What does the For Women Scotland -v- Scottish Government decision mean for schools?

The case involving For Women Scotland -v- Scottish Government has been rumbling since 2018 with little mainstream media attention. Yet, it was the Supreme Court’s judgment in April 2025 which brought the issues in this case to a crescendo. However, it is not, perhaps, the judgment or the points of law in dispute, which have caused the most discussion; instead, the core issue for employers and organisations, such as schools, has been around managing the practicalities: in particular, the provision of single-sex facilities such as toilets.

The case itself concerned a challenge by feminist activist group, For Women Scotland Limited, to a Scottish Government policy – and accompanying legislation – seeking to promote “women” on public boards in Scotland. Having initially sought to define “women” for the purposes of the policy as both biological women and self-identifying trans-women, the Scottish Government had to concede this approach and instead sought to include trans-women who had a Gender Recognition Certificate within the policy. For Women Scotland – together with other petitioners, including lesbian groups – sought to challenge this Scottish policy and legislation on the basis that its definition of “woman” conflicted with the definitions of “sex”,” man” and ”woman” under the Equality Act 2010 (which applies in England, Scotland and Wales) and was, therefore, wrong in law.

The Supreme Court held that for the purposes of the Equality Act 2010, the definition of “sex” refers to biological sex – man/woman/male/female – and not to “certificated gender”. As the Supreme Court said, “any other interpretation would render the Equality Act 2010 incoherent and impracticable to operate”. This does not preclude someone who has the protected characteristic, as defined under the Equality Act 2010, of gender reassignment, being protected against discriminatory or harassing behaviours. It is also important to note that this judgment did not change the law or the definitions within the Equality Act 2010; it was a restatement of the law.

The provision of single sex toilet facilities in schools

It is the issue of single sex facilities – for example toilets - which has been one of the most talked about collateral issues arising from the judgment, although it was not directly discussed in the judgment. When we think about schools, the provision of toilets falls into two key areas: for staff as an employer and for pupils as a school. Let’s consider these issues in turn.

For staff as an employer – England, Wales and Scotland

For employers, the provision of toilets for staff is set out, not in the Equality Act 2010, but in the Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”) which apply in England, Wales and Scotland. Under the 1992 Regulations, employers must provide separate single-sex toilet facilities for their male and female staff. These facilities must be ventilated, well-lit and be accessible. There are separate rules for the provision of toilets for disabled employees. The 1992 Regulations do, however, allow employers to provide unisex facilities for their staff (instead of or as well as single-sex facilities) provided that in these shared, mixed-sex facilities each toilet is in a separate room lockable from the inside (think toilets on a plane). The key is that only one person of the same sex can use the room/toilet at any one time.

In its Interim Guidance issued following the Supreme Court judgment, the Equality and Human Rights Commission (EHRC) states that toilets may be mixed-sex where they are in a separate room lockable from the inside, but where separate single-sex facilities are provided trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities.

For pupils as a school

When it comes to schools, the provision of toilets is more complicated as it depends on which type of school you are (state or independent) and in which devolved nation the school is geographically based – England, Wales or Scotland. Provision also depends on pupil age.

Independent schools (England)

Independent schools are required to comply with the Education (Independent School Standards) Regulations 2014[EO1] (paragraph 23 of the Schedule), which states that suitable toilets must be provided for the sole use of pupils (i.e. not shared with adults) and they should be provided separately for boys and girls aged 8 years and over. Alternatively, toilets may be provided on a mixed or unisex basis if the toilet is in a separate room that can be secured from the inside and is intended to be used by one pupil at a time. Sinks may be provided within the unisex lockable room or provided near to the toilet.

State schools (England)

For English state schools, the provision of toilets is governed by the School Premises (England) Regulations 2012. Under Regulation 4, separate toilet facilities must be provided for boys and girls aged 8 and over, unless the toilet is in a separate room with a lockable door and is intended for use by one pupil at a time. As above, sinks do not have to be inside the unisex lockable rooms, although they should be provided near to the toilet.

State and Independent Schools (England)

In addition to the separate legislation referred to above, the Department for Education has also provided guidance on the provision of toilets in its document 'Advice on standards for school premises'. Although this is non-statutory guidance it was updated in 2015 and applies to English:

• local-authority-maintained schools

• academies and free schools

• pupil referral units (PRUs)

• special schools not maintained by the local authority

• independent schools

• sixth-form colleges (SFCs)

With regards to the provision of toilets, this guidance states:

“Toilet facilities need to be planned and designed so that:

1. hand washing facilities are provided within or in the immediate vicinity of every toilet;
2. the rooms containing them are adequately ventilated and lit;
3. they are located in areas around the school that provide easy access for pupils and allow for informal supervision by staff, without compromising pupils’ privacy.

