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Segregation of sexes in schools

School gate iStock 000003257894XSmall 146x219What are the obligations of schools under the Equality Act 2010? Mark Blois, head of education at Browne Jacobson talks to LexisNexis about how a recent high-profile court case has made no change to the core obligations schools are under.

Original news

Interim Executive Board of X School v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills [2016] EWHC 2813 (Admin)

What key issues did this case raise?

The key issue in this case was to provide clarification on the relatively unexplored issue of whether segregation of sexes in mixed-sex faith schools was discriminatory under the EqA 2010.

What did the court decide?

In examining this point, Mr Justice Jay identified ‘less favourable treatment’ as the turning point for this case.

The court agreed with the school’s submissions that, on the particular facts in this case, the practice of segregation of the sexes was not in itself discriminatory. This was because both male and female pupils were treated in the same way and both sexes were denied the same opportunities to interact, socialise and learn with or from the opposite sex. It followed, the court found, that it would be artificial to conclude that male or female pupils were subjected to less favourable treatment on the grounds of their sex. Hence there was no finding of discrimination.

Specifically, the court found ‘no evidence in this case that segregation in a mixed school, still less segregation in an Islamic school, has a greater impact on female pupils’. Additionally, it was found that the segregation in the instance case did not reinforce notions of inferiority of the female gender and neither was the segregation practised for the sole purpose of preparing the female pupils for a role as a purportedly inferior member of society.

However, the court decided that, although Ofsted had been wrong to place such a heavy emphasis in its report on the segregation of sexes in the school, there were other legitimate factors and concerns that meant that Ofsted had been entitled to place the school in special measures. Ofsted’s inspectors were also cleared by the court of any actual or apparent bias in relation to this school.

It followed that the court found that the balance of the Ofsted report into this school still had merit and it would not be quashed. Ofsted will now provide the school with a revised report and intends to proceed with publication on this basis.

What are the practical implications of this judgment, and is it likely to have wider application? For instance what does all this mean for segregation of the sexes in schools?

In terms of the practical implications of this judgment what is clear is that segregation of sexes per se will not be discriminatory under EqA 2010, provided both sexes are treated equally. It is worth stressing that the judgment applies to the specific facts of a particular type of school, namely a mixed-sex faith school. It is improbable that the judgment will have any wider application to other schools such as single-sex schools.

However, in terms of Ofsted inspections, Sir Michael Wilshaw, the chief inspector for Ofsted, has given his clear view on segregation without an identifiable educational purpose, stating that it is not in the ‘best educational interests’ of children. A new chief inspector takes over from Sir Michael shortly and we shall have to see whether the practice of segregation will then undergo any further scrutiny from Ofsted.

The judge said Ofsted’s case raised novel points on EqA 2010 and the application and scope of discrimination law. What are schools’ obligations in this respect under the current law?

The case dealt with some particularly complex and difficult issues in the context of a mixed school with an Islamic ethos. However, it has made no change to the core obligations of schools under the EqA 2010, namely that it is unlawful for a school, save for where a designated exception applies, to discriminate against a pupil or prospective pupil who has one or more of a range of protected characteristics, including their sex, by treating them less favourably than other pupils.

Specifically education providers must not discriminate against anyone in relation to admissions, the provision of education, school policies and procedures, access to benefits, facilities or services, exclusions or subject someone with a protected characteristic to any other detriment because of that characteristic.

Direct discrimination occurs when a person is subjected to less favourable treatment because of a protected characteristic. Indirect discrimination occurs when a ‘provision, criterion or practice’ is applied generally but has the effect of putting people with a particular protected characteristic at a disadvantage when compared to people without that characteristic. It is a defence against a claim of indirect discrimination if it can be shown to be ‘a proportionate means of achieving a legitimate aim’.

Schools, as with any other public body, also have a public sector equality duty under the EqA 2010, s 149. This duty extends to eliminating discrimination, advancing equality of opportunity between persons and fostering good relations between persons who share a relevant protected characteristic.

What happens next?

Both Ofsted and the school will disagree with certain parts of the court’s decision and given the public importance of this case both parties have been granted the right to appeal to the Court of Appeal. It is probable that one of the parties, if not both, will exercise this right. Sir Michael Wilshaw has already indicated that Ofsted will look into appealing this decision, while at the same time submitting an amended report to the school for their review before proceeding with publication.

In the meantime in order to avoid the risk of criticism at future Ofsted inspections it is envisaged that mixed-sex faith schools who provide for any aspect of segregation of sexes will likely examine their position and seek to reinforce the educational advantages of segregating their pupils.

Mark Blois has more than 20 years’ experience as an education lawyer and has been recommended as a leader in his field by the legal directories for more than ten years. He was designated a national leader of governance by the National College for Teaching and Leadership in 2015. Mark is chair of the L.E.A.D Academy Trust, a large multi-academy trust in the Midlands, and is also a long-standing Teach First mentor. He regularly speaks at national conferences and has been interviewed by BBC Panorama, Radio Four and Sky News. He has contributed over 100 papers, articles and book chapters to education literature on a variety of aspects of education law and has given oral evidence to the House of Commons Education Select Committee.

Interviewed by Kate Beaumont.

The views expressed by LexisNexis' Legal Analysis interviewees are not necessarily those of the proprietor.

This interview with Mark Blois was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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