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20 December 2016

Interim Executive Board of X School v Chief Inspector of Education, Children's Services and Skills [2016] EWHC 2813 – is a policy of segregating boys and girls in a mixed sex school inherently discriminatory?

In a case that is currently awaiting its appeal outcome, the High Court decided that a faith school’s segregation of girls and boys when they reach a certain age does not amount to less favourable treatment and therefore no direct discrimination occurred in this case.

Background

The school (“X”), which remains anonymous, was subject to an Ofsted inspection by the Chief Inspector of Education, Children’s Services and Skills (“the Defendant”) in June 2016.  The draft report submitted to X prior to publication rated X as inadequate.  The report cited a number of concerns about X’s leadership and particularly criticised its policy of segregating boys and girls from Year 5 onwards.

The Report

The report concluded that the policy of segregation:

“does not give due regard to the need to foster good relations between the genders, and means that girls do not have equal opportunities to develop confident relationships with boys and vice versa. This is contrary to fundamental British values and the EqA 2010 [Equality Act 2010] and ought to have been picked up on the previous inspection”

The Claim

X brought a judicial review challenge in respect of the Defendant’s report, which was heard in the High Court in September 2016.  X stated that they made “parallel arrangements” for the education of the boys and girls and that this all occurred in the same building. 

X explained that the reason behind the separation of boys and girls at X was the Islamic ethos of the school.  This was something they openly promote and was a feature of the school that attracts parents to it. 

Far from being a policy unique to Islam, a number of Jewish schools, particularly those with an orthodox ethos, and some Christian schools, operate similar policies segregating boys and girls.

The Defence

The Defendant on the other hand characterised the arrangement as “complete segregation” for all lessons, breaks, school clubs and trips.  The Defendant argued that segregation meant that both the boys and the girls were being discriminated against: “there is equal or mirrored discrimination, and the two treatments cannot, as it were, cancel out the other…” 

The inspector who carried out the inspection of the school had previously stated that “Any form of segregation, without a good educational reason, is likely to lead to an inadequate inspection judgment for leadership and management”.  The reasoning behind believing that segregation causes such an issue was focused on the lack of opportunity for the children to integrate socially and prepare themselves for future interactions with the opposite sex.

The Judgment

The court considered that segregation of the sexes was not inherently discriminatory, and that there needed to be some additional factor or disadvantage to one party to the segregation in order to make a finding of direct discrimination.  The court stated that segregation was only viewed as inherently discriminatory where the segregation was of two races.

The situation as High Court saw it was that:

“both sexes are being denied the opportunity to interact/socialise/learn with or from the opposite sex. Given that no material distinction is to be found between the two sexes for these purposes … this is the fairest and most legally accurate way of describing what is occurring. It is also non-discriminatory. In my judgment, it is artificial to say that the denial to the boys of the opportunity to mix with the girls (which the latter enjoy as between themselves) is somehow different from the opportunity being denied to the girls. It would only be different if there were some qualitative distinction for these purposes between male and female interaction (each looked at inter se), but in my judgment there is not. What we have here is the denial of interaction or concourse with the opposite sex which has equal value and impact, and is of the equivalent nature and character, in relation to both sexes”.

The judgment did however make clear that, had the Defendants been able to show, in the course of the litigation, that either the boys or the girls were subject to direct disadvantage as a result of the segregation, then a finding of discrimination could be made.

The court rejected the proposition that segregation by sex could be seen as equivalent to the hypothetical case of segregating between Muslims and Hindus but otherwise apparently treating them equally. It also rejected the argument that the segregation was based on the unspoken premise that the girls were being segregated from the boys because they were regarded as inferior (or that the impact of doing so was to reinforce notions of their inferiority).

Comment

This judgment appears to represent a protection for religious organisations which impose unusual policies in accordance with their religious beliefs.  As the judgment identifies, it is not just schools with an Islamic ethos which have adopted policies segregating boys and girls for religious reasons.  The court highlighted the importance of establishing whether such policies resulted in either sex suffering discrimination as a result of the policy, and where no such discrimination was found, the importance of allowing such policies to be upheld. 

Whilst the principles of equality are of course important, where the Equality Act 2010 is not being breached, organisations such as X should be free to run their school in accordance with their religious views in respect of segregation of the sexes.

The Defendant is appealing against the judgment of the High Court to the Court of Appeal.  The appeal was heard on 24 November 2016 and the judgment is awaited.


This article was written by Andy Williams and Polly Dallyn. For more information please get in touch with Andy on +44 (0)1483 252 612 or via [email protected].

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