washing facilities ….”

Is that a confirmation from the Scottish Government that as it currently stands, the regulations DO NOT have a provision for gender neutral toilets AND washing facilities?

Well, I already know the answer to that as I’ve blogged about it before, here, here and here. I’ve also written numerous FoI requests to the various Scottish Councils the media reported as having already introduced mixed sex facilities that fail to account for the privacy needs of children, especially girls. (Post to follow).

But in the meantime any parents out there might want to raise these points with their child’s school, Council, Councillor’s, MSP’s or the Equalities Human Rights Commission and ask them why the School has went ahead and altered the single sex toilets to illegal mixed sex spaces, that are discriminatory against girls on the basis of their safety and privacy.

‘Gender Neutral’ toilets are NOT supported by the Scottish Government,

‘Gender Neutral’ toilets are NOT supported by the Children and Young People’s Commissioner Scotland,

‘Gender Neutral’ toilets are NOT supported by the current regulations in Scotland.

‘Gender Neutral’ toilets are NOT supported by best international standards as set by UNICEF.

‘Gender Neutral’ toilets are NOT supported by UN Convention on the Rights of the Child.

So, why on earth has a handful of Councils in Scotland decided to go ahead and introduce them against ALL international best practice and legal requirements?

….. have they really done this because Stonewall Scotland or LGBT Youth Scotland or Scottish Trans Alliance convinced them it was a good idea?

Currently, Regulations 15/16 of The School Premises (General Requirements and Standards) (Scotland) Regulations 1967 state that the Sanitary Accommodations for pupils are to be split half for boys and half for girls. This applies both for WC and wash area. The Regulations make no reference to unisex facilities.

The Scottish Government opened a consultation between 17 July 2017 and 9 October 2017 with proposed amendments to these regulations, including the introduction of Unisex facilities.

It was widely reported at that time, articles detailing these proposals featured within The Scotsman and The Times. There were many critics of these proposals, presumably mostly from parents worrying about an increase of bullying and sexual harassment and the obvious fact that girls and boys like to have privacy from one another. However, we learned that these ‘Gender Neutral toilets’ were already common place across Scotland and had been for some time. If that was the case then why the need to amend the Regulations now, surely this established practice already met with the standard requirements. Campaigners for the proposals welcomed the announcement, reminding us that we have already have gender neutral toilets in our homes …. this type of response isn’t helpful nor does it address any of the valid concerns that parents had expressed.

The Scotsman

On 10 January 2018 the Scottish Government reported their analysis of the responses to the public consultation exercise. Many individuals and organisations had responded but support for it wasn’t clear. Only 40% of the total respondents agreed with the Governments proposals (although just as many respondents chose not to answer this particular point). With organisations being less in favour of them than individuals. Many concerns were raised by those organisations and individuals who opposed it and the Government analysis acknowledged the particular vulnerability of girls, in respect of their greater need for privacy and safety from sexual assaults.

The Government’s analysis continued by saying that the gathering of children’s view was utmost important in any decision making process.

Since this analysis of the consultation process was published in January the Scottish Government have taken no further action and the existing Regulations remain.

Meanwhile councils across the country have been introducing ‘Gender Neutral Toilets’ both to their newly built schools and also within any significant building alterations to existing schools.

So what exactly are these ‘Gender Neutral Toilets’? Many articles within the media describe them as ‘fully enclosed cubicles’, floor to ceiling, which open out into a mixed sex wash area. Describing them as fully enclosed gives us the impression that they are private, and they would appear to be a better design from the traditional old school toilets, which had large gaps both below and above the door. Are ‘Gender Neutral Toilets’ just mixed sex toilets but with better doors on them? Also, don’t most public toilets nowadays have floor to ceiling doors in them?

Rather than naming them mixed sex toilets though they are given the name ‘Gender Neutral Toilets’. ‘Gender Neutral’ sounds like a new way of saying Unisex, doesn’t it? We already have Unisex toilets up and down the country, so is introducing them into schools that big a problem? If they were introducing Unisex toilets there would probably be no problem, but those aren’t Unisex toilets either.

Unisex Toilets have to be ‘fully enclosed’, a big door isn’t enough to call them that. They have to include their own sink and sanitary bin. But anyone who’s ever used this type of toilet knows this already, it’s a standard requirement. Building regulations are strict on these matters and details can be found within The Technical Handbook which accompanies The Building (Scotland) Act 2003.

Section 3.12.1: Sanitary facilities states

Separate male and female sanitary accommodation is usually provided. This should be based upon the proportion of males and females that will use a building, where this is known, or provide accommodation for equal numbers of each sex otherwise.

