The country's largest teaching union has warned the Scottish Government’s revised guidance on supporting transgender pupils in schools "falls short" of providing the clarity needed to protect trans and non-binary pupils’ rights.
Although welcoming its publication, the Educational Institute of Scotland (EIS) has also said the new advice does not provide teachers with enough support in how to balance "competing statutory obligations".
Guidance issued earlier this week by ministers now states that toilet use in schools must be based on biological sex rather than preferred gender as stated in previous guidance.
Separate facilities must exist for both boys and girls as the revised guidance also states that schools can provide gender neutral toilets.
In addition, the guidance requires education authorities and schools to take an individualised approach for transgender pupils, such as the use of gender-neutral toilets or the toilet associated with their birth sex.
However, the EIS has now said the Scottish Government guidance does not go far enough in offering reassurance that rights will be preserved in practice.
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The call for clarity follows the Supreme Court ruling on the definition of “sex” under the Equality Act (2010) and the Court of Session judgment on the School Premises Regulations (Scotland) 1967.
The EIS says these rulings have left schools struggling to navigate “immediate compliance challenges” without clear national direction.
Commenting on the revised guidance, Andrea Bradley, General Secretary of the EIS, said: “The Scottish Government’s revisions to their guidance on Supporting Transgender Pupils in Schools provide a welcome acknowledgement that inclusion and wellbeing remain a priority in principle. It stresses the right of all young people to experience privacy, safety, dignity and respect and is clear that education authorities and schools should consider the needs of transgender pupils and consult with them and their families to plan any changes – including seeking legal advice where there are any proposed changes to existing arrangements for individual learners.
"It is vital that education authorities also involve trade unions in discussions of any updates to policies, in particular drawing on the skills of trained Equality Representatives.”
Earlier this week, the education secretary Jenny Gilruth was criticised for refusing to answer whether or not trans girls can use the girls toilets.
In response to repeated questions in Holyrood about this yesterday, Ms Gilruth said:" The rights of all children and young people must be respected in our schools”.
The Scottish Government has said the guidance is non-statutory and is designed to help education authority, grant-aided and independent schools to make decisions effectively but "cannot be prescriptive or specific about what is required in individual circumstances".
Yet, Ms Bradley warned that the guidance still “falls short” of what schools, parents and pupils urgently need.
“Unfortunately, the guidance falls short of providing the clarity schools, teachers, parents and young people so urgently need," she said, "Decisions will be left up to individual local authorities and schools while the guidance fails to address how significant concerns about the health, safety and wellbeing of transgender pupils will be addressed if pupils cannot use facilities in accordance with their gender identity.”
She added that the union has already received troubling reports since the start of the school year: “As schools returned after the summer, the EIS received several reports of the significant detrimental impact of policy changes, arising from the recent court decisions, on transgender and intersex learners, and inconsistent practices across local authorities. In schools where changes to access arrangements for toilets had been mooted, the EIS heard of transgender learners limiting their food and liquid intake so as to not risk having to use the facilities at school and thereby risk being ‘outed’.”
While the guidance suggests steps such as enabling transgender learners to use toilets outside break times or providing single occupancy rooms on school trips, the EIS cautions that such measures risk “creating a state of exceptionalism” that could isolate pupils from their peers.
The union also raised concerns about the practical implications of directing transgender pupils towards staff or accessible facilities, stressing the need for full Equality Impact Assessments.
The EIS further warned that “media narrative” around recent court decisions could fuel hostility towards LGBT people, particularly transgender Scots, and stressed the importance of robust communication, resources and support to protect inclusive education.
The statement concluded: “Importantly, the definition of ‘sex’ for the purposes of the Equality Act (2010) should not impede schools or individuals from respecting transgender people and their gender identity, using pronouns in accordance with their gender identity, and more broadly promoting the inclusion of transgender people. We are clear that understanding, inclusion, and safety are all essential factors to ensure every pupil, including those who are transgender, can be visible in our educational establishments and have their needs met.”
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