Schools need more clarity over toilet arrangements for trans pupils, lawyers and leaders have said, after what one described as an “absurd” EHRC guidance update on Friday.
It comes as new data suggests as many as one in four schools has mixed-sex toilets – and could face having to invest in new facilities to meet amended rules.
The Equality and Human Rights Commission (EHRC) published a non-statutory “interim update” on Friday after a Supreme Court ruling that a woman is defined as a biological woman (a person born female) for the purposes of the Equality Act 2010.
The body plans to update its statutory code of conduct, but this will be open to consultation so is unlikely to emerge soon.
Schools were already required by law to provide separate single-sex toilets for boys and girls over the age of 8, and single-sex changing facilities for boys and girls over 11.
‘Suitable alternative provisions’ may be needed
The EHRC’s interim update states that “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”.
It adds that “suitable alternative provisions may be required”, but does not add further detail.
Tomas Thurogood-Hyde, the director of corporate services at Astrea Academy Trust, said schools “rely on guidance from multiple sources, so it is important that key bodies, such as the DfE and Ofsted, are aligned and speak with one voice.
“The EHRC’s guidance may raise more questions … it is important that any guidance is well-considered so that it helps schools navigate this territory.”
‘Additional clarity’ needed
Lawyers also have concerns. Clare Wigzell, an associate at Stone King, said the interim guidance “confirms the existing law regarding single-sex toilets and changing rooms for pupils is to be applied on the basis of biological sex”.
But it “leaves schools without any additional clarity regarding how they also ensure that trans pupils are safeguarded and not subjected to unfavourable treatment as a result, saying merely that ‘suitable alternative provisions may be required’.
“It is hoped that the DfE and/or EHRC will clarify how schools also ensure that they meet their duties under the Equality Act in terms of the protected characteristic of gender reassignment, and their duty to safeguard pupils.”
Philip Wood, a principal associate in the education team at Browne Jacobson, said that without “clear and consistent” guidance “different schools are likely to have been taking different approaches”.
Those with approaches that conflicted with the ruling would need to consider alternatives – such as using accessible toilets as gender-neutral facilities – in “a sensitive and pragmatic way”.
Many schools have mixed-sex toilets
Teacher Tapp found schools had a range of approaches, including single-sex toilet blocks with doors dividing them from corridors (56 per cent) and without doors (30 per cent). These would likely be compliant with the guidance.
But about 25 per cent had mixed toilet blocks, which likely would not comply.
Baroness Jacqui Smith, an education minister, told the House of Lords on Thursday that the EHRC’s update was a “snapshot reflection rather than full guidance”.
“The application of the Supreme Court ruling to different services and settings is complex. It requires careful work to ensure we provide clarity for a wide range of varied service providers of different kinds and sizes.”
Concerns over guidance about staff
The guidance for school staff seems to be even less clear.
The EHRC said that in workplaces, trans women “should not be permitted to use the women’s facilities and trans men should not be permitted to use the men’s facilities”.
But “in some circumstances the law also allows trans women not to be permitted to use the men’s facilities, and trans men not to be permitted to use the women’s facilities”.
However, “where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use”.
One school leader, who did not wish to be named, said the EHRC had “painted an absurd picture”.
“As written, this interim advice tells us that a trans man may be refused access to a men’s service for being biologically female, whilst at the same time refused the women’s service for appearing male.
“Not only that, but providers of both services mustn’t leave him with nowhere to go. The commission has had months to prepare for this outcome, which the interim guidance doesn’t reflect.”
The DfE has said it will publish full guidance later this year.
Your thoughts