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When any pupil goes to school they should be able to do so safely, have appropriate toilet and changing facilities they can use, and be listened to and have their identity respected. This has become much harder for trans pupils because of two court cases that happened last year, and changes made to Scottish Government guidance on including trans pupils in school because of these.
Previously, the guidance said that trans pupils should be able to use toilets that align with their gender identity – trans girls could use the girls’ toilets, and trans boys could use the boys’ toilets. The guidance was changed to say that there must be separate single-sex toilets for boys and girls and that this should be provided on the basis of “biological sex”. It also recommends that some gender-neutral toilets are provided, and that these might be the best ones for trans pupils to use. Read the Scottish Government’s updated “Supporting Transgender Pupils in Schools” guidance (new tab).
There is an opportunity to put this right. Until March 24th, the Scottish Government is consulting on changes to the School Premises (General Requirements and Standards) (Scotland) Regulations 1967. These set out the law on what kinds of toilets and changing facilities must be in school buildings. One of the court cases that caused the Scottish Government to change its guidance last year was a court case related to these regulations.
If you want to make sure that trans pupils can be properly safe, supported, and included at school, then please respond to the consultation.
You can find the consultation proposals here: Scottish Government consultation proposals (new tab)
You can find the consultation proposals PDF here: Scottish Government consultation proposals PDF (new tab)
You can respond to the consultation here: Scottish Government consultation webpage (new tab)
Below, we set out which questions are most relevant to answer if you want to focus on this issue, as well as some things to think about when you respond. Your response will have a much bigger impact if you write it in your own words. If you have any personal experience of the topic – for example if you are the parent of a trans child currently at school, a trans person who can talk about your experiences of being at school and what using toilets was like, or a person who has worked in schools – then giving examples from your own experiences can be very helpful.
Are you a young person who’d like to respond? Our friends at LGBTYS have created their own tips that might have more of the kinds of things you’re thinking about or wondering included: Read LGBT Youth Scotland’s guidance (new tab).
(The proposals are on pages 17-19 of the consultation PDF)
We’ll be answering ‘no’ to this question.
In the consultation paper, the Scottish Government does not make it clear if the changes they are proposing will mean that trans girls will be able to use girls’ toilets, washing facilities, and changing rooms, and trans boys will be able to use boys’ toilets, washing facilities, and changing rooms. We think that it is vital that they are able to do so.
School buildings should be designed to ensure that toilets, washing facilities and changing rooms provide enough privacy, safety and dignity for everyone. This is not achieved if all trans pupils are required to either use facilities that correspond to the sex recorded on their original birth certificate, or gender-neutral facilities. For some pupils, this would mean that they are outed as trans to their entire school community, when they may choose to only share that with close friends, or their class.
Many trans pupils will not wish to use the toilets, washing facilities or changing rooms that correspond with the sex recorded on their original birth certificate. Doing so means that they have to use a space that contradicts their sense of themselves and undermines their identity. Requiring trans pupils to use gender neutral facilities will segregate them from their peers and mark them out as different.
This will have serious impacts on children and young people’s wellbeing. It is an unacceptable situation for trans pupils in Scotland.
We’ll be saying that we think that if these changes will not allow trans pupils to use toilets, washing facilities or changing rooms that align with their gender identity – requiring them to use either the facilities for the sex recorded on their original birth certificate, or gender-neutral facilities – that this could cause trans pupils to face discrimination and harassment.
“Gender reassignment” is a protected characteristic under the Equality Act 2010. It covers people who are “proposing to, are undergoing or who have undergone a process for reassigning their sex”. Previous legal decisions have said that children and young people can hold this protected characteristic.
The Equality Act 2010 defines discrimination as treating someone less favourably because of a protected characteristic. It defines harassment as creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’, or violating someone’s dignity, if this relates to a protected characteristic.
