The law begins to recover what ideology blurred: sex, privacy and the embodied child
Karon Monaghan KC’s newly published Opinion on single-sex school toilets is about considerably more than lavatories. It raises serious questions about the legality of mixed-sex and open-plan facilities, the duties of governors, discrimination against girls, religious liberty and the assumptions about sex and the human person which have entered British education almost without argument. For Catholic schools especially, the implications go deeper still: the law may now be rediscovering distinctions which Christian anthropology should never have forgotten.
For several years schools have been encouraged to regard mixed-sex toilets as a question of modernisation. The vocabulary has been reassuring: “gender-neutral”, “inclusive”, “open-plan”, “private cubicles”, “improved safeguarding”. A consequential change in the relationship between boys and girls has thereby been made to sound less like a moral and educational decision than an item in an architect’s specification.
The publication of Karon Monaghan KC’s Single-Sex Toilet Provision in Schools, dated 1 October 2026, changes the terms of that discussion. Commissioned to advise a parent, Nicole Marrington, the 49-page Opinion asks what obligations actually govern toilet and handwashing provision in mainstream schools in England and Wales, whether several increasingly common designs comply with those obligations, and what remedies may be available if they do not.1
Its central proposition is disarmingly simple. For maintained schools in England, Regulation 4 of the School Premises (England) Regulations 2012 requires suitable toilet and washing facilities and provides that separate toilet facilities must be supplied for boys and girls aged eight and over, except where the toilet is contained in a room which can be secured from inside and is intended for use by one pupil at a time.2 Materially equivalent requirements apply to academies and independent schools.3
The difficulty for some contemporary designs lies in one very ordinary word: room. A familiar arrangement now consists of rows of lockable WC cubicles opening into one communal circulation and washing area. Boys and girls enter the same overall space; the partitions may reach from floor to ceiling, and individual cubicles may even be labelled for boys or girls, while the sinks remain outside and are shared.
The argument advanced in defence of such arrangements is usually that privacy is preserved because nobody can see what happens behind each locked door. Monaghan identifies the obvious legal difficulty: the statutory exception does not say “cubicle”. It says “room”.
The Department for Education’s own 2026 Technical Manual reinforces the distinction. It treats a single-user toilet room differently from a cubicle, states that such a room should not be constructed from cubicle partition panels, and prescribes structural and acoustic requirements for the surrounding walls and door.4 A self-contained room is therefore not simply a particularly well-enclosed cubicle; the government’s own technical language treats the two as different things.
That distinction has practical consequences. Monaghan advises that floor-to-ceiling cubicles situated in a larger communal room do not themselves become the statutory single-user “rooms” merely because they lock, and that attaching male and female symbols to individual cubicles does not convert the surrounding room into separate boys’ and girls’ provision. She asks, with considerable force, if a room containing a run of cubicles designated for use by both sexes can nevertheless be described as single-sex, “what would mixed-sex toilet facilities look like?”5
There is something revealing in the fact that such an ordinary distinction now requires extensive legal argument. Institutions have become accustomed to vocabulary doing work which physical reality cannot: a mixed-sex room becomes “inclusive”, a cubicle becomes a “private room”, and the removal of sex separation becomes “gender neutrality”. Once the terminology changes, institutions begin behaving as though the underlying reality has changed with it, but architecture, biology and ordinary human experience remain stubbornly less susceptible to linguistic transformation.
The statutory case is particularly clear in Wales. The applicable provisions require separate washrooms for male and female pupils aged eight and over, and the statutory concept of a washroom encompasses both sanitary fittings and washing facilities.6 A shared handwashing area used by boys and girls therefore presents an obvious difficulty.
