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The Denning Law Journal 2018 Vol 30 pp 167-183
CASE COMMENTARY
OFSTED V AL-HIJRAH, THE CASE OF
SEGREGATED SCHOOLS AND SEX
DISCRIMINATION
Rajnaara Akhtar
1 CASE SUMMARY
This case of HM Chief Inspector of Education, Children’s Services
and Skills v The Interim Executive Board of Al-Hijrah School1 was the
unfortunate outcome of an Office for Standards in Education, Children’s
Services and Skills (Ofsted) inspection which resulted in a cataclysmic
breakdown in trust between the government agency and the Birmingham
city based Al-Hijrah school. Following an Ofsted inspection carried out
under section 5 of the Education Act 2005, the subsequent Report stated
that the full segregation of female and male pupils in a mixed-sex school
amounted to sex discrimination under the Equality Act 2010. Al-Hijrah
School applied to the High Court for a judicial review of the report prior
to its official publication. The High Court Justice considered a range of
evidences including facts related to Ofsted procedure, and ruled that the
segregation did not amount to a breach of the 2010 Act, as when taken as
a group, the treatment of the boys and the girls was the same and so there
was an absence of “less favourable treatment”.
This decision was reversed by the Court of Appeal who stated that the
High Court’s approach to the question was incorrect and it was individual
claimants’ rights which were to be construed, not that of the entire group
of girls and the entire group of boys. Thus, the court must have regard to
each individual pupil as separate from the group and comparator. So the
question becomes whether the individual girl pupil was treated less
favourably than a boy pupil as the boy pupil had the benefit of engaging
with his boy peers while the girl pupil did not. Similarly, the boy pupil did
not have the benefit of engaging with other girl pupils in the same way as
Senior Lecturer, School of Business and Law, De Montfort University,
Leicester. Email: rajnaara.akhtar@dmu.ac.uk
1 [2017] EWCA Civ 1426, on appeal from [2016] EWHC 2813. Herein after
referred to as Ofsted v Al-Hijrah.
mailto:rajnaara.akhtar@dmu.ac.uk
COMMENT
168
a girl pupil did. This discrimination was based on the protected
characteristic of sex and was held to breach section 85(2) of the Equality
Act 2010.
Ofsted stated that the segregation impacted on the children’s
education and development as both boys and girls lost the opportunity to
socialise, interact and learn from engagement with the opposite sex.
Ofsted further cited “British values” and the preparedness of these
children for life in modern Britain. Ofsted additionally argued that the
female students faced particular disadvantage as a result of the
segregation, but this was rejected. A final appeal by the Association of
Muslim Schools to be added to the action following the appeal judgment
was rejected, thereby preventing an appeal to the Supreme Court.
Keywords: Direct discrimination; Gender; Less favourable treatment;
OFSTED; Protected characteristics; Segregation; Sex discrimination
2 CASE HISTORY
Ofsted carried out a section 5 inspection in 2016 and reported Al-
Hijrah school to be inadequate on three specific grounds: (i) Effectiveness
of leadership and management, (ii) The personal development, behaviour
and welfare of pupils, and (iii) Early years provision.2
The lack of “effectiveness of leadership and management” was due to
a number of issues including “the failure to have due regard to the duty to
achieve equality of opportunity as required by s.149 of the 2010 Act; and
ineffective arrangements for safeguarding.”3 The issue of segregation of
pupils was raised as a core concern, with the Ofsted report stating that
segregation “limits pupils’ social development, and the extent to which
they are prepared for interaction with the opposite sex when they leave
school.” 4 In response to the School’s claims of religious motivation,
Ofsted was of the view that the school had no policies to actively mitigate
the “potentially negative impact of this practice on pupils’ chances to
develop into socially confident individuals with peers from the opposite
gender.”5
Al-Hijrah school applied for Judicial Review of Ofsted’s inspection
report, and the High Court ruled that strict gender segregation between
2 Ofsted v Al-Hijrah [18].
3 Ibid [19].
4 Ibid [20].
5 Ibid.
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boys and girls aged 9-16 did not amount to unlawful discrimination
contrary to the provisions of the Equalities Act 2010. The key issues for
Judicial Review related to the following: whether the denial to both sexes
of the opportunity to interact, socialise and learn with, or from, the
opposite sex amounted to “less favourable treatment” for the purposes of
the Equality Act 2010 s.13(1) read in conjunction with s.23(1); and
secondly, whether the segregation was because girls were regarded as
inferior to boys.6
Mr Justice Jay’s judicial review treated the boys and girls at the
school as two distinct groups, and in applying the provisions of the
Equalities Act 2010, the treatment of both of these groups was compared.
