By Pragna Patel
11 January 2018
In 2017 the Court of Appeal ruled that gender segregation in schools is indeed discriminatory. This landmark judgement has potentially far-reaching consequences for minority women and girls.
In 2017, the UK Court of Appeal in London was asked to rule on the closely-watched case of the co-ed Muslim school Al-Hijrah in Birmingham, where boys and girls from the age of nine are strictly segregated by gender for all school activities including breaks, lunch, and educational trips.
The court’s landmark judgment, released in October, concluded that the school’s policy of gender segregation was in fact discriminatory and in violation of the 2010 Equality Act.
The ruling has potentially far-reaching consequences for minority women and girls, their equality of opportunity, and their freedom to participate in public life as citizens, not as voiceless subjects of so-called ‘religious communities.”.
Strict gender segregation is increasingly practiced by diverse faith schools including Jewish, Sikh and Catholic schools. This is part of a wider trend where religious fundamentalists and ultra-conservatives gain access to power and resources through the subjugation of women and girls.
This is why Southall Black Sisters (SBS) and Inspire, two BME (black and minority ethnic) women’s groups, intervened in the Al-Hijrah case which challenged fundamentalists in court, and resulted in a significant, precedent-setting legal ruling.
The 2010 Equality Act has become a tool in the feminist struggle to challenge a harmful, fundamentalist revival of regressive religious identities. This is the story of an important legal victory for feminists, which is now the subject of a coordinated fundamentalist backlash.
'This is the story of an important legal victory for feminists, which is now the subject of a coordinated fundamentalist backlash.'
Ofsted, the regulatory body for schools in England, had raised concerns in 2016 about a number of leadership failings at the Al-Hijrah school including: an unchallenged culture of gender segregation: stereotyping; homophobia; and intolerance amid insufficient measures to promote pupils’ welfare and personal development and keep them safe from extreme views.
Offensive books promoting a culture of marital rape and domestic violence were discovered in the school library, Ofsted said. There were also anonymous complaints by students that gender segregation did not prepare them for integration into the wider society.
Consequently, Ofsted judged the school “inadequate” due to serious weaknesses in overall leadership and governance and placed it in a category of concern that requires “special measures”. The school challenged this judgment claiming “religious bias” on behalf of the regulator and insisting that its practice of gender segregation did not constitute sex discrimination.
A High Court judge disagreed with the school’s religious bias claim. But he controversially agreed that that gender segregation could not amount to sex discrimination. Boys and girls were treated separately, but equally, within the school, he concluded.
Both were denied the opportunity to interact with students of the opposite sex; girls were not being treated less favourably, he said. The judge’s controversial ruling also suggested that gender segregation lacks the same political and institutional history as racial segregation.
Ofsted took the case to the Court of Appeal, which said the school’s policy of gender segregation had an adverse impact on the quality and effectiveness of education given to both girls and boys, in itself a 2010 Equality Act violation.
The only woman on the three-judge bench issued a dissenting judgment citing submissions by SBS and Inspire. Gender segregation’s impacts are not gender-neutral and are informed by “particular precepts and practices amongst certain Muslim communities,” she said.
It was significant that it took a woman judge to notice how gender segregation disadvantages minority girls in situations where they face structural inequality, discrimination and violence. It was particularly detrimental for girls, she concluded, both in its material impact and in generating a feeling of inferiority.
Gloster agreed with our submission that gender segregation reinforces the different spaces – private and public – that men and women can occupy and which accord them unequal status. Importantly, her judgement also drew on the American legal concept of “expressive harm”.
In the US, this concept has allowed for an objective examination of concrete disadvantages that flow from race discrimination as well as the ways in which feelings of inferiority are generated due to the structural history of racism.
Much in the same way that the mantra of ‘separate but equal’ has been found to be dubious in the context of US racial inequality and oppression, Gloster emphasised the need to contextualise it in the context of gender segregation, taking into account historical and prevailing social norms and unequal gender relations that can create similar feelings of inferiority.
Religious fundamentalists and ultra-conservatives have been emboldened by the state’s growing accommodation of religions – and facilitated by neo-liberal and multi-faith policies on education. They have used schools to normalise deeply patriarchal values and enforce sexual order.
The Al-Hijrah Trust is associated with the Muslim Council of Britain (MCB), an organisation with links to the Muslim Brotherhood and the Jamat-e Islami which are both fundamentalist movements.
The trust was the sole contributor to MCB guidance on Muslim pupils in state schools, which included a focus on gender segregation. It described mixed gender activities as “un-Islamic”, consistent with conservative Islamic teachings that ‘uncontrolled’ female sexuality results in ‘Fitnah’ (“a source of danger, civic and social discord, a sense of instability and impending evil”).
'Part of a wider fundamentalist project aimed not at empowering but disempowering girls.'
Unfortunately, many observers misunderstood SBS and Inspire’s intervention in the Al-Hijrah case as an attack on single-sex schools. That misses the point that gender segregation in minority communities is part of a wider fundamentalist project aimed not at empowering but disempowering girls.
Fundamentalists may now try to get around the Court of Appeal’s judgment by operating single-sex schools. Ofsted meanwhile appears slow to acknowledge the need for inspections to assess equality of opportunity in all schools, regardless of their status, in fear of causing ‘religious offence.’
Since the court’s judgment, we have seen a coordinated fundamentalist backlash against it. SBS has been notified, for instance, that the Muslim Association of Schools has already applied for permission to appeal the ruling to the Supreme Court.
The organisation Cage said the ‘oppressive’ and ‘discriminatory’ judgment should be resisted on the basis that it “tramples on religious freedom,” guided not by Muslim and Jewish religious experts but by “anti-Islamic”, “neo-conservative” and “pro-Prevent” women’s groups like SBS and Inspire.”
Such denunciations are nothing less than a calculated attempt by a fundamentalist revival of regressive religious identities to exclude secular feminist voices. They are part of a harmful backlash against a significant legal victory for minority women and girls.