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X v Ofsted: Testing the Law on Gender Discrimination in Schools

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About The Author

Matthew Keliris-Thomas (Guest Contributor)

Matthew studied Philosophy at the University of St Andrews before moving to read Law at St Edmund's College, Cambridge University. Despite moving to the law, he has kept up his interest in philosophy and often writes and speaks on how combining the disciplines can be of great benefit in adapting to new and diverse challenges. Matthew is funded by Lord Brougham and Hardwicke scholarships from Lincoln's Inn.

Segregation never brought anyone anything except trouble.

Paul Harris

School policy has long been a fertile ground for discrimination litigation. A key aspect of these cases has always been the ability to point to detriment suffered by a party. However, the court in Interim Executive Board of X School v Chief Inspector of Education, Children’s Services and Skills ("X v Ofsted") [2016] faced a question which challenged the standard interpretations at the very core of discrimination legislation  can segregation by gender amount to discrimination?

The Facts

X v Ofsted concerned School X, an Islamic institute where ‘parallel arrangements’ are made for every aspect of the children’s schooling from Year 5 onwards. This is achieved by the total separation of students by gender in every aspect of their school life. The easiest way to understand this procedure is to think of two self-contained single sex schools operating on one site, fed by a mixed lower school. No distinguishing factors in any relevant area were found by Ofsted that would indicate that there was inferior treatment of either gender or indeed any distinguishing factors between the two parallel systems barring the absence of the other sex. The kernel of substantial discussion in the case fell, then, to the legality of operating a segregation policy.

Segregation and the Law

The Equality Act 2010 ("The Act") was introduced to collate all the legal protections against discrimination into one single Act, thereby aligning the law of discrimination protection while also strengthening a number of the legal requirements in the field. It applies across public life, with special concern for public institutions and employment. The defining characteristics of discrimination in the law can be found at Section 13(1):

 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.

Section 85 of The Act creates provisions concerned specifically with schools. It provides that they cannot discriminate in the way they provide education or access to any ‘benefit, facility or service’ for pupils. However, The Act also provides a special dispensation at Schedule 11 for single-sex schools, whereby it permits the provision of a different 'facility' (i.e. entrance to the school) based on gender where it is part of an admissions policy.

Crucially in X v Ofsted, Ofsted itself could not find any evidence of particular instances where the separation had led to pupils of either gender being deprived of education, facilities, benefits or services. Thus, it was necessary for Ofsted to argue that segregating children in a mixed school per se was a mechanism for discrimination: this claim was the gravamen of the case. This article will, therefore, examine the two different iterations of this argument.

'Same But Not Equal'?

The first potential avenue where discrimination might arise purely by separation is the idea of ‘same but not equal’ treatment: both girls and boys are discriminated against in virtue of both being denied interaction with the other gender. This position is reminiscent of the famous US case Brown v Board of Education of Topeka [1954] that made racial segregation in American schools illegal. 

It is worth noting quickly that this case was distinguished by Jay J on the facts. The court noted that, unlike in the United States, the UK government has not pursued a concerted legislative agenda to achieve racial or gender-based discrimination. It follows that the same comparisons cannot easily be made between the situations of the two nations about the nature of separation per se. The Act also makes special provision against racial segregation even without less favourable treatment – but no such restriction is placed on gender segregation. It is also worth understanding that the schools allocated for black children in the US at that time were of far worse quality than the schools for white children; in contrast, the comparison in X v Ofsted is between institutions of equal standing.

That a distinct detriment was being suffered by both genders: loss of male society for females and loss of female society for males was crucial to the success of Ofsted’s argument, given the requirement for discrimination under Section 13(1) of The Act requires distinct, less favourable, treatment to violate the law. However, the court found Ofsted’s construction of this detriment artificial. In Jay J’s view, to see two acts of discrimination  against boys due to the loss of female company and girls due to the loss of male company – was, in reality, one detriment: the loss of the society of the other gender.

In Gill v El Vino Co Ltd [1983] QB 425, a wine bar restricted women to sitting only at tables while the bar was reserved for men, who could also use the tables. This distinction was discriminatory because it restricted a facility on the grounds of gender. But, in X v Ofsted, the facts were different. Here the children underwent the same privation: loss of the society of the other gender. Under Section 13(1), there was no less favourable treatment so there could not be discrimination. Indeed, the court decided that mere separation by gender was not discrimination, so long as both groups had access to the same quality of education and facilities. It is questionable then, as to why Parliament has seen fit only to provide an exclusion for one method of single-sex education.

