Schools in Britain will no longer be able to substantially segregate boys and girls, after the court of appeal ruled that a co-educational faith school in Birmingham had caused unlawful discrimination by separating the two sexes.
The court overturned a ruling by the high court last year involving Al-Hijrah school, a voluntary-aided mixed-sex state school that had been strongly criticised by Ofsted school inspectors for failing to uphold British values.
On appeal, Ofsted argued that the school had breached the 2010 Equalities Act by strictly segregating pupils from the age of nine, teaching them in different classrooms and making them use separate corridors and play areas. The segregation policy was also applied to clubs and school trips.
About 25 other mixed schools in England have similar rules and they now face having to overhaul their policies in the wake of the ruling by Sir Terence Etherton, the master of rolls, Lady Justice Gloster and Lord Justice Beatson.
Ofsted said it would now look closely at the other schools with similar policies, which includes several Orthodox Jewish and Christian faith schools.
“Ofsted’s job is to make sure that all schools properly prepare children for life in modern Britain,” said Amanda Spielman, Ofsted’s chief inspector, after the ruling was announced. “Educational institutions should never treat pupils less favourably because of their sex, or for any other reason.
“This case involves issues of real public interest and has significant implications for gender equality, Ofsted, government, and the wider education sector. We will be considering the ruling carefully to understand how this will affect future inspections.”
Rebecca Hilsenrath, the chief executive of the Equality and Human Rights Commission, said: “We welcome today’s confirmation by the court of appeal that it is unlawful for a mixed school to segregate girls and boys completely. Socialisation is a core part of a good quality education, just as much as formal learning and, without it, we’re harming children’s life chances right from the start.”
The appeal court judges said segregation had been tacitly approved by the Department for Education and Ofsted in the past, so the schools involved should be treated sympathetically and given time to adjust their policies.
“The relevant central government authorities should not pivot in the way they have gone about this without recognising the real difficulties those affected will face as a consequence,” the judges said in their ruling.
The ruling applies only to co-educational schools. Single-sex schools are given a specific exemption from discrimination claims related to admissions under the Equalities Act, although it is unclear if the provisions would extend to arguments that both sexes suffer from the absence of the other.
In ruling that Al-Hijrah had unlawfully discriminated against its pupils, the court stated: “An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.”
In her dissenting judgment, Gloster argued that the evidence showed that the school’s segregation was a greater practical harm for girls than for boys. “What possible justification could there be for always requiring girls to wait for their mid-morning snack until such time as the boys had finished theirs?” Gloster wrote.
The National Secular Society welcomed the court ruling as “an important blow” for gender equality. Stephen Evans, its campaign director, said: “Our society is often too slow to condemn discrimination when it comes cloaked in religion, particularly Islam. But gender apartheid is an assault on women’s rights and dignity.”
The victory for Ofsted follows an extended tussle with the school through the courts, originating in an inspection by Ofsted last year that put the school into special measures.
The school’s lawyers argued in court that the segregation was one of its defining characteristics. They said the policy was clear to parents who wished to send their children there and to previous Ofsted inspectors, who had never raised it as a concern.
But the justices ruled that the motivation for the discrimination was irrelevant, including religious or parental satisfaction.
