“thinks [segregation] is ‘dumb’ because when girls go to college they will mix with boys, and at the moment she doesn't know how to have any relationship/friendship with boys. Finds that school isn't helping her get ready. Says some benefits as boys don't always behave well.”
“Leaders have ensured that both boys and girls have access to the same curriculum and facilities. However, the decision to organise the school in this [segregated] way limits pupils' social development, and the extent to which they are prepared for interaction with the opposite sex when they leave school. … Leaders say that the decision to segregate is faith-based because their interpretation of Islam discourages mixing of genders for this age group. However, the school's policies and practice do not consider how to mitigate the potentially negative impact of this practice on pupils' chances to develop into socially confident individuals with peers from the opposite gender. … The board has also failed in its duty to have due regard to the need to achieve equality of opportunity as required by section 149 of the [EA 2010] and [various subordinate legislation], including preparing, publishing and reviewing both the school's equality objectives and the steps the school is taking to comply with its equality duties.”
“[The School’s segregation policy] does not accord with fundamental British values and amounts to unlawful discrimination.” “Although this has not been addressed by previous inspection teams, [the School’s segregation policy] does not give due regard to the need to foster good relations between the genders, and means that girls do not have equal opportunities to develop confident relationships with boys and vice versa. This is contrary to fundamental British values and theEquality Act 2010 …”
“4. The Defendant shall re-examine the June 2016 report (including the amended version dated10th August 2016 ), shall in the light of the Judgment excise those parts that refer to a breach of theEquality Act 2010 by reason of sex segregation, shall reconsider the judgments and assessments reached and shall afford the Claimant an opportunity to comment pursuant tosection 13(2)(b) of the Education Act 2005 prior to publication. 5. The case will continue to be known and reported as in the title set out above. 6. Pursuant toCPR 39.2 (4), no report of or relating to this claim and in whatever form shall name or refer to in such a way that they can be identified the school that is the subject of these proceedings. 7. Nothing in this order prevents publication of a report of or relating to this claim naming the school, upon the Defendant having published a revised report after taking the steps referred to in paragraph 4 hereof.”
“123 On analysis, it seems to me that the Defendant's case is founded on the proposition that two groups are being discriminated against: the boys (when compared with the girls, and the opportunities enjoyed by the latter for mingling inter se); and the girls, vice versa . Thus, there is equal or mirrored discrimination, and the two treatments cannot, as it were, cancel out the other (or, possibly on this formulation, one treatment resulting in two discriminatory consequences). 124 In my judgment, a broad and sensible evaluation of what is happening here is required by the statutory language. The treatment in question is segregation of the pupils on grounds of sex. It is not helpful to say that the treatment occurs twice (in relation to each contingent) or maybe over several hundred times (for each and every boy and girl at the school). This is because each sex must be viewed as a group — there is no material difference (inter se) between any of the boys and any of the girls – and the comparison must be made between the two groups. Further, it is not helpful in my judgment to say: let's start with the girls and then we will look at the boys. They can be considered simultaneously, because that is the effect of segregating them down the middle. 125 On this simultaneous approach (or an approach which regards the two sexes as interchangeable at all stages of the analysis), both sexes are being denied the opportunity to interact/socialise/learn with or from the opposite sex. Given that no material distinction is to be found between the two sexes for these purposes (without prejudice to [Counsel for Ofsted’s] third and fourth submissions), this is the fairest and most legally accurate way of describing what is occurring. It is also non-discriminatory. In my judgment, it is artificial to say that the denial to the boys of the opportunity to mix with the girls (which the latter enjoy as between themselves) is somehow different from the opportunity being denied to the girls. It would only be different if there were some qualitative distinction for these purposes between male and female interaction (each looked at inter se), but in my judgment there is not. What we have here is the denial of interaction or concourse with the opposite sex which has equal value and impact, and is of the equivalent nature and character, in relation to both sexes.”
“I would hold that, at least in principle, the denial of the choice to seek the society of and interaction with the opposite sex, and of the educational benefits which might flow from the exercise of that choice, is capable of amounting to the denial of a “benefit” or “facility” for the purposes of section 85(2)(b) , read in conjunction with section 212(4); and, as a possibly better fit, the subjection of the pupils to a “detriment” for the purposes of sub-paragraph (f).”
