Education Scotland policy reviews since UK Supreme Court decision: FOI Review

Information requested

Original Request: 202500472710

Following the 2024 UK Supreme Court ruling in R (on the application of For Women Scotland) v Scottish Ministers, the legal definition of “sex” in the Equality Act 2010 has been confirmed to mean biological sex. This clarification has significant implications for education policy, safeguarding, and equalities guidance in Scottish schools.

Please provide the following:

1. Policy Review or Revisions

Has Education Scotland reviewed, revised, or issued any updates to its:

• Equality, diversity, and inclusion (EDI) policies
• Safeguarding frameworks
• Guidance to schools, local authorities, or teaching staff in light of the 2024 Supreme Court ruling?

2. Materials and Communication

If so, please provide:

• Copies of any updated policies, guidance, or training materials
• Dates of implementation or publication
• Any legal, educational, or equality-based rationale given for the changes

3. Status Quo and Legal Recognition

If no updates have been made:

• Does Education Scotland recognise the Supreme Court’s clarification on the definition of sex as binding?
• Do current materials continue to conflate or equate sex and gender identity?

4. Advisory Role

Has Education Scotland issued any advisory notices to local authorities, safeguarding leads, or school leadership teams on how the ruling may affect the delivery of single-sex services, sex-based data collection, or the handling of parental concerns?

Response

I have now completed my review of your request under the Freedom of Information (Scotland) Act 2002 (FOISA). I was asked to undertake this review as I was not involved in the response to your original request.

In your original request for information you asked Education Scotland to:

“Please provide the following:
1. Policy Review or Revisions
Has Education Scotland reviewed, revised, or issued any updates to its:

• Equality, diversity, and inclusion (EDI) policies
• Safeguarding frameworks
• Guidance to schools, local authorities, or teaching staff in light of the 2024 Supreme Court ruling?

2. Materials and Communication
If so, please provide:

• Copies of any updated policies, guidance, or training materials
• Dates of implementation or publication
• Any legal, educational, or equality-based rationale given for the changes

3. Status Quo and Legal Recognition
If no updates have been made:

• Does Education Scotland recognise the Supreme Court’s clarification on the definition of sex as binding?
• Do current materials continue to conflate or equate sex and gender identity?

4. Advisory Role
Has Education Scotland issued any advisory notices to local authorities, safeguarding leads, or school leadership teams on how the ruling may affect the delivery of single-sex services, sex-based data collection, or the handling of parental concerns?”

As a result of our response, you subsequently submitted a request for review, stating at point three of your correspondence:

“3. FOISA Non-Compliance: Missing Information

You failed to provide:
Any legal advice or internal assessments considered in response to the ruling;
A list of materials reviewed but retained despite the ruling;
A formal position on whether current resources still conflate sex and gender identity.

This information should exist as a matter of public record, and its omission may constitute a breach of FOISA unless a specific exemption is applied.”

My review has concentrated on the point above in isolation, with the remaining points of your correspondence answered below, however, are done so out with the legislation of FOISA.

Review of the original response

I have concluded that the original decision should be confirmed with modifications with regard to points (1) and (2) of your original request. These are set out below.

In the first part of your request, you asked for:

1. Policy Review or Revisions
Has Education Scotland reviewed, revised, or issued any updates to its:

• Equality, diversity, and inclusion (EDI) policies
• Safeguarding frameworks
• Guidance to schools, local authorities, or teaching staff in light of the 2024 Supreme Court ruling?

With regard to point (1) of your original request, the original response confirmed that three resources had been removed from the Education Scotland website as part of the routine review of such materials[1]. On review, it is submitted that these three resources were removed so that they may be reviewed in light of the Supreme Court’s judgement and in anticipation of revised statutory guidance from the Equality and Human Rights Commission (“EHRC”, the body responsible for ensuring public and other bodies act in accordance with relevant legislation).

It is, therefore, appropriate to substitute the original response to point (1) of your request to state that, while no revisions have yet been made to any published resources, Education Scotland has withdrawn three documents from the Education Scotland website. These resources will be revised as necessary in light of the Supreme Court’s decision and subsequent statutory guidance from EHRC.

With regard to point (2) of your original request, in which you sought:

2. Materials and Communication
If so, please provide:

• Copies of any updated policies, guidance, or training materials
• Dates of implementation or publication
• Any legal, educational, or equality-based rationale given for the changes

Education Scotland previously stated that they did not hold “some” of the information requested and then gave notice under section 17(1) of FOISA that no information was held.

