The Scottish Government opened a consultation between 17 July 2017 and 9 October 2017 with proposals to amend the School Premises (General Requirements and Standards) (Scotland) Regulations 1967, with the section on Pupil Toilets describing that currently Regulations:
- state that half the accommodation shall be for boys and the other half for girls
- do not refer to unisex toilets and by introducing this option it could address gender issues
- need to be updated to provide that sanitary disposal units should be provided in all cubicles used by girls aged 8 or over
The consultation paper proposed that:
“Flexibility should be permitted within this Regulation to allow the provision of separate toilet facilities for boys and girls except where they are provided for use by one pupil at a time. “
It was widely reported in the media at the time and as seen here in The Scotsman and The Times, the headlines used the term ‘Gender Neutral School Toilets’. Articles quoted Scottish Transgender Alliance as saying the introduction of gender neutral toilets would be ‘particularly beneficial for transgender’ pupils. There were many critics of these proposals over the lack of privacy for the pupils and worries of a potential increase of bullying and sexual harassment, stating that the Regulations would need to maintain and uphold the provision of separate single sex facilities. Proponents argued that ‘Gender Neutral toilets’ were already common place across Scottish schools and had been for some time.
The argument that this is already a well-established practice, is surely also an acceptance that they are not compliant with the current regulations.
Why else would the Regulations need to be amended?
The Government’s Consultation on School Premises
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, 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 analysis continued by saying that the gathering of children’s view was utmost important in any decision-making process.
The Children and Young People’s Commissioner Scotland had replied 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 included 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 Executive Summary of the analysis of the responses to the Government’s consultation stated:
“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 is confirmation, within a Government report, that the provision of gender neutral toilets and washing facilities is not permitted within the current regulations.
It is also important to note that since this analysis of the consultation process was published in January 2018, the Scottish Government have taken no further action and the existing Regulations remain.
Yet, in despite of this overwhelming evidence that supports the lawful requirement to provide separate single sex sanitary facilities in schools, Local Authorities all across Scotland continue to alter their designs by replacing single sex toilet and washing provisions in favour of mixed sex designs.
What exactly are ‘Gender Neutral Toilets’?
They are often described as ‘fully enclosed cubicles’, floor to ceiling, that open out into a communal, mixed sex wash area. Although ‘Gender Neutral’ might sound like a new way of saying Unisex it is important to understand that they are very different.
Unisex Toilets need to be ‘fully enclosed’, meaning they have to include their own sink and sanitary bin.
Building regulations are strict on these matters and details can be found within The Technical Handbook which accompanies The Building (Scotland) Act 2003.
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
… 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.
The Government’s own consultation understands this distinction:
“Flexibility should be permitted within this Regulation to allow the provision of separate toilet facilities for boys and girls except where they are provided for use by one pupil at a time. “
The current situation we now have in many schools is that pupil toilets are being provided much like the way toilets have traditionally been, except entrance to this space is now permitted for both girls and boys. Some schools have created the illusion of a split between girls and boys by painting one half of the cubicles a different colour from the other half. But the traditional layout is basically the same, with banks of cubicles opening out into a communal wash area, only this time both sexes are using them.
These schools are no longer providing ‘separate toilet facilities for boys and girls’ and their argument that the cubicles remain single-sex and a mixed sex wash area is somehow permitted makes no sense. Cubicles are already provided for the use of one person at a time, so when the Government included this caveat, ‘except where they are provided for use by one pupil at a time’, they were referring to the possible provision of fully enclosed, self contained Unisex toilets.
Why are Councils changing their designs?
It is unknown why councils have recently decided to change their pupil toilet designs, especially as the existing Regulations were never amended.
It was reported in the media that East Renfrewshire Council’s introduction of Gender Neutral toilets within its schools were ‘in line with guidance from the Scottish Government’. The Council were questioned further as to which guidance it was basing these decisions on. They identified the LGBT Youth Scotland: Supporting Transgender Young People School Guidance and clarified that this was “the only guidance which has been provided to local authorities”.
Documentation available from the Local Authorities suggests that the main factors that motivated them to alter their pupil toilet designs were about reducing incidents of vandalism, enabling easier monitoring of pupil toilets by staff and were more cost effective.
However, these reasons are disputed as being valid justifications for design changes. Reports from the Children and Young People’s Commissioner Scotland and their work on school toilets Flushed with Success?, including Sarah Burton’s ‘Toilets unblocked: A literature review of school toilets’ contained the following important points:
- Adults’ reaction to bullying or vandalism has often been to increase surveillance or to change the design of toilets, creating different social spaces. These attempts are not documented or researched but are illustrated by recent press reports.
