Segregating boys and girls at mixed school is unlawful

The Court of Appeal has ruled that segregating boys and girls at a co-ed school is unlawful direct sex discrimination. 

Speedread

The Court of Appeal has ruled that segregating boys and girls at a co-ed school is unlawful direct sex discrimination. Looking at the issue from the perspective of an individual boy or girl, a girl is treated less favourably than a boy because she cannot mix with boys and a boy is treated less favourably than a girl because he cannot mix with girls. This ruling will affect all co-ed schools with a segregation policy. Such schools could now face claims of unlawful sex discrimination from Ofsted and/or parents and pupils.  

Facts

In HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah school, for religious reasons a co-educational Islamic faith school segregated boys and girls from the age of nine for lessons, trips, breaks and lunchtimes.  The school’s draft Ofsted report criticised the segregation policy, considering that it limited pupils’ social development and the extent to which they would be prepared to interact with the opposite sex on leaving school.  It also considered that the policy was unlawful sex discrimination under the Equality Act 2010.  

The school challenged the report in the High Court.  The High Court upheld the challenge, ruling that that sex segregation was lawful and Ofsted had been wrong to suggest otherwise.  There was no less favourable treatment as boys and girls were treated the same.  

Ofsted appealed to the Court of Appeal.

Decision

The Court of Appeal overturned the High Court decision.  

Segregating boys and girls at a mixed school is unlawful direct sex discrimination.  It was necessary to consider the issue from the perspective of an individual pupil.  A girl is treated less favourably than a boy because she cannot mix with boys, whereas boys can mix boys.  Similarly, a boy is treated less favourably than a girl because he cannot mix with girls, whereas a girl can mix with girls.   

Implications

The Court of Appeal’s decision will come as unwelcome news to many schools. Whilst the Equality Act 2010 contains a specific exemption from sex discrimination for single-sex schools, this high-profile ruling will affect all co-ed schools with a segregation policy. Such schools could now face claims of unlawful discrimination from Ofsted and/or parents and pupils.

One option that schools will need to consider is to stop segregating pupils.  This is easier said than done without making significant changes to the school's infrastructure. A more radical solution would be to change the school into single-sex schools. In any event, it seems likely that Ofsted will give schools a period of grace in which to get their houses in order.