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26 October 2017

The segregation of boys and girls in a mixed sex school is found to be discriminatory against both genders

The segregation of boys and girls in a mixed sex school is found to be discriminatory against both genders

We previously reported on the case of HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School and others (see https://www.charlesrussellspeechlys.com/en/news-and-insights/insights/charities-and-not-for-profit/2016/is-a-policy-of-segregating-boys-and-girls-in-a-mixed-sex-school-inherently-discriminatory/).  In that case, the High Court found that the practice of an orthodox Muslim school to completely separate boys and girls from the age of 9 onwards did not constitute sex discrimination against either gender, in the absence of any additional factor or disadvantage.  HM Chief Inspector’s appeal against that judgment was heard in July before the Court of Appeal, which has just given its decision on the appeal.  It is reported at [2017] EWCA Civ 1426.

The Court of Appeal found that the complete segregation of boys and girls in these circumstances was inherently discriminatory, against both sexes.  In this sense, boys and girls were not being treated as “separate but equal”, as the school had argued.  Instead, the denial of the right of each gender to mix with the opposite gender was detrimental to both boys and girls, as Ofsted’s findings had been that segregation had an adverse impact on the quality and effectiveness of education given by the school to both girl pupils and boy pupils.

A minority of the Court also found that the practice was particularly discriminatory against girls, as it reinforced “the different spaces – private and public – that men and women must occupy, and their respective stereotyped roles which accord them a differential and unequal status, in accordance with the precepts and practices of certain Muslim communities.”  It went on to find that whilst an adult woman may freely choose to adopt such a way of life for herself (in which case others should not criticise her or prevent her from living in that way), schools in Britain are obliged to enable and support girls to make a free and informed choice as to how they wish to live their life as an adult.  By segregating boys and girls whilst they are at school, this freedom is undermined.  However, the majority of the Court found that there had been no evidence put before it to make a finding that the school’s practice caused greater psychological harm to girl pupils than to boy pupils.

The school in question has pupils from the age of 4, up to the age of 16.  Boys and girls are only separated from the age of 9.  This case does not directly impact on single sex schools who only educate either girls or boys.  However, it is possible that the next legal challenge may be against such schools.  Watch this space…


This article was written by Andy Williams. For more information please get in touch with Andy on +44(0) 1483 252612 or via  Andy.Williams@crsblaw.com

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