Separate, but (un)equal? How gender-based segregation in co-ed faith schools unlawfully discriminates

This post considers a recent Ofsted challenge to the segregation male and female pupils in faith school in the Court of Appeal case of HM Chief Inspector Schools v  Al Hijrah School [2017] EWCA Civ 1426.

The facts

The Al Hijrah School is a coeducational Islamic School which segregated boys and girls from the age of 9-16 on religious grounds.

Ofsted had for some time been critical of the school in a number of respects but not in relation to its policy on segregation. In the summer of 2016, however Ofsted changed its tune and found that although pupils received a good standard of education, the school’s practices were directly discriminatory and thus contrary to sections 13 and 85(2) of the Equality Act 2010 because of its use of segregation.

The claim for judicial review

The School brought proceedings for judicial review in the High Court which was granted by Jay J. He accepted that the practice was a detriment to both boys and girls because they were deprived of the socializing benefits of mixing with the opposite sex. He also held (as indeed was obvious) that the segregation was on the grounds of gender.

What he did not accept was there was any less favourable treatment, since both genders were equally badly treated. Thus there was thus an new twist to the infamous justification for segregation employed in South Africa and the United States. Here the treatment was not only separate but also separate and equally bad.

Ofsted sought to counter this by arguing by analogy with the concept of indirect discrimination that the effect of the treatment  weighed more heavily on girls. It argued that given the historic subordination of women in society, educational segregation leads to their being deprived of the opportunities to form the cross gender relationships they will need in order to succeed. More widely, it was likely to lead girls to accept an inferior status. This idea was labelled “expressive harm”. Jay J rejected these arguments because Ofsted had not led any evidence that Islamic schools in general or this school in particular used segregation as a tool of ideological subordination.

Image: Kimberly Farmer

The appeal

Ofsted appealed and succeeded before a Court of Appeal consisting of Sir Terence Etherton, Beatson LJ and Gloster LJ. The Court were united in the result but divided in aspects of the reasoning in relation to “expressive harm”.

All three justices agreed upon a technical doctrinal reason for finding in Ofsted’s favour. It was necessary to apply section 13 of the Equality Act 2010 to each individual boy and girl. Thus

• Of any boy, it could be said that he was treated less favourably than he would have been treated if he had been a girl because had he been a girl he would have been able to socialize with girls
• Of any girl, it could be said that she was treated less favourably because had she been a boy she would have been allowed to socialize with boys.

Their Lordships dismissed Oftsted’s arguments on “expressive harm” for reasons similar to those of Jay J.

Lady Justice Gloster agreed with the technical arguments which impressed her male colleagues. In addition, however she delivered a blistering dissent in relation to “expressive harm” founded in part upon Jay J’s acceptance that women have tended to be subordinated to men within the UK. In addition, she held that there was evidence that other aspects of school life (eg. what was taught about gender roles) would lead to segregation reinforcing stereotypes.

Comment

As to the technical argument, it is difficult to see that it provides a sure foundation for the conclusion. The treatment is defined as being forbidden to socialize with boys (in the case of girls) or being forbidden to socialize with girls (in the case of boys). But it could equally (more plausibly?) have been defined as not being allowed to socialize with the opposite sex in which case there would have been no less favourable treatment.

Perhaps the clue to the strained interpretation was the statement at para. 56 that the legislation should be given a wide and purposive interpretation. In other words, the analysis was driven by a desire for a particular result.

In fact, in policy terms the outcome is striking. Schedule 11 of the 2010 Act expressly allows the running of single sex schools expressing a legislative approval of the value of single sex education. Seen in that context, the outcome of this case is odd since it would presumably have been different had the school set up two separate schools (on the same site?) to provide 9-16 education.

Schedule 11 may however soon be on the wrong side of history since the outcome of this case clearly represents Ofsted’s contemporary view of single sex education. Whether that view is confined to Islamic Schools remains to be seen. In any event, Christian and Jewish schools would be well advised to ensure their pupils have many opportunities to interact with the opposite sex, for Ofsted may hold an educational institution to be inadequate whether or not it is rescued from being discriminatory by Schedule 11.

Lady Justice Gloster’s partial dissent is remarkable in its forthright adoption of feminist social analysis. For a flavour of her minority judgment, look to para. 153:

One cannot shut one’s eyes to the objective reality that, whatever the good intentions of government and equality legislation, stereotypical attitudes to girls and women, to their role in the family and in society and as to their ability, or entitlement, to command equality of opportunity and pay in the marketplace remain current in certain sections of UK society today. In those circumstances, in my judgment, the segregation by sex on a mixed sex educational campus necessarily endorses and perpetuates, or at the very least risks endorsing and perpetuating, stereotypes about girls and women that are still pervasive in society and which are widely recognised as detrimental and unduly limiting. And that in turn results in expressive harm to girls.

It is a matter of speculation whether the difference between her and the majority is anything more than a matter of form.

By way of postscript, employment lawyers may see in this judgment signs of a forthcoming challenge to employer’s freedom to prescribe different dress codes for men and women. In Smith v Safeway PLC [1996] ICR 868, such codes were held non-discriminatory on the grounds that everyone got to be governed by a conventional dress code. This case was relied upon by the Respondents in this case but the Court provided no satisfactory answer to the challenged it represented.  It was simply deemed not to be of any assistance.