Is segregating a school by sex necessarily discriminatory? X School v Chief Inspector

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 [7].

In The Interim Executive Board of X School v Chief Inspector of Education, Children’s Services And Skills [2016] 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 [1].

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” [11]. 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” [50]

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?” [122]. 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…” [123]. 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” [125].

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 [130]. 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) [132].

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.

Cite this article as: Frank Cranmer, "Is segregating a school by sex necessarily discriminatory? X School v Chief Inspector" in Law & Religion UK, 14 November 2016,


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11 thoughts on “Is segregating a school by sex necessarily discriminatory? X School v Chief Inspector

  1. What the judge overlooked is that this separation is an implementation of Islamic doctrine, which treats women as being of less worth than men (indeed, I understand that,in Islam, every woman must be owned by a man – even her son in some circumstances). Thus, the mere act of separation, while not discriminating in itself against one sex more than the other, is an implementation of a belief system that regards and treats women in a discriminatory way. To the extent that the separation is a part of Islam and Islam does discriminate against women, the practice is discriminatory. The separation is the first step in (and a necessary precondition of) a whole way of life which is discriminatory. In short, the very real discrimination within Islam needs to be nipped in the bud by preventing the first step in what is undeniably a discriminatory way of life/system of laws/belief system.

    • I deleted the second part of your comment: it looked suspiciously like the offence at Scots common law of ‘murmuring judges’.

      • I am intrigued. Are you saying that you think I might have committed a criminal offence? Can you please explain? I have never heard of this offence of ‘murmuring judges’. Are you referring to the play of that name? The Wikipedia entry for the play ends ‘The pessimism is slightly relieved by the final image of the play, two young women, a barrister, Irina and a police officer, Sandra, who set to work on the arduous task of revolutionising the system.’ But I am wondering how one can revolutionize a system which you will not allow to be criticized.

        • It’s an offence at Scots common law, not English. The equivalent in England & Wales and Northern Ireland is “scandalising the court”. The latter was the subject of a review by the Law Commission in December 2012.

          And no, I was not suggesting that you had committed a criminal offence. But it’s a fairly fine line between acceptable and unacceptable criticism of a particular decision (in my view, ENEMIES OF THE PEOPLE in the Mail went well beyond the bounds of acceptability). It’s much, much easier to criticise than to do the job.

          • Why do you introduce an issue of Scots common law when it doesn’t apply? Also I would point out that the 2012 Law Commission’s paper states at 5: ‘In England and Wales this branch of contempt was described almost 40 years ago as “virtually obsolescent”, and the last recorded successful prosecutions were in 1930 and 1931.’

            I would also refer you to Badry v. The Director of Public Prosecutions (Mauritius) [1982] UKPC 1 ( at 19 to 21 which quotes at 21, Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322:

            “But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

            To remove my comments you must therefore think that I was not acting in good faith or with malice. Why do you think that?

            Would you accept that a member of the public who thinks, say, that a judge is guilty of misconduct in public office (a criminal offence) or attempting to pervert the course of justice can explain his views in public? See Napier and another v Pressdram Ltd; [2008] EWCA Civ 443; [2009] WLR (D) 172 and the words of Lord Justice Sullivan during the hearing, as reported in Private Eye (No. 1237, 29 May-11 June 2009, p. 6): ‘A citizen should have the right to shout from the rooftops if he wanted, that a complaint about a solicitor had been rejected because the Law Society were a complete shower…’ and also Lord Justice Toulson at 42: ‘Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle).’ So, the Court of Appeal has upheld he right to report the truth.

            I don’t think your arguments hold water.

          • I mentioned it purely on a whim: it’s much more memorable than “scandalising the court”. Just because an offence is hardly ever prosecuted doesn’t mean that it ceases to be an offence.

            I don’t think there is much point in pursuing this further and I shall take down your comments and my responses on Monday.

          • You also forgot the defence of detecting or preventing crime, which will succeed as long as the intention is genuine i.e. there is no requirement to be right about there being a crime.

            Why remove the comments? This smacks of censorship. In any event, in the circumstances I am not going to comment on this site again.

          • You can remove the comments but I will ensure that they remain on the web. PS I don’t think you are suited to a forum designed for the free exchange of ideas.

  2. The whole point of sectarian schools (of whatever religion) is to inculcate a specific sect’s way of life in the child, to normalise the whole range of religious customs, habits, prejudices, dogma, relationships between sexes… and so on. It is intended to prevent the child experiencing the other norms of the secular society in which the child will eventually live as an adult. The parent can create this cultural/religious isolation at home but is fearful that school will expose the child to other norms and will be lost to the parent’s faith. The Westminster Government is, it seems, happy with this situation so is proposing to allow sectarian schools to perfect it by totally excluding any pupil whose parents hold an alternative world view.

    A better plan to create a dangerously divided society a generation or two from now would be hard to devise. Every day I am more grateful to be a citizen of Wales not England .

  3. Given that segregation by sex not only exist in the state segregating but in many places is the only option other then private schooling, I don’t see how the court could have decided otherwise without sending the school system in many parts of the country into administrative crisis that would likely be even bigger then that faced during evacuation in World War II.

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