Sarika Watkins-Singh has today won her race and religious discrimination case against her school for refusing to allow her to wear the kara, a Sikh bracelet, and for excluding her for breaching the school’s no-jewellery uniform policy. Silber J’s judgment in this case is an important development in the law relating to the wearing of religious dress and symbols. Given my instinctive secularism and my extremely critical views of some other analogous cases, it may come as a surprise to readers when I say that I welcome this sensible and principled ruling.

It’s a race discrimination, as well as religious discrimination, case because Sikhs constitute a racial group for the purposes of the Race Relations Act 1976, according to the House of Lords in its 1983 judgment in Mandla v Dowell Lee.

Silber J considers the importance for Sikhs of wearing the kara, a thin, 50 millimetre-wide steel band that according to the evidence is invisible if Sarika wears long sleeves. He concluded that, although Sikhism does not require her to wear the kara, she has a belief, justified by objective evidence, that wearing it is a matter of exceptional importance as an expression of her race and culture. In those circumstances, she suffers a disadvantage or detriment compared to other girls who might want to wear jewellery but have no similar strong religious and cultural wish to do so. Silber J did not see the school’s refusal to make an exception to its uniform policy as justified: he thought the issue of allowing the kara quite different from the issue of the hard-line Muslim jilbab or niqab which have been raised in other cases. The kara is hardly visible, and Silber J rejected the idea that permitting it would “open the floodgates”: applying his “exceptional importance” test, he implied, was a rational approach to taking account of religious needs, and would open no floodgates at all. There being no justification for the school’s approach, Sarika has been indirectly discriminated against under section 1(1A) of the Race Relations Act, and under sections 45(3) and 49(1) of the Equality Act 2006.

Silber J also found that the school had failed totally to fulfil its duties under section 71 of the Race Relations Act to have “due regard” in considering its uniform policy to the need to end unlawful racial discrimination and promote equal opportunity and good relations between persons of different racial groups.

Why do I welcome the judgment? Because it lays down clear and sensible principles identifying exceptional situations where prohibiting the wearing of religious dress will amount to indirect discrimination, drawing a clear distinction between just anything a religious believer might want to wear, and serious cases like this. But, critically, it also adopts a sensible approach to justification according to which the size and visibility of the item in question is of key importance.

There’s also something else which is not discussed in the judgment, but I think is important when you think about how this approach applies more broadly. There is nothing about the kara that is repugnant to the principle of sex equality, or which treats girls as not to be seen in public. Refusal of any item that did embody counter-cultural ideas like that would i think be capable of justification according to Silber J’s approach.

The very hardest of hard-line secularists may be dismayed about the ruling, but I think examination of the judgment should allay reasonable fears. If religious and race discrimination law is to have any application at all in situations like this, then this seems to me a reasonable and clear framework of principles which can be applied in a way that permits secularism unless it truly goes over the top, that satisfies most genuine and moderate religious believers (rather than extremists and campaigners) and that retains safeguards against the sexist religious practice of covering girls up.

And finally: the legal analysis in this judgment is hard to fault. It rightly compares Sarika with pupils of other races and religions – not with other pupils complaining of discrimination on other grounds; and it rightly sees her complaint as involving not direct, but indirect discrimination capable, if the school had had good reasons for what it did, of being justified. Silber J unsurprisingly has not made any of the obvious errors of the tribunal in the Ladele case.

2010-01-19T21:47:39+00:00Tags: , , |