The Al-Hijrah School in Birmingham is a voluntary-aided faith school for girls and boys aged 4-16. Students who have passed their ninth birthday by the beginning of Year 5 were separated by sex as part of the school’s Islamic ethos. The policy is longstanding and had not been commented on previous Ofsted inspections. A number of other Islamic, Orthodox Jewish and Christian faith schools have similar practices.
In June 2016, an Ofsted inspection of the school criticised the policy of segregation, stating that it limited pupils’ social development, left them ill-prepared for interaction with the opposite sex when they left school, and that the school did not take appropriate measures to mitigate the potentially negative impact of the policy. In a follow-up letter, Ofsted expressly stated that the policy was unlawfully discriminatory.
When deciding the case, the Court of Appeal looked at the effect of segregation on the pupils as individuals, rather than as a group. The court found that each boy was, as a result of his sex, not given the opportunity to socialise with girls where girls had that opportunity, and vice versa. The sole reason for treating the pupils differently was their sex and as such the policy was discriminatory. The fact that both sexes were discriminated against in equal measure did not do away with the discrimination to the pupils on an individual level. The judges also briefly touched upon an argument by Ofsted that the policy was inherently discriminatory toward girls because of historic and cultural attitudes toward women. While the judges decided that this argument was not supported on the facts, they left the door open for a future case to be brought on this basis.
The number of co-educational schools that segregate their pupils by sex is low, and even for those schools Ofsted is likely to allow some time for them to change their current policies.
The more challenging question is what happens where a single-sex school admits limited numbers of pupils of the other sex. Single sex-schools are not considered discriminatory under the Equality Act 2010 and are covered by a specific exemption. Where small numbers of pupils of the opposite sex are admitted to a single-sex school but limited to specific classes, this is also not considered discriminatory. For example, where Sixth Form boys are admitted to a girls’ school for a particular A Level course not taught at the boys’ school, but are kept separate from the girls. The judges in this case did, however, say that if a boys’ school admitted girls to Sixth Form but did not let them use the same cafeteria as the boys, this would be discriminatory.
Schools that are partly co-educational need to be alive to this issue: the more segregated pupils are by sex, the greater the risk that Ofsted – and the courts – will view this as direct discrimination. Where the co-educational element is more than specific classes being taught to students of the opposite sex as in the example above, schools should take a precautionary approach if they want to avoid a blot on their Ofsted report.
For full information regarding the case, please visit the Al-Hijrah case report.