Faith School’s segregation – direct discrimination?
The case in point is The Interim Executive Board of X School v HM Chief Inspector of Education, Children’s Services and Skills  EWHC 2813.
The High Court has decided that there is no direct discrimination in this case. It was held that the faith school’s policy of segregating of girls and boys when they reach a certain age does not amount to less favourable treatment, as neither sex was treated less favourably than the other.
Direct discrimination occurs where ‘because of a protected characteristic, A treats B less favourably than A treats or would treat others’ (section 13 (1) Equality Act 2010). A tribunal has to compare like with like so that ‘there must be no material difference between the circumstances’ of B and the comparator (section 23(1) Equality Act 2010).
X is a voluntary aided faith school for boys and girls aged between four and 16. The practice of Islam is central to the school and therefore for religious reasons, and to reflect the Islamic ethos, boys and girls are separated from Year 6 onwards for lessons, trips, breaks and lunchtimes.
Ofsted concluded that the policy limited pupils’ social development, in particular the extent to which school should prepare young people for interaction with the opposite sex after school. It claimed that the school had not considered ‘how to mitigate the potentially negative impact of this practice on pupils’ chances to develop into socially confident individuals with peers from the opposite gender’. However this said, there was no suggestion that either sex received a poorer level of education than the other.
The High Court found that segregation in X on the ground of sex does not constitute direct discrimination in breach of section 13 or section 85 of the Equality Act 2010. It was decided there is no difference between denying the boys the opportunity to mix with the girls and vice versa; the denial was of equivalent nature and character in relation to both sexes.
An interesting point arises that the judge said had Ofsted specifically argued that Islamic schools segregate because their religion views girls and women as second-class citizens then he would have been duty-bound to address the issue. The court allowed permission to appeal by both parties as it deemed the case involves ‘considerable public importance and interest’.