| SPOTLIGHT |
Ofsted has won a Court of Appeal case over a Birmingham school’s practice of segregating boys and girls over the age of nine, despite it being nominally a mixed school.
In November 2016, the High Court held this segregation at the Al-Hijrah Islamic School was not discriminatory.
But Ofsted appealed on five grounds, with the Secretary of State for Education, the Equality and Human Rights Commission and activist group Southall Black Sisters listed as interveners.
Ofsted argued that the segregation policy led to a loss of an opportunity for girls to choose to learn and socialise with boys, and vice versa, and that girls would lose the opportunity to socialise confidently with boys in preparation for personal, educational and work-related contexts on leaving school.
Its fourth and fifth grounds of appeal were that each of these imposed a particular detriment on girls because the female sex has the minority of power in society, and that this constituted less favourable treatment of girls.
Giving the majority judgment in Chief Inspector of Education, Children's Services And Skills v The Interim Executive Board of Al-Hijrah School (Rev 1) [2017] EWCA Civ 1426, allowing the first three grounds to appeal, the Master of the Rolls and Beatson LJ said: “There is no doubt that the restriction on a girl pupil socialising with boy pupils, and on a boy pupil socialising with girl pupils, is by reason of their respective sex.
“There is no doubt that Ofsted could reasonably take the view, which it did, that the differential treatment, as Ofsted portrays it, was detrimental to both the girl pupil and the boy pupil.
“As it happens, there was direct evidence from some, albeit a small number, of the pupils in the present case that they regarded the complete separation of the sexes as detrimental to their social awareness and development, and there is equally no doubt that that view was a reasonable one to hold.”
They said the High Court had been wrong to conclude the segregation was not discriminatory because “Ofsted's analysis of ‘less favourable treatment’ is correct. An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.”
They also rejected the school’s argument that separate but equal treatment by reason of gender cannot be unlawful discrimination even if it is detrimental.
Both judges though dismissed appeal grounds four and five, saying there was no evidential basis for either.
But in a dissenting judgement, Gloster LJ agreed with allowing the appeal on the three grounds but also supported grounds four and five.
She said the school’s gender segregation policy was “not only discriminatory against both boys and girls, but also is particularly discriminatory against girls in that it reinforces the different spaces - private and public - that men and women must occupy, and their respective stereotyped roles which accord them differential and unequal status[ in accordance with the precepts and practices of certain Muslim communities.
“That, in my view, amounts to both practical and expressive detriment within section 13 of the Equality Act.”
Mark Smulian
