A high-profile judgement declaring the segregation of girls and boys in school unlawful is being described as both a storm in a teacup and a seismic step forwards in ending “gender apartheid”.

Either way, last week’s decision by the Court of Appeal that Al Hijrah school in Birmingham is breaking the law has prompted panic among some schools that fear being censured for dividing pupils on gender.

The judgement was the final word in a long-running legal fight between Ofsted and the Islamic faith school, which segregates pupils after Year 5.

Master of the Rolls Sir Terence Etherton, Lady Justice Gloster, and Lord Justice Beatson ruled that the school’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.

Confusion reigns

It remains unclear why Ofsted inspectors only picked up on the issue of segregation last year, after years of inspecting the Islamic school. Ofsted and the Department for Education were criticised in the judgement for failing to address the situation earlier and having “de facto sanctioned and accepted a state of affairs which is unlawful”.

And there is widespread confusion as to what it means for other co-educational schools that separate boys and girls for all or part of the school day - as well as whether it applies to same-sex schools.

Colin Diamond, Birmingham Council’s corporate director of children and young people, calls for more guidance so that schools know where they stand.

He says: “If it is national policy that schools practising gender separation are considered to be discriminating against pupils, then local authorities and the schools themselves clearly need to be told so they know what standards they are being inspected against.”

He adds: “This wasn’t the case here, as the DfE does not publish guidelines on gender separation and this has not been an issue at five previous inspections at Al Hijrah.”

Amanda Spielman, Ofsted’s chief inspector, has tried to clarify the situation. Writing in the Mail on Sunday after the judgement, she said that single-sex schools are exempt from the laws on gender segregation and added: “There is a more fundamental point, which is the purpose of the segregation in question.”

Spielman said: “It is reasonable for parents to choose single-sex schools, to stop girls from selecting themselves out of some areas of education.”

But her comments failed to reassure Neil Roskilly, chief executive officer of the Independent Schools Association. He has warned that co-educational schools using a “diamond” model, where boys and girls are separated for some lessons and sports clubs, could still be targeted.

These concerns appeared to be swatted away by Sean Harford, Ofsted’s national director for education, in a letter published in yesterday’s Daily Telegraph, which stressed: “There is nothing in this judgment to suggest that boys and girls will be obliged to play rugby, or indeed any other sport, together.”

He said that the ruling “does not affect schools where children are separated for good reasons, such as during PE lessons” and “does not apply to single-sex schools.”

Limited impact

James Cornwell, a barrister whose specialities include education law, does not argue against Harford’s interpretation. He says there are a number of exceptions in the Equality Act 2010 that allow for separate provision in certain situations, such as sports lessons, as well as in the case of single-sex schools.

He believes the Al Hijrah ruling “will have a big impact on the relatively small number of religious schools that do engage in this kind of segregation”, adding: “I think probably beyond those cases there won’t be that much impact.”

This point of view is shared by Judith Nemeth, head of the National Association for Jewish Orthodox Schools. “We were initially very alarmed because some of our schools are mixed gender schools who separate mainly for religious studies education,” she says.

However, she has since been in contact with the Department for Education and is “hoping we’ll be able to carry on business as usual.” Ms Nemeth was among a group of faith school representatives who met with education minister Sir Theodore Agnew earlier this week to discuss the impact of the judgement.

DfE guidance

Ofsted has indicated that there are at least 20 schools that have a similar segregation policy to that at Al Hijrah, including Islamic and Jewish schools. Behind the scenes, DfE officials are already understood to be drawing up new guidance to issue to faith schools.

“They are taking legal advice, they want to know where this leaves schools who might not have complete segregation but might segregate for certain subjects,” according to Ms Nemeth.

She says: “I’ve told my schools there’s really no panic, no Ofsted inspector is going to come and say ‘you can’t do this we’re closing you down’.”

There are almost no mixed Jewish schools that segregate children after a certain age, she says, adding: “I don’t think we are going to have a problem with this. It’s a storm in a teacup.”

However, her confidence is not shared by others. Rabbi David Meyer, director of Partnerships for Jewish Schools, fears that faith schools may fall victim to a legal technicality.

The ruling is “potentially very challenging for a number of Jewish schools” and “also likely to impact many other schools, including faith and non-faith schools, and independent and state schools, across the country,”  Rabbi Meyer says.

He claims that the judgement means that schools registered with the DfE as one entity, and provide education to boys and girls through separate schools, will be regarded as breaking the law.

His organisation is currently in discussion with the DfE and Ofsted and is taking legal advice as to the practical ramifications of the ruling on its schools.

Boost to equality

Equalities campaigner Maryam Namazie, who was educated at a school where boys and girls were kept separate, says that the “landmark decision” should have far-reaching effects, helping “minority women and girls in particular”.

She sees the ruling as a victory against “the religious-Right, which uses religion in the educational system to police and control women and girls.”

The judgement should give “confidence” to Ofsted inspectors who “in the past may have been concerned about this but afraid of being accused of racism or Islamophobia,” according to Pragna Patel, director of Southall Black Sisters, a group that campaigns for women from black and ethnic minority backgrounds and was named as an interested party in the Ofsted case.

Her comments are echoed by Stephen Evans, campaigns director, National Secular Society, who says describes sex segregation as “gender apartheid” which is “an assault on women’s rights and dignity.”

He hopes the judgement “sets a precedent and others will stand up to the fundamentalist mindset, rather than tolerating harmful and regressive practices for the sake of religious or cultural sensitivity.”

Judiciary divided

The contentious nature of the debate around gender equality in schools was illustrated by Lady Justice Gloster disagreeing with her male colleagues on whether girls suffer more than boys from being kept apart.

In her dissenting judgement, she stated that given the “cultural and community context of this particular school, segregation on grounds of sex necessarily endorses gender stereotypes about the inferiority of women or their perceived place in a society where predominantly men exercise power.”

She detailed some other disturbing forms of discrimination at the school, such as having library books justifying violence against women. Lady Justice Gloster stated that “the picture disclosed in the evidence clearly demonstrates that the environment at the school, including and underlined by the segregation regime, had a real potential for exposing girls to greater detriment than the boys.”

Response

The government has yet to give any indication of what it intends to do in the light of the judgement, or when any new guidance will be drawn up, let alone issued to schools.

In a statement, an Ofsted spokesperson said: “we need to consider the judgement in detail and discuss its implications with the DfE, particularly in relation to independent schools.”

The inspectorate added: “We will be considering the judgement carefully to understand what this means for future inspection.”

Al Hijrah school has remained silent since the judgement, referring requests for comment to Birmingham City Council. Meanwhile, boys and girls will continue to be segregated at Al Hijrah school until Ofsted has decided what will happen next and committed to a timescale.  

What do the school’s parents make of the decision? After all, they have chosen to send their children to the Islamic school in the knowledge that girls and boys are separated from an early age.

Zahira Hussain, a woman claiming to be a parent of children at the school, in a video clip tweeted after the judgement, said: “It’s unfair, we are happy proud parents.” 

She added: “I don’t know why we are always targeted, why is it that Muslim people are always targeted, especially in Birmingham. There are many failing schools but it’s our school that always gets targeted and I’m not happy with that.”

Whatever the full ramifications of the legal decision are, schools will not have to change their ways anytime soon. The judgement said: “The schools affected should be given time to put their houses in order.”

It added that the “relevant central government authorities should not pivot in the way they have gone about this without recognising the real difficulties those affected will face as a consequence.”