Segregating boys and girls at a co-ed school is direct discrimination

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The much publicised finding of the Court of Appeal that the practice of segregating boys and girls at a co-educational school is sex discrimination is unwelcome news for many schools.

The Court decided that the segregation meant that girls and boys could not socialise with each other and even though both genders suffered this detriment there was unlawful direct discrimination under the Equality Act.

The case arose out of an Ofsted report where inspectors graded a co-ed Muslim faith school as ‘inadequate’, partially on the basis that the school completely segregated boys and girls after the first five years. The school challenged the Ofsted report by bringing judicial review proceedings in the case of HMCI v. The Interim Executive Board of Al-Hijrah School and the High Court found the practice was not discriminatory as boys and girls were being treated the same, but this was reversed on appeal.

Whilst the Equality Act contains a specific exemption from sex discrimination for single-sex schools, this high-profile ruling will affect all co-ed schools with a segregation policy. Such schools could now face claims of unlawful discrimination from Ofsted and/or parents and pupils. The case could also have a wider impact in other areas such as employment, with female employees who are treated differently but equally to their male counterparts now potentially being able to claim direct discrimination.

So what should schools do? Schools that currently segregate pupils will struggle to make changes overnight and helpfully it is understood that the DfE will allow schools a reasonable period to adjust their policies. One option is to stop segregating pupils which is easier said than done without making significant changes to the school’s infrastructure. A more radical solution would be to change the school into single-sex schools.

If your school will be impacted by this ruling we would be pleased to help – feel free to contact Liz Timmins, solicitor in the Education team at Doyle Clayton:ltimmins@doyleclayton.co.uk.

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