Segregation of sexes in mixed school is direct discrimination

Keeping male and female pupils separate in education is contrary to the Equality Act 2010

A recent case in the Court of Appeal has made waves in the education sector.  As a result of the decision in HMCI v. The Interim Executive Board of Al-Hijrah School [2017], segregation of the sexes in co-educational schools will no longer be permitted.

While the case involved discrimination in education, not in employment, it is interesting for the fact that the Court concluded that the segregation of male and female pupils was “less favourable treatment” on the grounds of sex even though both boys and girls were treated the same.

The Law

As with discrimination in employment, the provisions governing discrimination in schools are contained in the Equality Act 2010.  The Equality Act applies to all schools whether publicly funded or private and prohibits direct and indirect discrimination on the grounds of sex (as well as in relation to all other protected characteristics).

Direct sex discrimination occurs where one person (in the case of schools, a pupil or prospective pupil) is treated less favourably on grounds of sex than another in a comparable situation (section 13 of the Equality Act).

The Equality Act provides that it is unlawful for education providers to discriminate on the grounds of sex in relation to, amongst other things, the provision of education, school policies and procedure, access to benefits, facilities or services or by subjecting a person to any other detriment.

It is important to note that this case concerned a co-education school not a single sex school.  There is a specific exemption contained in the Act which allows for single sex schools to discriminate against pupils because of their sex in relation to admission to the school.

The Facts

The case concerned Al-Hijrah school in Birmingham which is a voluntary-aided faith school for boys and girls.  The school has an Islamic ethos and for religious reasons, segregates boys and girls from the age of 9 to 16.  Boys and girls aged 9 and over are taught in different classrooms, use separate corridors and play areas, attend separate clubs and go on separate school trips.

Following an Ofsted inspection in June 2016, the School was ranked as “inadequate”.  One of the reasons given was that the School’s segregation policy did not accord with “fundamental British values and amount[ed] to unlawful discrimination”.  The School applied for a Judicial Review in order to prevent Ofsted from publishing its report.

In the Judicial Review proceedings before the High Court, the Judge found that the segregation was not discriminatory, because he considered there was no material difference in treatment between the boys and girls.  Both sexes were denied the opportunity to mix with the opposite sex and therefore there was no less favourable treatment of either group when you compared them to the other.

Permission was granted to Ofsted to appeal and the matter was heard by the Court of Appeal in July 2017.

The Decision

In a lengthy judgment, the Court of Appeal concluded that the School’s segregation policy was directly discriminatory under section 13 of the Equality Act, reversing the High Court’s decision.

The Court held that the differential treatment was detrimental to both the female pupils and the male pupils because they were both denied the opportunity to mix socially and interact with pupils of the opposite sex.  The fact that both boy pupils and girl pupils suffered the detriment did not prevent a finding of less favourable treatment and therefore direct discrimination against both sexes.

The Court held it was wrong to consider whether there had been “less favourable treatment” by comparing whether the girls as a group were worse off than the boys as a group due to the segregation or vice versa.  Instead the Court said that “each girl pupil and each boy pupil is entitled to freedom from direct discrimination looking at the matter from her or his individual perspective” – group comparison is not relevant.

Points to Note

This case concerned an Islamic faith school, however there are many other faith schools in the UK which have similar rules including a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools.  These schools will now have to overhaul their policies in light of the Court of Appeal’s ruling.

It is possible that this ruling could have implications in the employment sphere.  For example, in relation to dress codes, it is generally accepted that you can have different dress requirements for male and female employees provided that the rules as a whole are not more restrictive on one gender over another.  This case may be used in future to argue that such “separate but equal” treatment is no longer permissible but instead you have to look at the matter from the individual’s perspective.

Action to take

  1. There is no need to overhaul your dress code (although it is always worth reviewing any dress code policy to make sure it is not discriminatory in respect of the “protected characteristics” including age, disability, race, gender reassignment, religion or belief, sex, or sexual orientation) – but it will be interesting to see how the law develops in this area – and of course you will be the first to know if anything changes!
  2. If you have any concerns about policies in your own organisation get in touch to discuss.

You can Read the full case here:  HMCI v. The Interim Executive Board of Al-Hijrah School [2017]

This article was written and researched by Miranda Amos, Solicitor at our Salisbury office

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Contact us on: 01983 897003, 0238 982006 or 01722 653001

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