The Sceptic Blog

Next Sunday evening the Logan Hall in London will host a concert by girls and women (including my daughter Shira) for girls and women.  No men will be admitted, in order to comply with the halachah which prohibits men from listening to women singing (and therefore prohibits women from singing to men).

This concert may or may not be lawful as a matter of the law of England and Wales.  Section 29(2)(e) of the Sex Discrimination Act 1975 (taken with sections 2 and 4(3)) makes it unlawful to refuse to provide to men facilities for entertainment that are being provided to women.  A possible saving for the legality of the concert is the exception in section 35(1)(b): but the application of that exception depends on what is meant by “the place is (permanently or for the time being) occupied or used for the  purposes of an organised religion”.  The meaning of that phrase is debatable (I did not write it – but I have had to consider it in drafting the Equality Bill that is presently before Parliament).  And there are other exceptions which may, or may not, apply.

So much for the narrow point of discrimination law in relation to next week’s concert.  In practice it is of no importance: in the circumstances it is inconceivable that anyone would wish to bring a challenge under the 1975 Act to the staging of this concert for an all-female audience.

There is, however, an underlying question of greater potential importance.  Considerable attention has been given to the strengthening of anti-discrimination law as an additional protection for religion, both in Part 2 of the Equality Bill mentioned above (and in the proposed new law about the incitement of religious hatred).  But possibly of greater significance for religious communities is the extent to which other strengthenings of anti-discrimination law could conflict with religious practice and belief.

Sex-discrimination is relevant here, and apart from single-sex concerts it is not difficult to think of instances of segregation in the Jewish religious community that are arguably already unlawful as a matter of secular law, although for the present (but who knows for how long) it is unlikely that anyone would seek to enforce the law in these respects.

But other forms of discrimination may be even more problematic.  Newly strengthened protection against discrimination on grounds of sexual orientation has the potential to be a particular problem.  In the employment context, for example, I have always believed that it would be unnecessary and improper for a Jewish school to refuse to employ, say, a music teacher merely because there was reason to believe that he might be homosexual.  But I have always believed equally strongly that it would be absolutely necessary to refuse to employ a teacher who thought it right actively to publicise in school, whether by wearing a badge or in any other way, the fact that he indulged in homosexual practices (in the same way that it would be absolutely necessary to refuse to employ a teacher who was openly indulging in an adulterous relationship).  Homosexual practice (as distinct from a feeling or affiliation) and adultery are two straightforward prohibitions of the Torah; and to suggest to our school-children that these prohibitions are to be tolerated to the extent of not rendering a person unfit to be a teacher would be incompatible with the fundamental purpose of a Jewish school.

It needs to be recognised, however, that a refusal of employment in these circumstances might already be contrary to civil law; and this may be just one of an increasing range of potential sources of tension between traditional Jewish belief and practice and the modern secular British ethos.

The courts have already had occasion to observe that when the dictates of religious or other tradition conflict with the fundamental principles of freedom, tolerance and self-determination on which secular British society is based, it is the latter that must prevail.  See, for example, the observations of Mr Justice Singer in Re KR (a child) (abduction: forcible removal by parents) [1999] 4 All ER 954.  And there is much still to be explored about the possibility of fundamental incompatibility between the European Convention on Human Rights’ protection for freedom of religion and its other protections.

So we should be aware that the general religious tolerance in Britain – which represents much of what attracted many of our ancestors to this country and for which we are all deeply grateful – does not mean that our religious values may not sometimes create direct conflict with the secular law and values on which that tolerance is based.