Sex Discrimination

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In Ypourgos Esoterikon and anor v Kalliri, the European Court of Justice has held that imposing a minimum height requirement of 1.7m for enrolment in Greek police schools constituted indirect sex discrimination that was not objectively justified. Far more women than men were disadvantaged by the minimum height requirement, and while the requirement sought to pursue the legitimate aim of enabling the effective accomplishment of the various functions of the police force, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of particular physical aptitude. Furthermore, it is not necessarily the case that a person’s height corresponds to his or her physical aptitude to carry out certain functions. The aim that the requirement sought to pursue could be achieved by measures that were less disadvantageous to women – for example, by carrying out pre-selection aptitude tests.

In Greece, a national law required candidates who wished to enter police school to train as officers to be a minimum height. The law required any candidate (male or female) to be at least 1.7m tall, without shoes. When K’s application to join the police school was rejected on the basis that she did not meet the minimum height requirement (since she was only 1.68m tall), she presented a complaint before the Greek Court of Appeal which held that the requirement was contrary to the constitutional principle of equality of the sexes. The Greek Interior Minister and the Minister for Education and Religious Affairs appealed against that decision. The Council of State decided to stay the proceedings to ask the ECJ whether the minimum height requirement was compatible with the EU Equal Treatment Directive (No.76/207), which prohibits, among other things, unjustified indirect sex discrimination.

The ECJ noted that the referring court itself had found that a much larger number of women than men are of a height of less than 1.7m, such that, by the application of that law, women were very clearly at a disadvantage compared with men in relation to the admission requirements to the Greek police school. It therefore followed that the law was indirectly discriminatory. As to the question of whether the requirement could be objectively justified as a proportionate means of achieving a legitimate aim, the Greek Government had submitted that the aim of the law was to enable the effective accomplishment of the task of the Greek police, and that possession of certain particular physical attributes, such as being of a minimum height, was a necessary and appropriate means of achieving that aim. The ECJ noted that previous case law had established that ensuring the operational capacity and proper functioning of the police service constituted a legitimate aim. However, the ECJ held that, while it was true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conducting of crime prevention patrols might require the use of physical force that would require a particular physical aptitude, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of significant physical force. Furthermore, even if all the functions carried out by the Greek police required a particular physical aptitude, such aptitude was not necessarily connected with being over a certain height. Equally, it was not necessarily the case that shorter people naturally lacked that aptitude. It was also worth noting that, until 2003, Greek law required different minimum heights for men and for women to enter the police: for women the minimum height was fixed at 1.65m, compared with 1.7m for men. It was also relevant that there remained different minimum height requirements for men and women to enter the Greek armed forces, port police and coast guard, where the minimum requirement for women was only 1.6m.
The ECJ concluded that the pursued aim could be achieved by measures that were less disadvantageous to women, such as a pre-selection of candidates based on specific tests allowing their physical ability to be assessed. It followed that, subject to the national court’s assessment of objective justification, the minimum height requirement breached the Equal Treatment Directive.

Link to case

Yes. In HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School, the Court of Appeal has overturned the High Court’s decision that a school’s complete gender segregation of pupils aged 9–16 was not sex discriminatory. In the Court’s view, the High Court had erred by comparing the treatment of boys and girls as two groups and concluding that, since they were both being denied the opportunity to interact/socialise/learn with or from the opposite sex, there was no discrimination. The correct approach under S.13 of the Equality Act 2010 was to look at the treatment from the perspective of an individual girl or boy at the school. The child was being denied the opportunity to mix with the opposite sex, which was a detriment imposed because of the protected characteristic of sex. Thus, the treatment was direct discrimination.
AHS is a voluntary aided faith school for boys and girls aged between four and 16. It has an Islamic ethos and for religious reasons separates boys and girls from Year 5 onwards (when they are aged nine and above) for lessons, trips, breaks and lunchtimes. In June 2016 Ofsted inspected the school, which was later sent a draft of Ofsted’s report rating the school as inadequate and citing concerns about its segregation policy. Ofsted took the view that the policy limited pupils’ social development, and its report pointed out that the school had not considered ‘how to mitigate the potentially negative impact of this practice on pupils’ chances to develop into socially confident individuals with peers from the opposite gender’. Ofsted believed that this gender segregation was unlawful under the EqA. However, there was no suggestion in the report that either boys or girls received a different or qualitatively poorer level of education than the other. The school brought a judicial review challenge to the proposed report. As the most senior official at Ofsted, the Chief Inspector was named as respondent.
Mr Justice Jay upheld the challenge in the High Court (Brief 1062), ruling that Ofsted had been wrong to conclude that there was a breach of the EqA. Given that there was no distinction between the opportunities afforded to girls and boys to interact with each other, it could not be said that one sex was treated less favourably than the other. Furthermore, Jay J held that argument that segregation in a faith school generates a feeling of inferiority as to the status of females in the community is too broad and sweeping an assertion to make in a multi-cultural society, where segregation is not enforced but chosen by parents. Ofsted appealed to the Court of Appeal.
The Court of Appeal agreed with Ofsted’s submission that Jay J had erred by regarding the arrangements at the school as non-discriminatory on the basis that they were ‘separate but equal’. Since the definition of direct discrimination in S.13 EqA refers to a person, it was necessary to view less favourable treatment under that provision from the perspective of an individual pupil, rather than his or her sex as a group. From that perspective, a girl pupil who wished to mix or socialise with a boy pupil was precluded from doing so because of her sex, a protected characteristic; whereas, if she did not have that characteristic, and was a boy pupil, she would have been able to mix or socialise with all the other boys (this was also the case where the genders were reversed). This treatment was clearly less favourable, and the denial of opportunity to mix with the opposite sex was detrimental, as evidenced by the Ofsted report’s finding that segregation had an adverse impact on the quality and effectiveness of the education given by the School to girl pupils and boy pupils respectively. Accordingly, the treatment amounted to direct discrimination contrary to Ss.13 and 85 EqA.
Although it was not necessary, given the above findings on less favourable treatment, the majority of the Court (the Master of the Rolls and Lord Justice Beatson) set out obiter comments refuting Ofsted’s proposition that segregation at the School caused greater psychological harm to girl pupils because the female sex has the minority share of power in society and that power imbalance will be reinforced in adulthood by the loss of opportunity for girls and boys to socialise with each other and to regard each other as equals. The majority considered that, as the Ofsted report itself made no such assertion and there was no evidence from expert educationalists to support the proposition, Jay J had been correct to reject Ofsted’s reliance on this ground. Lady Justice Gloster, by contrast, would also have upheld this ground of appeal. In her view, on the specific evidence before the Court, Ofsted had demonstrated that the sex segregation at the school involved greater practical detriment for girls than boys.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1426.html