X School is a voluntary aided faith school for boys and girls aged between 4 and 16. It has an Islamic ethos and for religious reasons believes that it is mandatory to separate boys and girls at a certain point in their development: segregation is applied to children who have passed their 9th birthday by 1 September in the relevant academic year .
In The Interim Executive Board of X School v Chief Inspector of Education, Children’s Services And Skills  EWHC 2813 (Admin) the issue before the Court was whether or not the school was discriminating unlawfully against its male and/or female pupils by making “parallel arrangements” for their education in the same building (the Claimant’s description of the school’s policy) or by applying a regime of “complete segregation” for all lessons, breaks, school clubs and trips (the Defendant’s version).There was no evidence that either girls or boys were treated unequally in terms of the quality of the education that they received: the issue was the proper construction and application of the relevant provisions of the Equality Act 2010 .
X School is not the only Islamic school that operates that policy but the majority does not. Jay J noted that a number of Jewish schools with a particular Orthodox ethos do the same (though, again, majority of Orthodox schools does not) and “From brief internet research I have gathered that a number of Christian faith schools have similar practices” . An inspection report had concluded that the policy of segregation
“does not give due regard to the need to foster good relations between the genders, and means that girls do not have equal opportunities to develop confident relationships with boys and vice versa. This is contrary to fundamental British values and the EqA 2010 and ought to have been picked up on the previous inspection” 
On the issue of discrimination by segregating the sexes, Jay J said that he was “obliged to pose and answer this question: is one sex being treated less favourably than the other?” . The Defendant’s case appeared to be founded on the proposition that segregation meant that both the boys and the girls were being discriminated against: “there is equal or mirrored discrimination, and the two treatments cannot, as it were, cancel out the other…” . The situation as Jay J saw it was that:
“both sexes are being denied the opportunity to interact/socialise/learn with or from the opposite sex. Given that no material distinction is to be found between the two sexes for these purposes … this is the fairest and most legally accurate way of describing what is occurring. It is also non-discriminatory. In my judgment, it is artificial to say that the denial to the boys of the opportunity to mix with the girls (which the latter enjoy as between themselves) is somehow different from the opportunity being denied to the girls. It would only be different if there were some qualitative distinction for these purposes between male and female interaction (each looked at inter se), but in my judgment there is not. What we have here is the denial of interaction or concourse with the opposite sex which has equal value and impact, and is of the equivalent nature and character, in relation to both sexes” .
On that analysis, it could not be said that one sex was being treated less favourably than the other. He rejected the propositions that segregation by sex could be equiparated with the hypothetical case of segregating between Muslims and Hindus but otherwise apparently treating them equally . He also rejected the argument that the segregation was based on the unspoken premise that the girls were being segregated from the boys because they were regarded as inferior (or that the impact of doing so was to reinforce notions of their inferiority) .
Jay J held that held that segregation in the school on the ground of sex did not constitute discrimination under ss 13, 23 and 85 of the Equality Act 2010 and that the disputed inspection report of June 2016 could not be promulgated in its current form.
For longer and more expert analyses, see:
- Rachel Barrett and Chris Milsom, Cloisters Blog: Is gender segregation in education discriminatory?
- Rosalind English, UKHRB: Segregation in faith schools does not offend Equality Act: High Court.