The law says it is direct discrimination to treat one person less favourably than another because of their sex (among other characteristics). In HM Chief Inspector of Education, Children’s Services and Skills (HMCI) v The Interim Board of Al-Hijrah School, the Court of Appeal held that sex segregation is discriminatory even if both boys and girls are disadvantaged.
Al-Hijrah 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, eat and play 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.
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. One sex was not therefore being treated less favourably than the other.
The judge also rejected Ofsted’s argument that this school (or any other faith school) segregated the sexes because they regarded women as inferior, not least because it had not provided any evidence to back up these assertions.
Decision of Court of Appeal
The Court of Appeal, however, held that the judge was wrong to approach the issue of less favourable treatment by making a comparison between groups. Instead he should have been guided by section 13 of the Equality Act which specifies direct discrimination by reference to a "person".
Given that the restriction on a girl pupil socialising with boy pupils (and on a boy pupil socialising with girl pupils), was by reason of their respective sex the differential treatment was detrimental to both the girl pupil and the boy pupil. As such, there was discrimination contrary to the Equality Act by virtue of the fact that each sex was being treated less favourably than the other.
However, by a majority the Court rejected Ofsted’s additional argument that the practical consequences of segregation resulted in a greater detriment to girls than boys, because it failed to provide evidence of this. The motive is irrelevant.
Separate but equal is not a defence to a claim of discrimination where, as in this case there was evidence that both boys and girls said that they felt disadvantaged in their preparation for life. This was not just a decision on principle. The evidence mattered.