New guidance for Ofsted inspectors on RSHE, protected characteristics and separating classes by sex
On 5 November 2025 the Department of Education published new guidance for Ofsted inspectors on inspecting both the teaching of protected characteristics within RSHE (RHE in primary schools) and separating pupils by sex in mixed schools.
The guidance includes the duty upon Ofsted inspectors to evaluate whether schools are complying with the Equality Act 2010 and Ofsted’s own equality duties. And this will inform the inspector’s grading in relation to both Leadership and Governance as well as Personal Development and Well-being.
Legal framework
The Equality Act 2010 created ‘protected characteristics’ including sex, religion and sexual orientation. Section 85 addresses discrimination in schools, and Section 195 allows single sex exceptions for sporting activities. Secondary schools are more likely to be able to justify segregation by sex in sport than primary schools. Factors to consider in relation to sport include the competitive nature of the particular sport and if the sport is gender affected.
The guidance only applies to mixed sex schools. Single sex schools can lawfully discriminate on the grounds of the school’s admission process as determined by Para 1 of Schedule 11 of the Equality Act 2010.
Inspecting RSHE and the teaching of protected characteristics
Inspectors must consider whether schools are teaching pupils about protected characteristics in an age-appropriate way as well as having regard to the statutory RHE/RSHE guidance.
The recently published guidance for Ofsted inspections sets out that pupils must have an understanding of equality as well as respect and understanding of differences. If schools depart from the guidance the school must have a good reason for doing so. The Ofsted inspector should record any rationale provided for such a departure by school leaders. The inspector will provide their view on whether the school’s rationale justifies the departure.
It should be noted that schools can choose to teach tenets of any faith in relation to protected characteristics: “For example, they may explain that same-sex relationships and gender reassignment are not permitted by a particular religion. However, if they do so, they must also explain the legal rights lesbian, gay, bisexual and transgender (LGBT) people have under UK law, and that LGBT people must be respected.”
Respect towards LGBT people
The requirements in this area differ for primary and secondary schools. If a primary school chooses not to teach awareness of and respect towards LGBT people, this will not have an impact on the Leadership and Governance grading as long as a school can satisfy the inspector it has still fulfilled its obligations within the statutory guidance. However, if a secondary school does not teach awareness and respect towards LGBT people, this is very likely to have an impact on the Leadership and Governance Grading.
Separation by Sex in mixed schools
Separating pupils by sex in mixed schools is generally considered discriminatory unless justified by specified exceptions. For example, single sex sports or positive action measures may be permissible.
Positive discrimination is not permissible under the Equality Act (e.g. marking boys more favorably than girls in a subject where girls generally outperform boys), but positive action Is where:
- The school reasonably believes that one of three circumstances applies:
- “a group sharing a protected characteristic is suffering a disadvantage connected to that characteristic (for example, boys are underperforming compared with girls)
- a group sharing a protected characteristic has different needs to those of pupils not sharing that characteristic (for example, some teaching methods may help boys more than girls)
- the participation of a group sharing a protected characteristic in a particular activity is disproportionately low; and
- The school has taken action that is proportionate to do any of the following:
- overcome/minimise the disadvantage
- meet the different needs
- enable or encourage participation in that activity”.
Therefore, if a school which has a very low uptake of triple science GCSE among female pupils may consider a girls-only Science Club for Year 9s is a proportionate way to encourage more girls to take this option.
Unjustified segregation is likely to be unlawful.
One point which the guidance does not cover is how schools should manage separation by sex where there are transgender or gender-questioning pupils in attendance. For example, many schools choose to separate boys and girls for some elements of RSHE. Alongside sex, gender reassignment is also a protected characteristic under the Equality Act; and this covers anyone proposing to undergo, undergoing or having undergone a process to reassign their sex. The Relationships and Sex Education guidance simply states schools should teach about sexual health “in a way that is relevant for all pupils, including those who are lesbian, gay, bisexual and/or gender questioning”.
