Is a mixed school which separates girls and boys guilty of discrimination? Spoiler alert: *No*.
Single sex schools form part of mainstream English education. They fall under an exception in equality law. But this case looked at a mixed school which taught boys and girls separately. It tested the boundaries of equality law.
Brief details about the school
X School is a mixed school with an Islamic ethos. Owing to religious practice, boys and girls aged 9-16 are taught separately. In June 2016, the school had an Ofsted inspection. Ofsted placed the school under ‘special measures’, which means it has serious concerns about the school. Its main cause for concern was the fact boys and girls were separated, in its view, without justification.
The school challenged the decision on three grounds:
- In the past, Ofsted had expressed no concern with the gender separation.
- The inspector had been biased, in other words, he had not acted fairly.
- There was no reason under the Equality Act 2010 that boys and girls in school could not be separated.
What the court said
The judge’s ruling was a mixed bag for the school. He criticised Ofsted for suddenly changing its view but said it could retain the ‘special measures’ conclusion as there were other problems with the school. As to bias, there was no bias on the part of the inspector. In relation to discrimination, the most interesting point from a human rights perspective, the judge found there was no discrimination.
What counts as discrimination?
In order for there to be discrimination under the Equality Act 2010, you must show that Person A is treated ‘less favourably’ to Person B because of one of the characteristics set out in that law (sex, sexuality, race, religion or belief, disability, age etc). It is irrelevant why someone may act in this way (for example, religious belief).
Ofsted argued that girls and boys are denied an advantage that the other gender has; that is, interaction with that gender. In other words, girls have the advantage of interacting with girls, and boys do not have this advantage and boys have the advantage of interacting with boys, and girls do not have this advantage.
Effectively, boys and girls lose the opportunity to choose with whom they wish to socialise. This loss of opportunity has a particular impact on women, because the female sex is the group with the minority of power in society. The arrangements reinforced notions of female inferiority – to argue this, Ofsted relied on the famous US case of Brown v Board of Education, that said that racial segregation in US schools reinforced the racial divide and were ‘unconstitutional’.
What the judge said
The only question for the judge was: ‘Is one sex being treated less favourably than the other?’
The main argument of Ofsted was that both sexes were being discriminated against, vis-a-vis the other. The judge dubbed this ‘mirrored discrimination’.
The judge did not agree. He took what he called “a broad and sensible evaluation” of the facts and law. He said that the children needed to be considered as a group. Given that all the children were denied the opportunity of interacting with the opposite sex, there was no one person or group being treated less favourably than the other. The children were, quite literally, separate but equal. He held there was no discrimination.
What about the other arguments?
As to Ofsted’s other arguments, the judge said that there was no evidence this separation had a greater impact on women and that he did not accept that gender segregation reinforced stereotypes.
The judge made it very clear that this case was not expressing a view about the motives of the school, religious or otherwise.
This case raised questions about equality law that have not been discussed before and is likely to be appealed to the Court of Appeal. Watch this space for plain English summaries of the next steps.
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- For the full judgment, see here.
- For a summary of the judgment, see here.
- RightsInfo explainer on racial discrimination (which also applies to sex discrimination).