A Scottish teaching union is calling for government guidance on single-sex in schools to be “immediately withdrawn” and for revised guidance to be issued “as a matter of urgency”.
The comments from Seamus Searson, general secretary of the Scottish Secondary Teachers’ Association (SSTA), follow the recent Supreme Court ruling on the definition of a woman.
Mr Searson said the union was “not looking back at the Supreme Court judgement and passing comment on that decision”. Rather, he said, the union was “looking forward to ask, ‘So what now?’”
“The Scottish Parliament appears to have had time to consider the implications of the judgement and change its own arrangements for the use of single-sex spaces - meanwhile, the Scottish government has not yet provided updated advice to schools,” Mr Searson said.
“To help clarify the situation for schools and school leaders, the 2021 guidance should be immediately withdrawn. Revised guidance should be issued to schools as a matter of urgency.”
Transgender support in schools
Mr Searson was speaking after an emergency motion was passed at the SSTA annual congress in Stirling earlier this month.
The SSTA said schools are now having to comply with the recent Supreme Court ruling on the definition of a woman, but that government guidance is “out of date” and recommends “actions that are not in compliance with sex-based rights within the Equality Act”.
Last month five Supreme Court judges ruled that the word “woman” legally means a biological female.
Following the judgement, the Equality and Human Rights Commission (EHRC) issued to highlight the practical implications, which included a section on schools.
It says that following the ruling “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 adds.
However, Scottish government - published in 2021 - says: “There is no law in Scotland which states that only people assigned male at birth can use men’s toilets and changing rooms, or that only people assigned female can use women’s toilets and changing rooms. This is instead done by social convention.”
It also says: “A transgender young person should not be made to use the toilet or changing room of their sex assigned at birth.”
The SSTA emergency motion on the Supreme Court judgement stated that “strong feelings existed on both sides prior to the judgement and that strong feelings have continued unabated since. Irrespective of those arguments, the law has been clarified and schools are required to operate in compliance with the Equality Act”.
The motion, from SSTA delegate Gordon West, a secondary depute headteacher, added that “the interim guidance from the EHRC has now rendered the 2021 guidance [titled] Supporting transgender young people in schools out of date, with parts of the guidance recommending actions that are not in compliance with sex-based rights within the Equality Act”.
Schools ‘need guidance now’
It advised that “schools and school leaders do not have the luxury of waiting for updated guidance - they are required to be acting in compliance with the Equality Act now”, adding: “Congress therefore calls on the Scottish Government to provide clarity to schools and school leaders by immediately withdrawing the 2021 guidance and providing updated guidance as a matter of urgency.”
Responding to the SSTA, a Scottish government spokesperson said that a “short-life working group” had been established “to take all necessary steps when the EHRC’s Code of Practice and updated guidance are published”.
The spokesperson indicated that the updated guidance was expected “by the summer”.
They said: “As the EHRC is the enforcer and regulator of the Equality Act 2010, we expect all organisations to consider its revised code of practice and guidance when published to ensure there is a consistent and clear understanding of the correct application of the law for all involved in this complex area.”
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