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University segregation need not be a divisive issue

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UK Prime Minister David Cameron has another bee in his bonnet – sorry: deeply held conviction. This time it is segregation of women from men in talks given by Muslims or in an Islamic context on university premises.

He found guidance issued by Universities UK on this issue (that segregation should only be voluntary and mixed areas be allowed if people want them) to be inadequate given his own passionate belief in human rights especially for Muslim women.

Segregation on grounds of sex is naturally anathema to this product of Eton (where boys all learn together whatever their gender) and the Bullingdon club (girls always welcome in some capacity).

We can’t be sure what Cameron’s exact views are since he has not spoken publicly, but it looks as if he is so opposed to segregation that he rejects UUK’s voluntarist approach and would seem to want to force those attending these talks to sit boy-girl-boy-girl whether they like it or not. Maybe he will draft in some of the police currently suppressing student protests to enforce his emphatic liberal position?

It’s a matter of free speech, according to a Downing Street spokesperson, and Cameron feels very strongly about it. Certainly universities are governed by the 1986 Education (No 2) Act, Section 43(1)  on free speech, which says:

“Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.”

This was Tory legislation to curb students’ “anti-Zionist” and “No platform for fascists” movements. Paradoxically it is now protecting fundamentalist Muslims. But it is very unclear what the segregation issue has to do with free speech as such. Is Cameron suggesting that women in general and Muslim women of western leanings will be put off from going to important talks by ultra-orthodox Muslim speakers? Does “free speech” extend to “free listening to speech”? The talks can go ahead without those women (thus protecting the S.43 rights of “visiting speakers”) and one can’t believe that Cameron really thinks those talks are of such vital significance that the women who opt to boycott them will be missing very much.

The legal position
It is important to stress these are not lectures that are a direct part of the students’ academic studies. There is arguably no particular disadvantage to anyone not hearing such talks (whereas there is a clear disadvantage to being barred as a girl from Eton – just look at the schooling of the current Cabinet to see how useful such an education is).

Barrister Fenella Morris QC, asked to provide advice on UUK’s guidance, points out that the relevant law against segregation derives from the Equality Act 2010 (a piece of Labour legislation that Cameron and Co loathe with a venom) and is outlined in Technical Guidance on Further and Higher Education issued by the Equality & Human Rights Commission. This points out that the issue regarding segregation is one of “less favourable treatment”. At paragraph 4.8 it notes that deliberately segregating a student or group of students from others of a different race automatically amounts to “less favourable treatment”, which is illegal. It would be offensive, demeaning and clearly not in the interests of the racial minority thus set apart. And one cannot think of any scenario in which it would be advantageous to a racial minority. In contrast paragraph 4.9 notes that “segregation linked to other protected characteristics [ie other than race] may be direct discrimination. However, it is necessary to show that it amounts to less favourable treatment.”

Protected characteristics are the characteristic such as gender, age, disability, race and others that are protected by law because of the likelihood of discrimination. (See the Equality and Human Rights Commission guidance.)

Thus one can imagine scenarios in which there might be a distinct benefit in segregation, for some disabled people perhaps. Deaf people in one corner with a signer would be advantaged rather than disadvantaged. But under this heading disadvantage must be shown.

So, even if we think these ultra-orthodox Islamic talks are of some benefit to western-minded women, aiding their studies by giving an insight into such opinions, the UUK guidance would seem to acknowledge the issue of “less favourable treatment” by offering something to everyone: you can go to the talks if you agree with segregation or if you don’t, simply by choosing the part of the room you prefer; putting women at the back would be banned (because that would be like segregating black people – demeaning and automatically “less favourable treatment”); segregation as part of religious belief (rather than the speaker’s personal view) could be satisfied as required by Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion). If the speaker insisted on total segregation and refused to come, it is unlikely that a court would find his S.43 rights had been breached as long as the university had engaged with the matter and gone through the balancing procedure. (See reply to comment below.)

