A mother said she “froze” when she picked up her 11-year-old daughter from a drama class at a church-run community centre in Cupar, Fife and encountered a man from an LGBT club in the female lavatories.
The mother was initially told by the church that it was “lawful and often appropriate” for “women-only spaces to include trans women”.
However, Kirk leaders later admitted that their advice contravened the Supreme Court’s gender ruling in April that a woman was defined by biological sex under equality law.
The disclosure prompted a backlash from opposition politicians who accused the church of putting the young girl in an “appalling” situation.
It comes as the SNP government was criticised by the equalities watchdog for failing to issue updated trans guidelines in the wake of the Supreme Court decision.
Tess White, the Scottish Conservative shadow equalities minister, told The Times: “It’s appalling that a young girl was put in this intimidating situation – and it should never have happened.
“The law is clear and there’s no excuse for the Church of Scotland or any other organisation not to be following it.
“But SNP ministers are largely to blame for this mess – first by allowing lobby groups to dictate gender policy across the whole of Scottish public life and then by refusing to produce clear, updated guidelines following the Supreme Court ruling.”
The church had claimed that its trans-inclusive stance was based on the advice of “legal experts” such as Stonewall, the activist group, and the Good Law Project, run by the barrister Jolyon Maugham, which is seeking to overturn the Supreme Court ruling.
It admitted that its advice to the parent was incorrect and it should not have relied on positions taken by partisan groups.
It said it now “supported the right” of women and girls to access single-sex spaces and suggested that trans people should be provided with gender-neutral facilities.
The incident coincides with a warning by the UK’s equalities watchdog for Scottish government ministers to update policies to reflect the Supreme Court’s landmark ruling on the definition of women without delay.
The EHRC issued interim guidance in May related to trans people’s use of single-sex facilities and launched a consultation on changes to parts of its code of practice for services, public functions and associations, which closed on 30th June. The updated code is due to be published later this year.
Dr Lesley Sawers, the Deputy Chair and Scotland Commissioner for the Equality and Human Rights Commission, said ministers had “a responsibility to ensure their adherence to the Public Sector Equality Duty” - the legal requirement for public authorities in Scotland to consider protected characteristics, including biological sex, when carrying out their functions.
She warned that the current “climate of uncertainty and widespread misinformation serves nobody”.
‘An urgent need for clarity’
John Swinney, Scotland’s First Minister, initially welcomed the “clarity” provided by the ruling but the Scottish Government has repeatedly said it is waiting for further guidance before issuing new advice of its own to Scotland’s public sector - including prisons, schools and the NHS.
Dr Sawers said the government should already be following the law: “We appreciate there is an urgent need for clarity, as a climate of uncertainty and widespread misinformation serves nobody, particularly those with protected characteristics.
Ms White added: “The EHRC is effectively telling SNP ministers: no more excuses.
“The Supreme Court’s verdict was delivered over two months ago, yet John Swinney and his colleagues are still dragging their heels on telling public bodies in Scotland to comply with the law.”
Kelly, the mother of the 11-year-old, who did not want her surname published, said the incident happened at the Old Parish Centre in May.
She later spoke to the church minister, who was initially supportive, but in a second email last week, he said advice from the church’s central office meant he had to “rescind” his first email.
It had been made clear to him that “a trans woman’s use of the women’s toilet aligns with her gender identity, and this is lawful and consistent with best practice”.
The Church of Scotland expressed “regret” that its initial advice was “not correct” or aligned with EHRC advice.
It said: “We support the right of women and girls to access single-sex spaces and the right of trans women and trans men to access gender-neutral spaces, so that trans people are not put in a position where there are no facilities for them to use.”