Can segregating boys and girls at school be sex discrimination?

High Court rules draft Ofsted report was wrong to label segregation of girls and boys discriminatory.

Under the Equality Act 2010 (the Act), treating one sex less favourably than the other is direct discrimination. There is an exception to this for single sex schools which allows them to admit one sex only. A mixed intake school which treats one sex less favourably than another in its provision of education (for example by excluding one sex from certain subjects or educational opportunities) will, however, be in breach of the Act.

Case details
In The Interim Executive Board of X School v Her Majesty's Chief Inspector of Education, the High Court determined that segregating boys and girls from age 9 to 16 in a mixed sex Islamic school was not direct sex discrimination.

The school brought judicial review proceedings in the High Court after receiving a draft Ofsted report which determined that leadership and management at the school was inadequate and stated that the practice of segregating the sexes in classes, during lunchtimes and on school trips was discriminatory.

Ofsted argued that both girls and boys at the school were treated less favourably as their social development and confidence in interacting with the opposite sex was limited by the segregation. It also argued that segregated girls suffered a particular detriment given that women are a less powerful group in society and the segregation perpetuates female social inferiority. It did not argue that the girls received a lesser education than the boys.

Decision
The High Court found that there was no less favourable treatment of one sex when compared to another as both sexes lost the opportunity to mix with the other. It noted that segregation on the ground of race is unlawful under the Act but that segregation on other grounds is not specifically prohibited. The High Court did not agree that the practice of segregating boys and girls generates on its own a feeling of inferiority in girls particularly or that it perpetuates female social inferiority.

The judge commented that he might have come to a different conclusion if Ofsted had successfully established that girls and boys in the school were segregated because of a belief that girls were inferior.

Comment
As this case shows, offering separate education to boys and girls will not necessarily be discriminatory. A court will compare the treatment of one sex to treatment of the other sex at the same school and consider whether the quality of provision or opportunity disadvantages one sex when compared to the other.

It is interesting to note that the judge referred in his judgment to examples of highly rated Jewish and Christian mixed sex schools which also educate girls and boys separately.
In this case, the school failed to block the publication of the remainder of the Ofsted report which put the school into special measures due to leadership and management failings.