Regular readers may recall that some months ago, I wrote about a decision of the High Court in a claim brought by a then-unnamed Muslim school against Ofsted, who had suggested that their practice of segregating male and female pupils in school amounted to sex discrimination. The school was successful, and an order made that references to a discriminatory practice were removed. Ofsted appealed that judgment to the Court of Appeal, who delivered their decision recently ([2017] EWCA Civ 1426).

The order banning the naming of the school had been lifted sometime before, and the case therefore clearly named them as Al-Hijrah School in Birmingham. Al-Hijrah is a voluntary aided faith school for boys and girls aged 4-16. It has an Islamic ethos and segregates students by gender from Year 5 (age 9-10) onwards. This policy is clearly advertised, and it is notable that no adverse comment had been made, by Ofsted or anyone else, in the past. The Ofsted inspection which took place in 2016 noted that boys and girls had access to the same facilities and curriculum. However, the segregation of the sexes meant that, in Ofsted’s view, pupil’s social development was limited; they were placed at a disadvantage for life beyond the classroom and the workplace, and the policy failed to prepare them for life in modern Britain.

Ofsted argued that the segregation policy, while not disadvantaging girls per se, put them at a disadvantage because females were ‘part of a group with the minority of power in society’. Therefore, Ofsted, in addition to the Secretary of State for Education and the Equality and Human Rights Commission, who were both given permission to argue their views at the hearing, suggested that the High Court ruling that the policy did not amount to sex discrimination was wrong, and should be overturned.

The Court of Appeal agreed, and decided that the segregation policy amounted to less favourable treatment because – in their words – “An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.” They considered that the argument that the students both received the same level of education and had access to the same facilities ‘missed the point’. Therefore, they concluded that the school was guilty of sex discrimination in the way that it segregated its pupils.

Al-Hijrah School had argued that this issue had not been brought to their attention prior to the 2016 inspection, and no adverse comment had been made in previous inspections. It is notable that they are not the only school to apply such a practice, and indeed there are a number of Islamic schools, and indeed Jewish and Christian schools, who also apply such a practice. None of those schools had been criticised by Ofsted in the past for their policies. However, the Court of Appeal did not find that this was sufficient reason to hold that the policy itself was not discriminatory, although they did state very clearly in their judgment that affected schools should be given time to ‘put their house in order’, given Ofsted’s failure to identify the issue, and their acceptance of an unlawful state of affairs, until now.

Al-Hijrah School has chosen not to appeal the decision of the Court of Appeal and is said to be working with its local council to implement it. In the last few days, an application by the Association of Muslim Schools (AMS) to become an ‘interested party’ in this case, thereby allowing them to appeal the decision to the Supreme Court, has failed. AMS is said to have ten Muslim schools in its membership that formally segregate boys and girls in a mixed-sex setting. Having rejected the application, the Court of Appeal stated that even if it had succeeded, they would have refused permission to appeal, because it would have ‘no real prospects of success’ and would create uncertainty in the interim period.

A number of schools are now looking into how they can implement this decision. A Jewish school in North London is currently considering whether to separate into two single-sex schools under one multi-academy trust. Single-sex schools, to whom a specific exemption applies, remain unaffected by the decision. It will remain to be seen how Al-Hijrah school, and indeed many other Muslim schools, amend their current practices to ensure that they are no longer considered to be discriminating against their pupils.

Safia Tharoo, Barrister, 42 Bedford Row, London