Yes, it's legal.
It would be lawful discrimination on objectively and reasonably justified grounds
Here's why:
On the face of it, this is a case of direct discrimination contrary to Section 13 of the Equality Act 2010:
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
however, the school may argue that they are taking positive action in line with Section 158 of the Act (emphasis mine):
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,
(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
(c) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—
(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.
It is likely that they will be able to justify direct discrimination on the grounds of positive action. The Government's Explanatory Notes on the section express the intent of the legislation as such (emphasis mine):
- This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim.
A clear example is provided:
Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them.
Furthermore, there is case law to establish that such positive action is entirely lawful: R (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) (emphasis mine):
Before leaving this topic we would stress that section 158 does not concern what is sometimes called “positive discrimination”; it is more limited and concerns only what the legislation calls “positive action”. In general “positive discrimination” is unlawful under the Equality Act. Therefore, as a matter of domestic law, prioritisation of some deaths for religious reasons would not be unlawful; to the contrary, it would be consistent with section 158.
That position is mirrored in Convention jurisprudence. The point can be well illustrated by the decision in Jakóbski v Poland (2012) 55 EHRR 8. In that case the applicant was serving a prison sentence in Poland. He adhered strictly to the Mahayana Buddhist dietary rules and requested a vegetarian diet for that reason. This was not provided for him. The prison authorities stated that they were not obliged to prepare special meals for prisoners on the basis of religious belief as a matter of Polish law and that to do so would put excessive strain on them. The application before the court succeeded under Article 9. For that reason the Court did not consider it necessary to address
separately the right to equal treatment in the enjoyment of Convention rights in Article 14 (to which we return below).
However, in our view, the case of Jakóbski is a good illustration of the principle of equality at work in cases of this kind. What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority. In other words, to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality.
While this judgement concerns itself with positive action on religious grounds, it has broad application to positive action on grounds of sex too, and would be consistent with Article 14 of the European Convention on Human Rights—namely that if the discrimination can be objectively and reasonably justified, it is lawful.
