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Segregation – not discrimination? Some thoughts on the judicial review application in the Interim Executive Board of X School v Chief Inspector of Education, Children’s Services and Skills

I’d considered writing about this case when I first heard about it last week, but decided not to do so because it seemed on the face of it more relevant to education than employment law.  However, having come back to it and looked in a bit more detail at the judgment, it seems to me that it has real resonance in our context – not least since it highlights how easily the principles of discrimination law can be applied with different implications in different contexts, and also how implementation of those principles depends so much on the background social and political context. It raises a point of general importance as to the real construction and application of key provisions in the Equality Act.  It is pretty clear that the high court’s decision here is not the end of the story, and it will be interesting to see where that narrative goes next.

So, the facts.  The full judgment can be found here.  In essence, the case deals with the implications of the Ofsted inspection of ‘X’ School (for our purposes, ‘the School’). The School is a faith school (voluntary aided) for boys and girls aged 4 to 16. It has a clear Islamic ethos, and in line with that, pupils are segregated by gender from Year 5 onwards (it is not unique in that – the judge accepted that some Jewish schools and also some Christian faith schools adopt the same practice, to a greater or lesser degree). The upshot in this case is that the School really runs as two single sex schools albeit that they coexist on the same site - with all lessons, breaks, trips and clubs run separately, and boys and girls effectively prohibited from any interaction, including talking to one another.  There is no suggestion in the judgment that the education provision was stronger for one group than for the other, or that either sex was particularly disadvantaged.  Boys are – on the face of it at least – disadvantaged (socially, culturally)  by not being able to interact with girls in exactly the same way as girls are disadvantaged by not being able to interact with boys. 

During the summer of 2016, Ofsted inspected the School and sent a draft report giving it an “inadequate” rating in three respects.  One of these was because of the practice of gender segregation, which Ofsted felt amounted to direct sex discrimination, contrary to the provisions of the Equality Act. The School obtained an interim injunction prohibiting Ofsted from publishing the report, and applied for judicial review on various grounds, including irrationality. They said that there had been an incorrect assumption by the inspectors that separation of pupils on the basis of sex meant or implied unequal treatment. Their fundamental point was that the inspector’s reading of the Equality Act was wrong in law – because segregation of itself could not be discriminatory, because it applied equally to everyone.

By way of quick recap, s85 of the Equality Act (the education provisions of which apply to schools) requires that a school must not discriminate in the way it provides education for pupils, the way (amongst other things) it allows pupils access to a ‘benefit, facility or service’ or ‘by subjecting the pupil to any other detriment’.  In Ofsted’s view, the practice of gender segregation both denied pupils access to a ‘benefit’ or ‘facility’ (mixing with the opposite sex) and amounted to a ‘detriment’.  This was direct discrimination, treating one pupil less favourably than another (actual or hypothetical) on the basis of a protected characteristic – in this case, gender.  This does not fall within one of the specific exemptions in the Equality Act where segregation may be permissible (admissions criteria (where gender and religion can be relevant) and arrangements for competitive sport).  The School said that the denial of the opportunity to intermingle was too ‘subjective and elusive a concept’ to be capable of falling within section 85(2) of the Act – given that many would say that single sex streaming is advantageous educationally and may also reflect parents’ religious preferences, it would be wrong in principle to find that either sex has been subjected to a ‘detriment’.

In his decision allowing the application for judicial review, Judge Jay accepted that segregation could amount to either denial of a benefit or to a detriment.  There was evidence to suggest that pupils felt disadvantaged as far as (for example) social interaction was concerned. But did this, or could this, amount to ‘less favourable treatment’ since it applied to both genders?  Was one sex being treated less favourably than the other?  Ultimately no – because both groups equally had been denied a benefit or suffered an equal detriment.  Because the treatment was not less favourable, it could not be discriminatory.

A part of the judgment which I think may play a significant part in the next stage of the proceedings is whether segregation is inherently ‘less favourable’ to the girls, as being already part of a ‘disadvantaged’ social group (the judge accepted the general precept that women have historically had less power in society, and to some extent still do).  He concluded that since there was no empirical evidence brought during the hearing to suggest that segregation had a greater impact on girls than boys, he could not pursue that line of argument further – this was not something which was dealt with in the Ofsted report.  He placed some emphasis on the fact that there was no evidence that Islamic schools viewed girls as inferior or thought that they should be separately prepared for a lesser role in society.

On one analysis, the judgment seems pretty straightforward and pretty clear cut.  However, one can see how the Court of Appeal may be persuaded to reach a different decision.  There must be further questions about the extent to which the school discharged its Public Sector Equality Duty (something with which the high court was satisfied) in the sense of fostering good relations between different social groups. I think that areas for further debate will centre on whether gender is an acceptable ground for differential treatment (when, eg, race is clearly not) and whether the impact of the segregation was equal on both groups.  It looks as though Jay J signalled a massive opportunity for Ofsted on appeal to seek to adduce evidence as to the social and educational impact of segregation on girls in a context where women are still (generally) the minority group.  By denying them the opportunity to gain social confidence by engaging with boys within an educational setting, is that divide simply being perpetuated?  If that argument can be made out, then the impact potentially becomes unequal and the case may well be decided a different way.

Similarly, the judge’s emphasis on each group as being equal comparators doesn’t really reflect the societal reality that men and women are/can be perceived differently.   He accepted that a hypothetical case of segregating Muslim and Hindu children in a school but otherwise treating them equally “would be an egregious case of religious discrimination” if the inference could be that the more powerful group was imposing its authority over the weaker one. Even if, in this hypothetical school, neither group was exercising or exploiting superior power, distinction based on an irrelevant (to school education) characteristic sits very uneasily with discrimination law – albeit he accepted that segregation for religious reasons was not, without more, discriminatory. Similarly, one cannot imagine acceptable educational divisions based on sexual orientation or disability (unless on the grounds of severity of disability making mainstream schooling impossible). So why should it be different for gender based segregation?  There is already lawful educational provision for same sex schools, and indeed there may be arguments why educating within one gender may be argued to be beneficial (eg to girls’ academic achievement) or for religious reasons.  If there is a desire for single sex education, it can be dealt with under the relevant exemptions in the Equality Act by creating separate schools.  There remains a degree of discomfort (in law), to my mind, about achieving this aim by enforcing segregation within one school.  I do think there remain some arguments, depending on the evidence, that this is direct discrimination, and (if so) that one cannot seek to justify it on religious or cultural grounds.

So, as is so often the case, it is a question of watch this space.

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