Unisex sanitary accommodation may be provided where each sanitary facility, or a WC and wash hand basin, is located within a separate space, for use by only one person at a time, with a door that can be secured from within for privacy

Section 3.12.6: General Provisions required in all Sanitary Accommodation states

every toilet should:

• for personal hygiene, have a wash hand basin within either the toilet itself or in an adjacent space providing the sole means of access to the toilet

These are the building requirements for ALL non-domestic buildings, including schools, public libraries, supermarkets, entertainment venues etc. They must ALL provide both male and female toilets, and if any Unisex toilets are provided then they must be self contained, for the use by only one person at a time and have a wash hand basin either within the toilet itself or in an adjacent space with the sole means of access to the toilet. A communal mixed sex wash area does not meet this requirement.

Now, correct me if I’m wrong with my interpretation of the rule books, but why were there big announcements in the press about the proposals to change the regulations around school toilets, especially as it was apparently already a common practice. Why have the councils only recently been changing their designs, especially before any amendments were made to the Regulations? Who exactly is responsible for driving these changes?

The thing to ask ourselves is this, if the councils could have been building big long rows of toilets without the need to separate them into boys & girls all this time, why haven’t they always be doing this? It would have been way more cost effective for them.

The answer is because it is against the regulations.

Write to your councils now if you have any concerns about this. Draft template letter can be found here.

Which Guidance?

Council states that the introduction of Gender Neutral toilets within its schools is ‘in line with guidance from the Scottish Govt’.

Which guidance would this be?

The Regulations surrounding school toilets hasn’t changed, so where does this guidance come from?

Scottish Sun

Having realised that the Regulations hadn’t changed I thought that Parents should write to the Councils,

See my draft template   Letter to Council about School Toilets

But as it turned out a simple tweet to the Council provided the answer I was seeking. .

Clicking on the link took me to the controversial LGBTYS Transgender School Guidance.

The very same Guidance that the Scottish Govt recently stated they did not endorse. The very same Guidance that no Local Authority or Public Body that I contacted had carried out a single Equality Impact Assessment for before issuing it across all schools. See here

So, we have Councils changing toilets to gender neutral, despite regulations which state that facilities should be split 50:50 boy & girl. Council say this is in line with Scot Govt Guidance. Guidance which Scot Govt no longer publicly endorse. Who exactly is running things here?

Co-Authors of the guidance, Scottish Trans, spokesperson stated that parents who are concerned about abuse and bullying is just ‘irresponsible scaremongering’.

They continued that it wasn’t just for the sole benefit of trans pupils and claimed that the ‘vast majority of school bullying was same sex: girls bullying girls’.

The Herald

Well let’s ask girls, what do they say? What is the biggest issue girls are suffering from just now in school?

Sadly, we never bother to ask girls what affects them. Girlguiding Survey is the only one I’m aware of. It’s shocking what our girls are subjected to within school.

This is the most damning figure. 57% of our girls don’t think our politicians understand the issues they are facing. Isn’t that clear when we take their toilets and make them mixed sex? Girls are suffering from sexual harassment & decisions like these are making it worse.

Have the Councils really been making these drastic changes to the design of school toilets based solely on a LGBTYS / Scottish Trans document, a non Government guidance, one which the Government do not even endorse.

Surely not, so I asked this Council to clarify if other guidance or directions from the Scottish Government exists.

Shockingly this does appear to be the case. Councils across Scotland are apparently flouting decades long School Regulations on the basis of this single non-Government guidance booklet. A booklet that I strongly suspect has recommendations and good practice advice which are in violation of the Equality Act 2010, specifically in regard to the suggestions there is no need to uphold the provision of single sex spaces/accommodation for our children.

Dear Dundee City Council

Regulations 15 & 16 of The School Premises (General Requirements and Standards) (Scotland) Regulations 1967 state that the Sanitary Accommodations for pupils are to be split half for boys and half for girls, this applies for both WC’s and wash areas. The Regulations make no reference to unisex or ‘gender neutral’ facilities.  Additionally, the requirements for the building standards for new school builds and school extension buildings are detailed within the Technical Handbook which accompany the Building (Scotland) Act 2003.

Section 3.12.1: Sanitary facilities states

Separate male and female sanitary accommodation is usually provided. This should be based upon the proportion of males and females that will use a building, where this is known, or provide accommodation for equal numbers of each sex otherwise. 

Unisex sanitary accommodation may be provided where each sanitary facility, or a WC and wash hand basin, is located within a separate space, for use by only one person at a time, with a door that can be secured from within for privacy

Section 3.12.6: General Provisions required in all Sanitary Accommodation states

every toilet should for personal hygiene, have a wash hand basin within either the toilet itself or in an adjacent space providing the sole means of access to the toilet

The authority has responded to a Freedom of Information request regarding school sanitary facilities confirming that both Harris Academy and Sidlaw View Primary School have mixed sex pupil sanitary facilities.

