A recent decision of the Court of Appeal has attracted headlines in the education sector by banning a form of gender segregation in schools.
In the case involving Al-Hijrah School, an Islamic faith school in Birmingham, the Court had to consider whether a policy of segregating boys and girls in a mixed school was direct discrimination.
Al-Hijrah School is a voluntary aided faith school for boys and girls aged between 4 and 16. It has an Islamic ethos and for religious reasons separates boys and girls from the ages of 9 to 16 (i.e. from Year 5 onwards).
After an inspection in 2016, Ofsted assessed the School as “inadequate”, in part due to the fact that the segregation policy “limits pupils’ social development, and the extent to which they are prepared for interaction with the opposite sex when they leave school”. Ofsted considered that this gender segregation was unlawful under the Equality Act 2010 (“EqA 2010”). However, Ofsted didn’t express the opinion that the girls received a different or qualitatively poorer level of education than the boys.
The Court unanimously found that the segregation policy constituted direct discrimination under EqA 2010. This was because, viewed from the perspective of an individual pupil, both the girl pupil and the boy pupil were treated less favourably than each other – a girl pupil was denied the chance to interact with boys that the boy pupils benefited from and vice versa.
The Court rejected the argument that separate but equal (or “mirror”) treatment could not amount to unlawful treatment, citing case law which supported the contrary view. Also, given that motive is irrelevant when establishing whether discrimination has occurred, the fact that parents voluntarily sent their children to a segregated school made no difference to the outcome.
Although it did not need to do so, the Court also chose to consider two alternative grounds of appeal: (i) that girls were particularly susceptible to harm from the policy of segregation by virtue of their marginalised status; and (ii) that segregation in itself implies that girls are inferior. The majority of the Court indicated that, due to a lack of supporting evidence, it would dismiss both grounds of appeal. However, Gloster LJ, in the minority, disagreed with their conclusions and agreed with Ofsted's arguments that girls suffered "practical detriment" and "expressive harm" from being segregated.
Neil Roskilly, CEO of the Independent Schools Association, has written to The Times expressing concern that faith schools that segregate on religious grounds together with so-called “diamond” schools (where pupils are separated in the middle years before being brought back together) will be affected by the decision. In addition to diamond schools, hundreds of schools separate pupils by gender for at least some lessons, such as sports.
Ofsted has since sought to calm concerns by stating that “nothing in this judgement refers to diamond schools … it’s also important to understand that this school operates in very specific circumstances – one site, with total segregation”.
Barnaby Lenon, chairman of the Independent Schools Council said: “It is our understanding that the Court of Appeal’s judgment is concerned with schools which have complete segregation of male and female pupils. Diamond schools within membership of ISC generally have mixed break times, lunch times, assemblies, school events etc. We would not therefore consider that they would be affected by this judgment; however we await guidance from the Department for Education on any implications for the school sector.”
Firstly, despite Ofsted and the Court’s comments on the negative implications of being separated from pupils of the opposite sex, the decision will not affect single sex-schools that only admit girls or boys. This is because there is a specific exemption for single-sex schools from the general prohibition on sex discrimination in relation to school admissions by virtue of Schedule 11 EqA 2010.
Secondly, there is no similar exemption for co-educational establishments, so faith schools and diamond schools which segregate by gender could potentially be impacted by this decision.
In practical terms it seems as though Ofsted is most concerned with those schools which practise complete segregation – therefore the more opportunities boys and girls have to mix in school life (whether in breaks, assemblies, school productions etc) the less likely it is that a school will be seen to be denying pupils the benefits of positive social interaction with members of the opposite sex. However, the Court’s decision has undoubtedly created a measure of uncertainty for all schools that practise a measure of segregation and it will be important to pay close attention to future guidance from both the Department for Education and Ofsted as to the future ramifications.
By Adam Taylor
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