Alan McCormack | Senior Associate

Court of Appeal Rules Gender Segregation is Unlawful

In the recent case of HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School [2017], the Court of Appeal considered whether a faith school’s policy of segregating boys and girls amounted to direct sex discrimination.

At Al-Hijrah School (“the School”), boys and girls were completely segregated between the ages 9 and 16 for all lessons, breaks, school clubs and trips. Following an Ofsted inspection in June 2016, the school was deemed to be “inadequate” in three respects including (i) effectiveness of leadership (ii) the personal development, behaviour and welfare and (iii) early years provision. The second factor related to the segregation of pupils and the report said that “boys and girls should have access to the same curriculum and facilities” and the decision to organise the school this way “limits pupils’ social development, and the extent to which they are prepared for interaction with the opposite sex when they leave school.” The Ofsted report also stated that such segregation was “contrary to the Equality Act 2010.”

The Court of Appeal concluded that the School had directly discriminated against its pupils as the decision to segregate boys and girls contravened the Equality Act 2010. It was also confirmed that, where a group is being discriminated against, individuals within that group are entitled to freedom from discrimination, looking at the matter from their own individual perspectives, rather than the group as a whole.

There was no evidence that girls suffered greater harm than the boys and the Court concluded that:

“An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.”

This judgement will mean that co-educational schools will no longer be able to segregate girls and boys with impunity, regardless of parental or cultural preferences, and it is likely that schools will now have to review their policies in order to avoid similar proceedings.

If you are an employer or an employee, and you believe you are affected by issues raised from this decision or should you require any further information, please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Alan McCormack

Alan McCormack

Employment Law Team

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