Following the case of Ofsted v Al Hijrah, the Department for Education (DfE) has issued non-statutory guidance on gender separation in mixed schools. The popular press concentrated on the implications for boys’ and girls’ sport but this is a minor part of the guidance which should be read and taken on board by school leaders and staff and governors. It applies to all maintained and independent schools, academies and free schools.
The starting point is that under the Equality Act 2010 (the Act) separation of boys and girls is likely to give rise to unlawful discrimination where it denies boys and girls the choice and opportunity to mix socially and interact in an educational setting. The main, limited, exceptions are where such separation is part of positive action remove a disadvantage that one gender is experiencing or in competitive sport.
All separation of the sexes must be justifiable to Ofsted and other inspectors; parents; and the wider community and the considerations which caused the school to adopt this policy should be documented. Practices which were common at one time, of limiting certain curriculum choices to boys or girls (boys metalwork / girls textiles) are unjustifiable.
Separation may be justifiable if it is designed to overcome a disadvantage. A school following this policy must be able to show that it reasonably thinks that one sex is at a disadvantage; that they have different needs; or that there is a disproportionately low take-up of a curriculum option by one gender. Example may be that the needs of boys and girls in sex education are different; that one gender is performing noticeably worse than the other in a particular subject area; or that, say, girls are not taking up STEM subjects in appropriate numbers. There must be a clear rationale for how separation will help and no diminution of the provision for the other gender.
Sport is an ‘gender-affected activity’ for the purposes of the Act. On average, boys’ physical strength, stamina and physique are greater than girls. There must, however, be equality of opportunity in comparable activities and it will be unlawful to invest greater resources in one gender rather than another (including access to facilities such as all-weather pitches etc).
Finally, the guidance mentions that separate toilet and washing facilities are an obligation under other legislation and similarly, boarding accommodation should be separate.
Although this guidance is non-statutory, the framework within which the guidance is given is a major Act, which itself is framed by the European Convention on Human Rights and the European Charter of Fundamental Rights. It is sometimes too easy to take familiar things for granted. This guidance covers ground that may seem to be familiar, but as the response to the issue of sport has shown, there can be more to it than meets the eye. Schools should check their own assumptions and practices against the guidance and discuss them with governors.
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