Where there is unisex provision, the privacy of the occupant needs to be ensured and this will be achieved by, for example, having adequate enclosure and a full height door.”

This guidance accords with the legislation for schools (state and independent) in England which allows a single and unisex approach but with an additional recommendation that in a unisex toilet the door to the lockable room must be full-height door (floor to ceiling). This 2012 guidance also states that washing facilities must be provided near to the toilet (single or unisex).

Similarly, in its 2024 technical guidance for English schools (state and independent), the Equality and Human Rights Commission says (at page 60) “The law requires schools to provide single sex toilet facilities for children over eight … These may be either in sex-segregated communal facilities or in single-user lockable rooms.”

Independent Schools (Wales)

Independent schools in Wales are encouraged to follow the Welsh government’s January 2012 Good Practice Guide[EO2] . There is no legal duty for schools (which includes Welsh State schools) to have regard to this guide; however, the Good Practice Guide helps schools in understanding their obligations with regards to the provision of toilet facilities. In this Welsh government guide, toilets for boys and girls should be provided on a separate-sex basis for pupils over the 8 of age years. Washing facilities may be provided adjacent to the toilet.

State schools (Wales)

For Welsh state schools, the requirements for the provision of toilets are set out in the Education (School Premises) Regulations 1999. Regulation 3 states that in Welsh state schools separate toilets for male and female pupils aged 8 and over must be provided. This accords with the Welsh government’s 2012 Good Practice Guide (referred to above) which confirms that for both independent and state schools in Wales, mixed or unisex toilet facilities are not permitted for pupils aged 8 and over.

Independent schools (Scotland)

In Scotland, independent schools are subject to registration and regulation under the Education (Scotland) Act 1980 (as amended). The 1980 Act does not specifically deal with the provision of toilets; however, section 17 places a general duty on independent schools to ensure there are adequate educational facilities provided to their students.

State Schools (Scotland)

State schools in Scotland must comply with the School Premises (General Requirements and Standards) (Scotland) Regulations 1967. Under Regulation 15, state schools which are not single sex schools are required to provide a minimum specified number of toilets depending on pupil numbers and to ensure that half the toilets are for boys. Every toilet must be near to a washbasin and every toilet must have a lockable door as well as a partition. Although not explicit, this would suggest that toilets must be provided on a single sex basis (and not unisex). There is no minimum age limit for the provision of single sex toilets.

The Equality and Human Rights Commission’s 2023 updated technical guidance for Scottish schools (which applies to both state and independent schools) says (at page 57) “Sex segregation is permitted in certain situations, such as where it is necessary and appropriate to preserve privacy and decency. The law in Scotland requires schools to provide toilet facilities for boys and for girls. Toilet cubicles are required to be partitioned and to have lockable doors.” This approach also accords with the recent Interim Guidance from the Equality and Human Rights Commission (see paragraph below).

A recent Scottish case, post the Supreme Court decision, has (according to press reports) ruled that a policy of certain councils to provide gender-neutral facilities in a mixed-sex school breached the 1967 Scottish Regulations (referred to above) and instead, single sex facilities should also be provided.

Interim Equality and Human Rights Commission Guidance - for Schools in England, Wales and Scotland

Following the Supreme Court decision, the Equality and Human Rights Commission produced Interim Guidance. As well as guidance for employers, the interim guidance also provides guidance for schools (although not defined, the application of the guidance would suggest “schools” is defined in its broadest sense to include both state and independent schools). For England and Wales, the guidance states that schools must provide separate single-sex toilets for boys and girls over the age of 8. For Scottish schools, irrespective of pupils' age, separate toilet facilities for boys and for girls must be provided. Toilet cubicles are required to be partitioned and have lockable doors. The interim guidance goes on to say that “Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required.

It is interesting that the Interim Guidance does not explicitly say that schools in England may provide mixed or unisex facilities as the prevailing legislation and its earlier 2024 technical guidance does.

Summary and Practical Implications

Despite the subtle differences between the provision of toilets between English, Welsh and Scottish schools (state and independent), it is important to restate that the law in the Equality Act 2010 has not been changed by this judgment. In a school environment, be it staff or pupils, it is important to ensure women and girls (and men and boys) have a safe and private space whilst being respectful of others. Pupils or staff should not be considered on a “case by case” basis. The approach must be a blanket one: single sex facilities may only be used by those of the same biological sex, whilst ensuring trans individuals are not left without provision. A school may face legal action from those who object to sharing their designated single-sex space with someone of the opposite sex. This includes situations where pupils or adults self-identify or have a gender recognition certificate. This is a complex area of law so please take advice.