Gender Separation in Mixed Schools
26 February 2019
In this article we take a look at the legislation and recent case law to help you manage the risks associated with separating pupils by gender at school.
Managing risk
Co-educational (or 'mixed') schools can be vulnerable to the threat of claims of discrimination based on gender, constituting unlawful behaviour under the Equality Act 2010 (the "EqA").
There are a number of reasons for schools opting to separate classes by gender, but such decisions should be taken with caution and due consideration to minimise the potential risks. We advise our clients to document the reasons for such policy decisions so that they are able to defend their position if the school is questioned by Ofsted/ISI, faced with litigation or the reputation of the school is brought into disrepute over the issue.
For ease, we sometimes refer to male pupils and female pupils as 'boys' and 'girls' respectively.
HM Chief Inspector of Education, Children's Services & Skills v The Interim Executive Board of Al Hijrah School
In 2017, following the outcome of an Ofsted inspection, one mixed school's policy on separating pupils by gender reached the Court of Appeal. Al-Hijrah school, a co-educational school with an Islamic ethos, employed the policy of separating male and female pupils between the ages of 9 and 16 (i.e. from year 6 onwards). Boys and girls had separate classes, lunchtimes, school trips, and even used different corridors. Pupils' parents and guardians were aware of the policy, which was seen as a defining characteristic of the school.
When the school was subject to an Ofsted inspection, Ofsted concluded that the school was 'inadequate in the effectiveness of leadership and management' because the separation of pupils by gender was affecting their social development and would hinder their interaction with the opposite sex later in life. The policy was also considered to be causing the pupils to suffer educationally and went a step further to state that the policy constituted unlawful discrimination against female pupils.
The school began proceedings for judicial review, aiming to have the inspection result quashed. The High Court allowed the school's appeal, arguing that though the school's policy could be detrimental to pupils, it was not prima facie sex discrimination against female pupils, as boys and girls were both separated from each other and therefore were receiving the same treatment with the same consequences.
The Court of Appeal allowed Ofsted's appeal and ruled that the separation by gender caused a detriment to both boys and girls respectively and amounted to less favourable treatment based on their sex, contrary to the EqA. The policy was detrimental to each pupil – not just girls – and adversely impacted upon the quality and effectiveness of the education provided by the school.
DfE Guidance
Following the Al-Hijrah case, the DfE published non-statutory guidance to assist mixed schools in identifying what is expected of them when separating pupils by gender. The guidance advises schools that separating pupils by gender (a 'protected characteristic'), without meeting one of the exemptions below is likely to constitute unlawful discrimination under the EqA.
Exemptions
There are two statutory exemptions.
- Taking positive action
Schools are permitted to separate pupils by gender when they are taking positive action, defined as:
"[a school] targeting measures that are designed to alleviate disadvantages experienced by, or meet the needs of, pupils with a particular characteristic".
This could include, for example, offering remedial maths classes to boys if boys are displaying signs of requiring extra help in this area. However, schools would not be able to offer such classes without also offering similar help to girls if they also required the same maths help, as this would put the girls at a disadvantage.
Certain single-sex classes will be justifiable if the pupils are separated due to having differing needs. This could include holding single-sex PSHE classes like sex education. Boys and girls may require different education in this regard, meaning that teaching them separately will not constitute unlawful behaviour, as long as boys and girls are each provided the appropriate classes.
Schools may also be able to offer single-sex classes if they are trying to increase participation in an activity by girls or boys where it is disproportionately low, if this is a proportionate way of achieving the aim of increasing participation.
- Sport
Schools are permitted to separate pupils by gender when they are taking part in comparable, competitive physical activity, for example, PE lessons or sports. This is particularly justifiable on the basis of health and safety once pupils reach secondary school age and boys and girls have different levels of strength and size. It is important that schools do not use this exemption to treat one gender unfavourably, for example, by attributing more funding to a boys' football team and/or allowing them to use better facilities than the girls' team.
Points to note
If schools wish to rely on one of the exemptions referred to above when separating pupils by gender, they must consider how the exemption applies and should be prepared to justify the decision to Ofsted, parents and the wider community.
Under either exemption, such action needs to be an appropriate way of achieving a legitimate aim.
The risk does not apply solely to separating pupils by gender in all classes. Unlawful treatment could arise in stipulating that girls must study food technology while boys must study design technology; or by requiring girls to study textiles whilst giving boys the option of studying either graphic design or woodwork. The first scenario could discriminate against a girl who wishes to study design technology – or a boy who wishes to study food technology – by reason of her/his sex. Similarly, the second scenario could deny a girl the opportunity to study graphic design and thus treat her less favourably than a boy, by virtue of her sex. Such curriculum limitations are unjustifiable.
The relevant DfE guidance is available here:
Whilst the most recent guidance produced by the DfE is non-statutory, it contains a benchmark of best practice and schools must have a sufficiently good reason for not adhering to it. The guidance applies to School leaders, school staff and governing bodies in all mixed maintained and independent schools, academies and free schools.
For further information or advice, please contact Vicky Wilson, Stephen Oxley or your usual Wilsons contact.
