Council ruled unlawful for not providing single-sex toilets at primary school
A judge has determined that West Lothian Council acted unlawfully by not providing single-sex toilet facilities at a newly built primary school.
The judicial review was initiated by the parents of a female pupil at the school, challenging the council's policy on toilet provision.
A judgement issued on Thursday detailed how the girl's family reported that she experienced distress due to having to use mixed-sex toilet areas within the school.
Lady Poole concluded that the council failed to meet legal requirements and ordered it to cover the parents' legal expenses.
Child's experience and court findings
The Court of Session in Edinburgh heard testimony from the child, who remains unnamed for legal reasons, expressing discomfort with the school toilets.
She said boys were "too noisy" and had reduced her fluid intake to avoid using the facilities during the school day.
The court was informed that the child frequently returned home "in pain" because she avoided using the toilet during school hours.
Concerns from other parents about the toilet arrangements at the West Lothian school also contributed to the parents' decision to seek recourse in Scotland's highest civil court.
Their legal representatives requested orders declaring the school's toilet arrangements unlawful.
However, lawyers representing the local authority argued that the school's provision did not violate the law, noting that boys and girls had separate floor-to-ceiling, lockable cubicles.
Boys and girls access the main toilet areas, but boys are prohibited from entering cubicles marked for females, and vice versa.
The council maintained that wash basins were not required to be inside separate boys' and girls' toilet rooms, and pupils unwilling to use the main toilet areas could use other available toilets within the school.
Legal interpretation and ruling
Lady Poole dismissed the council's arguments, citing the School Premises (General Requirements and Standards) (Scotland) Regulations 1967.
The judge held that "sanitary accommodation" encompasses more than just the toilet cubicle itself; it includes the wider toilet area, such as nearby wash basins.
She found that because the main toilet areas required boys and girls to share washing and waiting spaces, the council had not provided lawful sanitary accommodation for both sexes.
The toilet provision also violated a requirement in the 1967 regulations that two-thirds of the appliances in the boys' sanitary accommodation should be urinals.
The court determined that the arrangements constituted indirect sex discrimination under the Equality Act 2010.
Lady Poole further acknowledged that girls may face particular challenges regarding privacy, dignity, and hygiene when using mixed-sex toilet spaces, especially when leaving a cubicle to wash their hands in an area shared with boys.
Updated guidance on single-sex facilities
In the previous year, Judge Lady Ross, also sitting at the Court of Session, issued a court order making it a legal obligation for Scottish state schools to provide separate lavatories for boys and girls.
This followed a Supreme Court ruling in April of the previous year that defined a woman by biological sex under equalities law.
New guidance issued by the Scottish government last year also mandated that Scottish schools must provide separate toilets for boys and girls.
The council stated it had been following previously issued Scottish government guidance on toilet provision.
Nevertheless, Lady Poole ruled against the council and granted legal orders against it, including one declaring the toilet provision unlawful.
"The petition does not seek any orders for specific performance.
It is expected that public authorities will take necessary steps to comply with court orders and regularise a position the court has held to be unlawful.
It is left for the council to decide how it proposes to ensure compliance with the law."
West Lothian Council has been approached for comment.
