The High Court has just published its judgment in the case of X School v Her Majesty’s Chief Inspector of  Education, Children’s Services and Skills (HMCI) [2016] EWHC 2813 (Admin). X School is a voluntary aided faith school for children aged 4-16. It has an Islamic ethos, and separates boys and girls classes from Year 5 onwards (when they have reached the age of 9) for religious reasons. Previous inspections of X School had identified failings and it was placed in ‘special measures’ for a period of time. However, no adverse comment was made about the gender segregation of children during previous inspections.

From January 2016 onwards, HMCI appear to have moved towards a policy decision that in their view, gender segregation in mixed schools was unacceptable under the Equality Act 2010. Therefore, when X School was inspected in July 2016, this issue was highlighted and a report compiled which criticised the policy, and suggested that it was discriminatory.

X School complained about the content of the report, but their complaint was not upheld. They therefore brought a claim for Judicial Review, arguing that the conclusions of the report were legally incorrect. The report was not published pending the outcome of the claim, and an anonymity order was granted so that the school could not be identified.

The key argument in the case was whether gender segregation amounted to less favourable treatment of either sex, such that it met the test of discrimination under the Equality Act. This was in the context of an education setting where neither gender was given fewer opportunities than the other. HMCI argued that although boys and girls were ostensibly treated equally, both genders lost out on the chance to choose who they socialised with, and lost the opportunity to learn to confidently socialise with the opposite sex , in preparation for interaction in personal, educational and work-related contexts on leaving school. HMCI went further to argue that girls suffered a particular detriment because females have lesser power in society, and the fact of segregation itself amounted to less favourable treatment of girls as it harked back to the historical perspective that girls were inferior to boys, and perpetuated that message.

The court considered all of these arguments and rejected them. In respect of the first two arguments above, it concluded that the ‘inability to socialise’ applied equally to boys and girls, and it was artificial to say that the boys not being able to socialise with the girls was somehow different to the girls not being able to socialise with the boys. Therefore, where there was an act of equivalent nature and character, and with equivalent consequences for both sexes, it could not be said that one sex was being treated less favourably than the other. With regard to the specific argument about detriment to females, there was no specific evidence that segregation in a mixed Islamic school had a greater impact on females than males.

HMCI did not make any findings in their inspection report which suggested this either. Looking at the issue more widely as suggested in the fourth argument, the court concluded that HMCI needed to established that faith schools in general, and Islamic schools in particular, segregated the sexes because they regarded the female gender as inferior, and/or that girls should be separately prepared for a lesser role in society. However, that was not the conclusion of the inspection report, nor was it the way the case was argued by HMCI in court.

X School therefore succeeded in this main aspect of their Judicial Review claim, and HMCI were ordered to remove any references in the inspection report to breaches of the Equality Act 2010.

This decision is not, however, the end of the story as HMCI immediately sought, and obtained, permission to appeal the judgment to the Court of Appeal. The judge recognised the considerable public importance of the issues raised in this case. In particular, this is an issue that does not only affect Islamic schools but also those of other faiths, where similar provisions apply.

On a final note, readers may be wondering how single-sex schools fit into this argument. There is a specific provision in the Equality Act which allows single-sex schools to select their pupils based on gender. Therefore, those schools were not relevant for the purposes of the legal issues in this case. The court did, however, note that the arguments on social interaction in that environment have to be considered in the context of a school where there are no members of the opposite sex present. It remains to be seen how the Court of Appeal will view the matter when they hear this appeal.

Safia Tharoo, Barrister, 42 Bedford Row, London