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Gender Separation and Discrimination in Mixed Schools - New Guidance Published

on Friday, 29 June 2018.

The new DfE non-statutory guidance, 'Gender Separation in Mixed Schools', was published on 28 June. Its purpose is to support mixed schools...

... on what is expected when it comes to separation by gender and/or other protected characteristics such as race or faith while at school.

Its publication follows the Court of Appeal's judgment in HM Chief Inspector of Education, Children's Services and Skills v the Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426 (Ofsted v Al-Hijrah). The Equality Act 2010: advice for schools documents has also been updated to include a link to the new guidance.

The Al-Hijrah Case

In June 2016, an Ofsted inspection of the school criticised the policy of segregation, stating that it limited pupils’ social development, left them ill-prepared for interaction with the opposite sex when they left school, and that the school did not take appropriate measures to mitigate the potentially negative impact of the policy. In a follow-up letter, Ofsted expressly stated that the policy was unlawfully discriminatory.

The school challenged this, saying that both boys and girls were offered the same opportunities. The Court of Appeal looked at the effect of segregation on the pupils as individuals, rather than as a group defined by gender.

The court found that each boy was, as a result of his sex, not given the opportunity to socialise with girls and vice versa. The sole reason for treating the pupils differently was their sex which is a protected characteristic for the purposes of the Equality Act 2010. As such, the Court of Appeal determined that the practice amounted to direct discrimination. The fact that both sexes were discriminated against in equal ways did not ameliorate the discrimination to the pupils as individuals.

This judgement was very specific on its facts and the Court of Appeal was clear that it was not the segregation itself that was critical, but that in that case the segregation impacted on girl pupils who suffered less favourable treatment.

What Impact Does the Guidance Have?

Although the guidance is non-statutory, it explains circumstances when, in the absence of a relevant lawful exception, the degree and type of separation of pupils based on gender for both curricular and extra-curricular activities, will be deemed to constitute unlawful direct discrimination contrary to the Equality Act 2010.

If pupils are separated by sex (or by reference to other protected characteristics such as race or faith), school leaders and governors/trustees will be expected to justify to Ofsted/ISI, parents and the wider community the reasons for the separation.

On the face of it this is particularly difficult for schools operating a 'diamond' model. The guidance as drafted does not give scope for a blanket justification that the different educational offerings are of equivalent quality and that the provision for all pupils is equal.

The guidance is aimed at all mixed schools and focuses on where there is separation between the genders for example for teaching different lessons, participation in sport or boarding facilities.    

Where pupils are separated on the grounds of gender, schools will be required to demonstrate that they have considered and documented how the relevant lawful exception(s) apply.

Relevant lawful exceptions apply to:

  • positive action and single sex activities (for example single sex classes to teach sex education and elements of PSHE)

  • single sex sport (due to physical strength, stamina or physique of the average girl or boy)

  • separation of such limited duration that is considered negligible in its effect ( some segregated PHSE lessons or rehearsal of boys and girls choirs to focus on different voice ranges)

  • separate toilet and washing facilities (regulation 4 of the School Premises (England) Regulations 2012 for pupils over 8 years and Schedule 22 of the Equality Act 2010)

  • separate boarding accommodation (permitted by Schedule 23 of the Equality Act 2010 providing the same standard of accommodation is provided for both boys and girls)

What Next?

The ISI will be inspecting this issue from September 2018, looking at the impact of any gender segregation in co-educational schools on the quality of education. Inspectors will consider factors such as the educational impact of  any gender separation on the social development of pupils, their preparation for adult life, the availability to them of meaningful choice and their access to academic options and co-curricular activities.

The ISI is updating its commentary over the summer and providing further information to schools.

What Action Should Schools Take Now?

  • Carry out a gender separation assessment in order to understand the extent to which gender separation occurs in practice.  In some schools gender segregation may be minimal or fall into one of the relevant lawful exceptions. For others, closer scrutiny or reorganisation may be recommended.  

  • Where there is separation, assess whether they is any suggestion that one gender is being treated less favourably than the other, whether it is necessary to maintain that separation or if a different approach could be adopted.  

  • You should take seriously any suggestion by parents or pupils that pupils of a particular gender are being treated less favourably.

  • Coeducational schools, including those operating under a diamond model, may wish to consider integrating those sections of the school where segregation occurs to become fully coeducational.

  • If the physical premises of your school will allow, a more radical solution may be to have separately registered single sex schools.

The guidance does appear to be a blunt instrument and we appreciate may cause significant consternation across the sector. It is likely to create greater focus on opportunities that are only given to one gender and all schools will need to be alive to any practices where pupils are separated.     

We would recommend that those schools that are directly impacted, most notably diamond model schools, take time to reflect and consider their options as to which solution is likely to be the best approach.

For further advice and information, please contact Yvonne Spencer on 0207 665 0870.

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