Is Al-Hijrah ruling the death knell for single-sex schools?

The recent judgement against segregation in schools suggests that ideology-based segregation in education is harmful. Where does this leave single-sex schools?

On Friday 13 October, the Court of Appeal ruled that the Al-Hijrah school’s policy of segregating boys and girls was unlawful discrimination by sex.

The decision gives Ofsted considerably greater powers and could mark the beginning of the end of single-sex education.

The courts were asked to consider whether denying either group the opportunity to mix was a lost benefit, amounting to less-favourable treatment for one or the other. The High Court’s view was that as both groups were treated equally, because it could not find that one sex was being treated less favourably than the other.

Ofsted disagreed, arguing that it resulted in the loss of opportunity to choose to learn and socialise with each other, and posed a particular detriment to girls as they have less power in society. It also argued that this treatment of girls amounted to “expressive harm”, caused by the implication that the need for segregation is based on the belief that girls are inferior.

Al-Hijrah’s policy was driven by religious ideology rather than inherent gender bias

The Court of Appeal agreed, and Sir Terence Etherton, said “there was direct evidence from some, albeit a small number, of the pupils that they regarded the complete segregation of the sexes as detrimental to their social awareness and development”.

The decision is a definitive win for Ofsted, perhaps going further even than it may have expected to give its inspectors the power to judge a school’s overall effectiveness in regard to its social policies. (Remember there was no suggestion here that teaching and learning differed.)

Amanda Spielman this weekend responded with a public defence of same-sex schools. She recognises the exemption in the legislation that permits it, and believes there are benefits for both girls and boys. The point she emphasises, and one that schools will need to keep in mind, is the purpose behind the segregation.

Ofsted highlighted a breach of the duty to promote British values, that segregation is not a British value. However, given the lack of guidance from the DfE and Ofsted itself as to what would and would not be compliant, it’s hard to resist the conclusion that Ofsted is both determining policy and policing its implementation.

Al-Hijrah’s policy was driven by religious ideology rather than inherent gender bias, and it would be easy to dismiss this ruling as only applying to segregation in an otherwise mixed-sex school. But that would ignore the significant undertones of this ruling, which suggest that ideologically driven segregation in education is harmful, particularly for girls.

Following this reasoning to its logical conclusion, it could open the door for challenges to faith-based multi-academy trusts running single-sex schools – which in turn raises difficult questions about discrimination, if faith-based trusts were treated differently to secular trusts in this regard.

Ofsted has for some time wished to extend greater influence on informing educational policy, and now seems to have achieved that.

If, as at least one of the judges indicated, it is accepted that the ability to mix and form working relationships with members of the opposite sex is so crucial to the educational development of all pupils, are there any circumstances where it can be justified that it is appropriate to exclude the opposite sex, beyond mere tradition? What regard is there for parental choice?

While single-sex schools are clearly lawful, being expressly exempted from aspects of the Equalities Act 2010, could this judgement fuel a challenge that single-sex provision is inherently worse and that a local authority offering only this choice may be unfairly limiting a parent’s options?

This judgement may well lead to a rise in discrimination challenges and open up a wider debate about single sex education.

Andrea Squires is head of education law at Winckworth Sherwood

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