| SPOTLIGHT |
Ofsted recently won a high-profile 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. Richard O'Dair analyses the ruling.
The Al Hijrah School is a coeducational Islamic School which segregated boys and girls from the age of 9-16 on religious grounds.
Ofsted had for some time been critical of the school in a number of respects but not in relation to its policy on segregation. In the summer of 2016, however Ofsted changed its tune and found that though all pupils received a good standard of education, the school’s practices were directly discriminatory and thus contrary to EA S.13 and S. 85(2) because of its use of segregation.
The School brought proceedings for judicial review which was granted by Jay J. He accepted that the practice was a detriment to both boys and girls because they were deprived of the socializing benefits of mixing with the opposite sex. He also held (as indeed was obvious) that the segregation was on the grounds of gender. What he did not accept was there was any less favourable treatment, since both genders were equally badly treated. Thus there was a new twist to the infamous justification for segregation employed in South Africa and the United States. Here the treatment was not only separate but also separate and equally bad.
Ofsted sought to counter this by arguing by analogy with an indirect discrimination case that treatment in fact weighed more equally on girls – the idea of “expressive harm”. It argued that given the historic subordination of women in society, educational segregation leads to their being deprived of the opportunities to form the cross gender relationships they will need in order to succeed. More widely, it was likely to lead girls to accept an inferior status. Jay J rejected these arguments because Ofsted had not lead any evidence that Islamic schools in general or this school in particular used segregation as a tool of ideological subordination.
Ofsted appealed and succeeded in HM Chief Inspector Schools v Al Hijrah School [2017] EWCA Civ 1426 before a Court of Appeal consisting of Sir Terence Etherton, Beatson LJ and Gloster LJ. The Court were united in the result but divided in relation to the issue of expressive harm.
All three justices agreed upon a technical doctrinal reason for finding in Ofsted’s favour. It was necessary to apply S.13 to each individual boy and girl; thus
Their Lordships dismissed Ofsted’s arguments in relation to expressive harm for reasons similar to those of Jay J.
Lady Justice Gloster agreed with the technical arguments which impressed her male colleagues. In addition, however she delivered a blistering dissent in relation to expressive harm founded in part upon Jay J’s acceptance, remarkable and unusual for a male member of the judiciary, that women have tended to be subordinated to men within the UK. In addition, she held that there was evidence that other aspects of school life (eg what was taught about gender roles) would lead to segregation reinforcing stereotypes.
Analysis
As to the technical argument, it is difficult to see that it provides a sure foundation for the conclusion. The treatment is defined as being forbidden to socialize with boys (in the case of girls) or being forbidden to socialize with girls (in the case of boys). But it could equally (more plausibly??) have been defined as not being allowed to socialize with the opposite sex in which case there would been no less favourable treatment.
Perhaps the clues to the strained interpretation was the statement [56] that the legislation should be given a wide and purposive interpretation. In other words, the analysis was driven by a desire for a particular result.
In fact, in policy terms the outcome is striking. Schedule 11 expressly allows the running of single sex schools expressing a legislative approval of the value of single sex education. Seen in that context, the outcome of this case is odd since it would presumably have been different had the school set up two separate schools (on the same site?) to provide 9-16 education.
Schedule 11 may however soon be on the wrong side of history since the outcome of this case clearly represents Ofsted’s contemporary view of single sex education. Whether that view is confined to Islamic Schools remains to be seen. In any event, Christian and Jewish schools would be well advised to ensure their pupils have many opportunities to interact with the opposite sex, for Ofsted may hold an educational institution to be inadequate whether or not It is rescued from being discriminatory by Schedule 11.
Lady Justice Gloster’s partial dissent is remarkable in its forthright adoption of feminist social analysis. It is a matter of speculation whether the difference between her and the majority is anything more than a matter of form.
By way of postscript, employment lawyers may see in this judgment signs of a forthcoming challenge to employer’s freedom to prescribe different dress codes for men and women. In Smith v Safeway PLC [1996] ICR 868, such codes were held non-discriminatory on the grounds that everyone got to be governed by a conventional dress code. This case was relied upon by the Respondents in this case but the Court provided no satisfactory answer to the challenged it represented. It was simply deemed not to be of any assistance.
Richard O’Dair is a barrister at the 36 Group. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..
