Summary of Opinion — Judge Poole

Factual and Procedural Background

The Petitioners are parents of a child ("Child") who started at The School in August 2025. The School building opened in August 2024. The School contains four main communal toilet areas (two on each floor) and six other single toilets across the building. Initially all toilets were unisex; subsequently some individual cubicles were labelled male, female or both. Wash basins are located outside the cubicles in communal areas open to corridors and supervision. Child finds the mixed arrangements distressing, avoids using the main toilets, reduces fluid intake and suffers pain on returning home. Parents raised concerns and the Respondent (Company A) responded by email of 11 September 2025 asserting compliance with EHRC interim guidance and the 1967 Regulations and indicating no plans to change the provision unless required by revised guidance. The Petitioners sought judicial review challenging (inter alia) compliance with the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 ("1967 Regulations") and the Equality Act 2010 ("2010 Act"). Judge Poole heard written and oral material from both parties and determined the issues below.

Legal Issues Presented

1. Whether the Respondent's provision of sanitary accommodation at The School complies with Regulation 15 of the 1967 Regulations (i.e. whether "sanitary accommodation" requires separate spaces for boys and girls that include wash basins as well as appliances).
2. Whether the Respondent's arrangements amount to unlawful indirect discrimination under section 19 of the Equality Act 2010 (protected characteristic: sex).
3. Whether the arrangements amount to harassment under section 26 of the Equality Act 2010.
4. Whether the Court of Session's supervisory jurisdiction should entertain the petition (versus alternative remedies, including routes under the 2010 Act or complaints to the Scottish Ministers), and the appropriate remedy if unlawfulness is found.

Arguments of the Parties

Petitioners' Arguments

• The 1967 Regulations, read in context, require separate sanitary accommodation for boys and girls comprising both sanitary appliances and wash basins; the School's arrangement (separate cubicles only, shared wash areas) breaches Regulation 15.
• The unisex configuration (including shared wash basins) is a provision, criterion or practice (PCP) that places girls at a particular disadvantage (hygiene, menstruation, privacy, vulnerability) and thus constitutes unlawful indirect discrimination under section 19 of the 2010 Act.
• The arrangements also amount to harassment under section 26 of the 2010 Act (although the petition relied primarily on indirect discrimination).
• The Court's supervisory jurisdiction is appropriate to review the Respondent's exercise of statutory duties and powers in providing sanitary accommodation at The School.

Respondent's Arguments

• The Respondent contends the email of 11 September 2025 contained no reviewable decision and merely explained current guidance compliance; any challenge should be to Company B (Scottish Ministers) or pursued by other statutory routes under the 2010 Act in the sheriff court.
• On the 1967 Regulations, the Respondent argues Regulation 15 requires separate provision only of toilets (appliances) and not separate wash basin areas; the School's labelled cubicles and nearby wash basins comply with Regulation 15.
• On the 2010 Act, the Respondent denies a relevant PCP or particular disadvantage and maintains there is no harassment; it also argued it should be permitted to investigate factual matters in other forums.
• The Respondent relied on existing and revised guidance about transgender pupils and on practical concerns (distance, supervision, capacity) in relation to redesignating toilet blocks.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R(A) v Company B [2021] 1 WLR 3931	Scope of supervisory jurisdiction to review actions, omissions and policies.	Supported the proposition that the Court may supervise exercise of statutory duties and powers (not confined to formal decisions).
Company C v Company B [2025] UKSC 16	Statutory interpretation principle: presumption a word has the same meaning throughout an enactment (and related contextual interpretation).	Used to support interpreting "accommodation" consistently within the 1967 Regulations.
Hurley v Company D (interlocutor 23 April 2025)	Authority concerning gender-neutral toilets in a school (interlocutor by consent).	Noted as a prior interlocutor reflecting the law and indicating the Respondent's awareness that existing provision may be problematic.
Hutchinson v Company E [2026] 1 WLUK 238	Findings on differential impact on women in communal changing/ toileting situations (sensitivity, vulnerability).	Relied on to explain why girls may be particularly disadvantaged by unisex communal arrangements.
R(C) v Company F [2017] 1 WLR 4127	Observations on gendered life experiences (quotation used to illustrate differences between men and women).	Referenced to support recognition of gender-specific vulnerabilities relevant to privacy and dignity.
McCue v Company G [2014] CSOH 124	Supervisory jurisdiction is a remedy of last resort; principles on when judicial review is appropriate.	Applied in assessing whether the Court should entertain the 2010 Act grounds and whether special circumstances existed.
Lauchlan and O'Neill v Company B 2022 SC 125	Authority on delay/time-bar issues in judicial review context.	Referenced in deciding not to insist on a time-bar argument at substantive hearing.
Helensburgh Community Council, Petitioner [2025] CSOH 105	Authority on procedural/time considerations in judicial review.	Referenced alongside Lauchlan and O'Neill in relation to time-bar arguments.
King v Company I 1998 SC 182	Circumstances in which remedies in judicial review may be withheld (good administration considerations).	Used to assess whether remedies should be refused despite a finding of unlawfulness; court found no reason to withhold remedies here.
R (Sitki) v Company J 1993 WL 965925	Principles on discretionary withholding of remedies in judicial review.	Applied in considering the discretion to refuse relief; court declined to withhold remedies.
NLEI Ltd v Company B 2023 SLT 149	Courts will generally grant remedies where unlawfulness is established; exceptions are narrow.	Supported the court's conclusion that remedies should ordinarily follow a finding of unlawfulness.
R (Corus UK Ltd) v Company L [2010] EWCA Civ 1626	Support for regularising unlawful positions by granting remedies.	Cited in support of granting declaratory and reduction remedies in this case.
Walker v Company M 1986 SLT 523	Precedent that section 70 complaints to Company B do not necessarily bar judicial review.	Applied to reject the Respondent's plea that the petition was incompetent due to the availability of section 70 complaints procedure.

