The High Court has decided that a faith school’s segregation of girls and boys when they reach a certain age does not amount to less favourable treatment and therefore no direct discrimination occurred in this case. Given that there was no distinction between the opportunities afforded to the girls and boys to interact with each other, it could not be said that one sex was treated less favourably than the other.
The argument that segregation in a faith school generates a feeling of inferiority as to the status of females in the community is too broad and sweeping an assertion to make in a multi-cultural society, where segregation is not enforced but chosen by parents. (The Interim Executive Board of X School v HM Chief Inspector of Education, Children’s Services and Skills  EWHC 2813.)
X is a voluntary aided faith school for boys and girls aged between four and 16. It has an Islamic ethos and for religious reasons separates boys and girls from Year 5 onwards (when they are aged nine and above) for lessons, trips, breaks and lunchtimes.
In June 2016, Ofsted inspected X and later submitted to X a draft of its report that it proposed to publish. The report rated X as inadequate and cited a number of concerns about its leadership and management, among other things. The report included criticism of X’s segregation policy. However, this policy was well known to parents and reflected its Islamic ethos, which in X’s view discourages the mixing of genders in this age group.
Ofsted took the view that it limited pupils’ social development, and the extent to which they would be prepared for interaction with the opposite sex on leaving school. The draft report noted this and pointed out that the school had not considered “how to mitigate the potentially negative impact of this practice on pupils’ chances to develop into socially confident individuals with peers from the opposite gender”. Ofsted took the view that this gender segregation was unlawful under the Equality Act 2010. However, there was no suggestion that either boys or girls received a different or qualitatively poorer level of education than the other.
X brought a judicial review challenge in respect of Ofsted’s proposed report. Among other things, it argued that Ofsted was wrong in its view that sex segregation was unlawfully discriminatory under the Equality Act 2010.
Although this case concerns discrimination in the context of a school/education and not employment, the principles involved are useful to note.