Created on: 01 Oct 2025
The EIS has welcomed the fact that revised Scottish Government guidance continues to emphasise the importance of the rights of transgender and non-binary pupils in Scottish schools and of supporting the health and wellbeing of all.
Unfortunately, it falls short of providing clarity and reassurance that the rights of transgender and non-binary pupils will be preserved in the current legal context, and how schools and teachers can continue to balance competing statutory obligations.
After the Supreme Court ruling on the definition of ‘sex’ for the purposes of the Equality Act (2010), and the Court of Session judgment on the School Premises Regulations (Scotland) 1967, the EIS called for clarity from the Scottish Government on how these legal determinations are to be regarded within the complex legal framework surrounding education delivery in Scotland, including Getting it Right for Every Child (GiRfEC).
Since April, the EIS has been increasingly concerned that education authorities and schools are having to navigate immediate compliance challenges and to balance competing legal obligations in the absence of clear, practical national guidance, leaving them open to criticism and potentially heightened legal risk.
Commenting on the 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.”
Ms Bradley continued, “Unfortunately, the guidance falls short of providing the clarity schools, teachers, parents and young people so urgently need. 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.”
Ms Bradley added, “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’.”
Whilst the guidance provides some suggestions to mitigate against the risk of ‘outing’, such as enabling transgender learners to access the toilet outside break times, or providing single occupancy accommodation for trans learners on residential trips, the EIS is concerned that such interventions risk creating a state of exceptionalism for transgender students, potentially resulting in isolation and a differential educational experience from their peers.
The practical implications of suggestions to utilise staff facilities or accessible facilities, must also be considered carefully and full Equality Impact Assessments carried out.
The EIS is further concerned that the media narrative surrounding recent legal cases will add to mounting pressures and risks facing LGBT people, in particular transgender people, who are a minority group in Scotland. Beyond updated guidance, local authorities, schools, parents, carers, staff and learners require robust communication, support and resources to further trans rights within the current context, and mitigate against risks for back-tracking on LGBT inclusive education.
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.