As Fenella Morris notes, considering the matter in this way would show the universities have attempted to balance a range of different and competing interests (she sees ECHR Articles 9, 10, 11 and 14 being engaged on different sides of the issue plus S.43). In so doing it could be strongly argued that they have fulfilled their legal duties.

But legality and reasonable balance seems to be far from Cameron’s mind. He demanded the UUK guidance be withdrawn and so it has been, perhaps pending a court’s view on the matter. 

Comment: A philosophical issue
The UUK guidance asks: “Can any steps be taken to ensure segregation is voluntary?” This is partly a practical question (how do you police the lecture hall to ensure the agreed rules are followed?) but also a very big philosophical one.

When a Muslim woman enters the lecture theatre and takes her place in segregated seats, is she acting voluntarily (perhaps even having thought about it and decided it is the best thing to do)? Or is she acting on the basis of years of ideological and institutional pressure? Maybe she “believes”, in a way that a modern, liberal western woman wouldn’t, that women are second class citizens or that they are an unacceptable sexual temptation to men who should be concentrating on the words of the wise and learned speaker. Or maybe she acts automatically without thinking at all, simply because, in her world, it is the way it has always been.

“While segregation on the grounds of sex is not automatically discriminatory, a requirement to sit separately which is not accepted and is then enforced may be a detriment. The question in any case of indirect discrimination will be whether any disadvantage is justified and/or outweighed by the other considerations involved such as freedom of speech and the manifestation of religious belief” – Fenella Morris QC

Some would say she is suffering false consciousness – that there is an actual and absolute best option for her that she is depriving herself of because of the values in which she has been brought up from birth. Fenella Morris makes this point: “It would not be right for a university simply to treat a genuine wish for voluntary segregation as evidence of false consciousness on the part of members of the group that seek it, and then prohibit or otherwise inhibit it.”

Why would it not be right? Because it would be as if we in a modern western liberal democracy have access to absolute truth (or at least are closer to that truth in some progressive evolutionary way) so “we” know what a woman’s best option would be if she were truly free to make it.

As it happens, those who provide Cameron’s own liberal/neo-liberal philosophical underpinnings have a way of dealing with false consciousness, in particular in the market system. They ignore it. Thus if a sausage roll full of transfats or a packet of cigarettes seem good and pleasurable things to the purchaser, you don’t look into their background to decide why they think bad things are good. As long as those people want them and are willing to spend their marginal pound on them rather than on some other less desired item (however good it might be for their health), then those items are what give them satisfaction (or “utility” in the economic jargon) in their own estimation. Their decision must be respected and their false consciousness disregarded.

Why would a lecture hall be any different? The guidance suggests offering three areas in such talks when segregation is requested: for men, women and anyone who is happy to sit in a mixed group. It’s like a free market and the people coming to the market can make their choice – whether based on “our” enlightened values or “their” false consciousness.

So why, in that lecture theatre, but not in people’s homes, not in their mosques, (or synagogues) not in their private places, must the problems faced by Muslim women, and their false consciousness be solved – by force (Section 43(4) of the 1986 Act talks of disciplinary measures) but only for the duration of the talk and in that particular space?

The reason, looking at the various pieces of commentary, seems to be something to do with the symbolism of that space – that it is in an academic building and hence an idealised notion of British values must reign within its boundaries. To represent our tolerance and belief in freedom of expression we must insist that foreign ways are not introduced into that domain. A little bit of totalitarian liberalism must be imposed.

The guidance sought instead to deal with a complex issue in a complex way, distinguishing between, for example, a talk where the lecturer simply requires for his own purposes that listeners be segregated, and one where there is voluntary segregation, possibly a “manifestation of a religious belief which is specifically protected by Article 9 of the ECHR”. It seeks to “balance a number of competing rights and interests” and to arrive at “practical and mutually-acceptable solutions to situations of competing rights”, according to Morris.

This seems the correct position in a tolerant western liberal multicultural society. Cameron’s view (whatever it is) does not.