The English wording is less explicit, and Monaghan does not conceal that fact. Her Opinion is not a binding English judgment, and it would be wrong to report it as though every point had already been conclusively determined. Her argument is cumulative: the ordinary meaning of “room”, the DfE Technical Manual, equality law, EHRC guidance, human-rights principles and recent judicial authority all point, she argues, towards the conclusion that boys and girls cannot be said to have separate toilet facilities merely because the WCs themselves are enclosed in individually designated compartments.7
That recent judicial authority includes the Scottish case DE and FG v West Lothian Council. The Court of Session examined a primary school in which floor-to-ceiling cubicles were marked male, female or unassigned but occupied a communal sanitary area in which boys and girls shared washing facilities. Lady Poole rejected the proposition that marking individual WC cubicles by sex was enough; the relevant sanitary accommodation extended to the wider facility in which pupils washed and circulated.8
More consequentially still, the court found that the arrangement placed girls at a particular disadvantage for the purposes of indirect sex discrimination. Its reasoning was rooted not in political theory but in bodily reality: girls have physiological and menstrual needs which boys do not share, may need to change and dispose of sanitary products, and must then emerge from the cubicle to wash. Privacy, dignity, hygiene, health, safety and vulnerability were therefore not rhetorical additions to the argument but part of the disadvantage itself.9
That finding matters because it exposes a second legal difficulty even if an English court were ultimately to disagree with Monaghan’s construction of the premises Regulations. The Equality Act 2010 would remain applicable, and minimum regulatory provision can constitute a “floor not a ceiling”: technical compliance with one statutory requirement does not extinguish other legal duties.10
A rule can be identical for every pupil and still operate unequally. Section 19 of the Equality Act addresses provisions, criteria or practices which appear neutral but place persons sharing a protected characteristic at a particular disadvantage and cannot be objectively justified as a proportionate means of achieving a legitimate aim.11 Telling every pupil to use the same mixed-sex facility may therefore be equal in form while proving very unequal in effect.
Equality does not require pretending that male and female bodies are interchangeable. Menstruation is not an identity, anatomy is not an opinion, and the different privacy needs created by embodied sex are not stereotypes merely because acknowledging them has become politically awkward.
The Supreme Court’s judgment in For Women Scotland Ltd v Scottish Ministers supplies important legal context. The Court held that “sex”, “woman” and “man” in the Equality Act 2010 refer to biological sex.12 Monaghan accordingly approaches “boy” and “girl” within the relevant statutory framework as biological categories.
For Catholics there is a more fundamental point still. The distinction between male and female did not begin with the Equality Act: “Male and female he created them” belongs to the first chapter of Genesis, not the first schedule of a modern statute.13 Christianity does not understand the human person as an essentially sexless consciousness which happens to inhabit a male or female body; the person is embodied, and the body belongs to the reality of the person.
That truth does not authorise cruelty towards a child distressed about sex or identity. It requires the opposite, because authentic compassion must be directed towards the actual person rather than an abstraction; yet compassion cannot oblige adults responsible for children to behave as though material reality has ceased to impose any limits upon policy, nor can pastoral sensitivity require the intimate arrangements of every other pupil to be reorganised around somebody else’s subjective identification.
The same principle applies to modesty. Christian moral teaching does not understand bodily privacy merely as embarrassment about the body, because modesty follows from dignity: precisely because the body matters, not every aspect of bodily life is equally public. Boundaries surrounding nudity, toileting, washing and sexual difference can therefore be expressions of respect rather than remnants of fear.
That is why the locked-cubicle answer is inadequate even apart from the precise statutory construction. A girl changing sanitary protection does not cease to possess a legitimate interest in privacy the moment she unlocks the cubicle; she may be carrying sanitary products, disposing of them, checking stained clothing or washing blood from her hands. The communal washing area remains part of the intimate experience of using the toilet.
Some contemporary designs deliberately make precisely that area more exposed. The DfE Technical Manual states that “A view from adjacent circulation or a play/teaching space into a run of toilets when the doors are open is prohibited.”14 Monaghan consequently considers facilities permitting such sightlines arguably unsuitable under the Regulations.15
The usual defence is supervision. Open-plan arrangements, it is said, discourage vaping, bullying, vandalism, sexual behaviour and other misconduct because pupils are more visible to staff. Those are legitimate concerns, but a legitimate end does not automatically render every means proportionate.
There is an obvious tension in improving “safeguarding” by diminishing privacy in a place where children undertake intimate bodily functions. The proper question is whether the chosen design is necessary, whether less intrusive means were considered, and whether the disadvantage imposed upon pupils — particularly girls — was properly assessed rather than dismissed by attaching the word “inclusive” to the finished scheme.
The safeguarding evidence itself makes it impossible simply to declare sex irrelevant. Keeping Children Safe in Education 2026 tells schools that girls are more likely to be victims of sexual harassment and sexual violence and that boys are more likely to perpetrate it.16 This is not a denunciation of boys as a class; it is a safeguarding assessment of patterns of vulnerability, and schools cannot coherently insist that sex matters when identifying such risks but becomes irrelevant when designing intimate spaces occupied by adolescent boys and girls.
