Many parents are understandably reluctant to challenge their child’s school on this issue, particularly when it is a secondary school.  With fewer opportunities to mix and engage with other parents – in comparison to primary schools – it results in the parents of teenagers being less connected with one another.    

Raising any issues with the school can feel like an isolated endeavour, but the reality is there are probably many others who share your concerns.  So, what can be done?

The most effective action is for you to speak out, or better yet, for your teenage children, and their classmates, to speak out.  The standard response from schools and Councils around the country is that no parent or pupil has made any official complaint about this. The obvious action to take then is for everyone to put their concerns in writing to the school.  But what if you do not want to ‘out’ yourself by challenging them directly, at least not until you know you have the support of others?

If you want to remain relatively anonymous, but still want to ask the school some pertinent questions, you can do so via a website.  It’s very simple to create an account on WhatDoTheyKnow, using only your first initial and surname, and an email address.  It is a legal duty under the Freedom of Information (Scotland) Act 2002 (FOISA) that that any person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority. For the purposes of FOISA, both the school and the Council are the same body.  It should not make any difference whether the request is sent to the school or to the FOI office at Council Headquarters, or indeed via a website such as WhatDoTheyKnow.com.

What this means is that instead of asking the Local Authority to comment, or provide information, on this issue from an authority wide basis (as was requested in the below example), a request can be made specifically about an individual school.

Edinburgh Council Response

All new schools are now designed with gender neutral toilet facilities i.e. single WC cubicles with solid lockable doors and communal hand washing facilities. Urinals are not designed/installed in any new school builds. Within the City of Edinburgh Council area there are three new secondary schools and approximately 20 primary school extension buildings that have toilet facilities with this design.

How schools decide to utilise/allocate their facilities is a local management/head teacher decision. Schools that have been designed with gender neutral facilities have allocated some as explicitly male or female and have left others as gender neutral. Even older school buildings can choose to allocate WC facilities to best meet the needs of the school.  Each school will make an assessment of needs around the pupils and decide how to allocate these facilities.

City of Edinburgh Council

A FOI request can be made by selecting the relevant public authority, for example City of Edinburgh Council, but the wording of the question can be specific to the individual school you are concerned about.

As the above response from this particular Council states “How schools decide to utilise/allocate their facilities is a local management/head teacher decision”, it is therefore only correct that each school should be asked directly how these decisions were taken.  Any parents who may be reluctant to do so directly with the Headteacher can ask for information via this website in a semi-anonymous manner.  (The website gives great advice on how to submit requests, and strongly advises against using a false name.)

Suggested wording of FOI request to the Council

In relation to (Name of School):

can you supply any recorded information held by the school about its provision of Gender-Neutral toilet facilities.

Another option for you – if you do wish to remain anonymous – is to contact your Councillors and MSPs requesting them to contact the Headteacher on your behalf.  When contacting your MSPs it might also be an idea for you to request that they write to the Scottish Government prompting them for an update on when the planned school guidance will be published.

The Scottish Government had previously announced that new guidance on the use of school toilets and changing rooms would be issued by the end of 2019.  Likewise, the Equalities and Human Rights Commisson (EHRC) also had plans to issue guidance for schools in Scotland.  To date, neither of these have been published, however there was a draft version of the EHRC Guidelines leaked on social media late last year that stated:

The Public Sector Equality Duty:

All bodies responsible for state-funded schools must meet their obligations under the Public Sector Equality Duty (PSED). The purpose of the PSED is to build equality considerations into decision-making and to drive improvement by identifying the most significant inequalities relevant to a school’s responsibilities, setting outcomes in relation to those and implementing targeted plans to improve equality outcomes for affected groups. Such bodies must take into account how pupils with different protected characteristics can be affected in different ways. They must also consider how schools they are responsible for can positively contribute to the advancement of equality of opportunity for, and good relations between, different groups. By complying with the PSED, such bodies will also be better equipped to train staff to prevent, identify and deal with unlawful discrimination within the school environment.

A responsible body will therefore be required to carry out an Equality Impact Assessment for example when developing new policies and reviewing existing ones, appointing staff, making budgetary decisions and in procurement.

However, schools must comply with the School Premises (General Requirements and Standards) (Scotland) Regulations 1967, which provide that in every school which is not designed exclusively for girls, half the toilet accommodation should be for boys; and the EA 2010 when developing policy on the use of toilets by trans pupils. 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. If a school adopts a policy that all pupils must use the facilities of the sex that was recorded at birth, they should be aware that this could amount to indirect discrimination against a trans pupil so they must show in each case that the decision is a proportionate means of achieving a legitimate aim. The justification for the policy must take into account the school’s specific characteristics and the particular children’s circumstances to balance carefully the needs of different groups of pupils, and include consideration of whether a less discriminatory approach, such as providing gender neutral or private facilities, is feasible. Schools must always consider making exceptions to their policies in individual cases.

In line with their PSED obligations, when developing or updating a policy about access to single-sex facilities and the provision of gender neutral options, schools must consider any disadvantage or adverse impact and identify, where possible, alternatives to address thoseand avoid any discriminatory effect on different groups and individuals with protected characteristics.

While accessible toilets in schools can be used by non-disabled users, schools must always ensure that if they are also used as gender neutral facilities there are no negative consequences for disabled pupils. To assist with compliance, schools should consult all pupils so that they fully understand the impacts of their policies.  (my emphasis)

The EHRC Draft Guidelines also included several provisional examples and Good Practice tips for schools.

