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Amir Paz-Fuchs, Tammy Harel Ben-Shahar, Separate but Equal Reconsidered: Religious Education and Gender Separation, Human Rights Law Review, Volume 19, Issue 2, June 2019, Pages 369–386, https://doi.org/10.1093/hrlr/ngz009
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Extract
1. INTRODUCTION
Ever since the landmark case of Brown v Board of Education,1 in which the Supreme Court of the United States of America renounced racial segregation as inherently discriminatory, the idea that separation of children in education facilities denotes a message of inferiority has reverberated in many jurisdictions. This article examines whether Brown’s rationale applies also to school-sanctioned segregation between boys and girls, and especially to sex separation in religious schools. This question was addressed recently by Britain’s High Court in the case of X School v Ofsted,2 in which the Court decided that separation of girls and boys in a co-educational Islamic school is not discriminatory per se, as long as the educational services supplied to both were on a par with each other. In October 2017, the Court of Appeal (CoA) reversed that decision, accepting Ofsted’s position that separation was discriminatory.3
The overarching question this case raises is whether sex segregation in schools, in and of itself, is discriminatory and therefore prohibited under the United Kingdom’s Equality Act 2010. We approach it through four related issues. First, we argue that both courts (despite their opposite rulings) did not properly address the similarities between race segregation and sex segregation. In the particular context of religious schools, we suggest that sex segregation (like racial segregation) may convey a message of inferiority, suggesting that girls’ (and women’s) presence in the male-dominated public sphere is unwelcome. Given that traditional gender roles disadvantage women, segregation is a social mechanism that curtails girls’ opportunities and is, therefore, discriminatory. As a result, even if there is no evidence that the quality and content of education differ for boys and girls, the mere separation could have detrimental consequences for girls.