Yet the part of Monaghan’s Opinion which may have the most immediate practical significance for governing bodies is the Public Sector Equality Duty. Section 149 of the Equality Act requires public authorities exercising public functions to have due regard to the need to eliminate prohibited conduct, advance equality of opportunity and foster good relations. Monaghan emphasises from established authority that this must form a genuine part of decision-making: relevant information must be gathered, adverse effects assessed and possible ways of eliminating or mitigating them considered, with the duty exercised “in substance, with rigour, and with an open mind”.17
Crucially, the obligation is continuing. That changes the position of governing bodies whose schools installed mixed-sex facilities several years ago, because “it was approved at the time”, “the architect recommended it” or “the council supported it” does not necessarily end the matter.
Governors should be able to explain what assessment was made of the effect upon girls, whether menstruation was specifically considered, whether reluctance to use the toilets was investigated, whether pupils might avoid drinking during the school day, whether embarrassment and privacy were considered, whether sexual harassment and religious objections were assessed, whether sanitary-bin placement and shared washing facilities were examined, and whether less intrusive means of controlling bullying or vandalism were explored. They should also be able to say when that analysis was last reviewed.
These questions become particularly uncomfortable where the answer begins and ends with the word “inclusive”. Inclusion is not a legal incantation, and the Equality Act contains no hierarchy under which whichever protected characteristic currently commands greatest institutional attention automatically outranks the others.
This is especially relevant to children questioning their gender. Monaghan does not argue that their difficulties may simply be ignored; her analysis recognises that a pupil with the protected characteristic of gender reassignment may experience disadvantage from being required to use communal provision corresponding to his or her biological sex, and that alternative provision may consequently need consideration.18
What does not follow is that accommodating such a pupil requires abolishing single-sex communal facilities. Keeping Children Safe in Education 2026 states plainly: “Schools must not allow children into toilets designated for the opposite biological sex.” Where a gender-questioning child does not wish to use provision corresponding to his or her biological sex, schools should consider alternatives such as self-contained individual toilets “without compromising the provision of single-sex facilities” or the safety, comfort, privacy and dignity of other children.19
That distinction should not be difficult. It is possible to preserve the privacy of girls while treating a gender-questioning child with courtesy and practical consideration; indeed, sensible pastoral accommodation depends upon distinguishing an individual difficulty from a general rewriting of the rules for every pupil.
Religious liberty introduces another neglected dimension. Monaghan notes that mixed-sex facilities may particularly disadvantage pupils whose religious beliefs prohibit the sharing of private spaces with members of the opposite sex.20 The point matters well beyond Catholic schools, since Muslim, Jewish, Christian and other families may hold serious convictions concerning bodily modesty which institutions cannot simply erase from an equality analysis because another protected characteristic has become more fashionable.
A policy does not become inclusive merely by naming it so. If accommodating one group results in other pupils avoiding the toilets because the arrangements violate serious convictions about bodily privacy, the language of inclusion has begun to conceal rather than illuminate the policy’s actual effects.
Article 8 of the European Convention brings the argument back to first principles. Monaghan treats toileting and associated washing as falling within the sphere of private life and considers the potential seriousness of requiring girls to use facilities accessible to boys while urinating, defecating, changing sanitary protection and washing.21
The extraordinary thing is not that law recognises this but that lawyers have had to explain it. A thirteen-year-old girl does not require Strasbourg jurisprudence to understand why she may not wish to step from changing a sanitary towel into a communal room occupied by boys, nor should her embarrassment automatically be diagnosed as prejudice, social conditioning or failure to embrace inclusion.
Catholic educators should understand that before any court tells them. Indeed, this is where the Opinion becomes particularly relevant to Nuntiatoria, because its deepest significance is not simply that secular law happens in this instance to point towards conclusions compatible with Catholic anthropology; it is that some Catholic institutions may have absorbed assumptions contrary to their own anthropology so thoroughly that secular equality law is now having to remind them of the significance of biological sex.
A Catholic school should not need a King’s Counsel’s Opinion to discover that boys and girls are not interchangeable categories. It should not need a DfE technical manual to remember that bodily privacy has moral significance, nor should it wait for a discrimination judgment before acknowledging that menstruating girls possess legitimate intimate needs which differ from those of boys.
Pius XI’s Divini Illius Magistri is instructive precisely because it begins from a very different conception of education from the bureaucratic one. Christian education concerns the whole human person; the family receives from the Creator an educational mission with corresponding rights and duties; and civil society does not create human nature for itself.22 Catholic education therefore cannot begin with whatever anthropology currently prevails within educational administration and append religion afterwards.
The anthropology comes first. That places particular responsibility upon Catholic governing bodies, academy trustees and diocesan education authorities, because if mixed-sex communal facilities have entered Catholic schools merely because architects, consultants or educational officials described them as modern, inclusive or current best practice, Monaghan’s Opinion should occasion more than a regulatory compliance review.
