Tens of thousands of pupils, families and teachers could be affected if judges decide a Birmingham Islamic school illegally discriminated against pupils by separating girls and boys from the age of nine, a court has heard.
Lawyers for the Al-Hijrah school, a state-funded Islamic school, argued mixed-sex schools across the country that practise gender segregation could face upheaval and uncertainty if they were forced to change the way they operate following a legal appeal by Ofsted, the schools inspectorate.
The case is a “pretty extraordinary situation”, the school’s barrister Peter Oldham QC said on the second day of the court of appeal hearing in central London. He said: “Ofsted has chosen to decide, in effect from one moment to the next, that schools that segregate are unlawful.”
Oldham said “probably tens of thousands of people – pupils, their families and teachers, let alone local authorities” could face disruption if al-Hijrah lost the case.
But Lord Justice Beatson said the court was “in a vacuum” as it is unclear how many schools practise segregation.
Ofsted criticised Al-Hijrah, which accepts children between ages four and 16, in an inspection in June 2016 for its practice of segregating girls and boys entirely from the age of nine, including separate lessons, breaks and school trips.
The school was rated as “inadequate”, the lowest possible grade, but it challenged the report in a judicial review in the high court in November. Mr Justice Jay found that the practice did not especially disadvantage girls, since neither sex was treated unfavourably.
But he upheld other parts of the report, in which inspectors raised concerns about books in the library that condoned violence against women, and criticisms of record-keeping and safeguarding. The rest of the report was published, although the school was anonymised as School X, and it was placed into special measures.
Ofsted appealed against the ruling that the segregation did not amount to unlawful discrimination under the Equality Act 2010, in a case that drew interventions from the education secretary Justine Greening, the Equality and Human Rights Commission and Southall Black Sisters.
But Oldham said the government had suddenly decided that the practice of segregating pupils in mixed-sex schools was problematic despite knowing about, and ignoring, the practice for “time out of mind”, adding: “This is the antithesis of proper public decision making.”
On Monday, Greening’s lawyer said if Ofsted wins, the department will work with schools to help them follow the law, including if this meant separating into single-sex schools. Oldham said the government’s response was “extremely vague”, adding: “There’s no evidence that the department has begun in practical terms to work out the consequences.”
It would not be possible to force private schools, academy founders or those responsible for voluntary-aided schools to provide the replacement schools that would be required if schools were forced to split into single-sex schools, he argued, let alone the challenge of finding new premises and grounds for new institutions. The exercise would become “precarious, uncertain, fraught and expensive”.
Al-Hijrah opened in 2002 and had been inspected by Ofsted previously without the segregation being raised as a problem, Oldham said. The inspectorate appeared to have had a “Damascene moment” shortly before the inspection, when a government memo noted: “Segregation will only be tolerated when there’s a clear and rational explanation for doing so.”
On Monday, Ofsted’s lawyer Helen Mountfield QC argued that segregating the sexes in a mixed-sex school was especially harmful to girls.
“The message which harms women is that the differences between men and women are so intrinsically great that they cannot be allowed to share a space,” she said. This was more harmful to women than men because of “the social context being one in which women as a whole are stereotyped and have a minority of power”.
The hearing was due to conclude on Wednesday.
