Today the Court of Appeal handed down its judgment in Chief Inspector of Education, Children’s Services And Skills v The Interim Executive Board of Al-Hijrah School  EWCA Civ 1426, on appeal from  EWHC 2813 (Admin). The Court ruled that the policy of the Al-Hijrah School of segregating boys from girls amounted to unlawful sex discrimination; from year five, boys and girls at the state-funded Islamic school in Birmingham are completely segregated for religious reasons for all lessons, break and lunchtimes, school trips and school clubs.
In an earlier post, we reported that In The Interim Executive Board of X School v Chief Inspector of Education, Children’s Services And Skills  EWHC 2813 (Admin) the High Court held that it was not discriminatory for a state-funded Islamic school to make “parallel arrangements” for the education of male and female pupils in the same building or to apply a regime of “complete segregation” for all lessons, breaks, school clubs and trips.
Ofsted lodged an appeal and at a preliminary application by Associated Newspapers, publishers of the Daily Mail, the Court of Appeal (Etherton MR and Gloster and Beatson LJJ) lifted the school’s anonymity. Subsequently, The Independent reported that the Department for Education had decided to take over the running of the school.
Appeal Court Judgment
Relevant extracts from the Appeal Court’s Press Summary are reproduced below, and a fuller report will be included in a future post. [The Press Summary does not form part of the reasons for the decision, and the Court’s full judgment is the only authoritative document].
The Court of Appeal unanimously allowed the appeal. It held that the School’s policy of strict segregation caused detriment and less favourable treatment for both male and female pupils respectively by reason of their sex and was therefore contrary to the EA 2010.
By a majority of two to one, the Court held that the segregation did not impose a particular detriment on female pupils, with Lady Justice Gloster dissenting on this issue.
REASONS FOR THE JUDGMENT
The High Court was wrong to approach the question of whether there had been less favourable treatment by reason of sex by looking at each sex as a group. Each girl pupil and each boy pupil is entitled, as an individual, to freedom from direct discrimination [49-50]. The School’s policy prevents an individual girl pupil from interacting with a boy pupil only because of her sex; if she were a boy she would be permitted to interact with a boy pupil, and vice versa. It was reasonable for Ofsted to take the view that this policy is detrimental to each pupil as it adversely impacts upon the quality and effectiveness of the education given to them by the School. As a result of the policy, each pupil suffers less favourable treatment by reason of their sex [48, 51-55 and 67].
The Court of Appeal rejected the School’s argument that separate but equal treatment by reason of gender cannot be unlawful discrimination, even if it is detrimental, if both sexes suffer the same detriment. Discrimination legislation should be given a wide and purposive interpretation rather than a narrow one . The statutory scheme embodied in the EA 2010 envisages that both ‘separate but equal’ and ‘separate but different’ treatment can constitute unlawful discrimination [62-70]. The clear inference from Chapter 1 of Part 6 of the EA 2010, which deals with schools, is that Parliament did not envisage or intend segregation by sex in co-educational schools [71-73]. It was not the mere fact of segregation which gave rise to discrimination (as would be the case if there was segregation based on race), but rather the impact of the segregation on the quality of education which the pupils would receive but for their respective sex .
The motive for discrimination was irrelevant. That the School had a religious motivation for the segregation is therefore not relevant. The same was true of parental satisfaction with the School’s policy. Whilst the statutory provisions in the Education Act 1996 and the School Standards and Framework Act 1998 provide for the accommodation of parental choice in their children’s education, this cannot negate the statutory right of each child to be educated in a nondiscriminatory manner as required by the EA 2010 [81-82].
Ofsted made clear during the proceedings that if their appeal succeeded they would apply a consistent approach to all similarly organised schools. What steps may be required to be taken to address the discrimination and within what timescale fell outside the present proceedings [96-100].
The majority, Sir Terence Etherton MR, and Lord Justice Beatson, do not consider that there is sufficient evidence before the court to support the proposition (which in any event the court did not need to determine given the above finding) that the segregation imposed a greater detriment on girls than it did on boys [107-123]. Lady Justice Gloster, in a dissenting judgment, found that the evidence before the Court did demonstrate a greater practical harm for girls than for boys  and that this evidence, together with matters of which the Court could take judicial notice, established that the segregation was also particularly discriminatory against girls through reinforcing male and female stereotyped roles .
References in square brackets are to paragraphs in the judgment
Now can we ban segregation according to the religion of parents … for exactly the same reason as banning (in co-educational schools) segregation by gender. We must educate for a society where male and female, Catholic and Protestant and Moslem and Jewish and Hindu and Humanist and any more must live and work together.
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I had a quick read of the judgement and am really struggling to understand the obvious inconsistency that the ‘discrimination’ is deemed to be detrimental to the children in a co-existence school as it does not allow them to mix and thereafter prepare for life after school where they have to mingle with both sexes but the same factor does not apply to single sex schools. Does not a boy at Eton not have the same detriment to his development because he does not mix with children of the opposite sex? The judgement seems to fudge that obvious inconsistency by leaning on a statutory exemption for single sex schools.
Furthermore, I could not really see any tangible evidence before the court to show how OFSTED came to this conclusion. They had been in and out of the school for years and it was never mentioned before until added into a report in 2016 to which the school and the Council, rightly in my view, questioned OFSTED as to how it came to that conclusion. It seems OFSTED entered the school unannounced, asked some students their views and because a couple of pupils expressed a view that not being able to mix meant they would have problems later in life led OFSTED to come to this conclusion.