- Attempts to solve one social barrier to children’s toilet use, or to protect school property, can create different barriers to toilets being used. For example, unisex toilets near public spaces lack the privacy many children cite as being important.
- It is important that changes to school toilets and policies about access are carried out with children and young people’s involvement. Since they are the day to day users, they will know best what influences their willingness to use them.
- Changes and developments to toilets should be part of a whole school ethos that supports children’s rights and finds ways for children to influence all aspects of school life.
- Privacy is important for children, not just as a requirement for using the toilet, but as personal space. Toilets can be a place to ‘hang outʼ (Vernon et al., 2003).
- Lundblad’s 2009 study found the toilet: “had several uses and purposes. It could be used as a place of refuge to give or receive consolation, a place to drink water, to check on appearance and as a pretext to take a break”.
Co-Authors of the LGBT Youth Scotland guidance, Scottish Transgender Alliance, wrote in the The Herald that concerns about possible abuse and bullying was just ‘irresponsible scaremongering‘. They continued by saying:
“The benefit for trans and gender non-conforming pupils is not the sole reason for the new toilet facilities.
These enhanced privacy cubicles have been successfully installed in dozens of schools and have reduced general bullying, graffiti and vandalism in toilets.“
The claim that there is a reduction of bullying and vandalism was also reported within the Interim Findings Report from Scotland`s Schools for the Future Programme, as feedback they had received from schools. However, they also acknowledged that this reduction could be due to fewer pupils using the facilities:
“Vandalism and bullying reported to be reduced in open circulation toilets but toilet use not quantified so could be due to reduced use.”
It is already known that schools did not involve the children for their views on redesigning the pupil toilets, and we also know that no Equality Impact Assessments nor Children’s Rights Impact Assessments were carried out. It is therefore extremely unlikely that schools would be documenting the usage of the toilets, nor will it be expected that they will conduct any meaningful review of their decisions. Any unintended consequences from this change of practice will therefore not be identified.
After making the claim that gender neutral toilets reduced bullying, Scottish Transgender Alliance also stated:
“It is important to recognise that the vast majority of school bullying is same-sex: girls bullying girls and boys bullying boys. “
It is not clear what the source of this finding is, nor whether there even exists any study supporting the claim that the prevalence of bullying is reduced when separate single sex toilets are replaced with mixed sex facilities. Besides, even if this claim were proven to be true, it would not be an accurate reflection, nor a solution of the main safety concerns currently affecting schoolgirls.
If same-sex bullying isn’t the main safety issue facing girls in school, then what is?
Girls are very rarely asked this question, but every year Girlguiding carries out a girls’ attitude survey and here are some of its findings:
- Both on and offline, girls’ sense of safety is threatened by harassment and sexual pressures.
- There has been an increase in sexual harassment in school
- There has been an increase in the number of girls affected by a form of harassment compared to three years ago and more than a third experience sexual harassment at school every week
- ‘… alarming incidence of sexual harassment, bullying and everyday sexism’
- ‘… consistent reports from girls about the sexual harassment they face at school’
- The percentage of girls and young women feeling
unsafe outside is alarmingly high.
- More than half of those aged 13 to 21 have felt unsafe walking home alone, experienced harassment or know someone who has and
- nearly half feel unsafe using public transport
- Things that girls have seen or experienced in the
past week (11-21)
- 39% girls having their bra strap pulled by boys
- 27% girls’ skirts being pulled up by boys at school
- Types of Sexual harassment at school girls have
experienced in the past year (13-21)
- Jokes or taunts of a sexual nature – 41%
- Unwanted touching – 19%
- Seeing obscene graffiti about girls or women – 22%
- Sexist comments on social media – 36%
- Frequent unwanted attention – 19%
- Seeing unwanted sexually explicit pictures or videos – 24%
- What do girls say when asked about their safety
and the one thing they’d like to change?
- ‘That no one would experience sexual harassment of any kind.’
- ‘Make it safe for girls to walk down the street alone.’
- ‘Girls’ lives would be better if things like harassment and stalking were taken seriously and punished properly.’
The sexual harassment of schoolgirls has reached a critical level across the entire UK.