We think that trans pupils being required to use toilets, washing facilities or changing rooms that align with the sex recorded on their original birth certificate, or gender-neutral facilities, could clearly result in both discrimination and harassment.
What do you think the impact on trans pupils might be if they had to use the toilets, washing facilities or changing rooms for the sex recorded on their original birth certificate, or gender-neutral facilities, if this is not what they wanted on their:
(Content note: mentions of sexual assault in this section).
We’ll be saying that we think that if these changes will not allow trans pupils to use toilets, washing facilities or changing rooms that align with their gender identity – requiring them to use either the facilities for the sex recorded on their original birth certificate, or gender-neutral facilities – that this could breach trans pupils’ human rights and negatively affect their wellbeing.
We know that policies that don’t allow trans pupils to use toilets, washing facilities or changing rooms that align with their gender identity can have really serious impacts. They can make trans pupils feel unwelcome at school and like their identity is not being respected. This can negatively affect their self-esteem and confidence and have a knock-on effect on their ability to learn. We have heard reports of some trans pupils avoiding using the toilet (new tab) when they don’t feel that they are able to use a toilet that is appropriate for them. This can lead to pupils avoiding school entirely, or reducing eating and drinking and persistently holding urine, and thereby experiencing physical health problems.
Trans children and young people’s potential vulnerabilities at school have long been recognised by international human rights organisations and evidenced by research.
For example in 2017, a group of UN Independent experts, including the UN Committee on the Rights of the Child, the Special Rapporteur on the Right to Education and the Special Rapporteur on violence against women published a statement that urged states to take action to support young trans and gender diverse people:
“Trans and gender-diverse children and adolescents are also more vulnerable to school-related violence (bullying) and exclusion in the classroom, playgrounds, toilets and changing rooms, on the way to and from school, as well as online (cyberbullying)…
“We call on States to adopt and implement effective measures prohibiting violence, anti-discrimination laws covering gender identity and expression – real or perceived – as well as sexual orientation as prohibited grounds for discrimination, to develop inclusive curricula and learning materials, training for and support to teachers and other school staff, education and support programs for parents, safe and non-discriminatory access to bathrooms, and awareness-raising programmes nurturing respect and understanding for gender diversity.”
Read their statement in full (new tab).
Research from the US shows that that trans pupils who attended schools with policies that restrict their access to bathrooms and changing rooms in line with their gender identity are at increased risk of sexual assault. Murchison et. al (2019) (new tab) found that trans pupils in all schools experienced sexual assault at higher rates than male and female students who were not trans, but that where schools had restrictive policies on use of facilities this risk was further increased. This was particularly the case for trans girls, who were at 2.49 times the risk of sexual assault at schools with restrictive policies. Research has also found that lack of access to appropriate toilets at school has impacts on trans young people’s mental and physical health (new tab).
Trans children and young people have the same human rights as all children and young people. The UN Convention on the Rights of the Child includes the rights to:
We think that all of these rights could be breached in schools that require trans pupils to use toilets, washing facilities and changing rooms that align with the sex recorded on their original birth certificate, or gender-neutral facilities. The Scottish Government has not made it clear whether the changes they are proposing to the regulations would allow trans pupils to use facilities that align with their gender identity.
The Scottish Government also has not published a Child Rights and Wellbeing Impact Assessment of their proposed changes. We will be asking that they do so as soon as possible. This will help to ensure that decision-making is properly informed by children’s rights and is in line with requirements in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
Scottish Government consultation webpage (new tab)
30 Bernard Street Edinburgh EH6 6PR
+44 (0)131 467 6039 info@scottishtrans.org
Scottish Trans is part of the Equality Network
Scottish Trans is the Equality Network project to improve gender identity and gender reassignment equality, rights and inclusion in Scotland. The Equality Network is a leading Scottish lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights charity.
The Equality Network is a registered Scottish charity: SC037852, and a company limited by guarantee: SC220213.
We are grateful for funding from the Scottish Government
