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13 October 2017, 13:22
A Birmingham Islamic faith school's policy of segregating boys from girls is unlawful sex discrimination, leading judges have ruled.
Three Court of Appeal judges in London overturned last year's finding by a High Court judge that Ofsted inspectors were wrong to penalise the mixed-sex Al-Hijrah school in Birmingham on the basis of an ''erroneous'' view that segregation amounted to unlawful discrimination.
In a test case ruling on Friday, the Master of the Rolls Sir Terence Etherton, Lady Justice Gloster, and Lord Justice Beatson unanimously allowed a challenge by Ofsted's chief inspector Amanda Spielman against Mr Justice Jay's decision.
The ruling will affect other schools which have a segregation policy.
Parents at the school have reacted with anger this afternoon (13th October):
The appeal judges held that the school's policy of complete segregation from year five caused detriment and less favourable treatment for both male and female pupils by reason of their sex, and was contrary to the 2010 Equality Act.
For religious reasons the voluntary-aided school, which has pupils aged between four and 16, believes that separation of the sexes from year five onwards is obligatory.
It has complete segregation of boys and girls from nine to 16 for all lessons, breaks, school clubs and trips.
Ms Spielman said after the ruling: "I am delighted that we have won this appeal.
"Ofsted's job is to make sure that all schools properly prepare children for life in modern Britain. Educational institutions should never treat pupils less favourably because of their sex, or for any other reason.
"The school is teaching boys and girls entirely separately, making them walk down separate corridors, and keeping them apart at all times.
"This is discrimination and is wrong. It places these boys and girls at a disadvantage for life beyond the classroom and the workplace, and fails to prepare them for life in modern Britain.
"This case involves issues of real public interest, and has significant implications for gender equality, Ofsted, government, and the wider education sector. We will be considering the ruling carefully to understand how this will affect future inspections."
Birmingham City Council have told Heart they accept the ruling but feel it is contradictory and unfair that Al-Hijrah was singled out:
Rebecca Hilsenrath, chief executive of the Equality and Human Rights Commission, said: "Regardless of their gender, every child has the right to an effective education - and one which lets them be themselves and mix with whoever they choose.
"For this reason, we welcome today's confirmation by the Court of Appeal that it is unlawful for a mixed school to segregate girls and boys completely.
"Socialisation is a core part of a good quality education, just as much as formal learning, and without it we're harming children's life chances right from the start.
"The Government's recent race disparity audit highlighted clear attainment gaps and it is important that in addressing those gaps our schools operate in ways that reflect and reinforce the country's values of fair treatment and respect."
In a landmark decision, the appeal judges said: "It is common ground that the school is not the only Islamic school which operates such a policy and that a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools have similar practices."
Ofsted had made it clear, they said, that if this appeal succeeded, "it will apply a consistent approach to all similarly organised schools".
The judges said there was "a strong argument" for the Education Secretary and Ofsted "to recognise that, given the history of the matter, their failure (despite their expertise and responsibility for these matters) to identify the problem and the fact that they have de facto sanctioned and accepted a state of affairs which is unlawful, the schools affected should be given time to put their houses in order in the light of our conclusion that this is unlawful sex discrimination".
They added: "The relevant central government authorities should not pivot in the way they have gone about this without recognising the real difficulties those affected will face as a consequence."
During the appeal hearing, Peter Oldham QC, appearing for the school's interim executive board, said boys and girls at Al-Hijrah, which is maintained by Birmingham City Council, were ''treated entirely equally while segregated'' and argued that was lawful.
He said Ofsted did not claim that separation was discrimination until 2016 and its actions were ''the antithesis of proper public decision-making".
The judges said they did not accept the school's argument that "whether looked at from an individual or group perspective, separate but equal treatment by reason of gender cannot be unlawful discrimination, even it it is detrimental".
Colin Diamond, corporate director of children and young people at Birmingham City Council said: “We took this action because this Islamic school is being held to a different standard to many other schools with similar arrangements across the country. While we may not all agree with their practices, as is made clear in the judgement* there are many other faith schools around the country that practice gender separation, none of which have been downgraded by Ofsted because of this.
“This case was always about fairness and consistency in the inspection process. We would therefore highlight comments made in this judgement about the secretary of state’s and Ofsted’s ‘failure to identify the problem’ and that in inspections over many years they have ‘de facto sanctioned and accepted a state of affairs that is unlawful’.
“We have a strong history of encouraging all schools to practice equality in all its forms and would robustly tackle any discrimination, but the issue here is about schools being inspected against unclear and inconsistent policy and guidelines. This is not a case where boys and girls were being treated differently. Ofsted found that boys and girls were treated equally.
“If it is national policy that schools practising gender separation are considered to be discriminating against pupils, then local authorities and the schools themselves clearly need to be told so they know what standards they are being inspected against.
“This wasn’t the case here as the DfE does not publish guidelines on gender separation and this has not been an issue at five previous inspections at Al Hijrah. It is set out clearly in its published admission arrangements to which neither the DfE nor Ofsted has ever objected, prior to this case.
“We would only take legal action in extreme circumstances. We made several attempts to resolve this with both the DfE and Ofsted but they refused to engage.
“This is not about one school, one community or one faith but about making sure there is a clear policy applied fairly and consistently. While this judgement does not directly affect single-sex schools, due to legal exemptions, there is clearly a national debate to be had around their future.
“There are other issues mentioned in the judgement and we would stress that we join the judges in condemning the fact that certain books were on display in the school library.”