By Declan O’Dempsey
Controversy has been sparked by the guidance issued by Universities UK entitled External speakers in higher education institutions on the question of gender segregation in university talks.
The guidance was issued following a series of Islamic events at university campuses at which male and female students had been segregated. The intention of Universities UK was to address the legal issues that this raised in terms of balancing the speaker’s right to free speech with the rights of audience members.
The guidance has drawn wide-spread criticism and prompted student protests.
Universities UK has failed to give full and proper consideration to the legal arguments raised by the guidance and an analysis of these is clearly needed.
The guidance includes case studies, which aim to illustrate the factors that institutions must consider and balance in relation to external speakers in a range of different scenarios. It is case study two which has troubled the press. This states:
“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.”
It is necessary first to unpack some of the language being used. It is worth starting with a definition of “segregate” in mind. I suggest that the term means to “set apart from the rest or from each other; isolate or divide”. The speaker wants the event to be segregated according to gender. What this essentially means is that the speaker is asking that the seating is not voluntary; women should be in one place and men in another. The speaker’s statement is not a belief in itself, but a manifestation of a belief concerning the propriety of the sexes mixing.
Given that this requirement by the speaker is a manifestation of a belief, it is not given absolute protection in European Human Rights Law. Art 9(2) of the European Convention on Human Rights and Fundamental Freedoms (the latter words are frequently forgotten) states that the freedom to manifest one’s religion is subject to such limitations as are prescribed by law and necessary in a democratic society for the protection of the rights and freedoms of others. If the manifestation of a religion takes the form of imposing values on others, then that may be curtailed if it damages the rights and freedoms of others, or if it might do so.
In the university environment, of course, there must be a balance struck between the right to responsible free expression of the speaker and the manifestation of the speaker’s beliefs, with the rights of the audience members not to be subjected to acts which are either unlawful under the Equality Act 2010 or which are incompatible with the values of a democratic society.
The right of an audience member to sit where he or she wishes without that choice being impaired by gender discrimination is a right not to be the subject of discrimination. Such segregation would be unlawful in two ways. First, the men are denied the choice to sit where they wish in the lecture hall and can only attend provided they are prepared to sit in the male allocated areas. Second, the women are denied the choice to sit where they wish in the lecture hall and can only attend if they are prepared sit in the (different) female allocated areas.
Early in the case law of sex discrimination in the UK it was recognised that men and women might complain of the same treatment which discriminated against both in different ways. In one case women were spared dirty work (but got lower pay) and the men had to do the dirty work (and got higher pay). There was nothing to stop both sexes complaining about the different detriments to which they were subjected to as a matter of direct discrimination. The women could complain about not receiving the higher pay (or having access to the opportunity to earn it) and the men could complain about being made to do the dirty work (when women were not required to do it) (see Ministry of Defence v Jeremiah  QB 87).
The discrimination that would occur in the case of seating segregation would and could only be direct discrimination because of gender. This is because each sex is being denied certain (different) areas of the hall within which to sit. Would a reasonable person regard this as a detriment? Clearly a reasonable person could be offended by having another person’s behavioural norms being imposed upon them as a condition of attending an otherwise open meeting, so I think they would be able to show they had suffered a detriment.
The segregation would be unlawful and incapable of justification. It would be unlawful as the speaker is a provider of services to those attending the talk under s 29 Equality Act 2010. It is not open to the provider of the services to discriminate because of gender regarding the manner in which the service is delivered, or the terms on which it is delivered. (Similar arguments can be mounted against the institution which assists in the segregation.)
In the “Christian B&B” case of Bull v Hall, Baroness Hale SCJ stated (para 44): “the ‘rights of others’ for the purpose of article 9(2) (and indeed the other qualified rights in the Convention) are not limited to their Convention rights but include their rights under the ordinary law. The ordinary law gives Mr Preddy and Mr Bull the right not to be unlawfully discriminated against. It follows that, for the purpose of article 9(2), the limitation is ‘in accordance with the law’ and pursues one of the legitimate aims there listed.”
It is then necessary to consider whether there is a “reasonable relationship of proportionality between the means employed and the aim sought to be achieved” (see Francesco Sessa v Italy). If a university were to tell the speaker that, whilst the speech can be delivered, the segregation (involving discrimination on grounds of gender) would not be permitted because it would be unlawful, then there would be such a relationship of proportionality.
