On Friday, in a landmark judgement, the Court of Appeal ruled – as Asian and Muslim feminists have long argued – that gender segregation in co-ed schools is unlawful sex discrimination and is a violation of the Equality Act 2010.
The ruling overturned a previous verdict where Justice Jay at the High Court had suggested that “separate is equal” and that neither boys or girls were being discriminated against. Three Judges at the Court of Appeal unanimously disagreed and stated both boys and girls were being discriminated against. As a result, 20 other schools (Jewish, Muslim and Christian schools) are now going to have to change their unlawful policy so that it is in line with the Equality Act 2010. It is worth remembering that schools have a statutory obligation to uphold the Equality Act.
Having taken OFSTED to court, the school in question whose practice of gender segregation was found to be unlawful was Al-Hijrah, a voluntary aided co-ed school based in Birmingham. Founded in 1988, by the Al-Hijrah Trust, it openly publicises its practice of gender segregation which it says is a defining characteristic of the school and one of the main reasons why some Muslim parents choose to send their children there. This is irrespective of the inadequate Ofsted reports Al-Hijrah has received alongside having been placed in special measures.
The segregation enforced was extreme. From Year 5 onwards (age 9), boys and girls were segregated throughout the entire school day; during classes, break-times, lunch-times, afterschool clubs and so on. It no longer mattered to the school if for example, Muhammad since the age of 4 had been friends with Maryam and had played with her everyday. As soon as both children entered Year 5 they were now abruptly denied the ability to play and socialise together purely on the basis of their sex. This, was, rightly so, deemed unlawful by the Court of Appeal.
When co-ed schools have segregated boys and girls for particular lessons e.g. maths to help build girls’ confidence and improve understanding, Al-Hijrah made clear there was no educational reason for its policy of segregating the sexes throughout the day. The motivation was entirely religious based on a particular interpretation of Islam which is not practiced or accepted by all Muslims.
Inspire alongside Southall Black Sisters acted as interveners in this case alongside the Equality Human Rights Commission and the Department for Education. We made clear in our written evidence that the practice of gender segregation as seen in Al-Hijrah was not a benign practice. On the contrary, the practice of sex segregation should be seen in its right and proper context. Since the latter half of the 20thC, with the rise of Political Islam, religious fundamentalists in line with their ideological worldview, have aggressively sought to restrict and control women’s rights.
Over the decades, it has been clear that Britain has not been immune to the growing populist trend from the Muslim religious right and in almost every country, where-ever there has seen a rise of religious fundamentalism, women’s rights have come under assault. These new norms have been manifested most clearly through the imposition of gender segregation, dress codes, and the strict policing of women’s sexuality. Supporting the notion of the patriarchal family and traditional gender roles, they forcefully seek to remove women from the public sphere and relegate them to the private sphere which is deemed to be their only legitimate space.
Education has become a key battleground for fundamentalists. As the UN Rapporteur on Cultural Rights Karima Bennoune notes “Fundamentalists everywhere target education in different ways. In some places, they kill teachers or carry out acid attacks on students. Elsewhere they attempt to impose gender segregation in schools or to exclude women and girls altogether. In other places, they seek to change the content of education, removing sex education from the curriculum or censoring scientific theories with which they do not agree.”
When understood in this context, it is fundamentally clear that gender inequality lies at the heart and is a root cause of gender segregation; and whenever it is manifested it is almost always linked to other sexist and gender discriminatory attitudes and practices.
It was no surprise to us then, to learn about some of those manifestations at Al-Hijrah. Library books, some of which were prominently displayed on racks condoned violence against women, marital rape and teachings that included “women cannot leave their homes without their husband’s permission.” These messages about the subjugation of women promote chauvinistic rules and expectations of life in the modern world. They were written in our lifetimes; some of these books for example were published in 2009 and they contained intolerant views about women. They did not promote equality of opportunity.
Excerpts from work written by children and approved by the teachers showed highly gender stereotyped views being expressed and condoned within the school as well as regressive gender roles which sought to confirm that the role of women should be confined to the private sphere rather than the public sphere. These were just some of the deeply worrying findings. But serious enough for Lady Justice Gloster to declare it to be an issue “of such importance that it requires to be determined.”
And of great importance they are because Al-Hijrah is voluntary aided. For those of us who care about gender equality, it is nothing short of outrageous that the state ends up endorsing such teachings in a state school. Where once again Muslim girls are treated differently and their potential in life is curtailed because of the practices and teachings enforced at such schools.
For many longstanding Asian and Muslim campaigners, this ruling was long overdue. However not everyone was thrilled that the judgement would now act as a bulwark against those who have no interest in tackling sex discrimination. Some parents did not recognise sex segregation to be discrimination while others saw the judgement itself to be discriminatory against Muslims despite the fact that schools of other faiths would be impacted. Others argued that the parental choice for their children should be respected. Not so, said the Judges. While the Education Act 1996 provides for the accommodation of parental choice “this cannot negate the statutory right of each child to be educated in a non-discriminatory manner as required by the Equalities Act.”
In what can only be described as a Daily Mail tactic (remember “Enemies of the people”?) some Muslims even profiled each and every one of the Judges’ background pointing to what they saw as hypocrisy that they themselves had attended elite single sex schools. Lady Justice Gloster was ‘accused’ of having been educated at the single-sex Roedean School for Girls.
Firstly, this case was not about single sex schools. It was about segregation in co-ed schools and Parliament did not envisage or intend segregation by sex in co-educational schools. Secondly, the
failure to appreciate what a school like Roedean is trying to achieve and Al-Hijrah is incomparable. Take a look at the website of schools like Roedean whose aim for girls is to fulfil their potential and to break glass ceilings. Lady Justice Gloster is evidence of this! Roedean does not believe that gender is a reason to hold girls back from any profession or from playing a full and active role in public life. Nor would they have books promoting terrible views about women, domestic violence or reinforce restrictive views that the role of women is in the private sphere. Religion would not be used as an excuse to limit or deter women’s potential. Single sex girls’ schools in a patriarchal world, have played a critical role in empowering women and girls, not disempowering them and restricting their capabilities as Al-Hijrah sought to do. Rather than promoting equality of opportunity, Al-Hijrah end up enforcing the message that girls are different to boys.
It was reported that the Muslim Council of Britain were not happy with the ruling either. This is hardly surprising. In 2007 the MCB produced written policy guidance on Muslim pupils in state schools. Called “Meeting the needs of Muslim pupils in state schools,” the guidance discouraged many mixed gender activities, music, art, drama, dance and sex education and sought to normalise gender segregation as an essential aspect of Muslim identity. The absence of any reference to gender equality in the document is particularly significant given its claims to support the “Every Child Matters” agenda. And who provided the expertise and support for this guidance? None other than the Al-Hijrah Trust. Gender equality for Muslim girls and boys has not been a priority for the MCB and their opposition to the ruling has reconfirmed this.
This is why the judgement by the Court of Appeal was so important. The Judges were right to give a telling off to OFSTED and the Department for Education for allowing schools (and others like it) to have allowed such gender segregation to occur for years. However the law on this issue has now been strengthened and is a victory for those of us who subscribe to human rights and gender equality. The policy of gender segregation as practiced by Al-Hijrah and other co-ed schools across our country is unlawful and has no place in our multicultural and multi-faith society. I hope this serves as a reminder that equality and the rights of women and girls especially from minority communities cannot be sacrificed in the name of culture or religion, whichever culture or religion that is.
To read Inspire and Southall Black Sisters evidence click here.
17th October 2017