“Finally, I also consider it to be consistent with the underlying policy of section 1(1)(a) of [theRace Relations Act 1976 ] that it should apply in the present circumstances. The policy is that individuals should be treated as individuals, and not assumed to be like other members of a group: R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees intervening)[2005] 2 AC 1 , paras 82 and 90, per Baroness Hale of Richmond and R (Gillan) v Comr of Police of the Metropolis[2006] 2 AC 307 , paras 44 and 90, per Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood. To treat individual applicants to a school less favourably than others, because of the happenstance of their respective ancestries, is not to treat them as individuals, but as members in a group defined in a manner unrelated to their individual attributes.”
“If an employer owned a bar in a Protestant neighbourhood, patronised by Protestants, in which he employed a Roman Catholic barman, and a second bar in a Roman Catholic neighbourhood, patronised by Roman Catholics, in which he employed a Protestant barman, and the employer dismissed both barmen on the grounds that the customers in the respective bars did not like being served by a barman of a religious belief which differed from their own, then on the appellant’s argument the employer would not be guilty of religious discrimination because he did not treat either barman less favourably than the other. In my opinion the employer would be guilty of religious discrimination against both barmen. If the employer owned only one bar in a Protestant neighbourhood, patronised by Protestants, in which he employed two barmen, one a Roman Catholic and the other a Protestant, and he dismissed the Roman Catholic barman, telling him that his customers did not like being served by a Roman Catholic and that in future both his barmen would be Protestants, I consider it to be clear that the employer would be guilty of religious discrimination. His conduct cannot cease to be unlawful discrimination if, instead of owning only the one bar patronised by Protestants, he also owns a second bar in a Roman Catholic neighbourhood, patronised by Roman Catholics, in which he dismisses a Protestant barman.”
“The question posed by section 29(1)(a) of the Act of 1975 is unusually simple compared with most questions posed by statutes. We are enjoined simply to ask whether on this evidence the plaintiffs in this case were "treated less favourably" than a man or men would have been. To my mind, the fact that men have the three options which Griffiths L.J. has mentioned makes only one answer to that question possible. Men have these options and the options are valuable to them, and I find it impossible to say, where one sex has an option and the other has not, that there is not a differentiation between them and, prima facie, a differentiation which results in less favourable treatment.”
“I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment. It may be said that, on this interpretation of the Act, both a male worker and a female worker might complain about the same discrimination and that both might be right. I see no anomaly in such a result. The purpose of the legislation is to secure equal treatment of the sexes so far as appropriate.”
“34. This brings us, therefore, to paragraph 26 of Schedule 3 to the 2010 Act … . The history of the United States of America and of the Republic of South Africa, to take the two most obvious examples, has taught us to treat with great suspicion the claim that, if the races are segregated, “separate but equal” facilities can be provided for both, quite apart from the affront to dignity in the assumption that the races have to be kept separate. There have been periods in our own history where segregation of the sexes has led to separate facilities which were very far from equal. Paragraph 26 recognises that there may be good reasons for providing separate facilities for men and women. … [P]aragraph 26 proceeds on the assumption that, without it, the provision of single sex services would be unlawful discrimination. The question, therefore, is whether in this case the discriminatory effect of providing only single sex establishments can be justified. “35. [Counsel for the claimant] characterises paragraph 26(1) as providing for “separate but equal” facilities for men and women. This permits the provision of separate services for persons of each sex, provided that a joint service for both sexes would be “less effective” and the “limited provision is a proportionate means of achieving a legitimate aim”
“Discrimination is defined as being treated less favourably. In my judgment, this is plainly the meaning of discrimination in the Directive and the Act of 1975 fully reflects that Directive. In many instances discrimination between the sexes will result in treating one more favourably than the other, but this will not necessarily be the case. If discrimination is to be established, it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other. … As [counsel for the employers] has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards? I put that question to [counsel for the applicant], and he accepted that such a requirement would operate unfavourably towards men. The reason for that is that the appropriate criterion to be applied when considering that question is: what is the conventional standard of appearance? Indeed, it seemed to me that [the applicant’s counsel] implicitly conceded that when he submitted to us that what is discrimination can change as society changes. A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an even-handed approach between men and women and not one which is discriminatory.”
