The shared legal heritage of the United States and the United Kingdom means that we share many broad legal principles. A distinction between public and private is one of them. Another is our shared approach to balancing various interests and rights (though we may come to different results at time, as with hate speech).
Misunderstanding the different balances required in private vs. public spheres was one of the fundamental misunderstandings of the recent Universities UK guidance, which argued that speakers’ freedom of religion and speech could trump anti-discrimination laws at on-campus debates — meaning that audiences might be segregated by sex. Universities UK argued that religious “societies and other groups were entitled to practice gender segregation at public meetings on campus.”
On the face of the case study, assuming the side-by-side segregated seating arrangement is adopted, there does not appear to be any discrimination on gender
grounds merely by imposing segregated seating. Both men and women are being treated equally, as they are both being segregated in the same way.
In other words, Universities UK argues that side-by-side seating is a “separate but equal” approach that does not violate the Equality Act. This is a disingenuous attempt to get around clear legal standards in regards to segregation. Side-by-side segregation is no less inherently discriminatory than other forms of segregation.
In terms of balancing rights and interests, Universities UK argued that the promotion of freedom of speech — that is, getting religious speakers to campus who would not come unless audiences were segregated — was more important than prohibiting gender segregation. From page 28 of their guidance:
concerns to accommodate the wishes or beliefs of those opposed to segregation should not result in a religious group being prevented from having a debate in accordance with its belief system.
Put differently, mere “wishes or beliefs” in secular values (like anti-discrimination) are trumped by religious beliefs.
Section 8 of the “Note of Advice” accompanying the guidance argues that Article 9 of the European Convention on Human Rights (freedom of religion) and Article 10 (freedom of expression) trumps “freedom of association” (Article 11):
These two important rights must be balanced against a right of freedom of association of those who do not wish to be segregated while hearing a particular speaker.
As with most things in the law, one must indeed balance rights and interests, including freedom of religion and the right to be free from discrimination. But the balancing done in the Note misapplies the law, most importantly because it completely neglects the distinction between public and private spaces.
In public spaces, freedom of religion is not the right to force others to comply with one’s religious beliefs. Freedom of expression protects against certain governmental restrictions on speech. It does not guarantee a forum nor an audience.
The Note misunderstands these rights, particularly as they apply in public spaces like universities, and thus inevitably balances them inappropriately. Britain’s Equality and Human Rights Commission makes this clear in their response to Universities UK, stating that gender segregation as articulated by Universities UK is “not permissible” under UK law.
The Note’s particular balancing of rights and interests would make more sense if applied in private spaces, where the rights of the owners or lessee are strongest, and the rights of visitors are weakest. (Although even in private spaces, anti-discrimination laws can still apply — think of employment discrimination in privately owned offices.)
But universities are public (in the sense of taxpayer funded), not private. At public events anti-discrimination protections are at their strongest, and the imposition of one group’s religious rules on everyone else is not permissible. Thus, at public events, such as a debate held on a university campus, the result is different:
However, in an academic meeting or in a lecture open to the public it is not, in the commission’s view, permissible to segregate by gender.
The Commission provided an exception to the general rule that sex discrimination is illegal in public spaces: universities may expressly designate certain spaces for religious activities. This alters the balance of rights and interests in those spaces:
Equality law permits gender segregation in premises that are permanently or temporarily being used for the purposes of an organised religion where its doctrines require it.
In short, sex segregation in public spaces (like those at state-funded universities) violates UK law, and neither freedom of religion nor freedom of expression trumps this.