Sex segregation not discriminatory

This case involves the segregation of pupils between the ages of 9 and 16 at a school, in order to reflect an Islamic ethos. Was this discriminatory?

Background

This was a challenge by the school to an inspection report which stated that the segregation limited pupils’ social development, and that no steps had been taken by the school to mitigate this negative impact. The school’s inspector stated that the segregation would be unlawful as discrimination under the Equality Act 2010.

The school applied for a judicial review of this decision.

In its legal arguments, the school’s inspector relied on s.13(5) of the Equality Act 2010 which states that racial segregation is to count as less favourable treatment. The inspector added, arguing from case law from the United States and South Africa, that segregation had been used as a tool of oppression.

The Court approached the case by agreeing that the segregation could be characterised as a detriment in that it did deny the pupils the opportunity of interacting in each other across the genders. However, the Court could not see how one sex was treated less favourably as compared to another, and this would be the test that would need to be applied for there to be discrimination.

The Court went on to hold that the chief inspector could not rely on case law from the United States and South Africa in this regard, because the social context in this case was completely different, particularly where the separation was voluntary on the part of parents in choosing the school.

Referring to s. 13(5) EqA, the Court held that this inclusion indicated that parliament did not consider that segregation was inherently discriminatory, and still left open the question of whether there was discrimination between the sexes, which there was not in this case.

Implications

This case does have relevance in the employment context in that it explicitly referred to and relied on the Equality Act 2010.

It is interesting to note the emphasis placed on different treatment between the genders. If there is no different treatment, there is no discrimination, even if there is a detriment.

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