Separate but not equal? – Rajkiran Barhey

30 November 2017 by Rajkiran Barhey

Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al Hijrah School [2017] EWCA Civ 1426 – read  judgment

Update: Listen to the Law Pod UK podcast episode 20, available for free download from iTunes or from Audioboom here.

This fascinating judgment, delivered by the Court of Appeal on 13 October 2017, found that a policy of gender segregation in a co-educational school amounted to unlawful gender discrimination.

Background

Al-Hijrah School taught children from ages 4-16 according to an Islamic ethos. At age 9, children were segregated completely by gender in lessons, breaks, school trips, clubs etc. Following an inspection in June 2016, Ofsted published a report criticising segregation as gender discrimination.

The school brought a judicial review of the report. A more detailed analysis of the High Court’s judgment can be found here but the key issue was whether the schools’ policy of gender segregation amounted to unlawful direct discrimination under s.13(1) of the Equality Act 2010 (“EA 2010”). S.13(1) states:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

The judge, Jay J, found that girls, as a group, were denied the opportunity to interact with boys and the consequent social benefits and vice versa. However, as both sexes were denied the opportunity, neither group was treated ‘less favourably’ than the other.

The judgment

Ofsted successfully appealed the judgment to the Court of Appeal. Permission to intervene was also granted to the Secretary of State for Education, the Equality and Human Rights Commission, and NGOs Southall Black Sisters and Inspire.

The parties’ arguments

Ofsted identified five issues with gender segregation. Under the first three arguments, Ofsted complained that segregation deprived children of the opportunity to socialise with those of the opposite gender, leaving them ill-equipped for their adult lives.

Ofsted argued the issue of less favourable treatment should be analysed from the perspective of an individual, not a group. For example, a girl called Aisha, is friends with two boys, Bilal and Carim. Upon segregation, Aisha is deprived of the benefit of her friendship with Bilal, purely by reason of her gender. Carim, a boy, retains the benefit of being Bilal’s friend. That Bilal and Carim have also been denied the benefit of her company does not ‘cancel out’ the discrimination against Aisha has suffered.

Ofsted also argued that the way the Equality Act 2010 is written demonstrates that it assumes that gender segregation is always unlawful unless explicitly permitted by the Act.

The School argued that Jay J was right to use a group-based approach and, as there was no evidence that one group was treated less favourably, there was no discrimination.

The School also pointed to s.13(5) EA 2010 which states that all racial segregation is automatically unlawful regardless of whether there was actual harm. The School argued that if the intention of the EA 2010 was also to designate all gender segregation automatically unlawful, there would also be a specific provision to that effect.

The School also made a number of subsidiary arguments relating to process, procedure and fairness.

Under the fourth ground, Ofsted argued that gender segregation was more harmful to girls. This was because segregation normalises a view of the other gender as different, even unequal, in contexts where gender ought to be irrelevant, such as work. These views are likely to be carried into adulthood, such that women are most likely to be practically impacted as the group with the minority of power in society.

Ofsted’s fifth ground argued, by analogy with racial segregation, that gender segregation carries the “necessary implication that girls are inferior or otherwise relevantly different to boys” and therefore amounts to an “expressive harm.”  

The School’s response to both arguments focused on the lack of supporting evidence.

 The decision on the first three issues

All three judges (Sir Terence Etherton MR, Beatson and Gloster LJJ) found in favour of Ofsted on the first three issues. The court found that Jay J’s ‘group approach’ was not justified by either the wording of s.13(1), which refers to a single “person”, or past cases. The correct approach was to look from the perspective of each individual boy and girl. On this approach, it was clear that each child is denied the valuable opportunity of mixing with the other gender.

The Court also accepted Ofsted’s argument that the overall wording of EA 2010 implied that the general rule is that gender segregation is unlawful discrimination, and any deviation required a specific exception. This was supported by the recent judgment in R(Coll) v Secretary of State for Justice [2017] UKSC 40.

The Court rejected the School’s argument on s.13(5) because it had not found that mere gender segregation was unlawful. Rather, segregation caused an actual detriment to the quality of the children’s education.

 The Court also made it clear that it was irrelevant that the justification for the discrimination was religion or that parents supported the policy. The Court also dismissed the School’s arguments as to procedure and fairness.

 The decision on the fourth and fifth issues

All three judges were willing to take judicial notice (i.e. to accept as proved a matter of general knowledge without evidence) of the fact that women are the minority group in society.