It should provoke an examination of how such policies were judged compatible with the character of Catholic education in the first place. Catholic schools remain fully subject to civil law; the point is not that ecclesial identity supplies an exemption from legal obligations, but almost the reverse — Catholic institutions ought to possess reasons of their own for respecting embodied sexual difference and modesty before the state commands them to do so.
Parents belong at the centre of the discussion for the same reason. They are not merely consumers purchasing an educational service from professionals who retain exclusive authority over what happens during the school day, and Catholic teaching regards parental responsibility for education as prior, natural and serious. Pius XI describes the family’s educational right as joined to a corresponding “strict obligation” and as anterior to that of civil society.23
A parent concerned because a daughter refuses to use her school toilets is therefore not trespassing upon a domain reserved to educational specialists. That parent may simply be observing a problem which an equality assessment written at a desk failed to see.
Monaghan’s Opinion also provides parents with a practical way of approaching the matter without beginning with ideological argument. Is the facility actually single-sex? Is the supposed private “room” a room or merely a cubicle? Do boys and girls enter the same wider space and use the same sinks? Can people in an adjoining corridor see into the facility? What consideration has been given to menstruation, privacy, embarrassment and toilet avoidance? What equality assessment exists, what evidence was considered, and when did governors last review it?
Those are not culture-war questions. They are questions about law, safeguarding and governance, and governors now have particular reason to answer them.
The possible consequences are not merely theoretical. Monaghan identifies two principal routes of challenge: civil proceedings in the County Court in respect of discrimination and Convention rights, and judicial review in the High Court of school or local-authority policies and practices. A breach of the Public Sector Equality Duty must be pursued by judicial review, and her concluding assessment is strikingly direct: “Judicial review proceedings are likely to be the speediest.”24
A governing body which has been placed on notice of a serious legal concern therefore cannot safely assume that an arrangement must be lawful merely because it has existed without challenge. Once credible contrary legal analysis has been brought to its attention, deciding not to investigate it is itself a governance decision.
There is one technical qualification to the Opinion worth recording because a serious argument deserves serious reporting. Its introductory summary occasionally uses “harassment” broadly when discussing religion or belief and gender reassignment, whereas the detailed analysis later notes correctly that those characteristics are excluded from the specific schools prohibition on harassment by section 85(10) of the Equality Act, although direct or indirect discrimination protections may still arise.25 The distinction does not materially diminish the central case, but precision matters.
More generally, an Opinion of King’s Counsel remains an Opinion. It is neither legislation nor a court judgment, and some questions concerning the English Regulations await authoritative determination. It would therefore be as unhelpful to declare every mixed-sex school toilet already judicially unlawful as it would be to dismiss the Opinion because litigation has not yet resolved every question.
Its significance lies elsewhere. Monaghan has brought together school-premises law, discrimination law, the Public Sector Equality Duty, safeguarding guidance, privacy rights, religious liberty, technical standards and recent judicial authority and shown how they converge upon a practice which many institutions had begun to treat as legally and morally unremarkable.
They can no longer safely do so, and the wider lesson should not be missed. This controversy was never really only about lavatories; it concerns what happens when institutions permit abstractions to outrun the human person, until sex becomes something declared rather than embodied, modesty becomes embarrassment, privacy becomes an obstacle to surveillance, and an accommodation originally proposed for particular children becomes an organising principle imposed upon everybody else.
Reality has an inconvenient habit of returning. It returns in anatomy and menstruation, in the girl who will not use the school toilet, in religious conviction, in safeguarding evidence and in parents who recognise a problem before institutions are willing to name it; eventually it returns in law as well.
Karon Monaghan KC’s Opinion does not finally determine every legal question surrounding school toilets. What it does is make it increasingly untenable for responsible bodies to pretend that there is no serious question to answer.
For Catholic institutions there is a more searching conclusion. They should not congratulate themselves because secular law may now be rediscovering distinctions which Catholic anthropology preserved; they should ask whether they themselves preserved them, and whether institutions founded to educate according to a Christian understanding of the human person have instead absorbed the assumptions of the surrounding culture.
A cubicle is not a room, and male is not female. Modesty is not shame, privacy is not discrimination, and compassion does not require confusion; sometimes the recovery of common sense begins simply by calling things by their proper names.
FOOTNOTES
¹ Karon Monaghan KC, Single-Sex Toilet Provision in Schools: Advice, 1 October 2026, p. 1, paras 1–2; the full Advice comprises pp. 1–49 and paras 1–112.
² Monaghan, Advice, p. 10, para. 14, quoting reg. 4(1)–(2), School Premises (England) Regulations 2012, SI 2012/1943.
