“Sanitary Accommodation” Means Sex-Separated Toilet-and-Wash Spaces: Unisex School Toilet Areas Breach the 1967 Regulations and May Indirectly Discriminate

1. Introduction

This judicial review concerned toilet provision in a new-build primary school for which West Lothian Council (the “Council”), as education authority, was responsible. The petitioners (parents of a girl pupil, “C”) challenged a configuration in which the main toilet areas were accessed and used as mixed-sex spaces for circulation and handwashing, while individual cubicles within those areas were sticker-designated as male, female, or unisex. C was distressed by sharing the wider toilet space with boys and avoided using school toilets, reducing fluid intake and returning home in pain.

The petitioners contended that the arrangements (i) breached the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 (the “1967 Regulations”) and (ii) were unlawful under the Equality Act 2010 (the “2010 Act”), in particular indirect discrimination and harassment in the school context (section 85).

The key legal issues were:

• Whether the Council’s toilet policy/arrangements were amenable to judicial review (and whether the challenged email was merely “explanatory” rather than a reviewable position).
• Whether Regulation 15 of the 1967 Regulations requires sex-segregated spaces that include wash basins, not merely sex-designated cubicles.
• Whether unisex toilet “spaces” amounted to indirect sex discrimination under section 19 of the 2010 Act, and whether harassment under section 26 was established.
• Whether alternative remedies (notably section 70 of the Education (Scotland) Act 1980 and sheriff court proceedings under the 2010 Act) rendered the petition incompetent or inappropriate.
• What remedies should follow if unlawfulness were established.

2. Summary of the Judgment

Lady Poole held that:

• The Council’s position on toilet provision (reflected in its 11 September 2025 email and maintained in practice) was subject to the Court of Session’s supervisory jurisdiction.
• The main toilet areas breached Regulation 15 of the 1967 Regulations because “sanitary accommodation” includes the wider toileting space, including wash basins; the law therefore required sex-segregated sanitary accommodation for boys and girls, not merely sex-designated cubicles within a shared space.
• The school’s arrangements also breached the Regulation 15 requirement for urinals (two-thirds of boys’ appliances should be urinals), on the facts.
• The unisex provision amounted to unlawful indirect sex discrimination under section 19 (read with section 85) of the 2010 Act; the Council did not advance a justification defence.
• Harassment under section 26 was not established because the statutory threshold is high, and the availability of other single-occupancy toilets affected the “reasonableness” assessment.
• Neither section 70 of the 1980 Act nor the availability of sheriff court proceedings barred judicial review; in any event, special circumstances justified the court determining the 2010 Act issues alongside the regulatory illegality.
• Declarators and reduction were granted as sought; expenses followed success.

3. Analysis

3.1 Amenability to Judicial Review: policy/position, not just “decisions”

A significant preliminary holding was that the court may supervise not only discrete decisions but also “a range of actions, omissions and certain policies” (citing R(A) v Home Secretary [2021] 1 WLR 3931 at paragraph 46). The Council’s email response—prepared after senior management advice and indicating no planned change absent new guidance—was treated as a statement of the Council’s operative legal position on how its statutory duties were being fulfilled.

The court rejected the suggestion that responsibility lay only with the Scottish Ministers because the Council was “just following guidance”. The judgment reiterates a familiar public law boundary: guidance is not law, and an authority must comply with its statutory duties and constraints even where government guidance is incomplete, outdated, or inconsistent with the law.

3.2 The 1967 Regulations: “sanitary accommodation” includes wash-basin space

(a) The interpretive problem

Regulation 15(1) requires that (subject to nursery exceptions) sanitary accommodation be provided by appliances to a minimum scale, and—critically—provides that (except where paragraph (1A) applies) in any school not designed exclusively for girls, half the accommodation shall be for boys. But “sanitary accommodation” is not defined. The dispute therefore turned on statutory construction: does sex segregation apply only to WC/urinal cubicles (“appliances”), or to the broader toileting area including handwashing?

(b) Lady Poole’s construction

Lady Poole construed “sanitary accommodation” contextually and purposively within the 1967 Regulations’ scheme of standards. Regulation 15 regulates not merely numbers of appliances, but the conditions of use: wash basins (Regulation 15(3)), privacy partitions and lockable doors (Regulation 15(4)), and sanitary towel disposal in girls’ accommodation beyond P IV (Regulation 15(2)). From this, the court reasoned that “sanitary accommodation” is an umbrella concept covering the space in which regulated toileting activities occur, including handwashing.

A key step in the reasoning was the assumption of consistent meaning of “accommodation” across the instrument, supported by For Women Scotland v Scottish Ministers [2025] UKSC 16 (paragraphs [13] and [176]) as authority for the presumption that a word has the same meaning throughout an enactment. Just as “educational accommodation” is a composite space used for diverse activities, “sanitary accommodation” was read as a composite space used for toileting activities.

