www.judiciary.gov.uk/wp-content/uploads/2017/10/judgment-interim-executive-board-of-al-hijrah-school-20171013.pdf
The grounds for appeal (against the High Court, which said sex segregation was ok):
(1) The loss of an opportunity for girls to choose to learn and socialise with boys or individual boys (which boys at the School enjoy) (“Appeal Ground 1”)
(2) The loss of an opportunity for boys to choose to learn and socialise with girls or individual girls (which girls at the School enjoy) (“Appeal Ground 2”)
(3) The loss of an opportunity for girls to socialise confidently with boys (and vice versa) and/or to learn to socialise confidently in preparation for personal, educational and work-related contexts on leaving the School (“Appeal Ground 3”)
(4) Each loss of opportunity imposes a particular detriment on girls because the female sex is the group with the minority of power in society, so restrictions upon female children learning, socialising and feeling comfortable with male children and upon male children learning to work and interact socially with female children have adverse social implications for women which outweigh the adverse social implications for men. This is because those with the minority of power are socialised to be regarded, by themselves and those with the majority of power, as relevantly different in contexts where gender should be treated as irrelevant (“Appeal Ground 4”).
(5) The very fact of segregation constitutes less favourable treatment of girls as it amounts to an expressive harm caused by the necessary
implication that girls are inferior or otherwise relevantly different to boys in day to day social and working contexts (“Appeal Ground 5”).
The judges upheld grounds 1, 2 and 3, on the basis that while both sexes suffered a similar drawback (boys not being able to associate with girls and vice versa), they are not the same - the deprivation of the right of association enjoyed by members of the other sex with members of that same sex is of itself discrimination.
Lord Justice Jack Beatson and Master of the Rolls, Sir Terence Etherton dismissed grounds 4 and 5, while Lady Justice Gloster submitted a dissenting judgment.
So the two male judges of the Court of Appeal (of which in total 29 are men, 9 women) said
"There was no evidence before the Judge that today’s society as a whole or the Islamic community or the pupils at the School or their parents or any significant proportion of those groups regard segregation by sex as indicating by itself, whether by reinforcing an historic stereotype or otherwise, that the girl pupils or women are in some way inferior to or relevantly different from the boy pupils or men"
"In that state of the evidence, there is nothing to contradict the School’s case that the segregation had nothing to do with historic stereotyping or societal views about the status of girl pupils or women, and did not endorse, reflect or perpetuate any such matters, but was to do solely with religious reasons and objectively should and would be perceived in that light. "
Whereas Lady Justice Gloster said:
"5. As Ms Mountfield put it in her written submissions, the underlying principle, as accepted by the judge at paragraphs 137–139, is that the historical and social context of an apparently neutral division based on a protected characteristic, such as race or sex, can invest that treatment with meaning that is not neutral. In support of her submission, that an expressive harm can amount to unlawful discrimination, even where the treatment is ostensibly “separate but equal”, Ms Mountfield referred both the judge and this court to various overseas cases including Brown v Board of Education, 247 US 483 (1954), where the Supreme Court of the United States held that the provision of “separate but equal” facilities for black and white Americans was in fact inherently unequal, as it generated “a feeling of inferiority as to the status of [black Americans’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
The evidence showed the following:
i. The school library contained recently published books, freely available to any pupil in the library, including one that was prominently displayed on a display rack. The inspectors considered that these books were:
“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.”
These books “included derogatory comments about, and the incitement of violence towards, women”. The inspectors also considered that the books contained “views, which were not consistent with a tolerant, respectful and equal society” and “did not promote equality of opportunity because of the intolerant views about women”. These statements included the following:
‘The Muslim Women’s Handbook’. Huda Khattab (1993) …… included; ‘The wife is not allowed to refuse sex to her husband’(page 42).
‘The Rights of Husband and Wife in Islam’, Maulana Mufti Abdul Ghani (2009) included on page 34, 9 points in which obedience to husband is obligatory; ‘she cannot go out of her husband’s house without his permission and without a genuine excuse’. Page 36 of the same text stated ‘Right of beating the woman: if for some reason he does not like to divorce, then he should be patient and continue to advise and he has also the right of intimating to her his right and in such cases the man by way of correction and as a punishment can also beat her, then beat her without causing any mark’.
‘Islamic Family Guidelines’ by Aboo Ibraheem Abdul-Majeed Alee Hasan (1998) included; ‘gives the husband the position of leadership over the family…The women have thus been commanded to obey their husbands and fulfil their domestic duties’.
‘The Laws of Marriage in Islam’ by Sheikh Muhammad Rifat Uthman (1995) ……. and contains at page 82 ‘not leaving the house without his permission’ and page 84, ‘he can beat her but not harshly’.
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. 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?
One does not need to be an educationalist, a sociologist or a psychiatrist to conclude [in this context that this is a school] where a strict sex segregation policy subjects girls to a greater risk of extreme and intolerant views and is likely to reinforce or create misogynist attitudes amongst the boy pupils towards them.
Once the principle is accepted, as it was by the Judge (and the majority in this court), that, as a generality, men exercise more influence and power in society than women, and that persistent gender inequalities remain in the employment market, evidence is not required to establish that an educational system, which promotes
segregation in a situation where girls are not allowed to mix with boys or to be educated alongside them, notwithstanding they are studying the same curriculum and spending their days on the same single school site, is bound to endorse traditional gender stereotypes that preserve male power, influence and economic dominance. And the impact of that is inevitably greater on women than on men. One does not need to have been educated at a women’s college at a co-educational university, at a time when women were still prohibited from being members of all-male colleges, to take judicial notice of the career opportunities which women are even today denied, simply because they are prevented from participating in hierarchical male networking groups, whether in the social, educational or employment environment.
" the support of violence against women and gender stereotyping, as demonstrated in the publications and pupils’ work found in the School, are mainstays of ultra-conservative and fundamentalist approaches to Islam in which control of women and, ultimately, the removal of women from the public sphere and their relegation to the private sphere, is key. 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."