Schoolgirls are disproportionately the victims of Sexual Harassment and other Sexual Crimes
Crime statistics reveal that school aged girls are disproportionately the victims of sexual crimes, and we also know there is an evidence gap of sexual bullying, harassment and assaults that occur within schools. This has been highlighted within The Equality and Human Rights Commission Scotland ‘Is Scotland Fairer? (2018):
The Scottish Government issued guidance for schools to develop a consistent and uniform approach to recording and monitoring bullying incidents on a voluntary basis for use in the 2018/19 academic year. An evaluation will be undertaken in 2019/20, once the new system is fully embedded
Of all sexual crimes recorded in 2016/17, 44% related to a victim under the age of 18.
The majority (59%) of victims of ‘Other sexual crimes’ were under 16. Most of these were girls. The proportion of ‘Other sexual crimes’ that were cyber-enabled increased from 38% in 2014/15 to 51% in 2016/17
There has been an increase in sexual crimes that are cyber-enabled, which often include younger victims (generally girls under 16).
There have been developments to improve and support victims of sexual crimes, although the continued increase in recorded sexual crimes and the growth of sexual crimes involving young girls suggest greater focus is needed to ensure the security of women and girls.
It makes the following recommendations:
To tackle and reduce bullying, including prejudice-based bullying and sexual harassment:
(i) the Scottish Government should ensure that mandatory systems are in place in schools to record and monitor prejudice-based bullying incidents and sexual harassment and use the data to inform their plans to tackle these issues
(ii) education authorities should ensure that teachers receive throughout their careers professional development on and support in recognising, recording and challenging bullying, including prejudice-based bullying and sexual harassment.
To reduce levels of violence against women and girls,
the Scottish Government should take steps to raise awareness and tackle violence against women, particularly against young women under 18.
How is Bullying and Sexual Harassment in Schools being tackled?
The Equality and Human Rights Committee carried out an inquiry about the Bullying and harassment of children and young people in schools;
A Committee examination of various issues relating to the bullying and harassment of children and young people in the school system based on various characteristics, such as gender, sexual orientation, gender identity, faith, race or ethnic background, disability etc. as well as issues around the growing normalisation of sexualised bullying of girls and young women in education.
Their final report It is not Cool to be Cruel highlighted
We believe Respect for All has a vital role to play in proactively placing a human rights-based ethos at the centre of our education system. However, it is only part of a wider approach which must be adopted to ensure key strategies and tools work effectively together to achieve the success we all want to see. This includes—
recognising the prevalence of prejudice-based bullying and sexual harassment in schools, and the need for urgent action;
establishing a duty to report all prejudice-based bullying and sexual harassment in schools.
The UK Women and Equalities Committee: Sexual harassment and sexual violence in schools 2016 inquiry had similar findings of ‘Widespread’ sexual harassment and violence in schools must be tackled.
Conclusions and recommendations included
- Teachers, parents, young people and third sector organisations are telling us that sexual harassment and sexual violence in schools is having an impact on young people and school life. Consequences include: physical and emotional harm, including teenage pregnancy and sexually transmitted diseases; girls feeling unable to fully participate in educational and extra-curricular opportunities; teachers spending valuable time dealing with incidents of sexual harassment and bullying; and young people developing a sense that sexual harassment and sexual violence are acceptable behaviours and learning social norms that are carried through to adult life.
- Sexual harassment and sexual violence in schools is a significant issue which affects a large number of children and young people, particularly girls, across the country. Evidence shows that the majority of perpetrators of this abuse are boys, and the majority of victims are girls.
- The Government and schools must make tackling sexual harassment and sexual violence an immediate policy priority
The Scottish Government’s refreshed guidance Respect for All: The National Approach to Anti-Bullying unfortunately focused only on prejudiced based bullying and did not include any details regarding Sexual Harassment. There was no definition nor any examples given of what is Sexual Harassment. By not explicitly naming Sexual Harassment nor mention it’s wide prevalence within schools, this omission from the National School Anti-Bullying guidance will invariable impact on whether individual schools will also exclude all specific references to it in within their own policies.
If, however, schools do make the decision to record incidents of sexual harassment then the newly introduced recording and monitoring approach will not allow for the accurate monitoring of such. No separate identifier for Sexual Harassment was created on the school recording system SEEMIS, and this will result with any recorded incidents of sexual harassment falling into the remaining ‘Other’ category.
In addition to this, the ‘protected characteristic ’option available for a female pupil subjected to any bullying or sexual harassment incident is entitled ‘Sexism and Gender’. Closer reading of the guidance reveals that the option ‘Sexism and Gender’ includes the Equality Act 2010 protected characteristics Sex, Sexual Orientation and Gender Reassignment.
