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3 August , 2008


 The Welsh-Sikh Schoolgirl and her Kara




Mr Justice Silber’s ruling last week in the case of the Welsh-Sikh schoolgirl who litigated the right to wear her Kara, an inconspicuous steel bangle which comprises a central tenet of the Sikh religion, has provoked a series of responses in the media, yet again bemoaning the decline of British society. Such responses demonstrate a lack of fundamental understanding of the basics of equality laws, and provisions designed to protect minorities, be they women or ethnic or religious minorities, against the pervasive view of the majority, whatever that may be. If we want to create a society which is fairer for all of us, we have to recognise that the specific needs of minorities must be considered as equal to those of the majority, where it is possible to accommodate such needs, but that equality does not mean identical treatment for all.



 To Be Equal?


Secularism is a word much used by irate observers to justify their vision of a society in which everyone, allegedly and apparently equal, is only permitted to step outside conventional norms in their own home. Outside, they are expected to behave like a 21st century Britannia Stepford wife. Perhaps the majority of the United Kingdom is now ambivalent on religion, to the extent that religious views are often considered eccentric, irrational and unnecessary. Whatever the personal opinion, a diverse and successful society must accept that it will contain competing, and different beliefs.

Nick Cohen in today’s Sunday Observer, states that “politicians, judges and the godly are trying to turn religion into an equal opportunities cause. The language sounds the same as in the 20th century, but the consequences could not be more different. Instead of fighting for equality, they are demanding special treatment and the social fragmentation that goes with it.”

This argument is fundamentally flawed. If you are discriminated against in the first place, it is a twist of logic then to argue that you are demanding special treatment when you try to stand up for your equally valuable place in society. Equality does not mean that everybody should be treated the same, necessarily. Indeed, it cannot mean that since it implies that we all have the same needs, advantages, strengths and weaknesses. The law has long protected the requirement that some differences, be they in gender, religion, race, disability, age or others, mean that the everyday rule or norm cannot sensibly be applied to that individual, without them suffering some real and substantial disadvantage. That may mean that exceptions, or changes, or adjustments are required to ensure that every one of us participates in a just society. The purpose of the anti-discrimination laws is to ensure that each and every group that may be overpowered by a majority view is protected by the law from the kind of intolerance and inaccessibility into society that has led to such breakdowns in European society over the last century that wars have been fought, and atrocities committed in the name of a vocal, and powerful, majority. The stability, harmony and public self-worth of minorities is a fundamental tool in the strive for a better society for us all

Proportionality and the rights of the majority are also protected

None of this is to say that the minority is always in the right, or that provision for a specific minority need or tradition is always possible. The anti-discrimination laws seek to ensure that the laws are not abused, and that the competing and proportionate interests of the wider society are balanced. The anti-discrimination laws distinguish direct and indirect discrimination, the former of which can never be justified. Indirect discrimination laws ensure that apparently neutral laws which favour a majority view do not distort or prevent access for minorities to education, employment or goods and services, subject to arguments of proportionality and justification. These might be, for example, rules which prevent female employees from participating in the workplace by favouring those without childcare responsibilities, or by failing to recognise the significant burden placed on women’s career’s by the natural process of pregnancy and childbirth from which the whole of society benefits.

 Promoting tolerance

Equally, the purpose of anti-discrimination law is to be ahead of the times and promote and foster good community relations. In the case of the Welsh-Sikh schoolgirl last week, the governors of the school had refused her the right to wear her Kara because they simply failed to understand either the significance of the Kara (equating it to wearing a Welsh flag) or to understand their own role in promoting tolerance, suggesting that if it were to be allowed as an exception, this would discriminate against the rest of the school and may lead to the girl being bullied because she had been singled out from her peers. This is quite an astonishing position, which had it been permitted, would have permitted the conclusion that one could not protect minorities from bullying, harassment or other invidious forms of hared because the minority member brought it on themselves by refusing to act, behave or look like the majority, or indeed, that such protection is a form of positive discrimination.

For the sake of completeness, the school did not have a complete “No Jewellery” rule. It allowed wrist watches and a plain pair of earrings. The Kara was slimmer and less discreet than many wrist watches. The schoolgirl had compromised over all health and safety requirements, either to cover or remove the Kara during physical education. In those circumstances, and bearing in mind that British Sikh schoolchildren, cricketers like Monty Panesar, lawyers, teachers and builders alike all wear their Karas, perhaps the most important connection many Sikhs have to their religion and ethnic identity, at home, school and work, it is impossible to see how it could have been proportionate and justified to allow such a policy to persist.

In a modern, multicultural society, there will sometimes be difficult cases of competing rights, each with valid reasons and justifications, both of which cannot be held or practised simultaneously. This was not such a case. There was no genuine competition of rights in this case, no genuine detriment that could be suffered by the school, no potential arguments of oppression, or an attempt to deny the legitimate rights of the governors to decide broadly how the school was to be run.

The Judge rightly ruled that “there is a very important obligation on the school to ensure that its pupils are first tolerant as to the religious rites and belief of other races and other religions and second to respect other people’s religious wishes. Without those principles being adopted in a school, it is difficult to see how a cohesive and tolerant multi-cultural society can be built in this country.”

Conclusions drawn

There is much to be learned from some of the public response to this judgment. Society needs to be built from the bottom upwards. Tolerance, respect and consideration towards other members of our society cannot suddenly emerge if we have kept our children closeted from the real world, with nobody permitted to show difference or individuality. We cannot expect adults to behave with respect if we are unwilling to teach our children to do so. Perhaps it is true that the anti-discrimination provisions might sometimes be abused, but that may be a necessary price to pay to ensure that we are striving forwards in a common goal to be cohesive, tolerant, diverse and, each of us, of equal value.

London, 3rd August 2008






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