(c) Application to the facts

Because pupils in the main toilet areas had to exit cubicles and cross a shared mixed-sex area to reach shared wash basins—open to corridors—the court held the Council had not provided sex-segregated sanitary accommodation as required. Placing male/female stickers on cubicle doors did not satisfy the duty where the remainder of the sanitary accommodation was shared.

Additionally, the court found a further breach: Regulation 15 contemplates that in the boys’ accommodation, only one-third of appliances should be WCs and the remainder urinals; the school had no urinals. Although the judgment noted the 1967 Regulations may be “dated”, it emphasised they remain binding unless and until amended by the Scottish Ministers under section 19 of the Education (Scotland) Act 1980.

(d) Guidance, “Hurley”, and the regulatory stalemate

The judgment places the dispute within a broader administrative context:

• The prior Scottish Government guidance (April 2021) suggested there was “no law” restricting male/female toilets by sex assigned at birth, while later revised guidance (September 2025) stated that separate toilet facilities for boys and girls must be provided, and facilities require to be made available on the basis of biological sex, while considering gender-neutral provision for transgender pupils.
• The revised guidance followed an interlocutor of consent in Hurley v Scottish Borders Council (23 April 2025) about gender neutral toilets in school, described as reflecting the law in force.
• EHRC Technical Guidance for Schools in Scotland (23 September 2025) was consistent with the requirement of sex-segregated provision.

Notably, West Lothian Council had itself sought modification of Regulation 15 via section 133(4) of the 1980 Act; Scottish Ministers deferred determination pending this litigation. Lady Poole treated this as part of the “special circumstances” supporting the court’s exercise of supervisory jurisdiction and the granting of remedies.

3.3 Equality Act 2010 in judicial review: when the Court of Session will decide it

(a) Statutory route vs supervisory jurisdiction

The Council argued that Equality Act issues were better suited to sheriff court proceedings (sections 113–114) where evidence could be tested. The judgment accepts the general enforcement structure of Part 9 of the 2010 Act but relies on section 113(3)(d), which makes clear that the Act does not prevent an application to the supervisory jurisdiction.

Lady Poole then applied Scottish judicial review “last resort” principles (drawing on McCue v Glasgow City Council [2014] CSOH 124) and English authority on late-raised Equality Act points (R(C) v Work and Pensions Secretary [2017] 1 WLR 4127), but concluded that this case was suitable for determination on the written evidence and affidavits lodged; there were no obvious conflicts requiring oral proof.

Crucially, the Equality Act grounds were treated as an adjunct to the “classic” public law complaint (unlawful exercise of education functions contrary to statutory standards), and splitting proceedings would risk duplication and injustice.

3.4 Indirect discrimination: unisex toilet “spaces” as a sex-based PCP

(a) The PCP and comparator group

The “provision, criterion or practice” (PCP) was defined as providing toilet spaces in the school as unisex: even where some cubicles were designated, the wider space (including waiting and handwashing) was mixed-sex, and the court treated that as the relevant “toilet space”. The PCP applied to boys as well as girls (satisfying section 19(2)(a)).

(b) “Particular disadvantage” to girls (section 19(2)(b))

Lady Poole accepted a group disadvantage to girls based on:

• Hygiene/physiology: toileting ordinarily includes handwashing; girls have sex-specific hygiene needs arising from anatomy and, for older pupils, menstruation (noting Regulation 15(2)’s sanitary towel disposal requirement beyond P IV).
• Privacy, dignity, vulnerability: the judgment drew support from Hutchinson v County Durham and Darlington NHS Foundation Trust [2026] 1 WLUK 238 (paragraphs 270–272) on women’s heightened sensitivity and vulnerability in mixed-sex intimate spaces, and from R(C) v Work and Pensions Secretary [2017] 1 WLR 4127 (paragraph 1) on men and women “lead[ing] different lives”.
• Contemporaneous concern: parent council minutes recorded that other girls felt uncomfortable with mixed arrangements, reinforcing that the discomfort was not idiosyncratic.

The Council’s reliance on staff visibility of wash areas and the age of the pupils did not defeat the disadvantage analysis. Nor did the existence of six other single-occupancy toilets elsewhere in the school: the court viewed these as insufficient to negate a disadvantage experienced by girls generally in a school with many pupils and 16 classrooms.

(c) Disadvantage to C (section 19(2)(c))

On the evidence, C avoided school toilets, held urine until home, and reduced fluid intake. The court accepted that the group disadvantage applied to her; directing her to alternative toilets would risk “standing out” and did not answer the systemic nature of the PCP.

(d) Justification (section 19(2)(d))

The Council did not plead or argue justification as a proportionate means of achieving a legitimate aim, and therefore failed at section 19(2)(d). The burden lies on the respondent to raise and prove justification; absent a legitimate aim and proportionality evidence, the indirect discrimination claim succeeded.

