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Segregation of schools on the grounds of gender is not discrimination

16 November 2016

The Administrative Court (Mr Justice Jay) was very recently asked to consider in the case of X School –v- Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, whether the segregation of pupils based on sex amounted to direct discrimination contrary to s.13 Equality Act 2010. The Court held on 8 November that it did not.

X School is a mixed-sex Islamic faith school and it made an application for judicial review in relation to an Ofsted report following an inspection under section 8 of the Education Act 2005, which concluded that the school unlawfully discriminated against both its female and male pupils by "making parallel arrangements" for their education in the same building.

The Ofsted report stated that segregation and its impacts do "not accord with fundamental British values and amounts to unlawful discrimination". This was challenged by the school.

The Court set out the key provisions of the Equality Act 2010 relating to the admission and treatment of pupils. Mr Justice Jay concluded that segregation on grounds of sex did not amount to less favourable treatment under sections 13, 23 and 85 of the Equality Act, because the treatment was identical for both groups. He considered that there was no qualitative difference between the denial to male pupils of interaction with female pupils and the denial to female pupils of interaction with male pupils. In those circumstances, Ofsted only have succeeded had it demonstrated that faith schools in general, and Islamic schools in particular, segregate the sexes because they regard the female gender as inferior, and/or that girls should be separately prepared for a lesser role in society. However, there was no evidence of this!

Ofsted had suggested that segregation was discriminatory because it perpetuated a historic view held by society of inferiority of women, but it did not implicate the Islamic school as such or provide any evidence of this.

The fact that single-sex faith schools exist did not have any relevance for the Court's assessment because Parliament had specifically legislated an exception for faith schools' admissions policies. Given the importance of the central issue, whether segregation in itself constitutes less favourable treatment, the Court granted permission to both parties to appeal to the Court of Appeal.

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By Joanna Lada-Walicki