“Discrimination consists, not in failing to treat men and women the same, but in treating those of one sex less favourably than those of the other. That is what is meant by treating them equally. If men and women were all required to wear lipstick, it would be men who would be discriminated against. Provided that an employer's rules, taken as a whole, do not result in men being treated less favourably than women, or vice versa, there is room for current conventions to operate.”
“160. It is accepted on all sides in this case that it is entirely a matter for the Chief Rabbi to adjudicate on the principles of Orthodox Judaism. But the sphere within which those principles are being applied is that of an educational establishment whose activities are regulated by the law that the civil courts must administer. Underlying the case is a fundamental difference of opinion among members of the Jewish community about the propriety of the criteria that the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth … applies to determine whether a person is or is not Jewish. It is not for the court to adjudicate on the merits of that dispute. But the discrimination issue is an entirely different matter. However distasteful or offensive this may appear to be to some, it is an issue in an area regulated by a statute that must be faced up to. It must be resolved by applying the law laid down by Parliament according to the principles that have been developed by the civil courts.”
“While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J’s comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.”
“133. The third submission [i.e. the submission in relation to the practical consequences] did not feature heavily in oral argument. Mr Oldham chose to ignore it, taking the view that the third and fourth submissions [i.e. the latter being the submission in relation to symbolic or expressive harm] are synonymous. I would tend to agree that there may not be much difference between them, and for present purposes it makes sense to construe the third submission narrowly and the fourth submission broadly. As regards the former, Ms Mountfield may have drawn comfort from my relatively early indication that I was content to take judicial notice of the fact that women have been, and still are, the group with minority power in society (I should make clear, as I hope I did at the time, that I would accept the generality but not necessarily the universality of that proposition). Notwithstanding this, I cannot accept that the third submission is well-founded. The difficulty I have with it is that there is no evidence in this case that segregation in a mixed school, still less segregation in an Islamic school, has a greater impact on female pupils All bolded text in this judgment is my emphasis. . The June 2016 report does not provide the evidential springboard for Ms Mountfield's third submission, and these are judicial review proceedings. The August 2016 amendments supply the evidential groundwork for the first and second submissions, but the Defendant has not sought to explain how and why segregation particularly disadvantages girls. I have little doubt that educational experts would have much to say on this topic, but I have not heard it within the four corners of this litigation. I will return to this issue at paragraph 143 below, but I reject Ms Mountfield's third submission.”
“That was not, however, a conclusion stated by Ofsted in the revised 2016 Inspection Report. As we have said earlier, Ofsted made no finding that the education of girls and boys, as separate groups, was any different in extent or quality.”
“The essence of her case is that "making separate but equal provisions for boys and girls (or blacks and whites, or heterosexuals and lesbians and gay men etc.) cannot be divorced from the historic and current societal treatment of the less powerful group." Put another way, but to the same effect, segregation has the tendency to promote social and cultural stereotypes about the role of women in society.”
“of grave concern not only because of the messages about the subjugation of women but because these are books that have been written in modern times, within our lifetimes, that contain rules and expectations of life in the modern world. See paragraph 33 of Mr McNeillie's second witness statement dated25 August 2016 . ”
‘The Muslim Women’s Handbook’
“Leaders and governors are failing to keep pupils safe from the risks of extreme and intolerant views. They are failing to have due regard to the need to achieve equality of opportunity. They could do more to tackle prejudice and discrimination.” and “The fact that these texts remain available suggests that some staff believe them to be acceptable. This is a serious failure of leadership and in example of where the school’s published mission, aims and ethos of promoting equality and keeping pupils safe are not put into practice.” iii. Excerpts from work written by children and approved by the teachers showed highly gender stereotyped views being expressed within the school: “men’s role was to work, women’s role was to care for children, cook, clean and provide love”; “men should earn more as they have families to support” and “men are physically stronger and better at being engineers and builders”; “women are emotionally weaker”.” iv. The segregation regime involved the girls, invariably, waiting one hour longer than the boys for their break, so that the sexes would not mix socially. See paragraph 38 of Mr McNeillie's second witness statement. There was no evidence to suggest that this regime was, for example, changed on alternative days of the week or on a weekly basis, so that the boys would on occasions have to wait for the girls to have their break period first. In discussion with pupils the inspectors identified that girls felt it was unfair that this was the case. To my mind this is not a trivial point, although it might appear so to some people. What possible justification could there be for always requiring girls to wait for their mid-morning snack until such time as the boys had finished theirs? v. No educational justification was put forward to the inspectors by the School to support the segregation regime. Such justification as was provided, was said to be on grounds of “faith”
“The gendered norms which are at issue here do not fall with equivalent weight on men and women, but are concerned to keep women out of the public space. Importantly, they result in the exclusion of women, their viewpoints and voices, from public life, which then has implications for how those communities conceptualise and press their interests.”