³ Monaghan, Advice, pp. 15–16, paras 28–29, discussing the Education (Independent School Standards) Regulations 2014, SI 2014/3283.
⁴ Department for Education, Technical Manual: Employer’s Requirements — Technical Requirements for the Design and Construction of School and College Buildings and Outdoor Environments, January 2026; Monaghan, Advice, pp. 12–13, paras 20–22.
⁵ Monaghan, Advice, p. 13, para. 22. Counsel states that sex-designating cubicle doors “makes no difference when they are situated in the same toilet area (room)” and asks what mixed-sex toilet provision would look like if such an arrangement could nevertheless be called single-sex.
⁶ Monaghan, Advice, pp. 19–20, paras 37–40, discussing the Education (School Premises) Regulations 1999, SI 1999/2, and the Independent School Standards (Wales) Regulations 2024, SI 2024/27.
⁷ Monaghan, Advice, pp. 21–25, paras 41–49. The Opinion places particular weight upon the draft revised EHRC guidance, which describes lawful provision as either single-sex communal facilities or single-user lockable rooms, and upon the legal significance of EHRC guidance issued under s.13 Equality Act 2006.
⁸ DE and FG v West Lothian Council [2026] CSOH 52; Monaghan, Advice, pp. 16–19, paras 31–35.
⁹ Monaghan, Advice, pp. 33–35, paras 73–75, discussing the findings in DE and FG concerning female anatomy and physiology, menstruation, hygiene, privacy, dignity, safety and vulnerability in communal sanitary accommodation.
¹⁰ Good Law Project Ltd and Others v Equality and Human Rights Commission [2026] EWHC 279 (Admin), para. 27; Monaghan, Advice, pp. 35–36, para. 77. Monaghan applies the judgment’s “floor not a ceiling” reasoning to school toilet provision.
¹¹ Equality Act 2010, section 19; Monaghan, Advice, pp. 31–35, paras 69–77, on indirect sex discrimination, particular disadvantage and objective justification.
¹² For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, [2026] AC 315; Monaghan, Advice, p. 26, paras 52–53.
¹³ Douay-Rheims Bible, Genesis 1:27: “Male and female he created them.”
¹⁴ Department for Education, Technical Manual: Employer’s Requirements, January 2026; quoted in Monaghan, Advice, p. 13, para. 23.
¹⁵ Monaghan, Advice, pp. 13–14, paras 24–25, applying the requirement that toilet provision be “suitable” having regard, among other matters, to pupils’ age and sex.
¹⁶ Department for Education, Keeping Children Safe in Education 2026, cited in Monaghan, Advice, pp. 7–8, para. 8, in relation to recognised sex differences in vulnerability to sexual harassment and sexual violence.
¹⁷ Equality Act 2010, section 149; Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] Eq LR 60; Hotak v Southwark London Borough Council [2015] UKSC 30, [2016] AC 811; Monaghan, Advice, pp. 39–42, paras 88–95.
¹⁸ Monaghan, Advice, pp. 36–37, paras 78–79, considering potential disadvantage to pupils with the protected characteristic of gender reassignment and the availability of alternative arrangements.
¹⁹ Department for Education, Keeping Children Safe in Education 2026, paras 108 and 111, quoted in Monaghan, Advice, pp. 36–37, paras 78–79.
²⁰ Monaghan, Advice, p. 37, para. 80, on the potential particular disadvantage to persons whose religious beliefs prohibit sharing private spaces with members of the opposite sex; see also pp. 44–48, paras 103–111, on Article 9 and Convention justification.
²¹ Human Rights Act 1998, Schedule 1, Article 8; Monaghan, Advice, pp. 42–45, paras 96–105, on toileting, washing and the right to respect for private life.
²² Pope Pius XI, Divini Illius Magistri, 31 December 1929, particularly the treatment of the nature of Christian education and the respective functions of family, Church and civil society.
²³ Ibid., on the family’s educational mission as deriving from the natural order and the parental right as inseparably joined to its corresponding obligation.
²⁴ Monaghan, Advice, pp. 48–49, para. 112. Counsel identifies County Court proceedings under the Equality Act and Human Rights Act and judicial review in the High Court, including in relation to the Public Sector Equality Duty and principle of legality, concluding: “Judicial review proceedings are likely to be the speediest.”
²⁵ Monaghan, Advice, p. 28, paras 58–59. The detailed analysis notes that religion or belief and gender reassignment are excluded from the specific schools prohibition on harassment by s.85(10) Equality Act 2010, although other discrimination protections remain applicable.
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