We take a look at the Court of Appeals decision in HM Chief Inspector of Education, Children's Services and Skills v Interim Executive Board of Al-Hijrah School.

The Muslim faith school in this case separated girls and boys from the age of nine onwards, for religious reasons. Ofsted inspected the school in June 2016, and proposed to publish a report rating it was inadequate. They criticised the segregation policy as being unlawful under the Equality Act 2010, and limiting social interaction and development between sexes. The school brought a judicial review challenging the proposed report.

The High Court found in favour of the school. It said there was no direct sex discrimination, as both sexes were treated equally. This meant that there couldn’t be a finding of less favourable treatment by either sex. The Court of Appeal, however, disagreed. It held that the segregation of the sexes did amount to direct sex discrimination. It didn’t matter that both the boys and girls were at an equal disadvantage; what mattered was the individual child’s perspective, and not the differential treatment of the groups.

This case should serve as a warning to schools (and other organisations with similar arrangements) across the UK to review any potentially discriminatory policies. It’s also a useful reminder that, in a discrimination claim like this, the key question is subjective.

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