Single Sex Toilets: Cleaning up the Risk to Schools

Most schools will be aware of the increasing discourse around biological sex and gender identity. This has become particularly challenging for schools to manage.  One area of school life where this can cause confusion and risk is in the provision of toilet facilities.

School toilet facilities

The first question for many schools is: what are we required to do when providing toilet facilities?

Schools in England and Wales are required to make specific provision for toilet facilities. Pursuant to the School Premises (Regulations) 2012, schools must provide separate toilet facilities for boys and girls aged 8 years and over. This means that toilet areas where cubicles have shared sinks are only suitable for pupils under 8 years old given that the shared area does not give privacy from the opposite sex when using the toilet and sinks.

The only time where there is no need to maintain separation of boys and girls is where a single toilet and sink are made available in an enclosed room which can be secured from the inside and is intended for use by only pupil at a time.

Gender identity

For clarity, only people who are aged 18 or over can apply for a Gender Recognition Certificate (a legal document recognising the person's affirmed gender, allowing them to update their birth certificate etc.) Schools should not therefore operate their toilet and changing facilities for pupils on the basis of gender identity.

The risk of getting this wrong

Whilst toilet facilities may seem like they are low on the bar of risks to schools, getting it wrong can have significant ramifications.

Whilst Scottish law is not directly applicable to schools in England and Wales, a recent case in Scotland clarified that Scottish schools must provide single-sex toilets for their male and female pupils. This followed the building of a new school where the only toilets provided were gender-neutral, leading to a judicial review.

The Scottish court’s decision followed the Equality and Human Rights Commission (EHRC) interim update which states that schools should have separate facilities based on biological sex, rather than identity.

For trans pupils this means that the EHRC’s view is that trans girls should not be able to use the girls’ toilet facilities, and vice versa. The EHRC will now be considering how its technical guidance for schools should be amended and we will provide an update in due course.

Any school that has chosen to move to a fully-neutral toilet facilities policy to avoid the question of who should be permitted to use which toilets could now find this is subject to challenge.

What should schools do?

In a nutshell, schools must ensure that they provide:

-          separate toilet facilities for boys and girls aged 8 years and over based on biological sex; and may also choose to provide

-          separate, enclosed and lockable rooms with a toilet and washbasin for use by one pupil at a time

It is recommended to provide both options to pupils to ensure that pupils can use facilities without needing to share them with members of the opposite sex, and pupils whose preference it is to use a gender-neutral toilet can do so.

Schools which have replaced their single-sex facilities with gender neutral ones in the wake of gender identity discourse over recent years risk finding themselves subject to legal proceedings.

Schools should ensure that they have a robust transgender policy in place, setting out the schools obligations and processes when considering pupils who are transgender. This is an area which is subject to both legal and reputational risk if a school gets it wrong. We can support schools to implement a robust policy which meets requirements placed on them.