News & Insights

Sex segregation in mixed schools = direct discrimination

David Clay discusses whether a faith school’s policy of segregating girls and boys amounts to direct discrimination.

Direct discrimination occurs where, because of a protected characteristic, an individual is treated less favourably than another. In a recent case, the Court of Appeal considered whether a faith school’s policy of segregating boys and girls, despite the fact that it was a mixed school, was direct discrimination.

Al-Hijrah is a voluntary aided faith school for children aged between 4 and 16. It has an Islamic ethos and for religious reasons separates boys and girls from aged 9 onwards. An Ofsted inspection of the school took the view that the segregation policy was unlawfully discriminatory because it limited pupils’ social development and made them ill prepared for interaction with the opposite sex on leaving school. The school brought judicial review proceedings in respect of Ofsted’s proposed report.

The High Court found that segregation on the grounds of sex did not constitute direct discrimination, because, whilst the lack of interaction with the opposite sex could amount to a detriment, this did not amount to less favourable treatment where each sex is viewed as a group as both sexes are equally disadvantaged. Ofsted appealed the decision, arguing that an incorrect approach to direct discrimination had been taken due to a failure to look at the matter from the perspective of an individual pupil and the less favourable treatment for individuals of both sexes.

The appeal succeeded with the Court of Appeal finding that Ofsted had taken the correct legal approach, rejecting the school’s argument that the separate but equal treatment, i.e. mirror discrimination, could not amount to unlawful treatment. Viewed from the perspective of the individual pupil, both the girl and the boy pupil are treated less favourably than the other because they are each denied the opportunity to mix with the other sex.

The decision means that mixed schools with segregation policies will no longer be able to apply such a policy in a way that prevents them from mixing.

Employers need to be aware that anti-discrimination law will be applied widely to protect the individual from less favourable treatment received because of their protected characteristic, and that policies, even if they arise from tradition or culture, will be deemed unlawful if they result in less favourable treatment.