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

Are faith schools getting away with homophobic teaching?

“The irony is that faith schools pride themselves on encouraging pupils spiritual and emotional development, and yet to declare homosexuality a sin not only directly subjects LGBT pupils to discrimination, it explicitly hinders their development.”

A potential opt out in the law could allow faith schools to get away with not teaching accurate and evidence-based Relationship and Sex Education (RSE). In March 2017, the Government introduced amendments to the Children and Social Work Bill that proposed to make RSE compulsory in all schools. A step in the right direction one might assume?

Yes, but within these amendments, lies a section stating that any RSE taught in schools must be ‘appropriate having regard to… the religious background of pupils’. This was announced in conjunction with a written ministerial statement from Lord Nash, stating that ‘faith schools will continue to be able to teach in accordance with the tenets of their faith.’ At first glance this statement appears innocuous, and almost more inclusive of different world views, more liberal, and more tolerant. It’s not. It’s insidiously dangerous, less liberal, and less tolerant, and could engender a culture of prejudice and discrimination in faith schools.

Time and time again, we have reported that faith schools are teaching that homosexuality is a sin and that same sex marriage and heterosexual marriage can never be equated, or they are avoiding discussion of LGBT issues altogether, failing to promote equality and respect for LGBT people and relationships. And it was only recently in 2013 that Humanists UK uncovered 45 schools across the UK with RSE policies reflecting the same or similar views to Section 28 of the Local Government Act 1988, which prohibited the ‘promotion of homosexuality by teaching or by publishing material’, even though this law was repealed in 2003.

‘The Equality Act 2010 is actually very clear in prohibiting discrimination on the basis of sexual orientation’

So even before the opt out to the new compulsory RSE provisions emerged, faith schools have long felt entitled to teach this damaging brand of RSE. The reason for this is that despite the fact that the Equality Act 2010 is very clear in prohibiting discrimination on the basis of sexual orientation, many faith schools seem to feel able to get away with teaching a divisive and discriminatory type of RSE due to a perceived grey area in the Act.  Or rather, a perceived loophole that some claim legally permits discrimination and prejudice in ‘connection with the content of the curriculum’. You might ask, what exactly does this mean? In 2012, Michael Gove, the former Education Secretary, was asked just this. In a written response, Gove outlined that:

‘The education provisions of the Equality Act 2010 which prohibit discrimination against individuals based on their protected characteristics (including their sexual orientation) do not extend to the content of the curriculum. Any materials used in sex and relationship education lessons, therefore, will not be subject to the discrimination provisions act.’

So far, so unclear.  The grey area is as follows. Section 85 of the Education Act 2010 states that a school must not discriminate, harass or victimise pupils, specifically ‘in the way it provides education for the pupil’. And as above the Equality Act 2010 has broad anti-discrimination provisions. However, section 89(2) of the Equality Act 2010 states that, ‘nothing in this chapter applies to anything done in connection with the content of the curriculum’.

However, after a closer inspection of the Act, the ‘explanatory notes’ (a section of the Act written in layman’s terms), reveals that:

‘the prohibitions [against discrimination]… do not apply to anything done in relation to the content of the school curriculum. This ensures that the Act does not inhibit the ability of schools to include a full range of issues, ideas and materials in their syllabus and to expose pupils to thoughts and ideas of all kinds.’

‘The way in which the curriculum is taught is, however, covered by the reference to education in section 85(2)(a), so as to ensure issues are taught in a way which does not subject pupils to discrimination.’

So for clarity, a school under the Act is permitted to teach pupils from a wide range of sources and on a wide range of issues, including, in this instance, controversial and divisive views on homosexuality and issues affecting the LGBT community. However, the school must ensure that such issues are taught in a way that does not subject pupils to discrimination.

The irony is that faith schools pride themselves on encouraging pupils spiritual and emotional development, and yet to declare homosexuality a sin not only directly subjects LGBT pupils to discrimination, it does explicitly hinders their development. Contrary to what some faith schools believe, or what they choose to ignore, presenting discriminatory and biased information in RSE can cause serious emotional and psychological problems, inflicting unnecessary suffering and hurt to individuals all over the world. If such schools feel bound to these views, however, what might be more appropriate, and more in keeping with the Equality Act, would be teach pupils in RSE that different groups of people subscribe to different ideas on LGBT issues. They might teach that some people believe same sex relationships are sinful, but others see them as an expression of love like any other, and as a matter exclusively for the people involved in any case. And they should also teach that the law in this country does not differentiate between same sex marriage and heterosexual marriage.

“Time and time again, we have reported that faith schools are teaching that homosexuality is a sin and that same sex marriage and heterosexual marriage can never be equated, or they are avoiding discussion of LGBT issues altogether”

At this point, you’d be right to ask the question, who exactly is policing what is being taught in our schools, so as to ensure pupils are not be being subjected to discrimination? After all, Ofsted turns up once every few years and even then, they can get it wrong. Given the cases that we have considered above, examining the monumental failings of some faith schools to provide accurate and evidence-based information on same-sex relationships, how can the government continue to put its faith in faith schools to teach an unprejudiced, tolerant, and inclusive RSE, that doesn’t subject their pupils to discrimination, harassment, and victimisation? In short, it can’t – and as the old idiom goes, faith schools are getting off scot-free.