Court's Reasoning and Analysis

The Court first determined the supervisory jurisdiction was properly engaged. The response email of 11 September 2025 was read in context and held to be a statement as to how statutory duties were being exercised, not merely explanatory. The School's sanitary arrangements were therefore reviewable as measures taken in exercise of statutory powers under the Education (Scotland) Act 1980.

On the 1967 Regulations the Court construed Regulation 15. It concluded "sanitary accommodation" is an inclusionary concept encompassing not only appliances (water closets and urinals) but also wash basins, partitions and lockable doors and facilities for disposal of sanitary towels. Applying the presumption of consistent meaning, the "accommodation" that must be half for boys in schools not designed exclusively for girls includes the space for toileting activities (appliances and wash basins). The School's arrangement—separating only cubicles by sign but having shared wash basin areas—did not provide separate sanitary accommodation for boys and girls as required, and also failed the requirement that one third of boys' appliances be water closets and the remainder urinals.

On the 2010 Act (indirect discrimination under section 19), the Court identified the PCP as the provision of toilet spaces in the School as unisex, such that cubicles are labelled but wash basins and waiting areas are communal. The Court found:

• the PCP is applied to both boys and girls;
• it puts girls as a group at a particular disadvantage (hygiene considerations linked to female anatomy and menstruation, and vulnerability/privacy concerns), supported by parent concerns and authorities noting gendered differences in sensitivity to communal intimate spaces;
• the Child was put at that disadvantage in fact (evidence of distress, avoidance of school toilets, reduced fluid intake and pain at home); and
• the Respondent advanced no justification (no legitimate aim or proportionality defence was pleaded or proved).

Accordingly, the Court held the arrangements amounted to unlawful indirect discrimination contrary to section 19 of the 2010 Act.

On harassment (section 26), the Court analysed unwanted conduct related to sex and its effects under section 26(4). Although the conduct was unwanted and related to sex, and the Child perceived distress, the Court concluded the statutory test for harassment (the high threshold of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment) was not met on the facts. The availability of single-user toilets elsewhere in the School weighed against finding harassment. The harassment claim was therefore rejected.

Preliminary pleas that alternative statutory routes (sections 113/114 of the 2010 Act; complaints under section 70 of the 1980 Act) barred the petition were considered and rejected. The Court found special circumstances and that the section 70 complaint procedure did not provide an effective remedy that would bar judicial review.

On remedy, the Court considered established discretion but concluded that where unlawfulness is found remedies should ordinarily follow. The Petitioners sought declarators and reduction of the Respondent's email of 11 September 2025. The Court found no reason to withhold relief and ordered the remedies sought (statements 4a–d), awarding expenses to the Petitioners (statement 4e).

Holding and Implications

HOLDING: The petition is successful. The Court held the Respondent's sanitary arrangements at The School breach Regulation 15 of the 1967 Regulations and amount to unlawful indirect discrimination under section 19 of the Equality Act 2010; the harassment claim under section 26 was rejected. The Court granted the declarators and reduction sought and awarded expenses to the Petitioners.

Implications: The direct consequence is that the Respondent (Company A) must regularise the sanitary accommodation at The School to comply with the 1967 Regulations and to remedy the unlawful indirect discrimination found. The Court did not create a new statutory rule beyond its interpretation of existing provisions and emphasised that any policy or legislative change to the 1967 Regulations is for Company B (the Scottish Ministers) under their statutory powers. No order for specific performance was sought; the Respondent remains responsible for deciding the practical steps to achieve compliance consistent with the Court's findings.