The UK Court of Appeal has found complete segregation in a mixed-sex school of male and female pupils over a certain age for all lessons, breaks, school clubs and trips to be direct discrimination.
The case concerned Al-Hijrah School, an Islamic ethos faith school for boys and girls between 4 and 16. Segregation of boys and girls in the age range of 9-16 is one of the defining characteristics of the School – and common knowledge to all parents who wished to send their children there.
On foot of an investigation, the Office for Standards Education (Ofsted) published a report in 2016 which found the School to be inadequate due to ‘effectiveness of leadership and management’, ‘personal development, behaviour and welfare’ of pupils and ‘early years provision’. A central consideration of the report in arriving at its conclusion was the gender based segregation of students. The School contested this assessment by seeking judicial review. The High Court found in favour of the School, acknowledging that both boys and girls were denied the opportunity to interact with the opposite gender and the consequent social benefits but that neither group was treated ‘less favourably’ than the other. The policy of gender segregation, therefore, did not amount to unlawful direct discrimination under s.13 (1) of the Equality Act 2010 (EA 2010).
Ofsted appealed the High Court decision to the Court of Appeal arguing that the gender segregation of students does result in the less favourable treatment. Ofsted asserted the segregation deprived children of the opportunity to choose to learn and socialise with those of the opposite gender, inhibiting their ability to do so confidently, leaving them ill-equipped for their adult lives. Furthermore, Ofsted contended that the judge had incorrectly assessed the issue of less favourable treatment which should have been assessed from an individual perspective rather than that of a group.
Permission to intervene was also granted to the Secretary of State for Education, the Equality and Human Rights Commission, and NGOs Southall Black Sisters and Inspire.
The Court found in favour of Ofsted, taking the view that the restriction on socialising with pupils of the opposite sex and ‘differential treatment’ of pupils was detrimental to the quality of the education of both girl and boy students. In relation to the issue of direct discrimination the Court referred to s.13 EA 2010 as the starting point of an assessment which specifies direct discrimination by reference to a ‘person’. With no reference to a ‘group’ comparison, it was held that each pupil is entitled to freedom from direct discrimination looking at the matter from their individual perspective.
Ofsted raised two further points with the Court in their appeal. Firstly they argued that gender segregation was more harmful to girls as ‘the female sex is the group with the minority of power in society, so the restriction upon female children learning, socialising and feeling comfortable with male children and upon male children learning to work and interact socially with female children have adverse social implications for women that outweigh the adverse social implications for men’. Secondly Ofsted argued, by analogy with racial segregation, that gender segregation carries the ‘necessary implication that girls are inferior or otherwise relevantly different to boys’ amounting to an ‘expressive harm’.
While all three of the judges were willing to take judicial notice of the fact that women are in the minority group in society, the majority were unwilling to infer that girls at the school were more disadvantaged than their male counterparts. Dissenting Gloster LJ however concluded that one did not need to be ‘an educationalist, a socialist or psychiatrist’ to determine if a school environment is more hostile to girls, rather she held that ‘an objective inference can be drawn from the entirety of the evidence that the sex segregation in place at the School involved greater practical detriment for girls than for boys’.
On the final argument, the Court divided again, Gloster LJ disagreed with the majority who rejected the arguments of Ofsted, finding no evidence of the segregation being anything other than religiously motivated and as thus incapable of causing expressive harm. Gloster LJ however held that ‘segregation by sex on a mixed sex educational campus necessarily endorses and perpetuates, or at the very least risks endorsing and perpetuating, stereotypes about girls and women that are still pervasive in society and which are widely recognised as detrimental and unduly limiting. And that in turn results in expressive harm to girls’. She also rejected the view that there was a need to prove motivation in accruing expressive harm asserting the only pertinent issue being the greater negative impact segregation had on girl pupils.
Click here for the full judgment.