The Court of Appeal has recently overturned a High Court’s decision that a school’s gender segregation for pupils aged 9 and above was not discriminatory (HCMI v The Interim Executive Board of Al-Hijrah School).
Al Hijrah is an Islamic faith school in Birmingham. Pupils at the school are educated collectively up until Year 5, when they were then segregated by gender for lessons, breaks, trips and clubs. Ofsted inspectors graded the school ‘inadequate’ and subsequently asserted the segregation was unlawfully discriminatory.
Within judicial review proceedings, the High Court decided that the segregation did not amount to discrimination as both boys and girls were treated the same. The Court of Appeal overturned this decision. The pupil’s denial of being able to mix with the opposite sex was seen as detrimental and this detriment was imposed because of the protected characteristic of sex. Thus, the treatment was directly discriminatory and the fact that there was mirror discrimination (both genders suffered the detriment) was irrelevant.
This judgment is a landmark case in relation to segregated faith schools and may impact other mixed schools in England who have similar rules. Significantly, it also highlights that where there is a detriment or less favourable treatment due to a protected characteristic (for example sex), the fact that the less favourable treatment is identical for the other (for example) gender may not amount to a valid defence if a court or tribunal finds that the less favourable treatment is due to that characteristic. For more information about any issues raised, please contact our employment team.