Cracking the dress code

After a line of previous judgementsseemed to have settled that, within the bounds of reasonableness, governors were the arbiters of uniform and could ban religious symbols and dress, the Sikh kara case ( Sarika Angel Watkins-Singh v Aberdare Girls High School) seems to create uncertainty.

To clarify the situation we must go over familiar ground again. Religious belief is protected under the Convention on Human Rights and in The Salvation Army v Russia the European Court of Human Rights rejected the idea that the state could define legitimate religion.

The judge in Watkins-Singh argued that the protection extends where a person genuinely believes something is a requirement and others believe that too. One cannot take refuge in the view that a practice is confined to the outer reaches of a religion. In law, the Christian beliefs of the Quivering Brethren of Howling, Sussex, have an equal legitimacy with those of the Church of Rome.

Some branches of religions do promote practices contrary to British values, practices or laws, including: female circumcision/genital mutilation (Islam); punishing children for spirit possession (Christianity); consuming marijuana (Rastafarianism); use of child body parts (traditional African religion); carrying a dagger (Sikhism).

Public authorities may restrict freedom to manifest religion where this is according to law, necessary to prevent disorder or crime, or to protect health or morals or the rights and freedoms of others, and proportionate.

An issue of race

However, the Watkins-Singh case, like other cases involving Sikhs, was taken on the Race Relations Act, even though the argument was not that the claimant was genetically different, but that she wanted to wear a religious symbol. How?

One can combat racism from a moral position: that racism de-humanises other humans who have no choice over their 'race'; or one can appeal to science: that genetically the differences between humans are insignificant.

But the genetics argument cannot help with definitions. What is Irish? Is Clare Short Irish, despite the fact that she has all the characteristics of a West Midlander? Is Neil Kinnock Welsh, despite his Northumbrian name and ancestry? And Colin Jackson?

In practice, the law rejects a scientific test. When the law talks of 'race', it includes 'ethnicity' and:

"For a group to constitute an ethnic group...it must...regard itself, and be regarded by others, as a distinct community... The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance."

"In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community."

"A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the act, a member."

This definition, by a Scottish Law Lord in a case involving a Sikh turban, deals with one problem but creates others. By allowing membership of an ethnic group to be defined by religious conversion it confuses 'religious belief' and 'race'. A Bosnian 'Serb' is distinguished by Orthodox Christianity; a Bosnian 'Croat' by Roman Catholic Christianity; and a Bosnian 'Muslim' by Islamic belief; though genetically and linguistically there is no significant difference between them. So a Sikh can claim race discrimination even though the defining difference is religion, not genetics.

At which point, the question might arise: how do the French get away with it? After all, under the same European Convention, they ban all religious symbols from state schools, including Sikh symbols, and denied citizenship to a Muslim woman, because, by wearing Islamic dress, she demonstrated that her beliefs on the role of women were incompatible with the 'égalité' fundamental to the constitution.

Essentially, every state has a 'margin of appreciation'. The French constitution was defined by the people through a 'founding document while the British constitution is defined by judges. So public authorities here are more limited in their exercise of this margin.

Schools' obligations

British muddle inevitably produces unexpected results. So a Christian child can be prevented from wearing a silver chastity ring but a Sikh can wear a more obtrusive bracelet. Schools will have to manage as best as they can.

Managing the best one can within equality legislation involves a look at those legal obligations that can be defined and making an intelligent guess at those which can not.

In theory the rule laid down in Begum still holds. Governors have the right to make decisions on uniform and judges should hesitate to interfere with right was given to governors by Parliament precisely because they are best placed to make those decisions.

In an aside, however, the judge in Watkins-Singh suggested that Begum was at least partly set aside by the Equality Act 2006. How plausible the higher courts might have found this is anyone's guess: which is no consolation to heads who may find, as he also suggested was possible in another part of his judgement, that when a judge decides they have got it wrong, their lawful 'sending home to change' is transformed, after the event, into an unlawful exclusion for which they are personally liable.

Schools' obligations are not in doubt, though. They must be proactive. It is not good enough having an anti-racism policy on a shelf. The judge in Watkins-Singh found no evidence that the school's document was a 'living' document. Nor is it enough just to punish racist abuse reactively.

Schools must collect and analyse data and use those data to devise a plan to correct any apparent indirect discrimination: any policy, criterion or practice which in effect discriminates against any group identified by legislation as victims of discrimination. The duty covers everything from admissions to achievement and everything in between.

For example, black boys, notoriously, were identified as being 'made subnormal' in England in the 1960s. (A recent case in the European Human Rights Courts has identified a similar situation in regard to Roma (gipsy) children in the Czech Republic today.)

The exclusion figures seem to suggest that black boys have progressed from 'subnormal' to 'disruptive'. It is no answer to plead that black boys are punished with exclusion for the same offences as others. This argument has failed in disability cases. And there is no reason to suppose that a challenge might not be made to 'managed moves' if it transpired that black boys were more likely to be moved.

Need to review evidence

Schools must review their performance. We learn from Watkins-Singh that governors' minutes need regularly to 'evidence' reports, reviews and revisions of policies and action plans.

If indirect discrimination can be justified if it is according to law, necessary for the prevention of crime and disorder and to protect the rights and freedoms of others; and proportionate, how does this work out in practice; and what kinds of decisions can schools make?

Over uniform, the courts have rejected potential health and safety risks of the jilbab in Begum and of the kara in Watkins-Singh. The need to prevent display and jealousy were rejected in Watkins-Singh, though they had been accepted in Playfoot (the silver ring thing case).

Judges seem to be working to some principle of the intensity of belief or centrality to belief. Banning religious symbols to prevent discriminatory bullying was rejected in Watkins-Singh. The judge, with a noble disregard for the rougher realities of school life, simply said that schools must teach the children to respect each others' beliefs.

However, some arguments have prevailed. The state has taken a view that some practices are abusive and issued guidance on female genital mutilation; forced marriage; and violent exorcism for child spirit possession/witchcraft; even though these are characteristic of ethnic/religious groups.

The argument that all-embracing Muslim dress prevents identification and communication was successful in X v Y School.Baroness Hale, in Begum, appeared to open the door to an argument that dress that expressed the subjection of women might infringe the rights and freedoms of others.

While the DCSF guidance suggests hair styles may be racial markers, this has not been tested and it may be that hairstyles are so evanescent that the courts would not wish to become involved.

Furthermore, while one court has accepted the Sikh kara in its feminine form, it may be that if Sikh boys were to decide to wear a kara as a weapon, another court might decide a prohibition was legitimate. Again, despite a ruling by the Canadian Supreme Court that the carrying of a full-sized kirpan or dagger/sword could not be prohibited, it is possible that an English court might hesitate to give endorsement for Sikh boys to attend school with long knives in their possession.

The courts should not be blamed for the difficulties and uncertainties. They simply mirror the confusion of Western society that cannot make up its mind whether it is happy with a multi-culturalism that encourages separate communities with separate customs.

The law is where these confusions fall to be adjudicated. Schools, as institutions that mould the future and transmit values, are inevitably engaged in the confusion and the law.