Not only is it impossible to separately record and monitor incidents of sexual harassment against girls, it is also impossible to obtain any separate data specific to the pupil’s sex. The data required to assist girls will therefore not be available. The ‘urgent action’ called for by the Equality and Human Rights Committee has failed to be realised as the resulting Respect for All guidance and its supplementary Recording and Monitorting Guidance are seriously flawed.
What is the Scottish Government doing to tackle the Sexual Harassment of Schoolgirls?
In November 2017 through the Equally Safe Campaign, the Scottish Government declared a specific action where they will be running a National Sexual Harassment Campaign along with Rape Crisis Scotland. ‘The aim of the campaign is to promote a clearer understanding of what constitutes sexual harassment and how to challenge it.’ The Government also published its Policy Position on Sexual Harassment.
The 2018-2019 Program for Government stated the coming year would include:
“launching a major national campaign in Spring 2019 to challenge sexual harassment and sexism”
On 6/12/19 Minister for Older People and Equalities Christina McKelvie was questioned by the Equalities and Human Rights Committee about the “sexual harassment and sexist bullying of schoolgirls were not explicitly named within the Respect for All anti-bullying guidance? Can she guarantee these incidents will be accurately recorded & monitored, in order to tackle it?”
Her reply mentioned the upcoming campaign:
“early in the new year, I will launch a sexual harassment and sexism public awareness campaign, a specific strand of which is on children.”
A year later, the new 2019-2020 Program for Government repeated its promise of a major national campaign:
“We will develop national guidance for schools which will set out the range of support and practical prevention and intervention measures available which can be used to ensure the safety, health and wellbeing of children and young people.
We are also taking action across society. We are committed to a major national campaign on sexual harassment and sexism and this is now in an advanced planning stage while our employer accreditation programme is being piloted in seven council areas across the country.”
It has now been 2 years since the initial announcement of the ‘major national campaign on sexual harassment’, and unfortunately it is still unknown when this will be expected to be launched.
This delay of targeted action by the Government will no doubt have a knock-on effect with other Public Authorities, and with their already poor interpretations of the Public Sector Equalities Duties it will no doubt result with the continued failure to evidence the negative impacts on girls and therefore not identify the actions that would be needed to improve their outcomes.
Are the Schools and Local Authorities acting unlawfully?
My concern is schools have failed to uphold their statutory responsibilities to manage and maintain their school estates as per the Education (Scotland) Act 1980. Specifically, it is my belief that amendments to their school buildings are not compliant with the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 and the wider building regulations in general. In addition to this, there may also be children’s rights issue with the possible grounds of discrimination, as the authorities have failed to comply with their Public Sector Equalities Duties by not completing any Equality Impact Assessments during their decision process.
I am particularly concerned that certain groups of children, girls, have been indirectly discriminated against as their specific needs were not considered and as a result have been negatively affected by these amendments.
I have raised my concerns directly with the Local Authorities and have also been in communication with the Equality and Human Rights Commission Scotland and the Scottish Government’s Building Standards Division on this matter, to no avail. Unfortunately, there has instead been increased reports of further schools within other Local Authority areas who are also now adopting this practice.
The Local Authorities continue to argue that their actions are lawful with a number of various explanations that they were based on guidance approved by the Scottish Government. Some authorities have specifically cited the recommendations within the LGBT Youth Scotland Trans Guidance as the motivation behind their decisions.
LGBT Youth Scotland Guidance
The LGBT Youth Scotland School Trans Pupil guidance was launched in November 2017 and has received severe criticism since then. First it was reported that none of the Public Authorities who had endorsed it had carried out any Equality Impact Assessments. This was widely reported in the media. Then, after the threat of legal action the Scottish Government did a U-Turn denying that they had ever endorsed it. Grassroots group Women & Girls in Scotland carried out its own Children’s Right Impact Assessment and found the Guidance to have breached many Children’s rights.
On 20/6/19, eighteen months after its widely publicised launch, the Scottish Government acknowledged that it had identified the approach used within the LGBT Youth Scotland guidance ‘risks potentially excluding other girls from female-only spaces’ and it would therefore be replaced:
“However, the complexity of the issues means that valid concerns have been raised. The Scottish Government recognises that, in taking the unarguably good general principle of inclusivity, and developing specific recommendations, the approach risks potentially excluding other girls from female-only spaces. That cannot be right. We have therefore decided to replace the LGBT Youth Scotland work with guidance from the Scottish Government. The work is already under way, and the guidance will be available by the end of the year and will be subject to an equality impact assessment.”
