Unavoidable but uncomfortable

There has been a lot of talk about the case of the Muslim girl in Luton who won her appeal against being excluded from school due to the dress she wore.

In my view the judge had little choice but to reach the conclusion he did. He was not making a value judgement on the desirability of the garb in question or about the broader notion of all kids wearing the same school uniform but addressing the issue of human rights legislation and the exclusion of a girl from school.

At least that is the way I, as a non-lawyer, see it after reading in full the judge’s statement. Its an uncomfortable outcome though and the shadow of a radical Islamist group close to Shabina Begum adds to the feeling that this verdict is not something to celebrate.

The appeal was won on the basis of the the European Convention on Human Rights and in particular this section. Article 9 – Freedom of thought, conscience and religion.

1.Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

And there is no doubt that the school did restrict Shabina Begum’s to manifest her religion at school by effectively barring her from attending.

Note however the phrase used in the convention is religion or belief.

So perhaps good news for the author of a letter to the Guardian who asked: Now a Muslim schoolgirl can wear clothing indicative of her ideological commitments, may I send my daughter to school wearing a Che Guevara T-shirt?

I’m presuming the ideology is held by the schoolgirl and it is not a Guevarist father who wishes to send his daughter to school reflecting his ideology. But then that rather tricky issue of exactly whose beliefs are being manifested by children’s dress and who chooses the clothes and the religion of kids isn’t covered by those two paragraphs from the convention and wasn’t dealt with by the judge either.

It wouldn’t be at all surprising though if this ruling does spark some other legal challenges to the school uniform. I suppose they might come from Guevarists or other politicals but it will of course be much more likely, in the current competitive environment, to come from religious groups. Could a British school now send home a girl who arrived in the burqa?

The judges ruling was not, as some have suggested, any sort of victory for Muslims generally because the school, like schools across the UK, already allowed girls from Muslim families to wear clothing that met the requirements of what is considered acceptable or ‘modest’ by their families or their local Mosque.

The judge’s verdict was a victory for that minority of Muslims who consider the standard dress of Muslim kids across the UK to not be modest enough. He made the distinction clear with this extremely English section in his statement:

For the purposes of this judgment, because the epithet “fundamentalist” has resonations which it would be inappropriate to carry into the discussion of the issues in this difficult case, I will refer to those Muslims who believe that it is mandatory for women to wear the jilbab as “very strict Muslims”, and those Muslims whose South Asian culture has accustomed them to consider the shalwar kameeze to be appropriate dress for a woman as “liberal Muslims”, while being conscious that experts may find these epithets equally inappropriate.

To cut through the legalese and get to the point, the judge found that the school had restricted the rights of a girl to manifest a “very strict Muslim” dress sense.

And it is hard to argue with such a position if we agree that “very strict Muslims” also have rights.

A secularist objection to this state of affairs would be that school is not a place for manifesting religious beliefs at all, that religion is a private matter and a state-run educational institution is a place of learning and not a stage for manifesting beliefs.

That, of course, is the French position and it leads to one aspect of this case that has been largely overlooked – what the judge said about the secular argument. He took a previous case from Turkey, where a headscarfed student was barred and lost her claim on the basis of the same human rights legislation.

In the Sahin case in Turkey the ruling against the headscarf made reference to secularism, the rights for women, the Turkish constitution, concerns about the impact wearing the headscarf might have on those who chose not to wear it, the political significance of the garb, “the fact that there were extremist political movements in Turkey which might seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts” and Turkey’s historical experience.

All those factors combined allowed Turkey’s court to rule that a restriction of the freedom’s outlined in human rights law was allowed. But none of these factors could influence the verdict in the Luton case, according to the judge who said:

The United Kingdom is very different from Turkey. It is not a secular state, and although the Human Rights Act is now part of our law we have no written Constitution. In England and Wales express provision is made for religious education and worship in schools in Chapter VI of the 1998 Act. Schools are under a duty to secure that religious education in schools is given to pupils, and that each pupil should take part in an act of collective worship every day, unless withdrawn by their parent. Sections 80(1)(a) and 101(1)(a) of the 2002 Act require the inclusion of religious education in the basic curriculum.

Those who blame the judge for not making a political decision or who attack the Human Rights legislation for this ruling miss the point. It is clearly Britain’s lack of secularity, the absence of a written constitution and the religious character of our schools that have allowed such a verdict by creating the conditions in which it has been taken.

But as long as we are allowing religions or beliefs to be displayed in schools then it is simply unjustified to discriminate.

Those of us who would prefer schools to be free of such religious battles and identity conflicts, need to be aware that we are fighting a losing battle unless the fundamentally unsecular nature of the British constitution and its institutions are changed.

Which, given the state of our major political parties, all busy enthusing about ‘faith schools’, is highly unlikely.

Update: Former Guardian journalist Mona Eltahawy has some thoughts on this issue.