Court of Appeal rules gender segregation in school constitutes unlawful sex discrimination

13/10/17

HM Chief Inspector of Education, Children's Services and Skills v The Interim Executive Board of Al-Hijrah School & Ors [2017] EWCA Civ 1426

The Court of Appeal (Sir Terence Etherton MR, Beatson and Gloster LJJ) today ruled that a mixed-sex Birmingham Islamic school’s policy of complete segregation between boys and girls over a certain age for all lessons, breaks, school clubs and trips constituted unlawful sex discrimination.

Ofsted had reached that conclusion after an inspection of Al Hijrah School. The school sought and obtained an order from the High Court quashing that conclusion. Jay J held that, because there was no evidence that the standard of education received by boys was any different to that received by girls, there was no discrimination. Ofsted appealed, supported by the Secretary of State for Education and the Equality and Human Rights Commission, intervening.

The Court of Appeal unanimously accepted Ofsted’s argument that the gender segregation practised here involved subjecting both boys and girls to a “detriment” (the inability to mix socially and interact with pupils of the opposite sex). In each case, the detriment was less favourable treatment because of the pupil’s sex. The fact that both individual boys and individual girls were subject to the detriment did not prevent the direct discrimination provisions of the Equality Act 2010 from applying. The focus of the analysis was on the individual pupil, not (as Jay J had thought) on boys or girls as a group. This analysis was supported by an examination of the scheme of carefully tailored exceptions applicable to single sex schools in schedule 11 to the 2010 Act and of the general exceptions under schedule 3.

Lady Justice Gloster would have allowed the appeal on a further ground advanced by Ofsted but not supported by either the Secretary of State or the EHRC. In her view, gender segregation gave rise to a greater detriment for girls for two linked reasons. First, girls at Al Hijrah School were subject to a practical detriment because the evidence (which included references to books in the school library espousing conservative religious views about the role of women and in some cases condoning violence against them) showed that a gender segregation policy in this case was likely to reinforce or create misogynist attitudes. Secondly, and more broadly, it also subjected them to “expressive harm” because it “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.

The judgment is here.

Coverage of the case by the BBC can be found here.