30th October 2017

Segregation of boys and girls held to be Direct Sex Discrimination

In a recent case, the Court of Appeal confirmed that a school’s policy of segregating boys and girls when they reach a certain age amounted to direct discrimination.

As confirmed by the Equality Act 2010, Direct discrimination takes place when ‘because of a protected characteristic, A treats B less favourably than A treats or would treat others’. The only reference to segregation in the Equality Act is in respect of the protected characteristic of race and in this case, segregation is expressly prohibited.

The school in question is a voluntary aided faith school for boys and girls aged 4-16 years. For religious reasons the school separates boys and girls for lessons, trips, breaks and lunchtimes from Year 5 onwards (when they are 9 years old and over).

An Ofsted inspection took place in June 2016 and a draft report was prepared, confirming the school was inadequate and amongst other matters, the segregation policy was criticised due to the limitation of social development and the extent to which pupils would be prepared for interaction with the opposite sex after leaving school. Ofsted’s view was that the segregation was unlawful under the Equality Act 2010.

The school brought a judicial review challenge in respect of the report, amongst other matters, arguing that Ofsted was incorrect in its view that the segregation was unlawfully discriminatory.

The High Court held that the segregation was not directly discriminatory because although there was a difference in treatment based on sex, this was not less favourable treatment as both sexes were treated the same. Ofsted appealed to the Court of Appeal.

The Court of Appeal upheld the appeal and confirmed that the policy did constitute direct discrimination,

From this case, it is clear that co-educational schools which segregate the sexes will no longer be able to do so, regardless of parent or cultural preference. It is, however, likely that Ofsted will give schools time to adjust.

Source: Chadwick Lawrence