“92. I too agree that this appeal should be allowed. Most of your lordships take the view that Shabina Begum's right to manifest her religion was not infringed because she had chosen to attend this school knowing full well what the school uniform was. It was she who had changed her mind about what her religion required of her, rather than the school which had changed its policy. I am uneasy about this. The reality is that the choice of secondary school is usually made by parents or guardians rather than by the child herself. The child is on the brink of, but has not yet reached, adolescence. She may have views but they are unlikely to be decisive. More importantly, she has not yet reached the critical stage in her development where this particular choice may matter to her. 93. ……..The fact that they are not yet fully adult may help to justify interference with the choices they have made. It cannot be assumed, as it can with adults, that these choices are the product of a fully developed individual autonomy. But it may still count as an interference. I am therefore inclined to agree with my noble and learned friend, Lord Nicholls of Birkenhead, that there was an interference with Shabina Begum's right to manifest her religion. 94. However, I am in no doubt that that interference was justified. It had the legitimate aim of protecting the rights and freedoms of others. The question is whether it was proportionate to that aim. This is a more difficult and delicate question in this case than it would be in the case of many similar manifestations of religious belief. If a Sikh man wears a turban or a Jewish man a yamoulka, we can readily assume that it was his free choice to adopt the dress dictated by the teachings of his religion. I would make the same assumption about an adult Muslim woman who chooses to wear the Islamic headscarf. There are many reasons why she might wish to do this. As Yasmin Alibhai-Brown (WHO do WE THINK we ARE?, (2000), p 246) explains: "What critics of Islam fail to understand is that when they see a young woman in a hijab she may have chosen the garment as a mark of her defiant political identity and also as a way of regaining control over her body." Bhikhu Parekh makes the same point (in "A Varied Moral World, A Response to Susan Okin's 'Is Multiculturalism Bad for Women'", Boston Review, October/November 1997): "In France and the Netherlands several Muslim girls freely wore the hijab (headscarf), partly to reassure their conservative parents that they would not be corrupted by the public culture of the school, and partly to reshape the latter by indicating to white boys how they wished to be treated. The hijab in their case was a highly complex autonomous act intended to use the resources of the tradition both to change and to preserve it." …... 95. But it must be the woman's choice, not something imposed upon her by others. It is quite clear from the evidence in this case that there are different views in different communities about what is required of a Muslim woman who leaves the privacy of her home and family and goes out into the public world. There is also a view that the more extreme requirements are imposed as much for political and social as for religious reasons. If this is so, it is not a uniquely Muslim phenomenon. The Parekh Report on The Future of Multi-Ethnic Britain (Runnymede Trust, 2000, at pp 236-237, para 17.3), for example, points out that: "In all traditions, religious claims and rituals may be used to legitimise power structures rather than to promote ethical principles, and may foster bigotry, sectarianism and fundamentalism. Notoriously, religion often accepts and gives its blessing to gender inequalities." Gita Saghal and Nira Yuval-Davis, discussing "Fundamentalism, Multiculturalism and Women in Britain" (in Refusing Holy Orders, Women and Fundamentalism in Britain, (2000), p 14) argue that the effect of and on women is ". . . central to the project of fundamentalism, which attempts to impose its own unitary religious definition on the grouping and its symbolic order. The 'proper' behaviour of women is used to signify the difference between those who belong and those who do not; women are also seen as the 'cultural carriers' of the grouping, who transmit group culture to the future generation; and proper control in terms of marriage and divorce ensures that children who are born to those women are within the boundaries of the collectivity, not only biologically but also symbolically." According to this view, strict dress codes may be imposed upon women, not for their own sake but to serve the ends of others. Hence they may be denied equal freedom to choose for themselves. They may also be denied equal treatment. A dress code which requires women to conceal all but their face and hands, while leaving men much freer to decide what they will wear, does not treat them equally. Although a different issue from seclusion, the assumption may be that women will play their part in the private domestic sphere while men will play theirs in the public world. Of course, from a woman's point of view, this may be a safer and more comfortable place to be. Gita Saghal and Nira Yuval Davis go on to point out that, at p 15: "One of the paradoxes . . . is the fact that women collude, seek comfort, and even at times gain a sense of empowerment within the spaces allocated to them by fundamentalist movements." 