On Ground 4, without further specific evidence in Ofsted’s report, or from experts, the majority were unwilling to infer that girls at the School were more disadvantaged. However, Gloster LJ held that one did not need to be an “educationalist, a sociologist or a psychiatrist” to draw the “objective inference” that the school created an environment more hostile to girls. She relied on three pieces of evidence:

• Recently books available in the library stating: ‘The wife is not allowed to refuse sex to her husband’ and ‘he can beat her but not harshly’.

• Work, approved by teachers, which expressed views such as: ‘men’s role was to work, women’s role was to care for children, cook, clean and provide love’ and ‘men are physically stronger and better at being engineers and builders.’

• Girls had to wait one hour longer for their lunch break than the boys.

Gloster LJ then considered the conceptual idea of ‘expressive detriment’ under Ground 4. She found that, once it was accepted that women were the less powerful group in society:

evidence is not required to establish that an educational system, which promotes segregation in a situation where girls are not allowed to mix with boys or to be educated alongside them… is bound to endorse traditional gender stereotypes that preserve male power, influence and economic dominance.

On Ground 5, the majority further rejected the comparison drawn with forced racial segregation in other countries as an invalid analogy. Furthermore, there was no evidence that segregation was for anything other than religious reasons.

Gloster LJ disagreed, finding that once it was accepted that women had inferior status in society:

segregation by sex on a mixed sex educational campus necessarily endorses and perpetuates, or at the very least risks endorsing and perpetuating, stereotypes about girls and women that are still pervasive in society and which are widely recognised as detrimental and unduly limiting. And that in turn results in expressive harm to girls.

She also rejected the view that, to prove expressive harm, the motivation for segregation was important. The only relevant issue was whether, objectively, segregation had a greater negative impact on girls.

But the submissions and evidence of the Southall Black Sisters and Inspire, the Third Interveners, went further, arguing that

gender segregation within mixed sex Muslim faith schools is driven by illiberal cultural norms….

The majority refused to rely on the evidence for procedural reasons but Gloster LJ accepted this submission and took judicial notice of the Casey Review. Overall, she concluded that gender segregation in a Muslim faith school was not neutral, but

is particularly discriminatory against girls in that it reinforces “the different spaces – private and public – that men and women must occupy, and their respective stereotyped roles which accord them differential and unequal status” in accordance with the precepts and practices of certain Muslim communities.

Thus, Gloster LJ found grounds 4 and 5 to be proved.

Analysis

Out of the many issues raised by this judgment, there is space to analyse one – the degree to which the judgments were willing to take judicial notice of the wider societal context.

Reasonable people disagree as to whether a fact is so obvious that it does not require proving. For example, Gloster LJ was willing to accept as self-evident the disproportionate impact of segregation on girls, whereas the majority required evidence.

It was possible to sense Gloster LJ’s frustration at her fellow judges’ unwillingness to accept this disproportionate impact as clear:

One does not need to have been educated at a women’s college at a co-educational university, at a time when women were still prohibited from being members of all-male colleges, to take judicial notice of the career opportunities which women are even today denied, simply because they are prevented from participating in hierarchical male networking groups…

Why were these facts so clear to Gloster LJ alone? The answer is hinted at in the passage – her life experience as a woman. Gloster LJ’s irritation that this seems to be the only reason why she views the issue so differently is palpable and likely reflects the conflict many women judges feel between the conviction that the law is above gender and the reality that gender has an impact on the way a person views the world.

The effect of this could be that sometimes a disproportionate burden is imposed on those in an unrepresented group to prove facts that, were all the judges of a similar background, they would not necessarily need to demonstrate. Practically, more experts may be needed, with the consequent procedural hurdles – also an issue in this case. The absurdity of requiring experts to prove facts which are arguably self-evident was suggested by Gloster LJ:

One does not need to be an educationalist, a sociologist or a psychiatrist to conclude that a mixed sex school which…  tolerates an environment where extreme and intolerant contemporary views about the role and physical subservience of women, and the entitlement of men physically to dominate and chastise them, are on display, or available to read, in the school library… is a school where a strict sex segregation policy subjects girls to a greater risk of extreme and intolerant views and is likely to reinforce or create misogynist attitudes amongst the boy pupils towards them.

This only serves to demonstrate the importance of judicial diversity. Its importance is not for its own sake, but to bring a wider set of perspectives to the bench which will have a real impact on the sort of decisions taken.

Conclusion

This detailed analysis has attempted to provide a fresh take on a much-commented upon judgment which raises a number of important issues. But aside from the ruling itself, the judgment is an excellent example of the ways in which a judge’s background can affect what they take as ‘obvious’ and what they require evidence of.

Rajkiran Barhey is currently a pupil at 1 Crown Office Row.