  • Sidlaw View Primary School The authority confirmed that in order to comply with building standards it was calculated that the number of sanitary provisions required are 28 WC’s and 28 wash hand basins, of these at least half should be for girls and half for boys. The school premises do not meet these minimum requirements as no single sex facilities have been provided for the pupils.  A total of 29 mixed sex facilities have instead been provided, of which only three comply with the standards required for Unisex sanitary facilities.
  • Harris Academy All schools in Scotland are required to provide sanitary accommodation, namely WC’s and wash hand basins, of which half should be for girls and half for boys. Wash hand basins are to be situated near to lockable WC’s and have a partition sufficient to secure privacy.  The school premises do not meet these minimum requirements as separate WC’s and mixed sex wash hand areas, with no partitions to secure privacy have been provided.  As such there have been no single sex sanitary facilities provided for the pupils.

Despite the design of these sanitary facilities failing to meet the minimum standards required as per the regulations, the authority granted building warrants for both schools.

The Scottish Government held a consultation in 2017 with proposed amendments to the School Premises regulations, including the possible introduction of Unisex facilities.  The Children and Young People’s Commissioner Scotland (CYPCS) replied to the consultation emphasising the importance that “school toilet facilities (be) compliant with human rights duties and informed by International standards ‘Wash In Schools’” with specific warnings where “infrastructure and management standards of school toilets are poor there is a risk of a breach of children’s rights under the UNCRC”.  ‘Wash In Schools’ stresses that lack of privacy and safety from sexual harassment are recognised worldwide to be of particularly high importance for girls, who suffer disproportionately when these requirements are not met.

The Scottish Government’s report of the consultation includes the following statements

  • “There was a question as to whether all toilets being gender neutral was appropriate, with the recognition that many young girls already feel vulnerable using current facilities at school. Female only toilets were considered more than just a sanitary facility but also a place where privacy can be gained, where a child can feel safe and where they can deal with developmental issues such as menstruation.“
  • “There was seen to be a direct conflict between the protective characteristic of gender reassignment and of sex. This area requires more in-depth investigation to complete a robust impact assessment that takes this into account”
  • “The additional consideration given to children and young people not identifying with their biological gender was broadly welcomed as was the potential provision of gender neutral toilet and washing facilities.”

This final statement is a confirmation that the current regulations do not have any provisions for gender neutral toilets and washing facilities. Since this report was published over a year ago there has been no further debate, statement or action taken by the Scottish Government to amendment the regulations.

The Public Sector Equality Duty requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities.  Equality impact assessments must be carried out to ensure decisions do not discriminate against people based on any protected characteristic (including Sex, Race, Sexual Orientation and Gender Reassignment).  Dundee City Council did not carry out any Equality Impact Assessments regarding their new mixed sex pupil toilet design.   The Government’s report had emphasised that

“The Schools (Consultation) (Scotland) Act 2010 contains a duty to consult pupils where there is a proposal to establish a new school. Consulting pupils to gain their views as to design plans and new facilities would represent good practice and positively impact on children’s rights and wellbeing”.

Dundee City Council did not gather evidence or consult with its pupils when the decision was made to redesign pupil toilets.   There have been no amendments to the School Premises regulations and the Building Standard requirements remain, both of which do not include any definition or indeed any reference to ‘Gender Neutral’ sanitary facilities at all.   Since adopting this new pupil toilet design it would appear that Dundee City Council have;

  • failed to comply with building standards as per the Building (Scotland) Act 2003,
  • failed to comply with Regulations 15 & 16 of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967,
  • failed in its public sector duty to have due regard to all protected characteristics as per the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012,
  • failed in its duty to consult with pupils as per the Schools (Consultation) (Scotland) Act 2010 and
  • failed in its statutory responsibility to manage and maintain their school estates to ensure the good health and safety of its pupils as per the Education (Scotland) Act 1980.

These apparent failures have revealed a serious flaw within the authority’s safeguarding practices and are a violation of children’s rights.   Article 2 of the UN Convention on the Rights of the Child in respect of the discrimination of girls within educational settings states

“gender discrimination can be reinforced by practices such as a curriculum which is inconsistent with the principles of gender equality, by arrangements which limit the benefits girls can obtain from the educational opportunities offered, and by unsafe or unfriendly environments which discourage girls’ participation.”

I request that the authority conducts an urgent investigation into these matters, in particular the Building Standards and Public Safety Department should query why a building warrant was granted for alterations to sanitary facilities not compliant with building regulations.  In addition to this the authority’s policies and practices for undertaking Equality Impact Assessments should be urgently reviewed as gross omissions appeared to have occurred in this instance.