A five-year-old girl suffered 'indirect discrimination' when she was forced to use unisex toilets at school, a judge has ruled. The pupil, identified as C, would regularly go home in pain after refusing to relieve herself in the Scottish primary school's toilets because the boys were 'too noisy'. Both genders could access the main toilet areas, although boys were not permitted to enter cubicles with a female sign on them, and vice-versa.
Legal Ruling
The girl's parents brought a claim against West Lothian Council over the facilities after complaining that the school did not provide single-sex toilets. A judge has this week ruled that the toilet provision was indirectly discriminatory under the Equality Act 2010, and placed girls at a disadvantage. At the Court of Session in Edinburgh, Judge Lady Poole noted that Child C found the situation 'distressing' and did not like going to the toilet with boys around - and had reduced her fluid intake 'considerably' to avoid using the facilities. A claim of harassment was, however, rejected because it didn't meet the legal threshold.
The judge wrote: 'The particular disadvantage is a combination of the additional issues for girls relating to contamination of hands due to their anatomy and physiology, and the general vulnerability of girls having to perform intimate activities in communal areas. These give rise to legitimate considerations of privacy, dignity and health and safety. The particular disadvantage arising from provision of all toilets as unisex, relating to contamination of hands and the general vulnerability of girls having to perform intimate activities in communal areas, applies to C.' She concluded: 'The court holds that section 19 of the 2010 Act is contravened by the current toilet provision at the school, and there has been unlawful indirect discrimination.'
Reactions and Implications
Harry Potter author JK Rowling, who campaigns for the 'gender critical movement', reacted to the news by saying: 'Polite notice to schools still breaking the law by not providing single sex bathrooms: you will be sued and you will lose.' The school, which has not yet been named but opened in August 2024, featured 34 toilets for pupils. The court also ruled that its toilet provision breached the requirements of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967. It found that because the four main toilet areas at the school did not provide separate spaces for boys and girls containing both appliances and wash basins, they do not comply with the standards for sanitary accommodation. The toilet provision also breaches a requirement of the 1967 regulations that two-thirds of the appliances in the boys' sanitary accommodation should be urinals.
Broader Context
It comes after judges in the UK's highest court ruled in April last year that the words 'woman' and 'sex' in the Equality Act 2010 refer to a biological woman and biological sex. The Scottish Government had later revised guidance stating that separate toilet facilities must be provided in schools based on biological sex. However, the local council said it had been following previously issued Scottish Government guidance on toilet provision. Lady Poole wrote: 'The answer to the council's submissions is that guidance is not law. The council has its own duties and powers conferred on it by legislation. The council is obliged to obey the law, not guidance if that deviates from the requirements of the law.' The court awarded expenses to the petitioners.
A West Lothian Council spokesperson said: 'West Lothian Council has received the court's opinion and will now consider its options. In the meantime, the council remains committed to ensuring the highest standard of care for the children and young people attending its schools.'
