Blog: 17 February 2023 - Womble Bond Dickinson, Corporate Partner

Toilets in school – keeping it neutral?

The recent controversy around Scotland's Gender Recognition Bill has shone a spotlight on trans identities. A particular flashpoint for local authorities providing guidance to their maintained schools and to academy trusts is access to toilet facilities – is it lawful to require pupils to use facilities in line with their sex rather than their gender identity?  

Gender reassignment is a protected characteristic under the Equality Act 2010 (the Act). In broad terms, where a school applies a policy across the board, but this disadvantages pupils with a protected characteristic compared to pupils who do not have that characteristic, this can be indirect discrimination unless it can be objectively justified. This could potentially apply to a policy requiring pupils to use toilet facilities in line with their sex rather than their gender identity. This sits uncomfortably alongside the requirement in school premises standards for separate toilet facilities for boys and girls aged 8 years and over, unless the toilet facility is in a lockable room for use by one pupil at a time. 

Under the Act, where there is an express statutory requirement for a school to act in a particular way, that action will not be unlawful even if it appears to breach the Act. In the absence of long awaited statutory guidance, the Association of School and College Leaders and others have published Guidance for maintained schools and academies in England on provision for transgender pupils which concludes that the Act does not override the school premises standards. However, the position is not clearcut: the EHRC's Technical Guidance for schools states that this exception will only apply where a requirement is specific and leaves a school with no choice, and the extent of the exception in this context has not been tested by the courts. 

In view of this uncertainty, if a school intends to adopt a policy of requiring pupils to use toilet facilities in line with their sex, our view is that the school should first carry out an analysis of whether this policy can be justified under the Act as a proportionate means of achieving a legitimate aim (i.e. objectively justified). The EHRC's Technical Guidance for schools gives guidance on what objective justification means.

For some schools, it may be possible to address these difficulties by providing gender neutral facilities in addition to or instead of single sex facilities, so long as they are individual lockable rooms to comply with the school premises standards. Schools and local authorities should also consider consulting with the school community on the approach to ensure a range of views on what can be a divisive topic can be properly taken into account when considering their approach.  

If you would like further information please contact Womble Bond Dickinson:

Francesca Hodgson, Legal Director, Commercial Disputes & Regulatory Team

Kevin Robertson, Partner, Head of Projects & Procurement Team