Equality Act 2010 and segregation issues
The Court of Appeal’s judgment in the case of Al-Hijrah School considered unlawful discrimination in co-educational schools separating pupils on the basis of their gender. The judgment has been influential in shaping DfE and Ofsted policy, and has also triggered questions about the extent to which single-sex schools are expected to comply with anti-discrimination laws.
The Court found that the school’s complete segregation of boys and girls was discriminatory under the Equality Act 2010 on the grounds of sex. Government and Ofsted policy surrounding the legality of segregation practices in mixed schools has since tightened. The DfE has issued non-statutory guidance on gender segregation in mixed schools to support schools (maintained, academies and other independent) in identifying what is expected.
Ofsted’s new school inspection handbook (EIF) (for use from September 2019) contains a new section on segregation, and states that it is unlawful for schools to segregate pupils on the basis of protected characteristics (including sex) unless certain exemptions (notably positive action and sport) are satisfied. An inadequate grade for leadership and management is likely for schools that segregate without any genuine or imminent plans to reintegrate pupils. This position was further emphasized by Ofsted in its new Equality, diversity and inclusion statement.
At Stone King we have seen evidence of Ofsted taking a more assertive approach to inspections of mixed schools that appear to segregate pupils by gender. We would recommend any mixed schools that might be concerned with the implications of the Al-Hijrah judgment and subsequent policy shift on the legality of their provision to take legal advice.
Citing the UK’s historic tradition of educating children in single-sex schools, the Court in Al-Hijrah made it clear that its judgment related to co-educational, rather than single-sex, schools. The Court quoted Schedule 11 of the Act, which permits single-sex schools to discriminate on the grounds of sex in their admission arrangements. The definition of a single-sex school under the Act is a school which:
- admits pupils of one sex only, or
- would be taken to admit pupils of one sex only on the assumption that pupils of the opposite sex are to be disregarded if:
- admission is exceptional or,
- numbers are comparatively small and admission is confined to particular courses or classes.
The DfE made it explicit that its non-statutory guidance on gender segregation applies only to mixed schools. While Ofsted’s education inspection framework does not specify that its segregation guidance does not apply to single-sex schools, it should be implicit from the Al-Hijrah judgment and Act that single-sex schools that fall within the definition in the Act are exempt with respect to their admission arrangements.
Nevertheless, where single-sex schools are admitting pupils of the opposite sex, they should be mindful of keeping within the parameters of the Act’s definition of a ‘single-sex school’ to avoid being deemed to fall outside the definition and triggering the discrimination provisions of the Act.