Outer House grants parents’ petition challenging lawfulness of West Lothian school’s toilet provision

About this case:

• Citation:
  [2026] CSOH 52
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Poole

Petitioners DE and FG raised a petition against West Lothian Council on the basis that toilet provision at the school contravened the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 and constituted indirect discrimination under section 85 of the Equality Act 2010. They sought declarator that the school’s current toilet policy was unlawful and that “sanitary accommodation” per the 1967 Regulations included washbasins, and reduction of an email dated 11 September 2025 in which the school’s headteacher stated that the school had taken appropriate steps to fully conform to the relevant interim EHRC guidance.

The petition was heard by Lady Poole in the Outer House of the Court of Session, with Welsh, advocate, appearing for the petitioners and Scott KC for the respondent. No submissions were received from the Scottish Ministers, who had the action intimated to them, as they did not become a party.

Mandated separate space

In August 2025 the petitioners’ daughter C started primary school. The school building was opened in August 2024, having been developed through the Scottish government’s Learning Estate Investment Programme, and contained 34 flushing toilets across two main communal toilet areas on each of its two floors and six other rooms. Initially, all toilets in the school were gender neutral and unisex, the washbasins being shared, but later stickers were put on the doors of individual cubicles within the four main toilet areas to designate ten male cubicles and ten female cubicles, with a further eight non-assigned cubicles and the six non-assigned accessible toilets.

While in general C was happy at school, she said that she did not like going to the toilet while boys were in there as they were “too noisy” and she began avoiding using the toilets at school and holding it in until she returned home, resulting in pain. On 10 September 2025, C’s father emailed the school to inquire about the facilities, but no changes were made to the toilet configuration in response to the concerns that had been raised. The headteacher expressed concerns about some pupils having to walk further, potential issues about congestion, supervision and capacity, effects on pupils, and going against the design principles of the building.

The petitioners submitted that, when Regulation 15(1) of the 1967 Regulations was read in context, it mandated a separated space for boys and girls respectively comprising both sanitary appliances and washbasins. The current arrangements therefore did not comply with the 1967 Regulations, and furthermore no urinals were provided. On the other hand, the respondent submitted that Regulation 15 only extended to toilets and did not contain a requirement for separate washbasins.

In respect of indirect discrimination, the respondent invited the court to consider that there was no relevant case. They further maintained that the claim of harassment could not sensibly be made in a petition for judicial review, but would be better made to the sheriff under section 113 of the 2010 Act which would allow the facts to be established and for the Council to have the opportunity to investigate and present evidence in rebuttal.

Inclusionary term

In her decision, Lady Poole noted that the 1967 Regulations were “not a model of clarity”, explaining: “Section 15(1) requires half of ‘the accommodation’ to be for boys, and it is this provision that gives rise to a legal requirement for separate toilet provision for the two categories mentioned in section 15, of girls and boys. The word “’he accommodation’ is a reference to ‘sanitary accommodation’, because of the title of the section and the earlier wording of section 15(1). Accordingly, half of the ‘sanitary accommodation’ must be for boys. But what does “sanitary accommodation” mean? Unfortunately, ‘sanitary accommodation’ is not a defined term in the 1967 Regulations, and so its meaning is a question of statutory construction.”

She added: “Accommodation, as it is used elsewhere in the 1967 Regulations, appears to be an inclusionary term used to cover the space within which a particular matter being regulated takes place. Applying that approach, Regulation 15 regulates the space in which all of the activities within it are taking place and includes was basins as well as flush toilets or urinals. The ‘accommodation’ which must be segregated according to sex includes not only the flush toilets, but also the wash basins which must be situated near them under Regulation 15(3).”

Considering the indirect discrimination element of the case, Lady Poole said: “The Council suggested that the petitioners could have brought a claim for indirect discrimination to the sheriff, under sections 113 and 114 of the 2010 Act. That observation is correct. However, section 113(3)(d) states that subsection 113(1) does not prevent an application to the supervisory jurisdiction of the Court of Session. The ability to bring an action in the sheriff court under section 114(1)(c) does not of itself prevent this application for judicial review.”

She concluded: “The court finds that there is particular disadvantage within the meaning of section 19(2)(b) of the 2010 Act. The particular disadvantage is a combination of the additional issues for girls relating to contamination of hands due to their anatomy and physiology, and the general vulnerability of girls having to perform intimate activities in communal areas. These give rise to legitimate considerations of privacy, dignity and health and safety. The disadvantage is not negated by the small number of other toilets across the school for use of staff and pupils other than in the main toilet areas.”

While Lady Poole went on to reject the petitioner’s arguments on harassment, she therefore granted the remedies of declarator and reduction they sought.