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Discrimination: Gender Segregation

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Does the segregation of boys and girls at a co-ed school amount to direct discrimination?

Yes held the Court of Appeal in HMCI v. The Interim Executive Board of Al-Hijrah School.

This case concerns a Muslim faith school which educates boys and girls collectively for the first five years and then segregates them by gender. Ofsted inspectors graded the school as ‘inadequate’, citing the segregation as a reason. Subsequently, Ofsted asserted the segregation was unlawfully discriminatory.

In judicial review proceedings, the High Court found the segregation not discriminatory, principally because boys and girls were treated the same.

The Court of Appeal overturned that decision. The segregation meant a girl could not socialise with boys (and vice versa). This constituted a detriment that was by reason of sex. The fact there was mirror discrimination (both genders suffered the detriment) did not prevent a finding of less favourable treatment under the Equality Act section 13. That section protects the individual, and any group comparison is irrelevant.

By a majority of 2-1 (Gloster LJ dissenting), the Court of Appeal dismissed alternative grounds that sex segregation had a greater impact on girls (i) as the gender with less power, or (ii) as a reinforcement of a message of female inferiority.

Thanks to Jason Braier of Field Court Chambers for preparing this case summary.