The Justice concluded that it could not be said that one group was being
treated less favourably than the other giving rise to unfair advantage and
therefore discrimination. In fact, both groups were being treated the same.
Further, on the issue of a particular detriment to girls, the High Court
rejected Ofsted’s argument that there was a particular and greater
detriment suffered by girls due to the women being a group with “a
minority of power” in society and the idea that segregation of girls
“cannot be separated from deep-seated cultural and historical perspectives
as to the inferiority of the female sex.”7 These were rejected on the basis
that there is no evidence to support the assertion that segregation in a
mixed school in fact has a greater impact on female pupils.8 This raises an
interesting issue which underlies the entire premise of the arguments
being put forward by Ofsted – the question of evidence of the detriment
being suffered. “Ofsted’s view was that this restriction on freedom of a
girl pupil to mix or socialise with boy pupils and on a boy pupil to mix
and socialise with girl pupils was detrimental to their education.”9 Yet this
detriment was probed by the High Court, but not a focus for the Court of
Appeal. The Court of Appeal stated that Ofsted is entitled to reach a
finding that segregation has an adverse impact on the quality and
effectiveness of the girls’ and boys’ education.10
Ofsted appealed the High Court’s judgment on five grounds, namely
the loss of opportunity for girls and boys to choose to learn and socialise
with each other, the loss of opportunity of both boys and girls to socialise
6 Interim Executive Board of X School v Her Majesty's Chief Inspector of
Education, Children's Services and Skills [2016] EWHC 2813 (Admin).
7 Ofsted v Al-Hijrah [36].
8 Ibid [37].
9 Ibid [45].
10 Ibid [67].
COMMENT
170
with each other in preparation for work and other contexts upon leaving
school, a perceived particular detriment to girls which outweigh that to
boys because of a perceived “minority of power” for women, and finally
that segregation implies girls are inferior.11
The Court of Appeal held unanimously that segregation of girl and
boy pupils constituted direct discrimination and therefore breached s.13 or
s.85 of the Equality Act 2010. In this case, both the girl and boy pupils
lost out on the opportunity to socialise, interact and learn from members
of the opposite sex.
The approach to ascertaining less favourable treatment involved
consideration of the individual pupil and each individual pupil faced less
favourable treatment when compared to a pupil of the opposite sex. Thus,
a girl pupil was held to be treated less favourably than the boy pupil and
the boy pupil was treated less favourably than the girl pupil; both on the
basis of their sex which is a protected characteristic under s.4 of the
Equality Act. Thus, this breached s.85(2) of the Equality Act. Ofsted was
therefore right to conclude that strict gender segregation resulted in a
breach of all of the pupils’ rights.