Example A school has no policy on the use of single-sex facilities so it consults with all pupils to develop one. The consultation reveals a number of concerns from girls about sharing single-sex facilities with trans pupils due to a wish for privacy, in some cases because of religious beliefs. A few concerns are also raised about the use of the limited number of accessible toilets by non-disabled students. The school decides to adapt one of the single-sex blocks of toilets in the main school building into gender neutral facilities for use by all pupils, balancing the concerns against the needs of all pupils.

Example A state funded primary school decides to have a policy about access to its single-sex toilets and its changing facilities for pupils. The school consults pupils and parents, which reveals girls in years 5 and 6 have requested more privacy when changing. The school decides to re-designate one girls’ block and one boys’ block of toilets near the playground to unisex. Each toilet is already in an individual, internally locking cubicle. The school puts up posters to explain which toilets are unisex. To meet the girls’ need for privacy, the school allows pupils in years 5 and 6 to request to change for PE lessons in a toilet cubicle in the unisex block. The school must demonstrate that it has met its PSED obligations and its policy has a legitimate aim that will not discriminate against pupils with certain protected characteristics, or that appropriate steps have been taken to minimise any discriminatory impact on these pupils.

Example A pupil tells their teacher that they are uncomfortable with being either a stereotypical girl or boy and don’t know how to fit in at school as a consequence. The pupil expresses reservations about sharing toilets or changing facilities with boys or girls and wants more privacy. The teacher explains that they have gender neutral toilets next to the staffroom, IT suite and in the PE block that can be used by all pupils. Each cubicle has its own wash basin and sanitary facilities. The teacher also explains that students may request to use these facilities as changing rooms if required. In view of the pupil’s concerns, the school increases awareness about the availability and location of all toilets in the school.

Good practice tips

To foster an inclusive environment that respects the needs of all pupils, including those who are questioning their gender identity or who are trans, schools should consider the following good practices.

➢ All gender-neutral toilets cubicles should have sanitary waste facilities. Schools should engage with national and / or local support organisations when considering new policies, or changes to existing policies.

➢ Where requests are made to vary school policy, assumptions should not be made about what the pupil wants. Staff should discuss with the pupil and, when appropriate, their parents and carers, what their views and needs are when using changing rooms and toilets.

➢ Where current school policy does not meet the needs of a pupil, alternatives to accommodate their needs should be explored – for example, curtained-off changing areas, use of different facilities such as a nearby office, or allowing the pupil to change at a separate time to other pupils.

➢ Where gender neutral and single-stall toilets, showers and changing rooms are provided as an additional inclusive option, they should be to the same standard as other facilities.

It might be helpful for you to reference the school’s legal requirements within the Public Sector Equality Duty when you contact them on this issue.  It may also be useful for you to compare the above examples and good practice tips to the current situation within your child’s school, especially when trying to ascertain if the school has balanced the needs of all the different groups of pupils (including girls, disabled, religious and transgender pupils) when it made the decision to introduce mixed sex toilet facilities.

What have Schools and Councils been saying when challenged?

Responses received from Schools and Councils who have commented on this in the media have so far been very similar. Examples typically include:

  • new design was part of a national move to promote inclusion
  • the school consulted both the parent and pupil councils about the redesign
  • no official complaints received from pupils and parents to date
  • new toilet design has resulted in a reduction in graffiti, bullying and/or vandalism
  • concerns should be raised with the headteacher in the first instance

If you also receive similar vague responses when you contact the school, then here are some suggestions on how to follow up your enquiries to prompt them further. 

  • What were the reasons and proposed benefits of redesigning the toilet facilities from single sex to mixed sex?
  • Did they consider or identify any negative effects of the redesigned facilities?
  • What were the details of the consultation(s), who was consulted and when?
  • Have they established if the reasons for the change have been eliminated? E.g. bullying, vandalism. 
  • How many incidences of vandalism/bullying were recorded both before and after the toilet facilities were redesigned?
  • Has the school monitored the impact of the changed facilities? If so, what are the details?
  • Has a follow up consultation with the pupils been carried out since the new toilet designs were introduced?
  • Has the school asked the pupils whether they are using the toilets differently than before e.g. Less often? More often?
  • Has the school asked the pupils whether their feelings of safety and/or comfort when using the new toilets improved or worsened since the change to mixed sex facilities?

All the above questions could also be formally submitted as FOI requests either directly with the school, council or via the WhatDoTheyKnow website.  It is highly recommended to ask for information in the format of a FOI request, as any non-response or refusal by the school can then be appealed to the Scottish Information Commissioner who will then pursue the case on your behalf.

Whilst there has been reports in the media of parents, pupils and staff who successfully reversed a school’s policy of mixed sex toilet facilities, these cases usually involved groups who came together to campaign on this single cause.  The strongest case would be for the pupils themselves to unite and campaign against the school policy.  One suggested way of gathering support from others could be to start a petition, and then circulate it on social media, perhaps with direct links to the school and Council.  Another option would be to raise it officially with either, or both, the Pupil Council and the Parent Council.  This is usually the point when you discover that others also have concerns about the new policy. 

It just needs one person to start the ball rolling…

Good Luck