96. If a woman freely chooses to adopt a way of life for herself, it is not for others, including other women who have chosen differently, to criticise or prevent her. Judge Tulkens, in Sahin v Turkey, at p 46, draws the analogy with freedom of speech. The European Court of Human Rights has never accepted that interference with the right of freedom of expression is justified by the fact that the ideas expressed may offend someone. Likewise, the sight of a woman in full purdah may offend some people, and especially those western feminists who believe that it is a symbol of her oppression, but that could not be a good reason for prohibiting her from wearing it. 97. But schools are different. Their task is to educate the young from all the many and diverse families and communities in this country in accordance with the national curriculum. Their task is to help all of their pupils achieve their full potential. This includes growing up to play whatever part they choose in the society in which they are living. The school's task is also to promote the ability of people of diverse races, religions and cultures to live together in harmony. Fostering a sense of community and cohesion within the school is an important part of that. A uniform dress code can play its role in smoothing over ethnic, religious and social divisions. But it does more than that. Like it or not, this is a society committed, in principle and in law, to equal freedom for men and women to choose how they will lead their lives within the law. Young girls from ethnic, cultural or religious minorities growing up here face particularly difficult choices: how far to adopt or to distance themselves from the dominant culture. A good school will enable and support them. This particular school is a good school: that, it appears, is one reason why Shabina Begum wanted to stay there. It is also a mixed school. That was what led to the difficulty. It would not have arisen in a girls' school with an all-female staff. 98. In deciding how far to go in accommodating religious requirements within its dress code, such a school has to accommodate some complex considerations. These are helpfully explained by Professor Frances Radnay in "Culture, Religion and Gender" [2003] 1 International Journal of Constitutional Law 663: ". . . genuine individual consent to a discriminatory practice or dissent from it may not be feasible where these girls are not yet adult. The question is whether patriarchal family control should be allowed to result in girls being socialised according to the implications of veiling while still attending public educational institutions. . . . A mandatory policy that rejects veiling in state educational institutions may provide a crucial opportunity for girls to choose the feminist freedom of state education over the patriarchal dominance of their families. Also, for the families, such a policy may send a clear message that the benefits of state education are tied to the obligation to respect women's and girls' rights to equality and freedom . . . On the other hand, a prohibition of veiling risks violating the liberal principle of respect for individual autonomy and cultural diversity for parents as well as students. It may also result in traditionalist families not sending their children to the state educational institutions. In this educational context, implementation of the right to equality is a complex matter, and the determination of the way it should be achieved depends upon the balance between these two conflicting policy priorities in a specific social environment." It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation. This is demonstrated by the fact that girls have subsequently expressed their concern that if the jilbab were to be allowed they would face pressure to adopt it even though they do not wish to do so. Here is the evidence to support the justification which Judge Tulkens found lacking in the Sahin case. 99. In agreement with your lordships, therefore, I would allow this appeal and restore the order of the trial judge.”
“if it could be established that faith schools in general, and Islamic schools in particular, segregate the sexes because they regard the female gender as inferior, and/or that girls should be separately prepared for a lesser role in society.”
“Black boys still not getting jobs, white working class kids on free school meals still doing badly in our education system, Muslim girls getting good grades at school but no decent employment opportunities; these remain absolutely vital problems to tackle and get right to improve our society. But I also found other, equally worrying things including high levels of social and economic isolation in some places and cultural and religious practices in communities that are not only holding some of our citizens back but run contrary to British values and sometimes our laws. Time and time again I found it was women and children who were the targets of these regressive practices. And too often, leaders and institutions were not doing enough to stand up against them and protect those who were vulnerable.”
“(1). It is the duty of the [HMCI] — (a) to inspect under this section every school in England to which this section applies, at such intervals as may be prescribed, and (b) When the inspection has been completed, to make a report of the inspection in writing.”
“(2) In performing its functions [Ofsted] is to have regard to – (a) the need to safeguard and promote the rights and welfare of children.”