What is direct discrimination?
Section 13 of the Equality Act 2010 (EqA) says that “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
But what is a protected characteristic? Age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity are now known as ‘protected characteristics‘.
Less favourable treatment covers a wide spectrum, but includes segregation if the protected characteristic is race.
Sex discrimination at the school; segregating boys and girls
Al-Hijrah school is an Islamic faith school based in Birmingham, catering for boys and girls, aged 4 to 16. The school’s policy was to separate boys and girls from the age of 9 upwards, for lessons, trips, breaks and lunchtimes. It was visited by Ofsted in June 2016, who rated the school as inadequate due to concerns regarding leadership and management. It also criticised the schools segregation policy. The policy had been well known to the parents who sent their children to the school, and reflected the Islamic ethos of the school, which discourages the integration of the sexes at that age. There was no evidence that the boys or girls received a different quality of education as a result of the segregation.
Ofsted argued that the policy limited social development, and raised particular concerns that students would not be prepared for mixing with the opposite sex upon leaving school. They prepared a draft report setting out their concerns, claiming that the policy was discriminatory on the basis of section 13 and 85 of the EqA. Section 85 of the EqA prohibits discrimination by schools against pupils in relation to admission arrangements and the provision of education (although the admission provision is dis-applied to single sex schools).
The school challenged the Ofsted report in court, judicially reviewing the suggestion that the policy of segregation was in breach of the Equality Act.
The High Court
The High Court agreed; finding that segregation in school on the grounds of sex does not constitute direct discrimination in breach of either section 13 or 85. Whilst there was a difference of treatment based on sex, there was in fact no detriment, as both sexes were treated the same. The Court also rejected the suggestion that segregation has a greater negative effect on the girls, due to social factors which tended to result in them being considered inferior. There was no evidence to support this.
Ofsted then appealed this decision to the Court of Appeal; the Equality and Human Rights Commission (EHRC) and the Southall Black Sisters were given permission to intervene. They argued that in fact the lack of integration meant that both boys and girls suffered a detriment as they both lost opportunities to learn from one another. The effect of girls was particularly harmful as they have been traditionally marginalised in society.
The Court of Appeal: discriminatory segregation
The Court of Appeal found that the segregation did in fact amount to direct discrimination under both section 13 and 85 of the EqA. However, they dismissed (by a majority) the argument that girls were particularly susceptible to harm from lack of integration. The one dissenting voice came from Lady Justice Gloster, who commented “If men and women find it more natural and comfortable to form exclusive and different social networks around working life only with those of their own sex, women lose out more than men, because women are disproportionately excluded from networks of power and influence in later life”.
In their judgement the Court of Appeal found that the High Court had erred by not considering the case from the perspective of each individual pupil, not whether each group as a whole were treated differently. If someone is discriminated against, it does not stop being discriminatory simply because the behaviour is mirrored elsewhere. The fact that the parents consented to the segregation was irrelevant to whether the segregation was discriminatory.
This case will have a significant effect on schools in the UK, particularly faith schools that tend to operate the same policy. Regardless of faith or parental preference, schools will no longer be able to segregate students within the mix-ed environment. Education offers a unique place when competing values and rights are at play. Schools are tasked with helping pupils achieve their full potential regardless of their faith or social background.
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Julia Furley, Senior Barrister