In overruling the High Court, the Justices held that the starting point
for ascertaining direct discrimination under s.13 of the Equality Act is a
“person” not a group. An individual girl pupil could not socialise and
engage with a boy pupil because, and only because, of her sex, and vice
versa for an individual boy pupil. Thus, each would be treated differently
if they were of the opposite sex. Thus, a girl pupil would have the benefit
of engaging with boy pupils if she were a boy and the only reason she
could not in this case was because she was a girl. Therefore, even if both
the girls and the boys were treated the same, it could still give rise to
unlawful discrimination. Consequently, separate but equal treatment can
still be discriminatory.12 The detriment suffered was deemed to diminish
the quality of the pupils’ education.13
Ofsted’s arguments that the segregation in some way reinforced ideas
of female inferiority and male superiority in social and employment
contexts were held to be unfounded, 2 to 1, with Gloster LJ dissenting. 14
11 Ibid [39].
12 Ibid [50]-[58].
13 Ibid [78]-[80].
14 Ibid [107]-[110], [114]-[116].
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3 AL-HIJRAH SCHOOL’S SEGREGATION POLICY
The Birmingham based Al-Hijrah school is a mixed-sex school
operating an Islamic ethos and voluntary aided by the Local Authority. Its
pupils are aged 4 -16, and in line with particular religious beliefs, it
operated a complete segregation policy between its female and male
pupils aged 9-16. The segregation remained in place for the entirety of the
school day including lessons, breaks, clubs and trips. The underlying
reasons given for the segregation were religious values. The Court of
Appeal rejected this as an adequate defence or justification. The reason
for the segregation was held to be irrelevant.15
4 APPLYING THE EQUALITY ACT 2010
This case raises some significant questions regarding the application
of the provisions of section 13 and section 85 of the Equality Act 2010 to
the charge of sex discrimination at segregated schools. The case centred
on the question of whether there is direct discrimination where a mixed-
sex school completely segregates boys and girls over a certain age, for all
school related activities,16 on the basis that this policy produces “adverse
educational consequences.”17 Another key feature of this case is the Court
of Appeal’s judgment that ascertaining discrimination from the
perspective of each potential individual claimant was said to be the
correct approach to interpreting the legislative provisions.
The Equality Act protects individuals from discrimination where the
discrimination is because of a protected characteristic. S.4 lists the
following protected characteristics: age, disability, gender reassignment,
marriage and civil partnership, pregnancy and maternity, race, religion or
belief, sex, and sexual orientation. The focus of these proceedings was
discrimination on the grounds of sex.
Section 11 describes the characteristic of sex as either a man or a
woman. Section 212(1) further clarifies that the individuals can be of any
age, thereby including children. The use of the term sex instead of gender
specifies the biological nature of distinction.18
15 Ibid [81].
16 Ibid [1].
17 Ibid [2].
18 Bob Hepple, Equality, the Legal Framework (2nd ed, Hart Publishing, Oxford
and Portland, Oregon 2014) 57.
COMMENT
172
S.85 governs non-discrimination in the admission and treatment of
pupils to schools. This includes a responsibility under S.85(2) to refrain
from discrimination in the way it provides education for pupils, and in the
way it affords access to benefits, facilities or services. The Equality Act
operates to cover “four civil wrongs” – direct discrimination, indirect
discrimination, harassment and victimisation. 19 The present case
concerned direct discrimination claims due to less favourable treatment
because of a protected characteristic leading to a detriment.
Section13 (1) sets out that “A person (A) discriminates against
another (B) if, because of a protected characteristic, A treats B less
favourably than A treats or would treat others.” This is the test for direct
discrimination. S.23(1) provides for a comparator, thus, the treatment of
the claimant is to be compared with a comparator who does not share the
claimant’s characteristic. However, “like must be compared with like”20
and the material circumstances of the claimant and the comparator must
be similar.21 The outcome of the treatment need not be a tangible loss.22 A
key issue for Ofsted v Al-Hijrah was the fact that the mere deprivation of
choice can result in a finding of less favourable treatment, 23 with a
“detriment” being attributed to this.
The freedom of parents to choose how their children are educated, as
provided for under section 9 of the Education Act 1996 and the School
Standards and Framework Act 1998, was brought into questioned. The
Court of Appeal held that this right does not override the rights of the
children to be educated in a manner that does not breach the Equality Act
2010,24 and the rights enshrined therein cannot be negated by parental
acquiescence.
5 [SEGREGATION] IS “DUMB”
During the inspection, Ofsted interviewed two randomly selected
female pupils in Year 10, and asked the pupils for their opinion on the
19 Hepple (2014) 67.
20 Hepple (2014) 68.
21 Anna Beale, ‘Core Rights and Duties’ in John Wadham, Anthony Robinson,
David Ruebain and Susie Uppal (eds) Blackstone’s Guide to the Equality Act
2010 (3 edn, Oxford University Press 2016) 31-54, 32-33.
22 Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, paras 52-
35.
23 R v Birmingham City Council ex parte Equal Opportunities Commission
[1989] AC 1155.
