The Court of Appeal has recently had to consider the issue of sex segregation in co-educational faith schools.

The Al-Hijrah School in Birmingham is a voluntary aided faith school which educates boys and girls from the ages of 4 to 16. It has an Islamic ethos, and for religious reasons it segregates the boys from the girls from Year 5 onwards. Pupils are segregated for lessons, trips, breaks and lunchtimes, and are required to use different corridors.

Ofsted rated the school as “inadequate”, stating that the segregation policy limited the pupils’ social development.

The High Court originally ruled that the complete gender segregation of pupils aged 9 – 16 was not sex discrimination because the boys and the girls were both treated in the same way. However, the Court of Appeal overturned this decision, stating that the correct approach was to look at the treatment from the perspective of an individual pupil. For example, an individual girl was denied the opportunity to mix with boys, whereas boys could mix with boys, and vice versa. This was a detriment, and the detriment was imposed because of the pupil’s sex. In those circumstances, the segregation amounted to sex discrimination. The Judge stated: “It was not the mere fact of segregation which gave rise to the discrimination…but rather the impact of the segregation on the quality of education which the pupils would receive but for their respective sex.”

The fact that the school was motivated by a conscientious adherence to what the school regarded as the applicable tenets of Islam was irrelevant.

It is important to note that the school in this case is a co-educational school. Single-sex schools are not covered by this ruling, as they have specific exemption from sex discrimination claims under the provisions of the Equality Act 2010.

For further information relating to the points raised in this article, please contact Louise Connacher or a member of the Education team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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