Equality and Human Rights Commission (EHRC) Code of Practice and Supporting Transgender Young People in Schools information: FOI release

Information requested

1. Have the Scottish Government received any versions of the updated Code of Practice sent by the Equality and Human Rights Commission (EHRC) to the UK Government for approval on or after 5 September 2025?

2. Please provide copies of any versions and any covering correspondence received by the Scottish Government in relation to this draft. Please also specify when such drafts were received and if the Scottish Government has formulated a response to the content of the guidance.

3. Please advise on the status of the guidance Supporting Transgender Young People in Schools, and confirm that it will remain active until such time as a revised document is issued.

4. Please advise whether the Scottish Government intends to mount a defence against the court action from For Women Scotland (FWS) regarding the guidance Supporting Transgender Young People in Schools.

5. Please advise the anticipated timescales of the court action regarding the above guidance.

Response

I enclose a copy of some of the information you requested. The answer to each point is set out below.

1. The UK Government has provided a copy of the Equality and Human Rights Commission’s (EHRC) draft Code of Practice.

2. The draft of the Equality and Human Rights Commission’s (EHRC) draft Code of Practice was received on 16 October. It is not possible to provide a copy of the draft Code of Practice as it was provided to the Scottish Government in confidence. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption under section s.36(2) (actionable breach of confidence) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in the Annex to this letter.

3. The Supporting Transgender Pupils in Schools guidance was revised and published on 29 September 2025. It is available from Supporting transgender pupils in schools: guidance for education authorities and schools – revised - gov.scot

4. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption under section s.36(1) (confidentiality in legal proceedings) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in the Annex to this letter.

5. The information requested is not held. As such, I hereby provide you with formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

Annex A

An exemption under section s36(2) applies to some of the information you have requested because it contains information provided to the Scottish Government by the UK Government and disclosure would constitute an actionable breach of confidence. This is because the information was provided in circumstances which imposed an obligation on Scottish Government to maintain that confidentiality, and unauthorised disclosure may be to the detriment of the other Government Department. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

A further exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

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.