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Segregation on Grounds of Gender is not Direct Discrimination

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 Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary

Is segregation of pupils based on sex direct discrimination contrary to s.13 Equality Act 2010?

No, held the Administrative Court in X School v HMCI.

A mixed-sex Islamic faith school judicially reviewed an Ofsted report following an inspection under section 8 of the Education Act, which concluded that the school unlawfully discriminated against both its female and male pupils by "making parallel arrangements" for their education in the same building.

Mr Justice Jay concluded that segregation on grounds of sex did not amount to less favourable treatment under sections 13, 23 and 85 of the Equality Act, because the treatment was identical for both groups. He considered that there was no qualitative difference between the denial to male pupils of interaction with female pupils and the denial to female pupils of interaction with male pupils.

In those circumstances, unless Ofsted could demonstrate that the segregation was deliberately discriminatory, for instance because the Islamic faith regards the female gender as inferior and/or considers that females should be prepared for a lesser role in society, its position was hopeless. Ofsted had suggested that segregation was discriminatory because it perpetuated a historic view held by society of inferiority of women, but it did not implicate the Islamic school per se or provide any evidence.

The fact that single-sex faith schools exist did not have any relevance for the court's assessment because Parliament had specifically legislated an exception for faith schools' admissions policies. Given the importance of central issue, whether segregation per se constitutes less favourable treatment, the court granted permission to both parties to appeal to the Court of Appeal.