Gender segregation at faith schools: Lady Justice Gloster’s dissenting opinion

“Segregation or no segregation, why on earth should we accept the right of a school in the UK, state-funded no less, to espouse this kind of ethos to begin with?”

Last week the court of appeal ruled that a Muslim state school in Birmingham has been acting unlawfully by segregating boys and girls in all areas of school life. The decision came after Ofsted condemned such segregation as unlawful discrimination, and overturns a previous decision by the High Court which found in favour of the school.

The court’s ruling is an interesting and complicated one, primarily because it establishes that such segregation discriminates against girls and boys equally, by denying each the benefits that come from socialising with the opposite sex. Understandably, this has led to (misguided) questions about the status of single-sex schools, which have an exemption from the Equality Act 2010 allowing them to discriminate on grounds of gender.

All of this has been well-documented, however, so what we focus on here is the dissenting opinion of the court, given by Lady Justice Gloster.

Unlike her two fellow judges, it was Justice Gloster’s view that the segregation of girls and boys, enforced as it was for ‘religious reasons’, should have been deemed as discriminatory against girls specifically. Ofsted did make this argument, in fact, as did Southall Black Sisters and Inspire, the two organisations who intervened in the case. But it was rejected by the majority opinion of the court, and the appeal was therefore only upheld on the more limited grounds outlined above. This was an oversight, as even a quick read of Lady Justice Gloster’s dissenting opinion demonstrates. This opinion needs little commentary, so here are some highlights.

Noting that ‘the majority in this court…takes the view that there is no evidence to support the submission that the practical consequences of segregation in this case cause a greater detriment girls rather than boys’, she states:

‘First, I do not agree with the majority, or with the Judge, that there was no evidence of greater practical detriment, or potential detriment, to girls, as opposed to boys, as a result of the regime of sex segregation in operation at the School. It is correct, as was accepted by Ofsted, that the June 2016 Inspection Report does not suggest that girl pupils receive a different, or qualitatively poorer, level of education than boys, or that the former achieved worse examination results or other educational outcomes than the boys. But, in my view, in order to judge the impact of the segregation regime, one has to assess its operation in its actual context in this particular school. And the picture disclosed in the evidence clearly demonstrates that the environment at the School, including, and underlined by, the segregation regime, had a real potential for exposing girls to greater detriment than the boys.’

The evidence she refers to, by the way, includes books found by Ofsted at the school that contained ‘messages about the subjugation of women’ and ‘included derogatory comments about, and the incitement of violence towards, women.’

In any case, Justice Gloster continues:

‘One does not need to be an educationalist, a sociologist or a psychiatrist to conclude that a mixed sex school which, whether intentionally or otherwise, 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; [and] whose teachers approve the expression by the pupils of gender stereotyped views about the roles of women as homemakers and child minders and the role of men as the breadwinners…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.’

Quite. She goes on:

‘In my judgment, once the principle is accepted, as it was by the Judge (and the majority in this court), that, as a generality, men exercise more influence and power in society than women, and that persistent gender inequalities remain in the employment market, 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, notwithstanding they are studying the same curriculum and spending their days on the same single school site, is bound to endorse traditional gender stereotypes that preserve male power, influence and economic dominance. And the impact of that is inevitably greater on women than on men. 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, whether in the social, educational or employment environment.’

Finally, she concludes:

‘In my judgment, it is not difficult to conclude that in such circumstances, and against the background of the past history and current reality of gender relations, not only generally in UK society, but also in the cultural and community context of this particular School, segregation on grounds of sex necessarily endorses gender stereotypes about the inferiority of women or their perceived place in a society where predominantly men exercise power.’

One wonders how anyone could argue with any of this. And yet, none of it made it into the majority opinion of the court. The education system is all the worse for it.

Irrespective of what the law now says, however, the questions we have to ask ourselves go well beyond the appropriateness of segregation within such schools. Because segregation or no segregation, why on earth should we accept the right of a school in the UK, state-funded no less, to espouse this kind of ethos to begin with?

FSA team

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