Education Scotland inclusion, equality and diversity guidance: FOI Review

Information requested

Orginal Request: 202500471940

1. Has Education Scotland revised any of its published or internal guidance documents for schools, educators, or education authorities in response to the UK Supreme Court judgment of 16 April 2025, which confirmed that the term “sex” in the Equality Act 2010 refers to biological sex?

2. Specifically, please confirm whether Education Scotland has updated or is reviewing any of the following in light of the ruling:

• Equality, Diversity & Inclusion (EDI) policies
•  Curriculum guidance related to Relationships, Sexual Health and Parenthood (RSHP)
•  Anti-bullying or safeguarding frameworks referencing sex/gender
•  Teacher training materials or advisory content involving protected characteristics

3. If updates have been made, please provide:

• The date and content of changes
• Any legal or policy justification referenced during revision

4. If no changes have been made, please clarify whether Education Scotland:

• Accepts the Supreme Court’s interpretation as binding
• Plans to revise materials currently conflating gender identity with sex under the Equality Act

Response

I have now completed my review of your request under the Freedom of Information (Scotland) Act 2002 (FOISA). I was asked to carry out this review as I was not previously involved in the response to your request. As part of my review, I have met with the officials responsible for Education Scotland’s work related to Equalities and reviewed the available information.

I have concluded that the original decision in that response of 29 July 2025 should be confirmed with modifications. The reasons for these are set out below, taking each point in turn.

(1) “Has Education Scotland revised any of its published or internal guidance documents for schools, educators, or education authorities in response to the UK Supreme Court judgement of 16 April 2025, which confirmed that the term “sex” in the Equality Act 2010 refers to biological sex?”

The original response stated that Education Scotland had not conducted a review specific to the Supreme Court judgement to which your request referred. It did, however, state that three resources[1] were removed from the Education Scotland website as part of Education Scotland’s regular review cycle.

[1] Namely: Improving Gender Balance and Equalities Self-Evaluation Framework; Improving Gender Balance and Equalities Self-Evaluation Framework for Community Learning and Development; and Improving Gender Balance and Equalities Quick Start Guide.

Having reviewed the relevant information, I am content to amend the response provided previously.

During the course of Education Scotland’s routine review cycle of resources, these documents do appear to have been removed so that they may be reviewed, and revised if necessary, following the Supreme Court judgement and in response to the upcoming guidance of the EHRC (the Equalities & Human Rights Commission, the body responsible for enforcing equality legislation).

Accordingly, while it appears that no review has yet been undertaken specifically related to the Supreme Court’s decision, that decision has informed Education Scotland’s choice to remove these particular documents so that they may be reviewed in due course. The review of each of these documents has not, however, yet been undertaken.

(2) Seeking confirmation as to whether or not Education Scotland had updated or is currently reviewing the policies listed in your request[2] in light of the judgement referenced above. It was conveyed to you that Education Scotland does not have responsibility for the curriculum guidance for RSHP, anti-bullying guidance, or safeguarding frameworks – the responsibility for each rests with the Scottish Government. In order to obtain the information you seek you may wish to consider submitting a request for information pertaining to these particular policies to the Scottish Government. I have provided their contact details below.

[2] Namely: Equality, Diversity & Inclusion (EDI) policies; Curriculum guidance related to Relationships, Sexual Health and Parenthood (RSHP); Anti-bullying or safeguarding frameworks referencing sex/gender; and teacher training materials or advisory content involving the protected characteristics.

Accordingly, as Education Scotland does not have policy responsibility for the listed areas, I am satisfied that Education Scotland was correct in giving notice under section 17(1) of FOISA that no information was held (as such information will be held by the Scottish Government).

(3) Which sought the dates on which the materials referred to in point (2) were changed (if they were changed); details of any such changes; and any legal or policy justification for such changes. It follows that, as Education Scotland is not responsible for such policies and materials that no such information is held or may be provided by Education Scotland. Again notice was appropriately given under section 17(1) of FOISA that no information was held. Again, I am satisfied that the original response to your request was appropriate with regard to this point and it is, therefore, unchanged. As confirmed above the responsibility rests with Scottish Government and you may wish to consider an approach in order to obtain the information you seek. Details to submit a request are provided below.

(4) Which sought clarity as to – where no changes had been made – whether or not Education Scotland “accepts the Supreme Court’s interpretation as binding” and whether or not Education Scotland “[p]lans to revise materials currently conflating gender identity with sex under the Equality Act”), the original response confirms that Education Scotland, as with the Scottish Government, accepts the judgement of the UK Supreme Court referred to above.

Accordingly, I am content that no change to the original response is necessary with respect to this point.

The original response also noted that the Equality and Human Rights Commission is presently updating its statutory Code of Practice which will support service providers and public bodies, et al, to understand their duties under the Equality Act 2010. This Code of Practice will be instructive in the routine review and revision of policies and other materials held by Education Scotland.

In relation to obtaining the information you seek specifically for Q2 and Q3 you may wish to consider submitting a request for information to the Scottish Government.

Additional requests for information

In your request for a review, you also requested:

• Whether any Equality Impact Assessments (EQIAs), training plans, internal meeting notes, or correspondence discussing the legal implications of the ruling are held.
• Whether Education Scotland received or commissioned any legal advice following the ruling (withholding legal advice under s.36(1) would still require acknowledging its existence).

These have been considered as new requests for information and are out with the scope of your original request. As such, they will be responded to separately under FOISA.

The outcomes you have requested

In your letter of 29 July 2025, you specifically requested that this internal review:

1. Confirms whether Education Scotland accepts that it must comply now with the legal definition of “sex” as established by the UK Supreme Court, regardless of future EHRC publications.

2. Identifies and discloses any documents, discussions, training material reviews, or legal advice held which relate to the implications of the ruling.

3. Provides a clear explanation for why no materials have been revised, given the legal clarity now in place and the statutory public sector equality duty.

4. Commits to a time-bound plan for reviewing and amending any Education Scotland materials which remain legally inaccurate or ideologically influenced.

With regard to 1 above, as set out in the original response, and this letter, Education Scotland of course accepts the judgement made by the Supreme Court.

With regard to point 2 above, this is also an additional request under FOISA and not one made in your original request. Accordingly, it will be replied to under a separate cover.

With regard to 3-4 above, such requests are beyond the scope of FOISA. As outcomes 3-4 above are not a request for information in line with FOISA, and fall beyond the scope of this
review, they will not be responded to in this letter.

If you have a concern about how Education Scotland discharges its functions, the process for concerns and complaints is set out on the Education Scotland website - (Complaints | Policies and information | About Education Scotland | Education Scotland).

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.