There does not appear to be another way that segregation as sought by the speaker could be rendered compatible with the attendees’ rights not to be discriminated against. Hence, the idea that there needs to be reasonable accommodation of the manifestation of the speaker’s religious belief simply does not arise. Baroness Hale said in Bull v Hall (para 51): “Mr and Mrs Bull cannot get round the fact that United Kingdom law prohibits them from doing as they did… The legitimate aim was the protection of the rights and freedoms of Mr Preddy and Mr Hall”. In relation to “Whether that could have been done at less cost to the religious rights of Mr and Mrs Bull”, she said, “I would find it very hard to accept that it could”. Similarly, the aim of the university in telling the speaker that they could not insist on segregation would be the protection of the rights of others. Without breaking the UK law on discrimination, the wishes of the speaker could not be accommodated, and there are plainly no means of accommodating the speaker’s insistence on segregation which are less restrictive of the speaker’s manifestation of religious belief.
The guidance should, therefore, have been able to give a much stronger guide on this issue. The guidance suggests that a seating plan may be relevant. On the analysis above, it is not. The genders would continue to be denied free choice (in different ways) on the basis of gender.
At the heart of the guidance, however, is confusion over the meaning of the word “segregation”. I set this meaning out at the start of the article. Segregation which is not compulsory simply is not segregation properly so called. There is, of course, a big difference between reserving an area for one sex, and forbidding them to sit other than in those areas. The latter is segregation. The former may still be less favourable treatment for those who wish to sit in the reserved area, as it is a denial of choice for the excluded gender. Thus it is not a complete answer to suggest (as some commentators on the guidance have done) that it simply requires the university to look at permitting areas of an auditorium to be reserved for one gender.
The Equality Act 2010 has made specific exceptions for religious organisations to have exclusive practices in certain situations; these do not extend to the delivery of a speech at a university. The guidance says:
“It should therefore be borne in mind – taking account of the s.43 duty, as well as equality duties and Human Rights Act obligations – that in these circumstances, concerns to accommodate the wishes or beliefs of those opposed to segregation should not result in a religious group being prevented from having a debate in accordance with its belief system.”
However, the duty to ensure free speech does not require anything more than that the use of the venue, which should not be denied to the speaker. That does not equate to giving the speaker the ability to dictate all the terms on which the event is to take place.
The Education (No 2) Act 1986, s 48 states:
“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… to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with (a) the beliefs or views of that individual or of any member of that body; or (b) the policy or objectives of that body.”
Interpreting those provisions to be consistent with the Human Rights Act 1998, the university is entitled to draw a distinction between the beliefs or views of the organisation and the manifestation of those beliefs. A further distinction is to be drawn between the right to free expression of the beliefs and a requirement that other people who do not share that belief act in conformity with it. Only the former is protected under Art 10 of the ECHR, and then only when that expression is the responsible expression of free speech.
The “public sector equality duty” under s 149 of the Equality Act 2010 does not require the university to act in any different way. Under that provision, the university has a duty in the exercise of all its functions to have due regard to the need to eliminate discrimination and to promote equality. It is a duty to consider the factors. If one course leads to illegality, then the need to eliminate discrimination should lead to the avoidance of that course.
In response to the public concern over the guidance, Universities UK released a press release on Thursday 11 December announcing that they had sought legal advice from a QC who had confirmed that their guidance was correct and provided “an appropriate foundation for lawful decision-making”. The Advice also said that their guidance was, “clear that in adjudicating between conflicting priorities in relation to gender and religion, institutions have to balance a range of competing interests and strike a fair balance between them having regard to all the individual circumstances of each case”. The Note of Advice is available here.
The Advice used the concept of voluntary segregation. It is important to note that there is already an exception for religious organisations providing services. In para 29 Sch 3 of the Equality Act 2010, an exception is created for a minister of religion to provide gender separate (or single sex) services if (1) the service provided is for the purposes of an organised religion; (2) it is provided at a place which is for the time being used for those purposes; and (3) the limited provision of the service is necessary in order to comply with the doctrines of the religion or for the purposes of avoiding conflict with the strongly held convictions of a significant number of the religion’s followers (see the EHRC Statutory Code: Services, public functions and associations, para 13.68 ff).
