The High Court has ruled that the segregation boys and girls in a faith school did not amount to less favourable treatment towards female pupils

In The Interim Executive Board of X School v HM Chief Inspector of Education, Children's Services and Skills [2016] EWHC 2813 the Court decided that any detriment was suffered by both genders equally and therefore could not amount to sex discrimination against girls; there was no discernable detriment toward one gender over the other as both genders were denied the opportunity to interact with one another.

The law

Under the Equality Act 2010 (the 'Act') direct discrimination occurs where one person is treated less favourably than another 'because of' a protected characteristic. The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.

The Act also provides that it is unlawful to discriminate against pupils in relation to the provision of education.

With the exception of segregation on the grounds of race, segregation is not considered to be inherently discriminatory under the Act. In the case of all the other protected characteristics the mere fact of segregation will not be enough to establish direct discrimination unless the claimant is able to show that the result of segregation is less favourable treatment.

Background

The School (which was granted an anonymity order protecting its identity) was an Islamic faith school for boys and girls between the ages of 4 and 16. Its interpretation of the Islamic ethos required girls and boys to be separated from age 9 not only for lessons but also for other purposes including breaks, lunch and school trips.

The High Court considered the question of whether segregating male and female pupils from the age of 9 onwards in a school which described itself as coeducational amounted to direct discrimination, in the context of judicial review proceedings brought by the School against Ofsted.

The School was challenging various aspects of an Ofsted inspection report which claimed, inter alia, that the School's policy of segregating pupils on the ground of gender amounted to discrimination.

The circumstances in which the Ofsted inspection took place and several aspects of the resulting report were points of contention in the proceedings. The School claimed that the inspectors had embarked on the inspection intent to find fault with the School and that the resulting report was dramatically at odds with the results of other inspections, which over the previous few years had recognised the School's high safeguarding standards and efforts to improve.

Ofsted argued that that the School's policy was discriminatory both because it:

  • denied children of both sexes the opportunity to lean and socialise together, thereby hampering their preparation for life beyond school; and
  • that this policy in a faith school endorsed a wider societal view that women were inferior to men thereby generating a feeling of inferiority.

The decision

The Court found that the second limb of Ofsted's argument was too broad as it could not be said that segregation in faith schools reflected the views of wider society. The Court consequently declined to address this argument commenting that had Ofsted framed its argument in narrower terms, tying segregation to Islamic schools rather than to society as a whole, it would have been able to address this part of the case.

In respect of the first limb of Ofsted's argument, the Court found that there was no evidence that the School's policy had a detrimental impact on female pupils either in terms of feeling inferior or with regard to the standard of education provided.

The Court concluded that where the effect of the policy was to deny an opportunity to interact to children of both sexes, there could be no less favourable treatment and consequently no direct sex discrimination for the purposes of the Act.

Given the public interest in the issues to be determined in this case, both parties have been granted leave to appeal the High Court's decision so this is unlikely to be the last word on the issue.

The Court's decision in this case relies, at least in part, on the conclusion that groups of male and female children are direct comparators and that segregation therefore has the same impact on male children as it does on female children.

While any differential impact would of course need to be backed by concrete evidence for a Court to make a finding in respect of discrimination, the position that groups of male and female children are appropriate and equal comparators may well be reviewed as part of any appeal.