This week the Department for Education has released new non-statutory guidance to support mixed schools when it comes to separation by sex. The guidance is aimed at school leaders, school staff and governing bodies in all mixed maintained and independent schools, academies and free schools.
It follows the Court of Appeal's judgement in HM Chief Inspector of Education, Children's Services and Skills v the Interim Executive Board of Al-Hijrah School  EWCA Civ 1426 (Ofsted v Al-Hijrah).
The guidance provides information on:
Separation and other practices that result in sex discrimination
Schools should not generally separate pupils by reference to protected characteristics such as sex, race or faith while at school. Any separation by reference to a protected characteristic is likely to give rise to unlawful discrimination unless permitted by Section 158 of the Equality Act 2010 (positive action) and section 195 of the Equality Act 2010 (competitive sport).
Schools should check that there are no practices that could result in less favourable treatment of a boy or a girl because of his or her sex. For example, it would be unlawful for a school to require girls to learn textile design technology while giving boys the choice of textile design technology or practical carpentry classes.
Positive action and single-sex activities
There will be instances where separating by sex is appropriate and lawful. In certain circumstances, schools may be able to provide activities or lessons which are confined to one sex, or in which boys and girls are separated, by reference to justifications based on positive action.
For example, it would be lawful to teach sex education and elements of Personal, Social, Health and Economic (PSHE) education to single-sex classes because boys and girls may have different needs in this context.
Section 195 of the Act contains an exception, which permits single-sex sports.
Negligible and exceptional separation
Apart from the statutory exceptions, there may be occasions where a mixed school can lawfully separate boys and girls if the separation can be considered negligible in its effect on the ability of pupils of both sexes to mix, socialise or learn from and with each other.
You can access the full guidance here.
Further information on the Equality Act and how it applies to schools is available at Equality Act 2010: advice for schools.
First published 03 July 2018