Segregation of girls and boys in a mixed-sex school is discriminatory

Court of Appeal holds that girls and boys in an Islamic state school are discriminated against by being segregated throughout the school day.

We reported in December last year on the High Court decision that the segregation of boys and girls in an Islamic school was not sex discrimination. The Court of Appeal has now overturned that decision, ruling such segregation to be unlawful. 

Segregation by sex in schools and the Equality Act 2010

Treating a person of one sex less favourably than a person of the other sex is direct discrimination. Additionally, a school must not discriminate against or victimise pupils in terms of admission or treatment (including the provision of education, benefits, facilities and services) on the ground of their sex (or any other protected characteristic).

There are exceptions, for example:

• single-sex schools are permitted to admit one sex only (single-sex schools include those which exceptionally admit pupils of the opposite sex and such schools are permitted to make separate provision for different sexes, including by confining pupils of the same sex to particular courses or classes);
• mixed-sex schools are permitted to provide boarding facilities to one sex only or separate boarding houses for each sex;
• segregation by sex is allowed in "gender-affected" activities such as sport or competitive games in which the physical capabilities of an average female or male might put them at a disadvantage when compared to the other sex (taking into account the age and stage of development of the children in question);
• sex segregation is also permitted in situations where it is necessary to preserve privacy and decency (for example in changing rooms and toilets).

Useful guidance for schools on compliance with the Equality Act is available from the Equality and Human Rights Commission website.

Case details

The Interim Executive Board of Al-Hijrah School v HM Chief Inspector of Education concerns an appeal against a draft Ofsted report which stated that the segregation of boys and girls at the school for all lessons, breaks and activities was discriminatory on the ground of sex.

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.

The High Court decided that direct discrimination had not taken place because boys were treated in the same way as girls. That is, both sexes were denied the opportunity to mix with the opposite sex so it could not be said that one sex was less favourably treated than the other.

Decision

The Court of Appeal disagreed, holding that the High Court had been wrong to focus on the effects of the segregation on boys and girls as two groups. Rather, the focus of a direct discrimination claim should be on the effect on individual boys or girls. The court held that an individual girl at the school is less favourably treated because she is not able to mix with boys, compared to a boy at the school who is able to mix with boys. And vice versa: an individual boy at the school is less favourably treated because he is not able to mix with girls, compared to a girl at the school who is able to mix with girls.

Two of the three judges upheld the High Court's decision that the segregation did not disadvantage girls more than boys. Lady Justice Gloster gave a dissenting judgment, stating that girls at the school were particularly disadvantaged by the arrangement because women are a less powerful group in society than men and the denial of an opportunity to mix with boys would disadvantage them more in the longer term. She argued that the segregation also perpetuated what she saw as social stereotypes about men's and women's place in society in "some Muslim communities" and did nothing to support girls at the school to grow up to play whatever part they choose in their society.

Impact on schools and academy trusts

This judgment will have significant consequences for co-educational schools which segregate boys and girls. The judgment notes that previous Ofsted judgments have not pointed out that segregation is discriminatory and there has been no Government guidance to indicate this. Ofsted made clear in the proceedings that it would apply a consistent approach to other schools which are "similarly organised".

The court recommends that Ofsted and the Secretary of State for Education recognise that "given the history of the matter, their failure (despite their expertise and responsibility for these matters) to identify the problem and the fact that they have de facto sanctioned and accepted a state of affairs which is unlawful, the schools affected should be given time to put their house in order". 

A number of schools separate boys and girls for teaching in some subjects. For example, the BBC reported last week that a school in Southampton is teaching boys and girls in separate classes for GCSE English in a bid to improve the performance of boys in the subject. Chris Billington, who leads Wrigleys Education Team notes that "although this case is specific to the complete segregation of boys and girls in a mixed-sex school, schools and academy trusts may wish to take legal advice about the ways in which they make separate provision for boys and girls to ensure that they are not inadvertently contravening the Equality Act.  This includes consideration of current gender identity issues."

Given the impact of this judgment, particularly on faith schools which segregate in this way, it is possible that the decision will be appealed. There are thought to be around 25 mixed-sex schools in England which segregate the sexes completely.