Twitter: alrich0660

See also:
Why Ken Clarke is wrong on the veil
Should veils be banned in court?

Declan O’Dempsey has written for Halsbury’s Law Exchange on the issue here. Interestingly he throws into the mix the UN Convention on Elimination of Discrimination against Women – which Britain is signed up to. It says: “States parties are therefore obliged to work towards the modification of social and cultural patterns of individual conduct in order to eliminate ‘prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (article 5).”
But see how the Tories respond to their UN duties here: The bedroom tax and Raquel Rolnik

Note: The previous UUK guidance is here (pdf): External speakers in higher education institutions though it does not contain the Ultra-orthodox speaker scenario and guidance that has worried the press and been withdrawn. That scenario (which Morris addressed) is as follows:

“A representative of an ultra-orthodox religious group has been invited to speak at an event to discuss faith in the modern world. The event is part of four different speeches taking place over the course of a month exploring different approaches to religion. The initial speaker request has been approved but the speaker has since made clear that he wishes for the event to be segregated according to gender. The event organizer has followed agreed processes and raised the issue with university management. The event has been widely advertised and interest levels are high. The segregation request is not yet in the public domain but the students’ union has an active feminist society which is likely to protest against the segregation request. Other societies are likely to express similar concerns. The event is also due to take place a few days after a number of campus-based activities to coincide with International Women’s Day.”

Note: The Technical Guidance gives this example of voluntary segregation:
“At an event run by the college where all students are welcome, if black students choose to separate themselves from white students, taking part in different activities or simply standing in a group, as this is a choice of the students and not an enforced policy of the club, it would not amount to segregation and would not be unlawful.”

Stop press: The Equality and Human Rights Commission has now (July 2014) issued guidance on university segregation (pdf). On voluntary segregation it says: “To be voluntary, all attendees would need to be at liberty freely to choose where they wished to sit without any direction, whether explicit or merely an implicit expectation. Segregation is not voluntary where any one individual feels that their choice is constrained due to a pressure to conform to separate seating arrangements of any form in the venue, regardless of whether they have been explicitly directed or instructed as to where they can sit. Involuntary segregation will constitute unlawful discrimination on the part of the organisers of the event, except where it falls within the exception for religious worship and practice.
Thus, attendees must have the freedom to choose where they may sit (except where specific seating is designated for speakers, or space is designated for other legitimate reasons, for example to meet childcare or disability access requirements).”

About alrich

Journalist and blogger on legal and financial/economics issues

2 responses »

  1. Very interesting piece. The news bulletin, which amounts to my full knowledge of this spat, implied (or perhaps expressly said, I can’t quite remember) that the separation was needed where the visiting scholar would be offended by mixed seating and would refuse to attend. It is hard to see in those circumstances how a mixed area is possible. Perhaps I just misunderstood the item though.

    • Thanks for your comment. I’m not sure whether there is a real world example, but the UUK advice offers a proper legal approach to such a situation. It is all about trying to balance interests and in particular balancing conflicting requirements under the ECHR. Fenella Morris deals with the scenario you mention thus:

      “Articles 9 [Freedom of thought] and 10 [Freedom of expression] – will be invoked. These two important rights must be balanced against a right of freedom of association [Art 11] of those who do not wish to be segregated while hearing a particular speaker. Although it would be too simplistic to suggest that the two former rights will always outweigh the latter, it is likely that in many cases the significance of the two former rights will be greater than the latter in terms of where a person sits in order to be part of the audience for a particular speaker if not allowing segregation would prevent the speaker appearing.”

      As noted in the piece, the Education Act requires that universities secure freedom of speech “for visiting speakers” among others. It’s a legal requirement but courts would not presumably regard it as an absolute right. An outright ban on such a speaker would be unlawful; proof that the university was trying to balance the various conflicting rights and arrive at an agreed outcome would in all probability render a decision lawful even if the result was that the speaker refused to attend.


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