The independent sector is diverse and includes co-ed, single sex, diamond and faith schools. All, for different reasons, have cause to be interested – and perhaps concerned – by the implications of the recent Al-Hijrah judgment*. What does that judgment say and what does it mean for independent schools?
Al-Hijrah is a voluntary aided faith school for boys and girls aged between 4 and 16. It has an Islamic ethos and, specifically for religious reasons, believes that the separation of boys and girls from Year 5 is obligatory. Segregation of boys and girls in the age range of 9–16 is one of the defining characteristics of the school. Once pupils enter the school gates, there is no co-mingling of boy and girl pupils over the age of nine.
In an inspection report of June 2016, Ofsted made an explicit finding that the school’s segregation policy “does not accord with fundamental British values and amounts to unlawful discrimination.” It further judged that the policy of strict segregation, “does not give due regard to the need to foster good relations between the genders, and means that girls do not have equal opportunities to develop confident relationships with boys and vice versa. This is contrary to fundamental British values and the Equality Act 2010.”
Notably, Ofsted did not express the opinion that girls receive a different or qualitatively poorer level of education than boys, or that the impact of segregation reinforces stereotypes about the inferiority of the female sex. Rather, their judgement was that, although the girls and the boys were taught the same subjects and to the same standard, they all suffered educationally from the restriction on social interaction.
‘The Department for Education, which intervened to support Ofsted, has already publicly welcomed the judgment.’
What did the Court decide?
There were five issues for the Court of Appeal to decide, although for the purposes of brevity they can be summarised under two headings:
1. Is the loss of the opportunity for a girl pupil to choose to learn and socialise with a boy pupil (and vice versa) unlawful discrimination?
2. Does the loss of opportunity impose a particular detriment on, or represent less favourable treatment of, girl pupils?
Put another way: assuming the consequences of the policy of strict segregation are the same for boys and girls, is that unlawful (point 1); and/or does unlawful discrimination arise as girls suffer more as a result of the segregation (point 2)?
Perhaps unhelpfully, the Court of Appeal, which comprises three senior judges, did not reach a unanimous view on both questions. All three judges agreed with the first point, but whilst one judge also agreed with point 2, the other two judges did not.
The challenge for all schools which practice some degree of gender segregation arises from the Court’s unanimous view that “the denial of the choice to seek the society of and interaction with the opposite sex, and of the educational benefits which might flow from the exercise of that choice, is capable of amounting to the denial of a ‘benefit’ or ‘facility’… and the subjection of the pupils to a ‘detriment’,” in each case contrary to the Equality Act 2010.
The Court found that both boy pupils and girl pupils suffered a detriment from the operation of the school’s segregation policy and each boy and each girl suffered less favourable treatment since the girls were denied the opportunity (which the boys have) of mixing with other boys and the boys were denied the opportunity (which the girls have) of mixing with other girls.
Put even more plainly: two wrongs don’t make a right.
Is segregation worse for girls?
Whilst the Court ruled that boys and girls each suffered the same detriment by being denied the opportunity to socialise with pupils of the other gender, one judge was prepared to go further and agree with Ofsted that girls suffered a different and greater detriment. Analysing the reasoning for that dissenting judgment goes beyond the ambit of this article, but some of the factors considered by the judge in reaching that opinion are undoubtedly relevant in providing more context for the decision.
The dissenting judge observed that, “One does not need to be an educationalist, a sociologist or a psychiatrist to conclude that a mixed sex school:
i. Which, whether intentionally or otherwise, tolerates an environment where extreme and intolerant contemporary views about the role and physical subservience of women, and the entitlement of men physically to dominate and chastise them, are on display, or available to read, in the school library;
ii. Whose teachers approve the expression by the pupils of gender stereotyped views about the roles of women as homemakers and child minders and the role of men as the breadwinners;
iii. Where girls are always required to wait for an hour during the school day so that the boys can take a break first; and
iv. Where no, or no sufficient, consideration is given to promoting equal opportunity, is a school where a strict sex segregation policy subjects girls to a greater risk of extreme and intolerant views and is likely to reinforce or create misogynist attitudes amongst the boy pupils towards them.
It is useful to keep in mind these factors, which unquestionably underpinned Ofsted’s judgement, when turning to consider what the implications of the Court’s judgment might be for other schools in the independent sector.
Considerations for independent schools
Faith schools which follow strict gender segregation policies have most to consider as a result of this judgment. If there is evidence that the segregation by gender diminishes the quality of education, including the opportunities for all pupils to develop confident social relationships with boys and girls, then they are likely to face the same challenges on inspection as Al-Hijrah.
Diamond schools might be affected, although it is extremely unlikely that they will practise the extreme gender segregation seen at Al-Hijrah. The judgment makes clear that it is not the fact of segregation that gives rise to the discrimination, but rather the impact on the quality of education which the pupils would receive but for their respective sex. Equally, whilst denial of choice to interact freely with pupils of both genders is capable of amounting to a detriment, the Court does not say that it always will be detrimental. Diamond schools will be quick to point out that their model arguably provides the best of both worlds for boys and girls. And recent press speculation that the judgment is likely to require diamond schools to allow boys and girls to compete on the same sports team is misguided in as much as it fails to consider specific exemptions in the Equality Act for ‘gender-affected’ sports (**).
Single sex schools are not affected by the judgment given the explicit exemptions for them in the Equality Act. Nevertheless, they may feel threatened by the implicit finding that, in 21st-century Britain, freedom to choose to mix and socialise with boys and girls is a fundamental British value. As it happens, the Chief Inspector of Ofsted has already anticipated this and GSA need look no further than the Daily Mail for a ready-made answer (***).
‘Ofsted’s judgement was that, although the girls and the boys were taught the same subjects and to the same standard, they all suffered educationally from the restriction on social interaction.’
The Department for Education, which intervened to support Ofsted, has already publicly welcomed the judgment as supporting DfE’s “long-standing position that mixed schools should only separate children by gender in very limited circumstances where this can be justified and they can demonstrate that no pupil is disadvantaged by virtue of their gender.”
DfE is currently reflecting on the wider implications of the judgment, and it is inevitable that its 2014 advice on the Equality Act will be updated. For example, the current advice that “it is not necessarily unlawful to have some single sex classes in a mixed school, provided that this does not give children in such classes an unfair advantage or disadvantage when compared to children of the other sex in other classes,” will need to be expanded to encompass situations where the disadvantage arises equally for pupils of both genders.
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Matthew Burgess is a Partner at leading education law firm VWV and can be contacted on 0117 314 5338 or firstname.lastname@example.org
* HM Chief Inspector of Education, Children’s Services and Skills -v-The Interim Executive Board of Al-Hijrah School,  EWCA Civ 1426
** Sean Harford’s letter to The Telegraph, 19 October 2017
*** Amanda Spielman: Single sex schools help girls overcome discrimination in an unequal Britain, Daily Mail, 14 October 2017