24 Ofsted v Al-Hijrah [82].
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school’s segregation policy. The response from these pupils seems to be
an underpinning factor in the case. The inspector reported:
“thinks [segregation] is ‘dumb’ because when girls go to college
they will mix with boys, and at the moment she doesn’t know how
to have any relationship/friendship with boys. Finds that school
isn’t helping her get ready. Says some benefits as boys don’t
always behave well.”25
Ofsted further cited the opinions of Year 10 boys as concurring on this
point, and also highlighted the apparent unease displayed by Year 7
pupils, particularly that:
“students clearly felt very uncomfortable about being with
opposite sex… found it difficult to answer questions.”26
This feeling of being unable to engage with the opposite sex raised
concerns about how well these children were being socially prepared for
“life in modern Britain”. The concern about the lack of engagement with
each other and the resultant disadvantage were key, although not the sole,
issues giving rise to questions about the overall standard of education
provided by Al-Hijrah.27
The Court of Appeal Justices demonstrated a willingness to depart
from the usually narrow confines of less favourable treatment within the
2010 Act to take a “wide and purposive interpretation”28 of the anti-
discrimination legislation. The Justices expanded on the definition of
discrimination as envisaged in the Act and concluded that both “separate
but equal” as well as “separate but different” treatment can constitute
unlawful discrimination, and this broader definition enabled a finding of
discrimination in this case.29 While this is to be welcomed as a general
development in the application of the legislation, the interesting point to
note is that the case involves a Muslim faith school which practices
gender segregation, during a political time period where Muslim children
and questions of integration and radicalisation are at the forefront of
government policies. Further to this, Ofsted’s current Chief Inspector has
25 Ibid [15].
26 Ibid [16].
27 Ibid [17].
28 Ibid [56].
29 Ibid [62]-[70].
COMMENT
174
openly spoken of the idea of a “muscular liberalism” to be assumed by
school leaders to overcome ideologies which “close minds or narrow
opportunity”. 30 These ideological issues cannot be overlooked when
assessing this case.
The Court of Appeal noted that a key concern of Ofsted was “how
well leaders were preparing pupils for life in modern Britain”, 31 and
Ofsted’s Report stated that “[The school’s segregation policy] does not
accord with fundamental British values and amounts to unlawful
discrimination.”32 In particular, they stated that girls and boys cannot
develop confident relationships with each other. Such schools are to be
distinguished, according to Ofsted’s arguments and the Court of Appeal’s
decision, from single sex schools which benefit from a variety of
exceptions under Schedule 11 of the Equalities Act. 33 Thus, for the
former, the Equality Act is being utilised to challenge and end the practice
of segregation due to gender, while for the latter, the Equality Act protects
against claims of discrimination where there is selected entry based on
gender. It can undoubtedly be argued that both types of school can in fact
produce the same outcome for the pupils where gender segregation is
concerned, with the only distinguishing aspect being the religious nature
of the normative influence underlying the practice. Interestingly, the
Equality Act does refer to segregation as evidencing less favourable
treatment, but only in the context of race under section 13(5). This is
unsurprising given the history of South African Apartheid and North
American race segregation. No other protected characteristic has such a
specific special provision, although Beale 34 states that segregation on
other grounds “could amount to less favourable treatment”, however this
has not been confirmed by case law.
The difference in treatment of this segregated faith school from many
schools across Britain which are single-sex, is problematic. The Court of
Appeal failed in this case to adequately scrutinise Ofsted’s claim that
“British values” were being undermined. The non-statutory School
Inspection Handbook describes the promotion of British values as:
30 Frank Cranmer, ‘Out-of-School Education, Social Cohesion and Ofsted’, (3
February 2018), Law and Religion UK
accessed 20 April 2018
31 Ofsted v Al-Hijrah [16].
32 Ibid [24].
33 Further, there are General Exceptions under Schedule 3.
34 Beale (n 21) 33.
http://www.lawandreligionuk.com/2018/02/03/out-of-school-education-social-cohesion-and-ofsted/
http://www.lawandreligionuk.com/2018/02/03/out-of-school-education-social-cohesion-and-ofsted/
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“acceptance and engagement with the fundamental British values
of democracy, the rule of law, individual liberty and mutual
respect and tolerance of those with different faiths and beliefs;
they develop and demonstrate skills and attitudes that will allow
them to participate fully in and contribute positively to life in
modern Britain.”35
While it can be argued that sex-segregation can undermine expected
“attitudes” here, this is equally the case for single-sex schools with
protected status. So once again, the question arises of why these two
school types are being treated differently. Furthermore, Ofsted conceded a
number of points in their report, including that the segregation of the
pupils did not impact on the standard of teaching the children received nor
the range of subjects available to them. The thrust of the argument was the
perceived detriment suffered by the children from not engaging and
interacting with members of the opposite sex. Further to this, concerns
were raised about pupils awareness of safeguarding issues such as forced
marriages.36 However, the argument that this undermines British values
seems particularly punitive.
