Court of Session Rules West Lothian School Toilets Unlawful

Court of Session rules West Lothian Council’s school toilet arrangements unlawful: DE and FG v West Lothian Council

 A significant decision on school premises regulations, equality duties and the importance of lawful decision-making

The recent decision of the Court of Session in DE and FG v West Lothian Council [2026] CSOH 52 is an important development in the law relating to school premises, education authority duties and equality law in Scotland. 

Our firm was privileged to act for the petitioners, DE and FG, in this judicial review against West Lothian Council. The case concerned the lawfulness of toilet provision at a recently built primary school and raised important questions regarding the duties of Local Authorities, interpretation of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 and the application of the Equality Act 2010. 

The judgment follows on from earlier proceedings in Hurley v Scottish Borders Council, where our firm also acted for the petitioners. Together, these cases represent significant consideration by the Court of Session of the legal framework governing school toilet provision in Scotland and the duties placed on education authorities.

 Background to the case

Over the last decade or so, many Local Authorities have provided only mixed sex toilet blocks in their new school buildings.   These decisions were made despite the clear requirements of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967, which required separate toilets for boys and girls.  Although now quite old, these Regulations have not been repealed, something Local Authorities and the Scottish Ministers were fully aware of, having carried out a public consultation before covid into whether or not to change them.  No action was ever taken to alter or repeal the Regulations and the question as to why they were not followed is one that remains unanswered.

In 2025, the Court of Session held in the case of Hurley v Scottish Borders Council that all Scottish Schools had to provide separate toilets for boys and girls.  Many believed that would be the end of the matter.  What happened next was a surprise.  Many schools reacted to Hurley by simply applying signage to the cubicles within their mixed sex toilet blocks, designating some cubicles for girls, some for boys and some for boys or girls.  The remainder of the toilet areas including the sinks, corridors and entrances, remained mixed-sex, with boys and girls all together at the sinks and in the areas between the cubicles and the sinks.  The cubicles themselves had no wash basins or provisions for girls who were menstruating, those being in the mixed sex areas or provided in separate toilets in different parts of the school.

The petitioners in DE and FG challenged exactly such a toilet arrangements at their daughter’s primary school, where the main toilet facilities were within mixed sex spaces including communal entrances and wash basins, with individual cubicles designated by signage, rather than providing separate male and female toilet areas.

The petitioners argued that this arrangement did not comply with the requirements of the 1967 Regulations and that the Council’s approach gave rise to unlawful indirect discrimination under the Equality Act 2010. 

The case required the court to consider the meaning of “sanitary accommodation” under the 1967 Regulations and whether the statutory requirements extended beyond individual toilet cubicles to include washing facilities.  The Court was also asked to decide whether the fact that girls had different needs when using a toilet meant that the mixed sex toilets provided were indirect discrimination of girls on the grounds of their sex.

 The Court’s decision

 Lady Poole, sitting in the Outer House of the Court of Session, upheld the petitioners’ challenge.

The court found that the toilet arrangements did not comply with the requirements of the 1967 Regulations. In particular, the court held that “sanitary accommodation” included both toilet facilities and associated wash basins, meaning that the legislation required separate facilities for boys and girls, not just labelled cubicles. 

The court also found that the arrangements amounted to indirect discrimination under the Equality Act 2010. While the provision applied to all pupils, the court concluded that it placed girls at a particular disadvantage, including in relation to privacy, dignity and health and safety considerations.  In reaching this decision, the court found that girls and women have particular needs when using public toilets that boys and men do not have.  These include needs arising from girls’ anatomy, from menstruation and from girls’ vulnerability when using toilets in communal areas.  The court rejected the Council’s argument that girls who were menstruating, or were otherwise uncomfortable, could use accessible toilets in other parts of the school, not least because this would require children to single themselves out.

 Guidance cannot replace legal obligations

A key theme arising from DE and FG is the distinction between guidance and legislation.

The Council argued that its approach was consistent with Guidance from the Scottish Ministers in place at the time the school was built. That Guidance has since been withdrawn.  However, the court confirmed that guidance cannot override statutory requirements. Public authorities must act within the legal framework established by Parliament.  In other words, they must follow the law, not erroneous guidance.

This is an important reminder that policies, guidance and design principles must always be assessed against the underlying statutory duties that govern public decision-making.  Education authorities must ensure that their decisions comply with statutory requirements and properly account for equality law obligations.

Why this matters?

The decision has significance for education authorities throughout Scotland. It highlightsthe need for lawful decision-making by public bodies, the importance of equality law considerations in the provision of public services andthe ability of judicial review to hold public authorities to account.  It also highlights the consequences for Local Authorities of getting these decisions wrong. Here the consequences include the negative impact on children and the financial cost to the Local Authority in legal fees and in retrofitting school toilets.

 Our involvement

Our Public Law team were honoured to represent the families in both Hurley and in DE and FG in bringing these important challenges before the Court of Session.   Our team represents a range of clients in public law and equality law challenges to public bodies.  If you require advice on public law challenges or judicial review proceedings, please contact our team.

To discuss any of the points raised further, please contact a member of our Litigation team here.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.