The guidance does not envisage the lecture hall being used for a private lecture but a public one. It is not a question, therefore, (as the Advice published by Universities UK appears to assume) of an organised religion regulating a private meeting. Such separation between the sexes during that meeting would be lawful under the exception. The EHRC gives the example that a synagogue would be able to have separate seating for men and women at a reception following a religious service (see the example following 13.69 of the ECHR Statutory Code). However, the guidance is dealing with a situation in which a speaker at a public lecture (one of a series designed to explain faiths) makes segregation a requirement; that would not be covered by the exception.
One other point that needs to be mentioned in the context of the human rights debate is the interplay of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which is explicitly aimed at enlarging the understanding of the concept of human rights. It gives formal recognition to the influence of culture and tradition on restricting women’s enjoyment of fundamental rights. The introduction states:
“These forces take shape in stereotypes, customs and norms which give rise to the multitude of legal, political and economic constraints on the advancement of women. Noting this interrelationship, the preamble of the Convention stresses ‘that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality of men and women’. 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).”
Thus, when we are considering the human rights arguments in this area, it is important to remember that the UK has signed up to gender equality as a fundamental value. The Equality Act 2010, among other things, aims to bring about a change in the traditional role of women in society, and to avoid stereotyped roles for men as well as for women. The underlying logic of segregated seating would, I suggest, offend both. The exceptions that have been provided for religious practices in the Equality Act 2010 are proportionate and maintain the balance between manifestation of religious beliefs and gender equality. However, they also maintain the right of men and women to equal treatment outside that narrowly defined exception, and, in particular, when a religious belief seeks to dictate the behaviour of those who are not adherents to that religion.
The human rights dimension in fact points in one direction only. None of the rights under the ECHR can be used to limit or restrict the other rights under the Convention (as a result of Art 17 ECHR). This has been used to prevent neo-nazis from relying on Art 10 to promote race hate speech, whilst permitting journalists to make genuine reports on what such groups say (see Jersild v Denmark). The speaker in the case study seeks to undermine the value of a democratic society by being intolerant of gender equality and, hence, should not be permitted to rely on the Convention to achieve the aim of segregation. There are many other ways in which such a speaker could honour their own beliefs and engage in free speech without undermining the values of tolerance in a democratic society.
It is unfortunate that, because a proper analysis of the basic concepts does not appear to have been undertaken by Universities UK, they have issued guidance on a case study which fails to draw the clear line that is needed between holding and manifesting a belief and imposing that belief on others.
EHRC’s intervention and developments on 13 December 2013
Universities UK announced in the press release referred to above that they had sought clarification from the Equality and Human Rights Commission. The Commission has today issued a statement by Mark Hammond, Commission Chief Executive, who definitively says, “in an academic meeting or in a lecture open to the public it is not, in the Commission’s view, permissible to segregate by gender”. The statement continues:
“The UUK’s guidance accepts that the initial question is whether that segregation is discriminatory and concludes that the imposition of segregated seating in certain circumstances could be permissible. The guidance also gives the impression that the right to manifest or express a religious belief should be balanced against the right not to be discriminated against.
“We think the guidance could be clearer on what the legal framework lays down on these issues to avoid any risk of misrepresenting the legal position. UUK has now written to the Commission and we have agreed that we will work with UUK to ensure that their guidance and our guidance are consistent and clear.”
As I finish writing this piece Universities UK has gone on to announce that the guidance has been withdrawn pending further review by the EHRC. That is to be welcomed of course. However, there is a danger that politicians who dislike European Human Rights Law, may seek to use this as an example of why the Human Rights Act 1998 or the ECHR need reform or abolition. I take a different lesson from this. The truth is that the guidance was flawed because it tried to condense proportionality arguments. The crux of the misunderstanding in the guidance did not lie in its application of human rights law, but in its failure to understand the difference between someone asserting “I have a right to do X” and asserting “I have a right to make you do X”. As it happens, what the speaker in the case study wanted to make happen would be illegal in the UK, for reasons which are good enough to interfere with the speaker’s right to manifest their belief.