The Ofsted guidance does touch on other potentially more complex scenarios – for example if a school suggested that not separating pupils by sex for certain activities would amount to religious discrimination against pupils of a particular religion. In a complex scenario where there are competing rights under the Equality Act to be considered, the guidance states inspectors should seek further advice from the Ofsted national duty desk, and potentially further policy or legal advice.
It is likely that an Ofsted inspector with concerns in a more complex scenario involving transgender or gender-questioning pupils would similarly be advised to seek advice from Ofsted.
Schools remain in a difficult position in understanding their duties in this area, as the guidance on gender-questioning children remains in draft despite the consultation on this guidance having closed in March 2024. Where a school or college is unclear on their duties, they can seek advice from our specialist education team.
Reasonableness and proportionality
Some schools may choose to separate pupils by sex for teaching. The guidance explains that inspectors must see evidence that separation supports the school’s objective. If the school contends that separation improves performance it must have evidence to support this.
Inspectors will consider:
- “whether the action is an appropriate way to achieve the school’s stated aim
- if so, whether the action or proposed action was/is reasonably necessary to achieve that aim; and
- whether it would be possible for the school to achieve its aim as effectively by other actions that are less likely to be discriminatory”.
Separation may be proportionate based on the specific circumstances. A school should review whether an action is proportionate each academic year.
Inspection outcomes
If an inspector believes that a school is discriminating unlawfully the inspector will record this on the inspection report card. Non-compliance by schools with equality obligations can lead to downgraded ratings in Leadership and Governance grades as well as Personal Development and Well-being grades.
Leadership and governance grade
Ultimately it is for a court to decide if a school is unlawfully discriminating against pupils. However, if inspectors can evidence that a school is unlawfully discriminating this is highly likely to have an impact upon the inspection grade. In deciding the grade, the inspector must consider any action the school has taken to remedy the unlawful discrimination.
If a school can provide evidence of genuine and imminent plans to remedy the unlawful discrimination and the discrimination is currently continuing for reasons outside the school’s control a grade of “needs attention” will normally be appropriate. In the absence of any evidence of a remedy a grading of needs “urgent attention” would normally be appropriate.
Personal development and wellbeing grade
If a school unlawfully discriminates by sex this may negatively affect the personal development and well-being grade. Inspectors may also identify such issues as the use of stereotypical language. Any grade on personal development and well-being will depend upon the overall quality of the school’s provision in this area and the severity of any separation upon the pupils.
Independent school standards
The standards are different for independent schools. Para 3 (J) of the ISS allows the Department of Education to take regulatory action against schools that unlawfully discriminate in teaching, contrary to part 6 of the Equality Act 2010. If inspectors find evidence of unlawful sex-based separation, they will judge that para 3 (j) is not met. Inspectors must consider whether the school has genuine and imminent plans to remedy discrimination when making judgements.
After inspection
If inspectors find that a school is seemingly unlawfully discriminating directly or indirectly under the Equality Act, the leadership and management grade will not be normally better than “urgent improvement”. If the school is taking clearly evidenced and prompt steps to end the discrimination, a grade of “needs attention” is likely to be made for leadership and governance.
Inspectors will always make a factual reference in the final report card in regard to apparently unlawful separation of sex. Inspectors must have regard to annex one of the statutory guidance which provides a checklist for consideration.
Conclusion
Separation by sex in mixed schools should only occur if it can be justified as a positive action or another lawful exception under the Equality Act 2010. If separation by sex does occur, schools will need to justify this to Ofsted when inspected. Schools should be aware of how the teaching of protected characteristics in RSHE/RSE will be assessed by Ofsted.
Where more complex issues arise, such as an interplay between sex and other protected characteristics such as religion or gender reassignment, the existing guidance is of limited assistance. Our specialist education team can assist schools, colleges and individuals in a wide range of issues relating to education.
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