The most interesting feature of the case of HM Chief Inspector v Interim  Executive of Al Hijrah School [2018] IRLR 334 is the split between the reasoning of the majority (Etherton MR and Beatson LJ) and minority (Gloster LJ) in the Court of Appeal. Although they agreed in the result (that there was unlawful discrimination by the School) Gloster LJ went further than the other two members of the Court were prepared to do.

The case concerned a voluntary aided faith school which practiced segregation between 9 to 16 for girls and boys in lessons, meals and in the playground. OFSTED has a duty to assess a School’s compliance with the Equality Act 2010 when carrying out an inspection. It put the School into special measures having assessed it as “inadequate”. Girl pupils had to wait one hour longer than the boys for their break.

The High Court judge said that the proper approach was to consider the group of girls and boys as a whole because there was no difference between anyone in the group. On this basis neither group was treated more favourably. The Judge characterised the approach as separate but equal. Jay J rejected the contention that segregation had a bigger effect on girls because they have less power in society. He was not prepared to accept in the absence of evidence that segregation in the school generates a feeling of inferiority as to the status of the female gender in the school. OFSTED had included in its inspection report this passage: “the development of pupils’ social skills is not as strong as it could be and there are few opportunities to foster good relations”.

The Court of Appeal took a different view to the judge, saying that the issue must be approached from the point of view of an individual boy or girl, the Equality Act 2010 giving the right to claim unlawful discrimination to the person. There was no reference to group discrimination in the 2010 Act (para 50). So judged, the refusal to a boy to socialise with a girl is a denial of privilege because of the protected characteristic of sex and thus unlawful. There was in the view of the majority less favourable treatment of any girl at the school because of the impact of the segregation on the girls. It served to diminish the quality of education for all of the girls. As has long been established, the motivation for the treatment was irrelevant; whether that be adherence to Islam or parental need or indeed anything else.

OFSTED also argued that there was expressive harm to girls because of the deep-seated cultural issues in relation to the role of women; and in particular that this perpetuated stereotypes about girls (para 114). The majority (Etherton MR and Beatson LJ) decided that there was nothing in the evidence which was before the court to link segregation with stereotyping of women (para 119). The expressive harm was defined by the majority (para 114) as being that “the very fact of segregation…cannot be separated from deep-seated cultural and historical perspectives as to the inferiority of the female sex and which serves to perpetuate a clear message about that status”.

Other interesting features are that:

1. The Judge said segregation would not have same impact as South Africa and the South of the US; here it was entered into voluntarily
2. OFSTED made clear that it would apply a consistent approach to all similarly organised schools;
3. OFSTED was told to give the School “time to put their house in order”.

Gloster LJ took a radically different approach which may have significant consequences in future cases. She considered the practical consequences of the segregation especially the expressive and symbolic effects of it. In contradiction of the majority, she decided that evidence is not needed to show it supports stereotypical views (para 145). Girls were excluded from hierarchical male networking groups whether in social educational or employment environments. There was the danger of stigmatic harm (para 147).

There was evidence that gender segregation results from and in turn reinforces cultural and religious norms; publications which were found in the school reflected the mainstays of ultra-conservative and fundamentalist approaches to Islam (para 150).

Gloster LJ paid particular attention to a statement from Ms Patel of Southall Black Sisters (which with Inspire was permitted to intervene) that: “the gendered norms which are at issue here do not fall with equivalent weight on men and women but are concerned to keep women out of the public space”.

The absence of evidence from the girls was irrelevant in the view of Gloster LJ (para 157).

One curiosity is that the result would be different for a single sex school for which there is a special exemption under sched 11 of the 2010 Act and for public services where the provision to one sex is a proportionate means if achieving a legitimate aim (Part 7 of Schedule 3), for example, separate male and female changing rooms in a department store.