Ofsted has indicated that the outcome of this case will impact on its
policy towards all state funded faith schools which operate gender
segregation, which means a definite impact on a number of Muslim and
Jewish faith schools,37 as well as some Christian ones.38
6 SEX-SEGREGATION, SINGLE-SEX SCHOOLS AND
DETRIMENT
The question of the detriment being suffered by the segregation was
not scrutinised further by the Court of Appeal, although the issue was
raised during the High Court hearing.39 As stated above, the arguments for
distinguishing segregated mixed schools from single gender schools,
35 School Inspection Handbook 2018, 40.
36 Ofsted v Al-Hijrah [21].
37 A BBC News report suggested that approximately a total of 20 Jewish, Muslim
and Christian schools are thought to have similar policies. This appears to be an
extremely low number, however, it only includes state funded schools, not those
privately funded. http://www.bbc.co.uk/news/uk-england-birmingham-41609861
(Last visited 22 January 2018).
38 Interim Executive Board of X School v Her Majesty's Chief Inspector of
Education, Children's Services and Skills [2016] EWHC 2813 (Admin) [11].
39 Ibid [95].
COMMENT
176
which benefit from special exemptions under Schedule 11 of the Equality
Act, are weak. Clearly, children at the latter schools suffer similar
disadvantages from the lack of socialisation with members of the opposite
sex. The decision in this case upheld Ofsted’s argument that the
deprivation of choice in mixed schools was key. But is this a mere
technicality, as the outcome in both settings is the same – a lack of
engagement with members of the opposite sex? The answer to this lies in
what is mean by “British values” and “life in modern Britain”. It is
difficult not to question why Ofsted would take such issue with Al-Hijrah
when Britain has a centuries old historic tradition of single-sex schools,
which continue to exist in Modern Britain and in fact produce our political
and judicial leaders to this day; a fact that Lady Justice Gloster makes
mention of in her judgment.40 Indeed, all three of the esteemed Court of
Appeal judges in this case were all educated at single-sex schools.
The need to ensure boys and girls can respectfully and comfortably
engage with each other is no doubt a pivotal concern in modern British
society. However, this case leaps forward and establishes that removing
the choice of such engagement breaches the Equality Act, presenting
arguments which tie the highly politicised language of “British values”
and “modern Britain” to the issue of sex discrimination, and arguably
away from the remit intended within the School Inspection Handbook.
It is highly likely that an inspection of any number of single-sex
schools would reveal boys and girls equally keen to cross the fence and
engage with the other, and who believe a single sex school is “dumb” as
they do not get the chance to engage with the other half of the human
race. However, it is equally likely that Ofsted or any school inspectorate
would not ask those questions for understanding the values and traditions
being upheld by these schools, and protected by the Schedule 11
exemptions from section 85 provisions. It is clear that what makes Al-
Hijrah different is the religious underpinnings of the decision to
segregate, and as a result it is difficult to separate some of the highly
political language used in the Report from the faith based nature of the
school.
The Court of Appeal did not test the assumption put forward by
Ofsted that the pupils are suffering a detriment, nor did they deal with the
question of how much engagement would be required to overcome this
detriment. Would shared trips or breaks be enough, or will nothing short
of full co-education suffice? This seems to be a major oversight. There
exist myriad of contradictory evidences testing the impact of gender
40 Ofsted v Al-Hijrah [126].
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177
segregated education, reflecting an overall unclear outcome. On the one
hand, arguments can be made that single gender schools offset gendered
roles and norms where education is concerned and undermine gender
stereotypes. Girls, in the absence of boys, are not expected to behave “like
girls”, and vice versa. A discussion on the potential benefits of single sex
education follows, to question the assumption made by Ofsted that there is
necessarily a detriment. There are equally evidences which support so-
education. However, the purpose here is not to prove which is more
convincing, but rather to question the premise of the assumption that
single-sex is detrimental which Ofsted argues, and which the Court of
Appeal upheld in this case.
Global research on single sex schools suggests differences in
achievement are multi-layered and dependent on a multitude of other
factors. Firstly, young children below the age of 6 and particularly
between ages 4-6 tend to self-segregate when it comes to play, showing a
preference to their own gender.41 This suggests that boys and girls do
experience different peer cultures even at a young age, 42 and this
reinforces gendered norms (boys being physically playful and girls being
more intellectually engaged). Fabes et al concluded that the gender of
playmates had a crucial impact on early school competence.43 The self-
segregation at this age is a natural phenomenon.