All schools, regardless of their religious character, have a duty to create a safe environment for their pupils to learn in, including safeguarding pupils from abuse. Faith schools that continue to teach inflammatory views on LGBT issues in RSE are breaking a code of ethics enshrined in the profession of teaching. We are hearing all too often about young people, educated in faith schools, experiencing mental-health and self-esteem issues because the school openly criticises those who identify as LGBT and their relationships. With this in mind, the Government must clarify what is and what is not acceptable when it comes to teaching RSE, making clear that when it comes to LGBT discrimination, there are no grey areas in the Equality Act.

Jessica Perera

No room at the inn: the exclusive approach of the CES to its schools knows no bounds

“Rather than defending this appalling record of disproportionately turning away poorer children at the gate, wouldn’t the Archbishop be better off doing something about it?”

This morning (2 May 2017), the Education Guardian published a probing (and excellent) interview by Peter Wilby with Malcolm McMahon, the Roman Catholic Archbishop of Liverpool and chair of the Catholic Education Service (CES). The Archbishop’s views on the role and ethos of the CES’ schools should trouble us all. Some examples.

Wilby rightly notes that the CES’ model approach to teaching relationships and sex education to children contains no mention of ‘homosexual’ or ‘gay’ at any stage, and when asked whether or not Catholic schools teach about gay relationships, the Archbishop limply replies that ‘Christian teaching “is at the centre of our schools”’. So far, so worrying. And it doesn’t get any better.

Asked if some pupils at Catholic schools have same-sex parents, the Archbishop gives the quite remarkable response: ‘Why would same-sex parents want to send their children to a Catholic school?’ Well, if the views of the Archbishop are the same as those espoused by his schools, why indeed.

This response may not be that surprising, but it is no less scandalous for it. This is a man responsible for overseeing the education of more than 800,000 children, and he is openly admitting that the 2,000 publicly funded schools in his charge are not necessarily appropriate for same-sex parents and their children. The Archbishop claims that Catholic schools would nonetheless treat ‘them’ with respect, but one wonders how much respect these schools can really be showing to people whose existence is ignored in everyday teaching or whose sexuality is described as sinful.

Moving on, the Archbishop appeared more than a little defensive when asked about the record of Catholic schools on serving the most needy in their communities. After McMahon misleadingly claimed that ‘the proportion of pupils in Catholic schools from deprived areas…[is] above average’, Wilby puts it to him that given the location of many Catholic schools in poor urban areas, they should actually be admitting far more poorer pupils than they do. The Archbishop responds: ‘You do this for a living, do you? You ask questions based on inaccurate information?’ A nerve struck.

Far from being ‘based on inaccurate information’, Wilby’s questioning is precisely right. The evidence consistently reveals that Catholic schools admit far fewer poor children than they should given their areas. For instance, research conducted by the Fair Admissions Campaign using official government data found that Catholic schools admit a staggering 28% fewer children eligible for Free School Meals than they should given their local areas, while the Sutton Trust reported earlier this year that ‘faith’ schools (with Catholic schools among the worst offenders) are ‘three times as socially selective compared to their catchment area than non-faith schools’.

And we must be careful not to get sucked in by the CES’ consistently misleading language on this. As Wilby suggests, whilst Catholic schools are more likely to be situated in more deprived areas, this is not the same thing as being more likely to admit deprived pupils. In fact, analysis clearly shows that Catholic schools are even more likely to be in deprived areas than their pupils are. Situated in deprived areas they may be, but welcoming of deprived families they are not.

Rather than defending this appalling record of disproportionately turning away poorer children at the gate, not to mention children from certain ethnic minorities, wouldn’t the Archbishop be better off doing something about it? He doesn’t seem to think so.

Nor, indeed, is he ready to give up on the transparently false assertion that ‘by canon law, schools are forbidden to turn away Catholic parents in favour of non-Catholics’. This was the claim that ultimately led the Government to announce that it will be dropping the 50% cap on religious selection and no longer requiring new religious schools to keep at least half of their places open to all local children, irrespective of religion or belief. No matter that the CES’ canon-law claim has absolutely no basis in fact (see the British Humanist Association’s excellent briefing on this for details). And no matter that the 50% cap was a demonstrable success, significantly boosting both integration and the access of local families to their local schools, contrary to the Government’s own false assertions. 

Wilby’s parting advice in his article is that if one is to find themselves speaking with the Archbishop, ‘it’s perhaps best to avoid the subject of who is allowed to go to Catholic schools, or what goes on behind their walls.’  Unfortunately, this is advice that the Government already seem to be acting upon.

FSA team