Segregating Boys and Girls in a Mixed Gender School Is Not Direct Discrimination
A recent case tackled the potential sex discrimination in a faith school's policy of segregating.
In the case of The Interim Executive Board of X School v HM Chief Inspector of Education, Children's Services and Skills, the High Court found that a faith school's policy of segregating boys and girls when they reached a certain age did not amount to direct sex discrimination.
Legal Background - Direct Discrimination
Section 13 of the Equality Act 2010 (EqA 2010) provides that 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.
Section 13(5) of the EqA 2010 provides that less favourable treatment can include segregating B from others only if the protected characteristic is race. This does not apply to gender.
Section 85 EqA 2010 provides that a school must not discriminate against pupils in relation to admission arrangements or in the way it provides education (although the admission provisions do not apply to single sex schools).
Facts
The School is a faith school for boys and girls aged between four and 16. For religious reasons, when the pupils reach Year 5 (aged nine), the School segregates boys and girls for the majority of school activities. This policy is known to the parents and is in line with the School's Islamic ethos.
In June 2016, the School was subject to an Ofsted inspection. The Ofsted report rated the School as inadequate, highlighting a number of concerns, including the School's segregation policy. Ofsted alleged that the policy was unlawful under the EqA 2010 as it limited pupils' social development and the extent to which they would be able to interact with the opposite sex on leaving school. It should be noted, however, that there was nothing to suggest that either the boys or girls received a different level or quality of education to the other.
The School brought a judicial review challenge in respect of Ofsted's proposed report, arguing that its segregation policy was not discriminatory under the EqA 2010.
High Court Decision
The High Court found that the School's segregation policy does not amount to direct discrimination under section 13 or section 85 of the EqA 2010.
Ofsted had two main arguments in relation to its claim that there was less favourable treatment:
- All pupils suffered with loss of opportunity to interact with the opposite sex. This meant they would be less confident in many aspects of life when it came to interacting with the opposite sex after leaving school and
- The policy had a greater impact on girls because the reason for the segregation was that boys are regarded as being superior and therefore it tended to promote cultural stereotypes about the role of women in society, generating a feeling of inferiority within girls.
The High Court held that there was no less favourable treatment of one gender or the other. As both sexes were being denied the opportunity to socialise with each other, the loss of opportunity applied equally to both boys and girls.
The High Court also dismissed the argument that the segregation had a greater impact on girls on the basis that the segregation in the School only reflected the attitudes of the faith groups and not those of the wider society. There was no evidence to suggest the segregation either had a greater impact on girls or made them feel inferior.
Best Practice
Although it is not employment related, this case raises interesting points in relation to discrimination and acts as a useful reminder of the principle of equal opportunities.
In order to minimise the risk of potential (or successful) claims for discrimination, employees should be treated equally, regardless of gender or any other protected characteristic.
Employers should take all reasonable steps to prevent discrimination from occurring in the workplace and consider providing equal opportunities training to employees to supplement and support an equal opportunities policy. These actions can be used to demonstrate an employer's commitment to providing a fair and equal working environment for all.