Where single sex schools are concerned, a number of studies have
revealed an array of possible outcomes. For example, research suggests
that women from all girls’ schools/colleges tend to be less inhibited about
entering traditionally male dominated fields such as the sciences. In a
study of 1700 female college students in the US, 40-75% from single sex
colleges shifted into neutral or male dominated fields as compared with
25% of women in co-educational schools.44 Another study found that the
number of female students pursuing maths and sciences dropped when the
school became co-educational.45 As pointed out by Billger, the source of
41 Richard A Fabes et al, ‘Early School Competence: The Roles of Sex-
Segregated Play and Effortful Control’ (2003) 39(5) Developmental Psychology,
848–858, 848.
42 Fabes (2003) 849.
43 Fabes (2003) 857.
44 Solnick, S J, ‘Changes in Women’s Majors from Entrance to Graduation at
Women’s and Coeducational Colleges’ (1995) 48(3) Industrial and Labor
Relations Review, 505–514.
45 Sherrilyn M Billger, ‘Admitting Men into a Women’s College: A Natural
Experiment’ (2002) 9 Applied Economics Letters, 479–483.
COMMENT
178
these differences can be highly personal to the individual students, 46
however they also seem to reflect a negative impact of sharing the
learning environment with boys.
Billger’s longitudinal study of single sex schooling in the US also
revealed that “relative to co-ed schools, the gains from single-sex
schooling may be greater for women than men, with 11% higher starting
salaries but virtually identical salaries for men.”47 Thus, the single sex
schools are empowering women and raising their economic expectations
and/or achievements. On the whole, Billger found that there was a
marginal detriment from single-sex education, but concluded that “some
positive prospects do nonetheless arise. In some cases, African-American
students experience unique gains, and single-sex education may therefore
provide an important opportunity to continued improvements in
educational quality.”48 In the UK, another longitudinal study by Sullivan,
Joshi and Leonard49 into a cohort of single sex educated men and women
found that at the age of 42, there was no net detrimental impact on the
chances of being employed. Where women were concerned, there was
however a “positive premium” of 5% on their wages as compared with
women who were co-educated. However, this did not undermine
occupational segregation of these women in the labour force, concluding
that the “gendered nature of the labour market (and other) institutions is
the dominant feature of adult experience rather than any legacy of single
sex schooling.”50 Pertinent for the case under commentary here, Sullivan
et al note that “It is an irony that, while the argument against single-sex
schooling is that single-sex environments are ‘unnatural’ for young
people, gender segregated environments are seen as quite normal in adult
life.”51 Thus, Ofsted’s arguments of British values and modern Britain
perhaps bely a lack of contextual awareness, and perhaps a utopian vision
of sex-equality in modern Britain being imposed on a school, while failing
to take account of the reality of norms in modern Britain.
46 Sherrilyn M Billger, ‘On Reconstructing School Segregation: The Efficacy and
Equity of Single-sex Schooling’ (2009) 28 Economics of Education Review, 393-
402, 393-394.
47 Billger (2009) 395, 400.
48 Billger (2009) 402.
49 Alice Sullivan, Heather Joshi and Diana Leonard, ‘Single-sex Schooling and
Labour Market Outcomes’ (June 2011) 37(3) Oxford Review of Education, 311–
332.
50 Ibid 329.
51 Sullivan et al (n 49) 329.
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179
It is interesting that where male students are concerned, Billger found
that those who had attended single-sex schools were less likely to pursue
science and computers. Perhaps an indication of the lack of expectations
imposed on “masculine” subjects in the absence of female students. On
the other hand, the male students pursued “business, philosophy/religion,
engineering and secretarial skills.”52 This outcome of single-sex education
should perhaps be a coercive factor where gender equality is concerned.
Burton argues that the one main reason why gender inequality persists
despite the 2010 Act, and its predecessor legislations, is the issue of
occupational segregation which is the tendency for men and women to be
employed in different occupations.53 If single-sex schooling breaks down
gendered norms where career choices are concerned, the overall impact
for gender equality is, surely, positive. Thus, even in the case where short
term disadvantage may be identified through the removal of a choice to
engage with members of the opposite sex, perhaps the long term gain
outweighs any detriment?
