The Court of Appeal has held that a faith school’s segregation policy under which they separated boys and girls when they reached a certain age amounted to direct sex discrimination.
The school, in this case, was a voluntary aided faith school for boys and girls. It had an Islamic ethos and for religious reasons separated boys and girls from Year 5 onwards for lessons, trips, breaks and lunchtimes.
Ofsted took the view that this gender segregation was unlawful under the Equality Act. However, there was no suggestion by Ofsted that either boys or girls received a different or qualitatively poorer level of education than the other.
The school brought a judicial review challenge, which the High Court allowed.
Segregation policy was unlawful
Allowing a subsequent appeal, the Court of Appeal unanimously found that the segregation policy constituted direct discrimination.
The Court of Appeal said that the High Court was wrong in its approach that, since boys and girls were equally disadvantaged in being denied the opportunity to socialise and learn from one another, there was no direct discrimination. It, the Court said, should have looked at the matter from the perspective of the individual pupil, not asked whether one group was treated differently to the other. Viewed from the perspective of an individual pupil, both the girl pupil and the boy pupil were treated less favourably than each other.
The Court rejected an argument that separate but equal treatment could not amount to unlawful treatment.
The Court also said that motive is irrelevant when establishing whether discrimination has occurred. The fact that parents choose to send their children to a segregated school, it said, cannot decide the question of whether segregation is discriminatory.