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

Creationism, abstinence-only sex education, and quiet homophobia

“Our Head of Science was a member of a Creationist group…sex education was more dangerous than helpful…and the school’s approach to homosexuality was, in my experience, a code of silence”

I started life at Emmanuel College eccentric-but-happy, with one of the most promising academic futures of my primary school class. Sadly I became ill with depression aged 13, and things came to a head for me in Sixth Form where I was miserable, anxious, suicidal and sleep-deprived.

From the “chats” I had in the offices of senior staff, I received the impression that I was looked on as a sad child who hadn’t found God. In reality I was falling asleep in class, bursting into tears and talking about killing myself. On one occasion, on a school trip, I broke down and confessed that I had a specific suicide plan – the staff just threatened to send me home from the trip. At the time I myself didn’t realise that I had clinical depression (although it must have been clear to anyone else), and I absorbed the view that there wasn’t really anything wrong and I was just looking for attention.

I was also ill with anxiety due to the pressures of schoolwork, and I wasn’t the only one. My symptoms were vomiting, insomnia and even chest pains. I feel like the academic workload placed on me by the school didn’t take into account my fragile mental state. When I received my A-Level results I broke down sobbing in the car as all those years of pressure hit me at once.

I do have to say that Emmanuel wasn’t completely to blame for my mental health problems; I was genetically likely to develop depression, and I should have been supported at home. During Sixth Form I was sent to one of the school’s pastoral team for a few talking sessions. It just wasn’t nearly enough, unfortunately.

“The Christian ethos was pervasive and occasionally forced upon us”

Also during my time at Emmanuel I went from having a naïve belief in the Christian God to becoming an atheist. One positive way I can spin the Christian ethos is that it certainly forced me to think about my beliefs! On the negative side, being taught from a Christian point of view does leave weaknesses in your education.

Science teachers seemed to follow a certain code regarding evolution: when a textbook or video presumed it as fact, the teacher would briefly stop and dispute it. One chemistry teacher, who had a Ph.D., said that evolution was “just a theory” and that there are plenty of Christian scientists who believe otherwise. Another teacher, also with a Ph.D. in physics, paused a video mentioning the Big Bang to say that that wasn’t what he believed. We were given a talk by a geologist who didn’t believe in evolution and our Head of Science was a member of a Creationist group.

Our sex education was extremely lacking and arguably more dangerous than helpful. It began aged 16 when many students were already sexually active. We were shown a few pictures of STDs and taught that abstinence until marriage was the only way to prevent contracting them. We had worksheets to fill out which had us rank methods of contraception in order of uselessness. We were given a talk by a real, practising Christian doctor whose main catchphrase was “Sex is fire!” and who, when asked directly about condoms, refused to endorse using them because it went against his personal beliefs.

“Of course there was no education at all for LGBT people.”

The school’s approach to homosexuality was, in my experience, a code of silence. When the subject came up we were hushed. The only thing I heard from a teacher was that old chestnut, “It’s Adam and Eve, not Adam and Steve!” I was lucky in that I only started exploring my sexuality after I left, so I didn’t have the unfortunate experience of being LGBT at Emmanuel.

The Christian ethos was pervasive and occasionally forced upon us; for instance, one morning the Vice Principal decided we weren’t singing the hymn loudly enough so the whole year group had to give up their break time and stand singing the hymn repeatedly until he was satisfied. One form tutor forced us to write prayers to God, I believe in response to 9/11.

I want to end by saying that the school wasn’t all bad—they do produce excellent academic results and I largely support their strict approach to discipline. Some of the staff gave me good support and most, if not all, genuinely cared about us. But my mental wellbeing was, as a whole, let down, and their Christian ethos did lead to holes in our education.

Anonymous

This post was sent to us anonymously following the publication of ‘Coming out queer at Emmanuel College, Gateshead‘. It was first published on the blog Leaving Fundamentalism.