Segregation by policy
Labour & European Law Review Weekly Issue 500 14 December 2016
The Equality Act states that it is direct discrimination to treat someone less favourably than someone else because of a protected characteristic. In The Interim Executive Board of X School v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (HMCI), the High Court held that the school’s policy of segregation for religious reasons was not direct sex discrimination.
X school is a voluntary aided Islamic faith school for boys and girls aged between 4 and 16. One of its defining characteristics (and therefore apparent to parents and regulators) is that boys and girls should be educated separately from age 9, for religious reasons.
After an inspection by HMCI in 2016, the school was rated as inadequate on a number of grounds. These included concerns about its leadership and management related to the school’s policy of segregating pupils for faith, rather than educational reasons. HMCI was concerned that this limited pupils’ social development and their ability to interact with the opposite sex when they left school. Although there was no evidence that pupils were being treated unequally in terms of the education they received, HMCI took the view that segregating boys and girls was contrary to the Equality Act 2010.
The school disagreed and asked the High Court to decide by way of judicial review whether the policy was discriminatory.
Section 13 of the Equality Act defines direct discrimination as follows:
(1) a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
(5) If the protected characteristic is race, less favourable treatment includes segregating B from others."
Section 85(2) of the Act states that a school must not discriminate against pupils in terms of the education it provides (or fails to provide); and the way in which it allows pupils to access a benefit, facility or service (or not access it).
High Court decision
The High Court held that the school could not be said to have directly discriminated against its pupils as boys were being denied the opportunity to mix with girls, just as much as girls were being denied the opportunity to mix with the boys. There was no evidence that one gender was placed at a particular disadvantage.
It would only be different if there were some “qualitative distinction for these purposes between male and female interaction” but in the view of the High Court judge, there was not as there was no evidence that segregation had a greater impact on female pupils. As such, the “denial of interaction or concourse with the opposite sex [is of] equal value and impact, and is of the equivalent nature and character, in relation to both sexes”. One sex was not therefore being treated less favourably than the other.
Nor did the judge accept that the policy perpetuated notions of woman as inferior to men. This, he concluded, “would be too broad and sweeping a judgment to make in a multi-cultural society, particularly in circumstances where the separation is not enforced but elected by the parents”. Apart from anything else, HMCI had no evidence with which to substantiate this claim. Although some of the children at the school had complained to the inspectors about this practice, none of them suggested that it made girls feel or appear to be inferior.