Created on: 07 May 2025
The EIS has today written to the Cabinet Secretary seeking immediate and clear guidance for schools on the practical implementation of the legal framework related to education, in light of the Supreme Court decision of ‘For Women Scotland v Scottish Ministers’ and in the recent Court of Session decision against Scottish Borders Council.
The letter highlights the significant level of anxiety and uncertainty around the practical implementation of the recent legal decisions, and notes that despite the fact that the Interim Update issued by the EHRC is a statement which has no legal status, not constituting statutory guidance, some schools appear to be taking action based on its terms and its views on the application of the Supreme Court judgment.
Whilst the Supreme Court’s ruling focuses on the interpretation of ‘sex’ for the purposes of the Equality Act 2010, the EIS has sought clarity in relation to how the decision is to be regarded within the complex legal framework surrounding the delivery of education in Scotland. This includes (but is not limited to)
This extensive framework of provisions - which are designed to protect and promote the health, safety and wellbeing of children and young people in Scottish schools – must also be considered in the context of the inclusive whole-school approaches outlined in the Scottish Government Guidance on LGBT Inclusive Education, and heralded as a milestone for equality in education.
The EIS has questioned how these provisions will align with the decisions which have emerged from the Supreme Court and the Court of Session, and asked how schools and teachers can be assured that they are meeting their obligations under essential health, safety and wellbeing provisions if they have significant concerns about the impact of requiring a boy or a girl who is transgender to use facilities based on their birth sex.
The consequences of such action could risk ‘outing’ vulnerable young people who have lived life in their chosen sex by stealth, creating fundamental privacy concerns as well as increasing the potential for significant distress and danger to the health and safety of all transgender pupils.
This 'outing' risk remains (albeit in some cases to a lesser extent) even where the provision of gender-neutral facilities is made.
The current public discourse around this issue that we have seen emerge over the last two weeks has undoubtedly increased anxiety in the school community, particularly for transgender pupils, many of whom may feel at heightened risk in regards to their physical and psychological safety and wellbeing, and require reassurance that they are safe and supported at school – as is their right.
The EIS’s overarching position is the principle that all young people have the right to learn, and teachers the right to work, in an educational environment that is free from discrimination, where the rights of all are equally upheld.
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.
We will provide a further update when we have received a reply from the Scottish Government.
In the interim, should you be concerned or wish further advice in this area, please contact the Education and Equality Department.