On 28 June this year, the DfE produced new non-statutory guidance for mixed schools entitled ‘Gender separation in mixed schools’ (the Guidance). Its publication follows the Court of Appeal’s judgment in HM Chief Inspector of Education, Children’s Services and Skills v the Interim Executive Board of Al-Hijrah School  EWCA Civ 1426, both of which seek to clarify schools’ equality duties in relation to the gender segregation of pupils.
All independent schools and academies are required to fulfil their duties and obligations under the Equality Act 2010 (the Act); and ensure compliance with the Education (Independent School Standards) Regulations 2014 (ISSR), in particular:
– Part 1 – paragraph 3(j) – ensuring that the teaching at the school does not discriminate against pupils
– Part 2 – paragraphs 5(a) and (b) – actively promoting fundamental British values
– Part 3 – paragraph 7 – safeguarding and promoting the welfare of pupils
– Part 8 – paragraph 34 – quality of leadership and management
The Al-Hijrah decision
The Al-Hijrah School (the School) is a voluntary aided co-educational Islamic faith school in Birmingham, providing education for boys and girls between 4 and 16. Its practices – based on religious grounds – were to apply strict separation of boys and girls from the age of 9 to 16. The practice was public and a defining characteristic of the School.
In 2014 the School was placed in special measures by Ofsted, but it wasn’t until 2016 that Ofsted made adverse inspection findings in relation to leadership and management of the School, due to the segregation of pupils.
During the 2016 inspection, inspectors concluded that although the standard of education offered to either sex was not qualitatively different, it did limit the pupils’ social development and meant that they were ill-prepared for interaction with the opposite sex when they left school. On that basis they concluded that the practice amounted to discrimination in breach of the Act.
The School issued judicial review proceedings seeking an order that the inspection report be quashed. The High Court disagreed with the inspectors and concluded that both genders received the same educational experience – albeit mutually separated throughout – and there was no detriment to either group. The report was quashed. Ofsted appealed.
In the Court of Appeal, the Court rejected this argument on the basis that the Act prohibits direct discrimination in relation to a ‘person’ – there is no reference to the discrimination of groups or cohorts as a whole. The Court therefore determined that it was required to consider matters from each pupil’s individual perspective. They concluded that both boys and girls were individually subject to a detriment by reason of their segregation (which in this case was extreme) “because it diminishes the quality of education that the girl pupils and the boy pupils would receive but for their respective sex. It is not the mere fact of separation which gives rise to discrimination… but rather it is the impact on the quality of education which the pupils would receive but for their respective sex.”
This is a Court of Appeal decision so is binding authority on all lower Courts considering the equality law implications of pupil segregation.
The DfE’s gender separation Guidance
The new Guidance is the DfE’s response to the Al-Hijrah judgment and provides support to schools in identifying what is expected when it comes to separation by gender.
The Guidance explains circumstances when, in the absence of a relevant lawful exception, the degree and type of separation of pupils based on gender for both curricular and extra-curricular activities, is likely to be deemed to constitute unlawful direct discrimination contrary to the Act.
It is worth pointing out that the Guidance is non-statutory in nature, meaning that it is not mandatory. Provided schools (and it applies to all schools) follow the Act and Al-Hijrah, they are not required to follow it, but doing so will be good evidence of compliance.
“This is a Court of Appeal decision so is binding authority on all lower Courts considering the equality law implications of pupil segregation.”
How should schools respond?
At VWV, we suggest that all co-educational schools undertake a review of their segregation of pupils in particular by gender (which the Act refers to as by ‘sex’) and in relation to any of the other characteristics protected by the Act (disability, race, religion or belief, age, sexual orientation, gender reassignment, pregnancy and maternity, marriage and civil partnership).
Consideration should be given to the segregation which is taking place within the school, whether or not this is permitted (i.e. whether there is a lawful exception under the Act allowing it) and otherwise whether or not the segregation exposes pupils to a detriment. Schools should find appropriate ways to take account of views from pupils about possible detriment (such as pupil surveys) so that the ‘voice of the child’ forms an essential part of the evidence base for the assessment.
In so far as sex discrimination is concerned, relevant lawful exceptions apply to:
– positive action and single-sex activities (for example single-sex classes to teach sex education and elements of PSHE)
– single-sex sport (due to physical strength, stamina or physique of the average girl or boy) separation of such limited duration that is considered negligible in its effect (for example, some segregated PSHE lessons or rehearsal of boys and girls choirs to focus on different voice ranges)
– separate toilet and washing facilities
– separate boarding accommodation as long as the same standard of accommodation is provided for both boys and girls
We have produced a gender separation assessment table to assist schools with this task which is available at vwv.co.uk/onstream.
What impact will this have on inspections?
If pupils are separated by sex (or by reference to other protected characteristics), school leaders and governors/trustees will be expected to justify to inspectors, parents and the wider community, the reasons for the separation and to demonstrate that it does not expose pupils to a detriment.
If inspectors find evidence that gender separation has – or might have – a material detrimental impact on children of each gender, it may result in a finding that a school has not met one or more of the standards referred to above.
In these circumstances the DfE is likely to serve a notice on the proprietor of the school requiring it to submit an action plan setting out the steps to be taken to meet the standard or standards, and the time by which each step is to be completed. In most cases the DfE will instruct the relevant inspectorate to carry out a progress monitoring inspection of those steps set out in the action plan.
Particular considerations for diamond model schools
Schools registered as co-educational but who operate under a diamond model in which girls and boys are educated separately at one or more key stages, will, if they determine that gender separation is not minimal or does not fall within a lawful exception, need to consider:
– whether their current practices offer the same educational, co-curricular and social opportunities for boys and girls (careful review of pupil and parent feedback on the educational experience at the school will be an important part of these considerations); and if not:
– integration of the genders at all stages of the school to become fully co-educational; or
– change the existing registration to create separate single-sex schools for the separated year groups
We suggest that until more information is made available, this is something that governing bodies and proprietors keep under review.
Given that this is likely to be a focus area on inspection, we recommend that schools undertake and document the suggested review.
To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance-management solution tailored to schools, providing a range of compliance services supported by VWV’s sector-leading lawyers. If you would like to find out more visit vwv.co.uk.
Yvonne Spencer and John Deakin are partners at leading education law firm VWV. Yvonne can be contacted on 020 7665 0870 or by email at firstname.lastname@example.org; John can be contacted on 0117 314 5335 or by email at email@example.com.