3.5 Harassment: a higher threshold not met on these facts

Although the court found the presence of boys in the same toilet space was “unwanted conduct related to” sex (section 26(1)(a)), it refused to equate distress and discomfort with the stronger statutory language of “violating dignity” or creating an “intimidating, hostile, degrading, humiliating or offensive environment”. Drawing on Hutchinson (paragraphs 282–288) as a useful review of section 26 requirements, the court emphasised that harassment is a “strong word”.

A decisive factor in the “reasonableness” limb (section 26(4)(c)) was that C had access to other single-occupancy toilets that could be used by one sex at a time. While that did not eliminate disadvantage for indirect discrimination, it mattered to whether the Council’s conduct reasonably had harassment-level effects.

3.6 Alternative remedies: section 70 complaints do not bar judicial review

The Council invoked section 70 of the Education (Scotland) Act 1980 (complaint to Scottish Ministers about an authority’s default) as an alternative remedy. Lady Poole distinguished between a statutory appeal to a judicial/quasi-judicial body and a discretionary ministerial complaints route:

• The section 70 procedure does not deliver an authoritative judicial determination or reduction of an act.
• The Scottish Ministers’ powers are discretionary (“may”).
• Whether section 70 extends to Equality Act issues was “undecided”.

The court held section 70 was not the kind of alternative remedy that bars judicial review, consistent with Walker v Strathclyde Regional Council 1986 SLT 523. Additionally, special circumstances existed because Scottish Ministers had deferred decision on the Council’s section 133(4) application to amend Regulation 15 until after the litigation.

3.7 Remedies and discretion

Although the court acknowledged a discretion to refuse remedies even where unlawfulness is established (citing King v East Ayrshire Council 1998 SC 182, R (Sitki) v Inner London Crown Court 1993 WL 965925, NLEI Ltd v Scottish Ministers 2023 SLT 149, and R (Corus UK Ltd) v Newport City Council [2010] EWCA Civ 1626), it emphasised that refusal is exceptional. Here, the petition sought declarators and reduction (not specific performance), leaving implementation choices to the Council. Operational disruption arguments did not approach the “good administration” concerns in King. Accordingly, the court granted declarators and reduction and awarded expenses to the petitioners.

4. Impact

4.1 For Scottish education authorities and school design

The judgment provides a clear, court-endorsed reading of Regulation 15 that many modern “learning estate” toilet designs will need to accommodate: sex-segregation must apply to the sanitary accommodation space, including handwashing, not merely to cubicles within a mixed zone. This has direct implications for new builds and retrofits, and raises budgetary and practical supervision questions, but the court’s stance is that these are for policymakers and regulators, not for courts to “modernise” by interpretation.

4.2 For Equality Act claims in public law proceedings

The decision illustrates when Equality Act claims may be determined in judicial review: where they arise from the same facts as a core public law illegality, are pleaded from the outset, and can be resolved fairly on affidavit/written evidence without extensive proof. It also underscores litigation risk where a public authority does not plead justification to an indirect discrimination claim.

4.3 For “guidance vs law” in politically contested areas

The court’s repeated insistence that guidance cannot displace statutory requirements is likely to be cited in future disputes where authorities rely on interim guidance to defend infrastructure or service configurations that engage statutory standards or Equality Act duties.

5. Complex Concepts Simplified

• Supervisory jurisdiction (judicial review): the Court of Session can review not only formal “decisions” but also policies, omissions, and maintained positions about how statutory duties are being carried out.
• Statutory construction: where a term is undefined (“sanitary accommodation”), the court interprets it by looking at context, purpose, and consistent usage across the instrument.
• Indirect discrimination (Equality Act 2010, section 19): a neutral rule/practice (here, unisex toilet spaces) is unlawful if it disadvantages a protected group (girls) compared to others (boys), disadvantages the claimant, and cannot be justified as proportionate to a legitimate aim.
• Justification defence: the respondent must identify a legitimate aim and prove the measure is proportionate; if not advanced, the court may find discrimination established.
• Harassment (section 26): requires more than upset or discomfort; it targets conduct with sufficiently grave effects on dignity or environment, assessed partly by whether it is objectively reasonable for the conduct to have that effect.
• Alternative remedy: judicial review is often refused if a suitable statutory appeal exists; a discretionary ministerial complaints process may not qualify as an “effective” alternative.

6. Conclusion

Petition of DE and FG against West Lothian Council confirms that, under the 1967 Regulations, “sanitary accommodation” in schools is a sex-segregated space encompassing both appliances and the handwashing area, not merely individual cubicles labelled by sex. A mixed-sex toilet area arrangement can therefore be unlawful on regulatory grounds, and—on the evidence in this case—can also amount to unlawful indirect sex discrimination under the Equality Act 2010 where disadvantage to girls is established and no justification is advanced. At the same time, the court drew a line between indirect discrimination and harassment, holding the statutory threshold for harassment was not met on these facts. The judgment is likely to shape how Scottish local authorities design, designate, and litigate school toilet provision, particularly where modern building layouts have adopted mixed-access handwashing zones.