Since the Government’s announcement not one of the Local Authorities have made any public statement about the discredited LGBT Youth Scotland Guidance nor their heavy reliance on it during the decision-making process of replacing single sex pupil toilets with mixed sex.
New EHRC Guidance
The Equality and Human Rights Commission are creating a new ‘Guidance for Schools on Transitioning Pupils Scotland’. It is expected to be published in September 2019, and very recently a draft version was leaked and reported in the media. This leaked guidance included a section on Toilets, Showers and Changing Rooms with the following quote:
‘There is nothing in law preventing schools taking an inclusive approach by supporting trans pupils to use single-sex facilities that align with their gender identity, unless such an approach puts another pupil at a detriment.
It sensibly recommends that schools should consider providing additional private facilities as that would demonstrate their consideration of the needs of Trans pupils. Yet an example is then given where the Trans pupil is granted access to the single sex changing room that aligns with their gender identity, and it is another pupil, who unhappy with this arrangement, should instead leave to use the private facility:
‘A trans girl pupil opts to use the girls’ changing room, and most of her fellow pupils are happy with this arrangement. However, one pupil is uncomfortable with this arrangement, so chooses to use the private changing room instead.’
This advice is a distinct move away from previous guidance published by the EHRC: Technical Guidance for Schools in Scotland.
Example: A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.
This obvious shift from accommodating the needs of a Trans Pupil by providing an alternative option, to replacing it with an example that overrides the needs of all others risks setting a precedent with some pupils believing they have more rights than others.
There is an added concern that the EHRC guidance will only encourage schools to provide more gender neutral facilities, and by failing to provide an accurate description of what a ‘gender neutral’ facility is i.e. a private, single occupancy space, then this increasing practice of replacing single sex facilities with ‘mixed sex’ facilities will only continue.
The Young Womens Lead Report 2018/19 chose ‘as its topic of inquiry the relationship young women have with sport and physical activity, with particular regard to issues that might prevent participation.’ and includes the following quotes which are relevant to the section on Changing Rooms.
“Changing rooms are also difficult. Although predominantly gender segregated, we heard that open-plan changing rooms are a barrier as young women feel insecure and self-conscious.
Teenage girls appear to benefit from women-only spaces.”
“Right from being a young girl I wasn’t keen on getting changed in front of others, not because of body confidence issues but just because I simply like my own privacy.”
The EHRC Statutory Code of Practice: Services, public functions and associations includes the following section on changing rooms.
In order to protect the privacy of all users, it is recommended that the service providers should discuss with any transsexual service users the best way to enable them to have access to the service.
Example: A clothes shop has separate changing areas for male and female customers to try on garments in cubicles. The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles.
As most, if not all PE changing rooms in schools are shared open areas, with no separate cubicles available then shouldn’t the above principle also apply in schools. Why can children and young people not be afforded the same rights as adults?
Despite the overwhelming evidence of the sexual harassment, discrimination and sexual crimes committed against schoolgirls, there still remains no national policy nor school guidance to target these specific issues. Whilst we continue to wait for news of the long overdue ‘major national campaign to challenge sexual harassment and sexism’, the Government have announced their own new Trans Pupil school guidance will be available by the end of 2019. It is also expected that the new EHRC School Trans Pupil Guidance will very soon be published, with September 2019 being previously quoted as the release date. The leaked version however has received a lot of criticism in the media for failing to account for the needs of girls and not protecting single-sex spaces, so it is unknown if publication will now be delayed.
What has been very clear is that the main conflicts of any policy decisions are between the protected characteristics Sex and Gender Reassignment, and therefore this point needs to be specifically highlighted, with clear and realistic examples provided within any Guidance. It is not enough for a School Guidance aimed at assisting Trans Pupils to make a generalised recommendation for authorities to consider ALL of the other protected groups when changing any practices within their schools. Attention needs to be drawn to the specific needs and protections of schoolgirls, especially if any policy changes directly involve access to single-sex spaces or activities.
The LGBT Youth Scotland guidance was scrapped as its ‘approach risks potentially excluding other girls from female-only spaces’, and it would appear from the leaked draft guidance that the EHRC is also following this same approach.
Let’s hope that the Government’s version will consider the very real needs of the other pupils who are most impacted by these decisions.
Let’s not forget our girls…
Here are some useful links:
Letters to Local Authorities:
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