Parliament has legislated expressly that the admissions policies of single-sex schools are not considered discriminatory under Schedule 11 of The Act. For the court, that segregation at School X was incomparable with single-sex school admissions policies was a strict matter of law, a conclusion that must be considered correct based on the letter of the law as it stands. Nonetheless, there is still academic interest in conducting a closer examination of this.

It surely cannot be the correct inference to draw from the Schedule 11 exception that Parliament believes separation by gender to be discriminatory, but nonetheless allowable. Rather, it must be the case that single-sex schooling is perilously close to falling foul of The Act and so deserves a clarificatory exception. While the underlying reasons here are varied (a simple moral position; upholding freedom of parents to choose how children are educated; the difficulty of forcing the closure/merger of all single-sex schools) and certainly not uncontroversial, it is assumed for the sake of argument that there is a viable ground for such schools to exist. If this is the case, how can the segregation of a mixed school be differentiated from that of a school only admitting one gender?

The obvious disparity is that the children who were mixed are later actively separated in School X, whereas children in single-sex schooling are perennially in the company of only one gender. But it is questionable whether this really provides a substantial distinction. Many children joining single-sex schools for high school will have previously attended mixed schools. That this change is at Year 7 rather than Year 5 does not seem to provide ample enough distinction between the two cases. Furthermore, the parents of children at School X were in full knowledge of the separation policy and willing to send their children there.

That the separation was on religious grounds is another underwhelming comparison. Certainly, there are religious schools that practice separation at the admission stage and, again, that the separation in that instance is post-admissions seems not to offer a substantive distinction. Therefore, in light of the decision in X v Ofsted, the government has a strong impetus to review these policies and to align the practices of admission and post-admission gender separation.

'Opportunity Loss'

The second argument used in X v Ofsted to argue separation alone is discriminatory was the ‘opportunity loss’ facing girls in any gender separation. It was contended that, being an oppressed social group, girls suffer a greater detriment from their separation from boys than vice versa. There can be identical separation but unequal treatment and therefore discrimination. Jay J rightly and straightforwardly embraced the general position proffered on the status of women by counsel for Ofsted, but held simply that it was not at all clear in what precise way segregation per se disadvantaged the girls. As such, the court could not make a determination in favour of this premise absent any evidence.

If, as Jay J suggests, the premise that women are disadvantaged members of society can be taken seriously, and further that gendered separation potentially enhances or entrenches this detrimental position, how then can the court decide separation resulting in ‘opportunity loss’ is not discriminatory? On its face, such a process has both the legal requirements of El Vino discrimination. Less favourable treatment occurs in the greater detriment of segregation for girls, as a result of which the treatment is distinct from that of the boys.

However, even on this wider approach to detriment, there still exists no actual instance of discrimination that can be pointed to. Indeed, it seemingly is not argued by Ofsted that a single detriment has or will inevitably occur at some point. The position of the opportunity loss argument appeals instead to the force of a general societal disadvantage. Such a handicap is latent and constantly present, whether it be in relation to the gender pay gap or even the gender imbalance of the Supreme Court justices. It is necessarily implied then, that actions which fail to alleviate this problem are discriminatory.  

Accepting such a claim as viable discrimination would have been a drastic change in the common law. It would effectively remove the need for instances of discrimination to occur for a claim to be viable. There are a fairly evident set of problems facing such an argument. Such instances would be incredibly numerous – essentially every woman and any societally disadvantaged person could make such a claim. The floodgates would be well and truly open. In contrast, the claims would also be potentially unverifiable. They would be based in sociological ideas and likely contested as hotly as any academic viewpoint.

However, the court in X v Ofsted gave substantial consideration to the idea of a general social disadvantage permeating actions. While the court ultimately maintained it could not make a finding of discrimination without a particular instantiation of a detriment, it may be that, as the understanding of social structures which disadvantage certain groups grow, more and more such claims begin to arrive before the courts.

Conclusion

X v Ofsted is a novel case in more ways than one. It examines the very nature of what Parliament deems to amount to discrimination. It closes the gap between legislatively protected single-sex schools and the up to now ignored practice of segregation within mixed schools. At its most basic, the case revolved around a claim to discrimination without any clearly discriminatory behaviour.

The issues raised above demonstrate how new views on discrimination and oppression are influencing litigation; required therefore is much closer scrutiny as to whether the wider social disadvantaged suffered by many in society could begin to grow into a fertile ground for legal action.

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Tagged: Administrative Law, Discrimination, Equality, Judicial Review, Public Law, Regulators, Religion

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