Problems with the Equality Act

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By Rachel Foster
on 05 February, 2017

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The Equality Act - causing schools problems?

Once again schools have hit the headlines involving breaches of the Equality Act 2010.

In recent months the complexities of the duties for schools and academies have been highlighted by media coverage regarding clothing, segregation, dismissals and now transgender.

Transgender

This week in the news, the 16-year-old, who has been given the assumed name Aidan, was born female and attended Hereford Cathedral School in Herefordshire. He claims he was effectively excluded because the school refused to let him wear a boy's uniform. This was despite the support of his mother and the family's GP as he began his transition. When he told the school he did not want to be addressed as a girl or wear girl's clothing, he claims staff said it was a "phase" that he would grow out of. The legal action is currently ongoing through the courts.

The Legislation

Under the Equality Act 2010, it is unlawful for a school to treat pupils less favourably because of gender reassignment, and schools must factor in transsexualism when considering their obligations. To be protected by the Act, a pupil will not necessarily have to be undertaking a medical procedure to reassign their gender, but must be taking steps to, or proposing to do so.

Gender reassignment guidance for schools

The DfE has previously published guidance on the Equality Act and it specifically addresses gender reassignment (page 17, section 3.3 - 3.6):

  • It is unlawful for schools to treat pupils less favourably because of their gender reassignment
  • Schools must factor in gender reassignment when considering their obligations under the Equality Act
  • To be protected by the Act, a pupil will not necessarily have to be undertaking a medical procedure to change their sex, but must be taking steps to live in the opposite gender, or proposing to do so
  • Schools need to make sure that all gender variant pupils are not singled out for different and less favourable treatment from that given to other pupils.

Segregation in Faith schools

Another case recently in the High Court has been upheld that a faith school segregation of girls and boys when they reached a certain age, was not less favourable treatment as defined under the Equality Act and therefore no direct discrimination had occurred.

The voluntary aided faith school for boys and girls between 4 and 16 years old has an Islamic ethos and, specifically for religious reasons, believes the separation of boys and girls at a certain point in their development is mandated at age 9. In 2014, the school went into special measures and in 2016 a report on the school was issued by the HMCI.

The school challenged the 2016 report stating it was irrational and/or based on no evidence. They alleged the inspectors wrongly assumed that separation of pupils on the basis of sex meant or implied unequal treatment. The point being made was that the inspectors’ approach to the Equality Act 2010 was wrong in law because segregation, without more, is not discriminatory.

Non judgement on social and educational merits of segregation

This case raises a point of general public importance as to the true construction and application of key provisions in the 2010 Equality Act. The judge observed that it was a point which had not arisen before, and so should be answered on “a first principles basis, applying standard interpretative tools to the language, policy and objects of the statute.”

Given there was no distinction between the opportunities afforded to girls and boys, it could not be said there was less favourable treatment to one sex. However it must be remembered that this was not a judgment on the social and educational merits of sex segregation in schools.

Uniform and the Equality Act

St Clare’s Catholic School in Handsworth has prompted a uniform row by banning a four-year-old Muslim girl from wearing a headscarf at school, when they asked the girl’s parents to respect their strict uniform policy, which includes no headwear or scarfs.

Birmingham City Council's Labour cabinet member for equalities, said that he had met with the headteacher and told her the ban on the scarf was against the Equality Act. Although the government does not prescribe to what extent religious attire is allowed to be worn by pupils, rather, it is each school’s decision to set their own uniform policies.

Ofsted

The full face veil known as the niqab has been at the centre of previous uniform rows, but it is rare for schools to ban the head scarf, known as a hijab. Ofsted has announced that if inspectors judge that wearing the veil, by students or pupils, is a "barrier to learning", it will mark down institutions where they believe the veil hinders "positive social interaction".

Overall the Equality Act impacts on many areas of school life and all its stakeholders. The duties for schools and academies are complex and need careful handling above and beyond adopting the right policies.

If you wish to know more on your obligations under this legislation, One Education are holding training on ‘Schools’ Equality Duties’ on 22 March. For further information on HR support, please contact Rachel Foster on 0844 967 1111.

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