Sex discrimination and stereotypes go hand in hand. Kelsey argues
that in the US context, sex segregated schools are unconstitutional as the
14th amendment guarantees against sex discrimination, and he argued that
segregated schools perpetuate stereotypes about how each gender should
behave. 54 He breaks down this argument at the physiological and
biological levels. On the other hand, he cites programmes which seek to
enhance the performance of female students in subjects where boys
traditionally outperform them such as Mathematics. These “single-sex
programs seek to bolster girls’ confidence and interest in math by
providing an environment where boys are unable to dominate.”55 While
Kelsey critiques the positive exam results as possibly influenced by the
selection programme for female students undertaking the course, it is
clear that the environment to some extent plays a part in increasing the
students’ achievements. In the US, single-sex education is a highly
political issue.56 Elsewhere, Edstrom and Brunila studied gender equality
work in Sweden and Finland, and discovered an alliance between
52 Billger (n 45) 398.
53 Becci Burton, ‘Neoliberalism and the Equality Act 2010: A Missed
Opportunity for Gender Justice?’ (July 2014) 43(2) Industrial Law Journal 122,
132.
54 Chapple Kelsey, ‘Sports for Boys, Wedding Cakes for Girls: The Inevitability
of Stereotyping in Schools Segregated by Sex’ (2016) 9 Texas Law Review 537.
55 Ibid 544.
56 Nancy Chi Cantalupo, ‘Comparing Single-Sex and Reformed Coeducation: A
Constitutional Analysis’ (2012) 49 San Diego Law Review 725.
COMMENT
180
projectisation and heteronormativity.57 A binary construction of boys and
girls was identified and the focus on school children revealed the
existence of gender stereotypes in co-educational settings, before gender
equality awareness is raised. At the point of awareness, “the girls’ group
is encouraged to be stronger, braver, more independent and to take more
space, while the boys’ group is encouraged to be more socially and
linguistically competent.”58 They found that the girls’ group is required to
change its behavior more than the boys group, placing more pressure on
girls. Other factors which have impact for girls of a certain age may be
female role models.59
This analysis weaves a complex picture of the possible outcomes of
sex-segregated schooling. In Ofsted v Al-Hijrah, the Court of Appeal held
that a harm was suffered by each individual girl and boy pupil. But this
decision was reached without adequately testing that harm. Only a small
number of pupils are cited in the Ofsted report, raising the question of
disparate impact. Zatz’s “disparate impact liability” theory may be of
interest here.60 While the focus is on employment discrimination law in
the US, the 2010 Act provides comparable anti-discrimination provisions
for England and Wales. Here, group outcomes are viewed collectively and
not all members of the group are expected to suffer. Similarly, in the case
of the pregnant women, “the fact that some women who are pregnant or
on maternity leave have not been treated unfavourably does not mean that
this particular woman’s unfavourable treatment is not because of her
pregnancy or maternity leave.”61 The matter must be viewed from the
perspective of the individual claimant. In the Case of Al-Hijrah students,
the court of Appeal did not require a single claimant pupil to be identified.
However, perhaps identifying such a pupil, even anonymously, would
have strengthened Ofsted’s arguments of a detriment being suffered.
57 Charlotta Edstrom and Khristina Brunila, ‘Troubling Gender Equality:
Revisiting Gender Equality Work in the Famous Nordic Model Countries’ (2016)
20(1) Education as Change 10.
58 Edstrom and Brunila (n 59) 20.
59 Ronald G Ehrenberg, Danial D Goldhaber and Dominic J Brewer, ‘Do
Teachers’ Race, Gender, and Ethnicity Matter? Evidence from the National
Educational Longitudinal Study of 1988’ (1995) 48(3) Industrial and Labor
Relations Review 547.
60 Noah D Zatz, ‘Disparate Impact and the Unity of Equality Law’ (2017) 97
Boston University Law Review 1357.
61 Sally Robertson, ‘Employment Discrimination: Pregnancy and Maternity’
[2017] Westlaw Insight.UK.
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7 APPEAL
In November 2017, the Association of Muslim Schools (AMS) made
an application for addition of a party after the conclusion of an appeal,62
in the hope of appealing the decision to the Supreme Court. AMS’
concerns were focussed around their 133 membership schools, 10 of
whom implemented the same segregation policies as Al-Hijrah, and others
segregated girls and boys for certain activities. AMS submitted that the
Court of Appeal ruling had created uncertainty on what was expected of
the schools, and they wished to appeal the decision to the Supreme Court.
