Ofsted wins sex discrimination appeal

A landmark judgement has been handed down by the Court of Appeal, after a long-running court battle between Ofsted and an Islamic school over the separation of girls and boys

Tes Reporter

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Al Hijrah Islamic school's policy of segregating boys from girls is unlawful sex discrimination, Court of Appeal judges have ruled.

Three Court of Appeal judges in London overturned last year's finding by a High Court judge that Ofsted inspectors were wrong to penalise the mixed-sex Al-Hijrah school in Birmingham on the basis of an "erroneous" view that segregation amounted to unlawful discrimination.

For religious reasons the voluntary-aided school, which has pupils aged between four and 16, believes that separation of the sexes from year five onwards is obligatory. It has complete segregation from nine to 16 for all lessons, breaks, school clubs and trips.

In a test case ruling today, the Master of the Rolls Sir Terence Etherton, Lady Justice Gloster, and Lord Justice Beatson unanimously allowed a challenge by Ofsted's chief inspector Amanda Spielman against Mr Justice Jay's decision.

The judges held that Al-Hijrah's segregation policy caused detriment and less favourable treatment for both male and female pupils by reason of their sex, and was contrary to the 2010 Equality Act.

The ruling will affect other schools which have a segregation policy.

Sex discrimination 'wrong'

Amanda Spielman, Her Majesty’s Chief Inspector of Schools, said: “I am delighted that we have won this appeal. Ofsted’s job is to make sure that all schools properly prepare children for life in modern Britain. Educational institutions should never treat pupils less favourably because of their sex, or for any other reason.”

She added: “The school is teaching boys and girls entirely separately, making them walk down separate corridors, and keeping them apart at all times. This is discrimination and is wrong. It places these boys and girls at a disadvantage for life beyond the classroom and the workplace, and fails to prepare them for life in modern Britain.”

“This case involves issues of real public interest, and has significant implications for gender equality, Ofsted, government, and the wider education sector. We will be considering the ruling carefully to understand how this will affect future inspections.”

The appeal judges said: “It is common ground that the school is not the only Islamic school which operates such a policy and that a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools have similar practices.”

They said there was "a strong argument" for the Education Secretary and Ofsted "to recognise that, given the history of the matter, their failure (despite their expertise and responsibility for these matters) to identify the problem and the fact that they have de facto sanctioned and accepted a state of affairs which is unlawful, the schools affected should be given time to put their houses in order in the light of our conclusion that this is unlawful sex discrimination.”

Government support

The ruling supports the government’s “long-standing position that mixed schools should only separate children by gender in very limited circumstances, where this can be justified and they can demonstrate that no pupil is disadvantaged by virtue of their gender,” according to a Department for Education spokesperson.

They added: “We are reflecting on the wider implications of the judgment.”

Malcolm Trobe, public affairs director at the Association of School and College Leaders, said: “We are pleased that this judgement has clarified this matter. There will now be implications from this ruling that some schools will have to carefully consider."

Rebecca Hilsenrath, chief executive of the Equality and Human Rights Commission, welcomed the ruling and said: “Regardless of their gender, every child has the right to an effective education – and one which lets them be themselves and mix with whoever they choose.”

But Colin Diamond, corporate director of children and young people at Birmingham City Council, said: “This Islamic school is being held to a different standard to many other schools with similar arrangements across the country.”

There are many other faith schools around the country that practice gender separation, none of which have been downgraded by Ofsted as a result, according to Mr Diamond.

“We have a strong history of encouraging all schools to practice equality in all its forms and would robustly tackle any discrimination, but the issue here is about schools being inspected against unclear and inconsistent policy and guidelines. This is not a case where boys and girls were being treated differently. Ofsted found that boys and girls were treated equally."

He added: “This is not about one school, one community or one faith but about making sure there is a clear policy applied fairly and consistently.”

Long-running battle

Today's judgement is the end of a long-running legal battle between Ofsted and the school over gender segregation.

A High Court judge ruled in November last year that Ofsted inspectors were wrong to penalise the mixed-sex Islamic school on the basis of an "erroneous" view that segregation amounted to unlawful discrimination.

The judge, Mr Justice Jay, ruled that there was "no evidence in this case that segregation particularly disadvantages women".

Ofsted went to the Court of Appeal in July to challenge the High Court's decision that the Al-Hijrah's policy of separating the sexes from year five does not constitute discrimination on grounds of sex under the 2010 Equality Act.

Lawyers for its chief inspector Amanda Spielman argued that the policy is unlawful and segregation leaves girls "unprepared for life in modern Britain".

Helen Mountfield QC, representing Ofsted, asked the appeal judges to rule that Mr Justice Jay "erred in concluding the gender segregation observed in this school is not discriminatory".

She told the court: "If boys and girls in a school which is registered as a mixed-sex school lose the opportunity to work and socialise confidently with members of the opposite sex, as Ofsted says they should do, they will go into the world unprepared for life in modern Britain where they are expected to be able to work and socialise in mixed-sex environments."

But segregation was particularly detrimental to girls because females were "part of a group with the minority of power in society", said Ms Mountfield.

She said Al-Hijrah was an Islamic voluntary aided school which admits pupils of both sexes between the ages of four and 16.

From year five, however, boys and girls were completely segregated for all lessons, as well as break and lunchtimes and for school trips and all school clubs.

High Court 'wrong'

Martin Chamberlain QC, appearing for the Education Secretary, said the High Court had been wrong to hold that the school's policy of complete segregation, which had been adopted for religious reasons, was not direct sex discrimination.

He told Master of the Rolls Sir Terence Etherton, Lady Justice Gloster and Lord Justice Beatson: "Parliament has made no exception permitting segregation by sex of any sort in a co-educational school."

The Equality and Human Rights Commission also supported Ofsted.

But, Peter Oldham QC, appearing for the school's interim executive board, asked the judges to dismiss the appeal.

Mr Oldham said boys and girls at Al-Hijrah, which is maintained by Birmingham City Council, were "treated entirely equally while segregated" and that was lawful.

He said Ofsted did not claim that separation was discrimination until 2016 and its actions were "the antithesis of proper public decision-making.”

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