On review, it strikes me that it is necessary to substitute the response to point 2. Education Scotland has not updated any policies, guidance or training materials, nor are there any dates of implementation or publication. Additionally, as no such changes have been made, there is no “legal, educational, or equality-based rationale” for changes. It is therefore appropriate to clarify that Education Scotland does not hold any information pertaining to point (2) of your original request and that notice be given in terms of section 17(1) of FOISA.

In point (3) of your original request, you sought:

“3. FOISA Non-Compliance: Missing Information
If no updates have been made:

• Does Education Scotland recognise the Supreme Court’s clarification on the definition of sex as binding?
• Do current materials continue to conflate or equate sex and gender identity?”

The original response confirmed that Education Scotland – as with the Scottish Government – recognises and fully accepts the judgement of the Supreme Court. That was an appropriate response and the original response on this point is unchanged. On review, it is submitted that point three of your original request was not a request for information, per se, but instead an enquiry for clarification.

In point (4) of your original request, you sought:

4. Advisory Role
Has Education Scotland issued any advisory notices to local authorities, safeguarding leads, or school leadership teams on how the ruling may affect the delivery of single-sex services, sex-based data collection, or the handling of parental concerns?”

The original response confirmed that no such advisory notices have been produced by Education Scotland. Again, where no information is held, no information may be disclosed and, accordingly, it is held that the original response was appropriate on this point. You may wish to make this request to the Scottish Government; such requests can be made to the Scottish Government at: contactus@gov.scot.

Other matters raised in your request for an internal review

Points 1, 2 and 4 of your review request are not considered to be part of the dissatisfaction relating to the response to your initial request. As such we are responding to those points out with the legislation of FOISA.

In your letter of 29 July 2025, you state your view that Education Scotland has – in essence – failed “to apply a legally binding rule”. This statement of opinion is not a request for information under FOISA and, accordingly, will not be responded to in this letter.

Also in your letter of 29 July 2025, you outline your position that Education Scotland did not adequately explain why three resources were removed from the Education Scotland website.

As stated above, on review, I considered it appropriate to amend the response to your request with regard to point (1). The resources referred to have been withdrawn by Education
Scotland so that they may be reviewed and, if required, revised.

Furthermore, in your letter of 29 July 2025, you set out your view that Education Scotland has
(a) failed to provide legal advice or internal assessments generated in response to the Supreme Court’s ruling and (b) failed to support local authorities by not issuing advisory notices related to the Supreme Court’s ruling. With regard to your original request, Education Scotland does not hold any material within scope of your request; where no information is held, no information can be disclosed. With regard to advisory notices to local authorities, it is not for Education Scotland to provide such notices. Local authorities, like Education Scotland, are public bodies and the appropriate body for such guidance is the EHRC.

Accordingly, you may wish to make your requests to local authorities. You can find the details of Scotland’s 32 local authorities online at: Contact your local council in Scotland - mygov.scot.

Finally, in your letter of 29 July 2025, you sought:

a. An explanation as to why no legal or policy review has followed the Supreme Court’s decision of April 2025.
b. The “legal reasoning” as to why three resources were removed from the Education Scotland website.
c. Education Scotland’s current position on whether any currently published material “conflates sex and gender identity in breach of the Equality Act 2010”.
d. Confirms whether any legal advice has been received regarding Education Scotland’s obligations under the ruling and FOISA.
e. Confirmation as to whether updated materials or guidance will now be issued to schools and local authorities following the Supreme Court’s decision and following the withdrawal of the materials referred to above from the Education Scotland website.

With regard to (a) above, this is not a request for information and, accordingly, will not be responded to in this letter.

As to (b) above, there is no specific legal reasoning for the removal of the three resources from the Education Scotland website. They have been removed in anticipation of a review as stated above.

Turning to (c) above, no information is held and a public body cannot disclose information which is not held.

In (d) above, you again seek confirmation as to whether legal advice has been received regarding Education Scotland’s obligations under the aforementioned judgement of the Supreme Court; where no information is held, no information may be disclosed.

Finally, with regard to (e) above, it is not for Education Scotland to provide legal advice to local authorities or others involved in the provision of education and care. Such matters rest with local authority education departments (or, in the case of grant-aided and independent schools, the proprietors or managers of such schools). The advice you appear to anticipate would, appropriately, be provided by the EHRC who are currently developing guidance. Accordingly, you may wish to make a request for information to the EHRC. You can find out more about making such requests to the EHRC online at: Freedom of information policy | EHRC.

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.