AMS can be classed as the relevant diocesan authority for any state
funded Muslim school in accordance with the Education Act and therefore
should be consulted in any change to admissions criteria for Muslim
schools. Further to this, AMS also conducts its own inspections of its
membership schools pursuant to s 48 of the Education Act 2005. This
application to the Court was made pursuant to these interests and
clarification from the Supreme Court was being sought on the basis that
the Appeal Court ruling had created uncertainty on the standard to which
these schools would be held upon inspection, and AMS’s own statutory
obligations when inspecting schools. In particular, they cited the “lack of
guidance from Ofsted or the Department for Education on the question of
segregation. There has been no public consultation and no official
statement that educating girls and boys separately is fundamentally
wrong.”63
In rejecting the appeal, the court cited a lack of detail in the witness
statement provided by AMS, including names of the schools potentially
affected and the segregation policies which they adopt. An issue which
comes down to a badly drafted application rather than a legitimate lack of
concern. It seems clear that the question of wider applicability of this
decision which was purported to only be relevant to the particular Ofsted
report relating to Al-Hijrah School, is a legitimate one. The Appeal Court
admitted their “judgments touch on matters of general application”64 and
also noted that the decision reached in this case will lead Ofsted to
62 HM Chief Inspector of Education, Children's Services and Skills v The Interim
Executive Board of Al-Hijrah School v The Secretary of State for Education, The
Equality and Human Rights Commission, Southall Black Sisters and Inspire, In
the Matter of An Application for Joinder By the Association of Muslim Schools
[2017] EWCA Civ 1787.
63 Al-Hijrah (n 65) 12.
64 Al-Hijrah (n 65) 16.
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applying a “consistent approach to all similarly organised schools.”65 The
Justices cited the acceptance of the decision by Al-Hijrah School and
Birmingham City Council and moves to implement the decision as an
indication that the matter was resolved. This seems clearly erroneous in
light of AMS’s appeal that several other schools operate the same policy
and will no doubt be held to the same standard. For this to be clarified,
and for this potentially divisive ruling to be legitimately employed by
Ofsted at other schools, there seems to be a clear need for a Supreme
Court judgment which may confirm the Appeal Court’s decision, but
place clear parameters of expected engagement between the pupils to
overcome any detriment suffered. While Al-Hijrah did not wish to appeal,
neither did they oppose AMS’s endeavours to appeal.66
8 CONCLUSION
The decision reached by the Court of Appeal in Ofsted v Al-Hijrah
was criticised by Colin Diamond, corporate director of children and
young people at Birmingham City Council, on the basis that Al-Hijrah
School were purportedly being held to a higher standard by Ofsted, while
other schools with similar policies were being allowed to continue as
usual.67 During a BBC Radio 4 interview, he questioned Ofsted’s logic in
allowing a boys’ school and a girls’ school to operate adjacent to each
other, with a fence between them, without difficulties; while
simultaneously taking particular issue with boys and girls in the same
school, questioning the logic and equity being applied. These are valid
points.
Where sex discrimination, in the context of single-sex education, this
case raises many questions about the application of the 2010 Act. Al-
Hijrah purported to be a co-educational school which segregated boys and
girls, thereby removing from the pupils the choice of engaging with
members of the opposite sex and thereby resulting in a detriment being
suffered. However, the Ofsted report following a s 5 inspection of Al-
Hijrah made reference to politicised terms such as “British values” and
“life in modern Britain”, without adequate scrutiny. When the present
legal treatment of segregated co-educational schooling is contrasted with
65 Al-Hijrah (n 65) 96.
66 Al-Hijrah (n 65) 12.
67 BBC, ‘Birmingham Islamic Faith School Guilty of Sex Discrimination’ (BBC,
13 October 2017) accessed 22 January 2018.
http://www.bbc.co.uk/news/uk-england-birmingham-41609861
http://www.bbc.co.uk/news/uk-england-birmingham-41609861
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the long established British tradition of single-sex schools, there is a
glaring disparity. The latter is protected from discrimination claims by the
very same Act seemingly being breached by the segregated school.
Despite the technical distinction between the two types of schools, which
mean one has the possibility of engagement with the opposite sex, while
the other does not, claims of detriment are also inadequately scrutinised
by the Appeal Court and evidence abound of the lack of clarity in
outcome for those educated in single-sex schools contrasted with co-
educational settings.
Finally, the grounds on which AMS was precluded from joining the
action and appealing the case to the Supreme Court are unpersuasive, and
the resultant position is that faith schools exercising gender segregation
can now all expect a visit from Ofsted. How these schools reorganise
themselves is yet to be determined, but it is clear that the only way they
can continue with single-sex education, if they so wish, is to operate two
separate schools, one for boys and one for girls.