‘What have I done wrong?’ Trans kids go back to school bathroom bans in Scotland

The night before going back to school on Wednesday, eleven-year-old Jake* was up late in floods of tears.

Jake was not just dreading the early mornings and homework like many children in Scotland, where schools returned from the summer holidays this week.

He is trans, and earlier this summer his school told his parents that he would be banned from the toilets he has been using without issue for the last three years.

“He was asking what he had done wrong for this to happen to him and if the teachers don’t like him,” said his mother Anne, 45. Jake said he was planning to avoid using the toilet at school by limiting the amount he drinks, and was even worrying about how much liquid was in his yoghurt at breakfast.

Jake’s school told his parents this week that Edinburgh council is applying its trans-exclusionary bathroom policy across the city. Last month, a council official cited the Supreme Court ruling on the definition of a woman, as well as a case specifically about school bathrooms brought in Scotland, as justification for the ban.

After his first day back, Jake told Anne he felt sad and had “lost trust” in the school. He said it “wasn’t as bad as expected”, but the only time he used the gender-neutral bathroom he had to lie to his friends about why he was using it. And at the end of the day he couldn’t go when he needed to, because there are only single-sex toilets on the route his class takes to leave the building.

Since Jake came out when he was eight – after years of expressing that he was a boy – Anne describes him as “absolutely consistently, determinedly, comfortably, and happily himself”.

But the situation at his school, which has been supportive of Jake’s gender identity and use of facilities for three years, has taken its toll on her family.

On top of this, she has been referred to social services and the police for accessing gender-affirming care for Jake. This is particularly terrifying for Anne because Jake is adopted and already experienced the trauma of losing two families as a young child.

“It’s absolutely vile that all of this is being done in the name of protecting children,” said Anne.

Edinburgh council told Good Law Project that it continues “to support trans and non-binary pupils” while awaiting new national guidance from the Equalities and Human Rights Commission (EHRC).

“In the meantime,” the council said, “we have looked at what changes needed to be made in our schools ahead of the new school term, and we have started the process of implementing these changes.”

Many human rights campaigners maintain that it’s too early to put policies in place based on the Supreme Court ruling and EHRC’s interim guidance, which is not yet law. Good Law Project’s case challenging the guidance is due in court in November, and trans judge Victoria McCloud is taking the UK to the European Court of Human Rights following the ruling.

Jess O’Thomson, community outreach lead at Good Law Project, is worried schools are “rushing ahead without a full understanding of the law”.

“The Supreme Court’s decision is not a carte blanche to put in place policies that discriminate against trans pupils. Schools are still under a legal obligation to ensure appropriate provision is provided, and that trans kids feel safe.

“The law in this area is very complex, and any school that assumes otherwise is likely to find itself acting unlawfully.”

And the confusion the Supreme Court has unleashed is already upending children’s lives. Another parent interviewed by Good Law Project said that her daughter’s school hasn’t changed its policy. But her daughter held in going to the bathroom all day on Wednesday, because she is scared she will be told off for getting it wrong.

Fiona, 41, has also spent the summer panicking about what the new term will bring for her trans daughter Dani, who is thirteen and has always used girls facilities at school.

Fiona was contacted by her local council in Scotland for a meeting shortly after the Supreme Court ruling in April, and like Anne, was told her child was banned from using the girls toilet. Again, the alternative offered is the gender neutral disabled toilet, but this is not an option for Dani who is not out as trans.

“Dani says to me, ‘Oh mum, if you’re speaking to them, you’ll deal with it’.” Fiona explained. “She’s fairly confident that I’ll fix it. Because that’s what you do as a parent. You just fix the things that they need fixed, and you guard them and protect them as much as you can.”

Fiona’s council told Good Law Project it was “committed to supporting all our pupils, and promoting inclusion and respect for all individuals, regardless of background, race, gender, or religion”.

“All our schools provide separate toilet facilities for boys and girls to use based on their biological sex,” the council said, “in line with the recent Supreme Court ruling and EHRC interim guidance.

“Alternate facilities are available for anyone who wishes to use them, including those who identify as trans.”

Whether Fiona will be able to fix things in the face of policy shifts and court rulings remains to be seen. But she says her daughter is “resilient” and has carried on using the girls’ facilities this week, including to change for PE, declaring “If someone says to me I can’t use the bathroom, I’ll tell them: stop me!”

• The names in this story have been changed due to the safety concerns of families interviewed.