The Scottish Government’s new guidance on single-sex toilets in schools is “muddled” and has only “confused” things further, the Scottish Conservatives have claimed.
Tory MSP Pam Gosal accused the Education Secretary of failing to answer whether the updated guidance would still allow a trans pupil to use the toilet that fits their gender identity.
Douglas Ross, the former Scottish Tory leader, said Jenny Gilruth was “refusing to answer a very straightforward question”.
New guidance released by the Scottish Government on Monday stated that schools in Scotland should provide separate toilets for boys and girls on the basis of biological sex.
Schools were previously told pupils could use whichever toilet they felt most comfortable in.
At Holyrood on Tuesday, Ms Gosal urged Ms Gilruth to clarify whether a trans person could still use the toilet they feel most comfortable in.
She said: “Yesterday, the SNP Government published new guidance that was meant to give schools clarity about how boys and girls toilets and changing-room facilities should be provided.
“Yet instead of finally protecting single-sex spaces, the SNP’s muddled new guidance has confused matters further.”
Referring to media interviews after the guidance was published, Ms Gosal said Ms Gilruth had “repeatedly refused to state whether biological males could still use girls’ toilets and changing-rooms in our schools”.
She added: “Therefore, let me give the Cabinet Secretary the opportunity to answer a simple question on yes or no: can biological males who identify as women still use girls’ toilets under this guidance?”
Ms Gilruth said the Government has been “clear” that it accepts the Supreme Court’s ruling in April that the definition of a woman under equality law refers to biological women.
She added: “I also want to put on the record that, of course, under the 1967 regulations, our schools are already provided for in terms of toilets being provided for both boys and girls – that is stipulated in legislation at the current time.
“There is also a requirement in relation to accessible toilets more broadly, but I do think more broadly, as I alluded to in my previous response, presiding officer, the rights of all children and young people must be respected in our schools.
“It is also important to remember that transgender people represent 0.44% of the whole population in Scotland.
“Evidence also tells us that transgender young people have significantly worse educational and wellbeing outcomes than other pupils.
“They are much more at risk of bullying and they are more likely to leave education early, and are at risk of increased mental health and wellbeing concerns.
“We have updated the guidance in accordance with the Supreme Court ruling, and, of course, I responded to the member’s point in relation to the law and the stipulation in relation to the point the member has raised in terms of single sex bases.”
Ms Gilruth was later pressed on the issue by Mr Ross, who said: “The Cabinet Secretary is refusing to answer a very straightforward question.
“Under this guidance, could a biological male use a female, single sex only toilet in his Scottish school?”
The Education Secretary said: “I think I alluded to in our response to the member’s colleague, in Scotland all schools are required to provide separate toilets for girls and for boys, as stipulated in law.
“In addition, the guidance also makes clear that councils should give careful consideration to the individual needs of transgender pupils in light of the school context and in light of their school.”
A spokesperson for the Equality and Human Rights Commission said: “The Supreme Court ruled that ‘sex’ in the Equality Act means biological sex. The law has been in effect since that judgment was handed down on April 16.
“Local authorities and school leaders should be following the law, seeking their own legal advice where necessary to ensure compliance with the Equality Act.
“Our technical guidance for schools in Scotland is among the guidance we will update. The first of our guidance to be updated – our statutory Code of Practice for services – is currently with the UK Government for approval following public consultation.
“However, as we have said since April, the law in Scotland requires schools to provide separate toilet facilities for boys and for girls.
“Pupils who identify as trans girls should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required to ensure all pupils have facilities for them to use.”
