Seven months after the controversy surrounding the publication of Universities UK's guidelines legitimising gender segregation, the Equalities and Human Rights Commission (EHRC) has now ruled that gender segregation is - generally - unlawful. The verdict of the commission could not be clearer:
"Gender segregation is not permitted in any academic meetings or at events, lectures or meetings provided for students, or at events attended by members of the public or employees of the university or the students' union."
Overall, this is a great victory for the broad coalition of campaigners against gender segregation, which includes renowned women's rights activists like Maryam Namazie, Pragna Patel, Sara Khan, and Yasmin Alibhai-Brown, and has found broad support across the political spectrum. More than anything, the EHRC's decision is not only a slap in the face of the vocal Islamist supporters of segregation such as the Federation of Islamic Student Societies (FOSIS), the Islamic Education and Research Academy (iERA) and Hizb-ut Tahrir, but also of social and Christian conservatives as well as some parts of the Left who are happy to relativise discrimination whenever it serves their agenda.
The EHRC has nevertheless thrown out of the window all the usual arguments of those detractors, including that segregation is a 'religious right' whose denial amounts to discrimination, that 'voluntary' segregation can be reasonably practised in an educational setting, that the provision of a 'mixed' seating area makes segregation somehow less discriminatory, and of course the 'toilet argument'.
However, as usual, the catch is in the fine print. Reading further into the document, one can find several worrying exemptions that rather than discourage discrimination, will give those who want to undermine equality principles a helping hand in maintaining segregation.
The first is that "equality law does not apply to religious worship". Thus, "a religious student society or association may organise a gender segregated event, for the duration of any religious service." Although the EHRC recommends that universities "prohibit gender segregation at all meetings which go beyond acts of religious worship or practice", this puts universities in the role of arbiters of theological doctrine and will hence be impossible to control. Already now, Islamic Student Societies are claiming that 'Muslim meetings' (whatever the actual topic) are essentially religious worship, allowing them to segregate. Given the range of exemptions that follows, there are indeed many ways the EHRC's ruling can be interpreted. For example, the EHRC considers that associations can
"restrict their membership to those who share a protected characteristic, including gender or religion or belief. A female-only association may restrict access to a benefit, facility or service to female associates and may restrict guest invitations to women. (This exception also applies to religious associations as described below.) Thus universities and students' unions can lawfully permit associations which are established for a single sex or for a particular religious community to use university facilities and advertise their events through university channels."
It is an established characteristic of equality law that associations are able to restrict their memberships to those who share protected characteristics. However, in this case, this opens an avenue for subverting the principle of equality through gender segregation in the guise of having 'female-only' or 'male-only' facilities, services or memberships. This has already been a common practice on some campuses, where different societies (e.g. 'brothers society' or 'sisters society') offer services and events to males or females only, thereby effectively maintaining gender segregation and further cementing the gender divisions within faith groups.
This will work whenever segregationists can claim that they are delivering "services relating to religion in premises used for religious purposes". Admittedly, depending on the scope of the exemption, this might not have much practical relevance. But any exemption, if not clearly and narrowly defined, risks undermining the principle at stake. Unsurprisingly, this is also the case here, where 'religious purposes' are defined as
"practising or advancing the religion, teaching religious practice or principles; enabling followers to receive benefits or engage in activities within the framework of that religion; or fostering or maintaining good relations between those of different religions. For the exception to apply, it must be necessary to provide such services separately or only to persons of one sex, in order to comply with religious doctrines, or to avoid conflicting with the convictions of a significant number of the religion's followers."
This implies that only by defining a meeting or event as religious in character, even if only taking place in 'temporarily occupied premises', for example a lecture theatre, the organiser is relieved of the equality duty. As it stands, anything from merely talking about 'religious practice or principles' or 'engaging with the framework of the religion', or even a simple interfaith gathering falls in that category.
Thus, what is nothing but effective gender segregation is not unlawful, as long as the organiser can argue that it is "necessary to avoid conflicting with the convictions of a significant number of the religion's followers", thereby opening the door for small groups of ultra-conservatives to define what is permissible for the majority. Evidence for what happens when so-called 'conflicts of convictions' break loose within a religious community is plentiful, with the most extreme and aggressive voices dominating the tone of the debate, thereby sidelining those who work hard to reconcile their religious convictions with equality principles, especially women and LGBTQs.
Most concerningly, religious organisations can also restrict membership on the basis of religion, belief or even sexual orientation:
"Non-commercial religious organisations when undertaking defined religious activities are also permitted to restrict their membership and the use of their premises on the basis of religion or belief or sexual orientation, subject to satisfying certain conditions. [...] They can also restrict both participation in their activities (whether on or off their premises) and also access to the goods, facilities and services that they supply to individuals of the same religion and belief subject to the same conditions."
Interpreted narrowly, as it undoubtedly will be, this would mean that a religious student society is able to set the premise that they are, for example, for 'true Christians' or 'true Muslims' only, and then define what "Christians" or "Muslims" really are, restricting access, services and membership to only those they consider to be of 'genuine' belief.
This is not a theoretical point. Of course, what is 'Christian' or 'Muslim' really is up for debate, with many Protestants not accepting Catholics as Christians (or vice versa), and some Sunni Muslims not accepting Shias, Ahmadiyyas or Alevites as 'true' Muslims, as it is reportedly also customary in some British universities like Queen Mary or Imperial.
Most worryingly, this includes exemptions on the basis of sexual orientation, leading to a situation where religious student societies could potentially deny gay students for instance access to prayer rooms based on their sexual orientation.
The ideology of 'multi-faithism'
The EHRC - although undoubtedly restricted by the legal framework - has thus produced an inconsistent and contradictory document that gives leeway for interpretation that the proponents of gender, sexual and religious segregation will readily be able to exploit. Of course, the legal situation in the UK is not the responsibility of the EHRC, but the outcome of a political process that, according to Pragna Patel, has culminated in the "use of religion as the main basis for social identity and mobilisation". Welcome to the world of "multi-faithism".
Few commentators seem to see the deep irony of a prime minister who publicly condemns religious gender segregation, yet explicitly rejects state neutrality in faith matters and prides himself in running the 'most pro-faith government in the West'. Unsurprisingly, the numerous hardline religious organisations that have everything on their minds but equality are deeply grateful for so much assistance with their sectarian agenda.
With this inherently incongruous ruling of the EHRC, we are likely to see not less, but more gender segregation at universities. As has become apparent in recent months, this issue is also far from restricted to higher education. Those who suffer most will be - mainly religious - students who are already struggling to defend their need for equality in the face of increasingly vociferous demands from self-appointed or government courted 'community leaders'.
Rather than extending a helping hand to further legitimise religious exemptions from equality legislation through interpreting the law, the Equality and Human Rights Commission should have remained true to its founding principles and denounced a legislation that propagates equality in principle, but all but equality once the term 'religion' is thrown in. Equality is a human right that cannot be 'exempted away' - especially when this means providing cover for the multi-faithist ideology of a political class that is so much about faith and so little about basic human rights, including the right to practice one's religion without being subject to gender discrimination.