Schools across Scotland are facing a pivotal moment as the Scottish Government unveiled new guidance on September 29, 2025, requiring separate toilet facilities for boys and girls based strictly on biological sex. This move comes in the wake of two landmark court rulings, including a decisive UK Supreme Court judgment in April clarifying that, under the Equality Act 2010, the legal definition of sex refers to biological sex. The updated guidance, while affirming these legal precedents, also urges schools to consider the needs of transgender students by providing gender neutral facilities where possible, sparking a heated debate among political leaders, advocacy groups, and educators.
For years, Scottish schools had operated under previous guidance that allowed pupils to use whichever toilet they felt most comfortable in—a policy that was seen by many as progressive and inclusive. However, according to BBC and The National, the recent rulings have forced a significant policy shift. In April, a Scottish judge ruled that single-sex toilets are a legal requirement in schools, a decision that followed the Supreme Court’s unanimous declaration that ‘sex’ in the Equality Act means biological sex. This legal clarity prompted the Scottish Government to revise its stance, culminating in the updated guidance released this week.
The new document, spanning 64 pages, states unequivocally: “Separate toilet facilities for boys and girls must be provided in schools.” It further specifies, “As the law stands, the facilities require to be made available on the basis of biological sex.” Yet, the guidance does not stop there. Recognizing the complexities faced by transgender students, it notes that schools should “consider” additional provisions, which “may include the use of gender neutral provision.”
This balancing act is reflected throughout the guidance, which repeatedly stresses the importance of supporting transgender pupils’ mental, physical, and emotional health. It warns against the risk of “outing” a young person as transgender—an act that could have serious repercussions for their wellbeing, relationships, and behavior. The document suggests practical measures, such as allowing transgender pupils to use facilities outside of usual breaktimes or providing access to certain facilities aligned with specific school activities. These steps, it argues, are aimed at reducing the visibility of students moving across the school to access toilets or changing rooms, thereby minimizing potential distress or unwanted attention.
Education Secretary Jenny Gilruth emphasized the government’s commitment to upholding both the letter and the spirit of the law, while ensuring that all children’s rights are protected. “The Scottish Government has made clear it accepts the Supreme Court ruling and since April has been taking forward the detailed work that is necessary as a consequence of the ruling. That work is ongoing,” she stated. “The rights of all children and young people must be respected in our schools. We have brought forward updates to guidance to provide clarity and confidence to teachers and staff as they work to support the mental, physical and emotional health of transgender young people in our schools following recent significant legal and policy developments.”
Gilruth’s remarks underscore a core theme in the guidance: respect for every pupil’s individual needs. “All schools are required to provide separate toilets for girls and boys. In addition, the guidance makes clear that councils should give careful consideration to the individual needs of transgender pupils in light of the school context and school community,” she added. The guidance also addresses the issue of school uniforms, cautioning that “forcing transgender young people to wear clothes which do not match their gender identity can be distressing for them and may constitute discrimination under the Equality Act 2010.”
Despite these reassurances, the guidance has drawn sharp criticism from some quarters. The Scottish Tories, for instance, argue that the government is sending mixed messages and failing to enforce the law promptly. Roz McCall, the party’s spokeswoman for children and young people, did not mince words: “The Supreme Court ruling was clear, the legal definition of a woman is based on biological sex, and they are entitled to single-sex spaces. But instead of enforcing the law, the SNP have confused matters further by producing this contradictory and potentially harmful guidance that will make things more difficult for schools.”
Gender-critical groups, including For Women Scotland (FWS), have also voiced frustration, accusing the government of dragging its heels in implementing the Supreme Court’s guidance. According to The National, FWS and similar organizations have criticized the pace of change, noting that the Equality and Human Rights Commission (EHRC) had already issued interim guidance banning transgender people from using bathrooms of their acquired gender. Full, statutory guidance is still pending with UK ministers after a lengthy consultation.
The Scottish Government’s updated guidance is non-statutory and not legally binding. Instead, it places significant responsibility on education authorities and individual schools to assess the needs of transgender pupils in the context of their own communities. The document acknowledges the limits of government oversight, stating: “It is essential that education authorities and schools consider in detail the individual needs of transgender pupils, in light of their local circumstances, school context and the need to balance the rights of all, in light of the information that they have about those matters. It is not possible for the Scottish Government to provide advice on the outcomes for individual pupils as a result of these individual needs assessments as Scottish Ministers and the Scottish Government do not have the necessary information to do so.”
Schools are advised that, depending on the circumstances, they may need to seek legal advice before implementing or altering arrangements for transgender students. This cautious approach reflects the legal and social sensitivities at play, as well as the evolving nature of the debate over gender identity and rights in education.
While the guidance is intended to “provide transgender young people with the best possible educational experiences,” as stated in the document, it also acknowledges the tension between individual rights and collective needs. Schools are encouraged to consider the impact of any increased use of accessible facilities, ensuring that all pupils who require them are able to do so without undue burden or exclusion.
The updated policy has ignited passionate responses from all sides, reflecting broader societal debates about gender, identity, and inclusion. For some, the guidance represents a necessary alignment with legal realities and a reaffirmation of single-sex spaces. For others, it is seen as a step backward for transgender rights, or at best, a compromise that leaves too much ambiguity for schools and vulnerable students alike.
As Scotland’s schools adapt to these new rules, the challenge will be to uphold the rights and dignity of every pupil—balancing legal obligations, practical realities, and the deeply personal experiences of young people navigating their identities. The coming months will test how well this delicate balance can be maintained on the ground.
