1. Gender Segregation Issues In HE: A Legal View.
Julian Sladdin Partner Pinsent Masons LLP
LSE 6 February 2017

2. Purpose of Today
Explanation of how gender segregation can be discriminatory
Legal framework which applies to LSE and LSESU
Present guidance on what is and was is not permitted
Exceptions
Possible legal developments
Good practice
Case studies
Questions

3. Legal Framework Equality Act 2010
discrimination unlawful except for prescribed circumstances.
Public Sector Equality Duty
Human Rights Act 1988
Freedoms must be secured without discrimination
Education Act 1986
S.43 requires HE to preserve lawful freedom of speech where practicable
Requires HE to have Code of Practice to manage freedom of speech and expression

4. Equality Act 2010 – Part 1
Competing rights of individuals with “Protected Characteristics”
Section 10 protects religious or philosophical beliefs
Section 11 protects against sex discrimination (gender)
Section 13 prohibits “Direct Discrimination”
Treating a person less favourably due to protected characteristic or perception that they have a protected characteristic
Justification for discrimination is “proportionate means of achieving a legitimate aim”
Section 19 prohibits “Indirect Discrimination”

5. Equality Act 2010 – Part 2
Additional acts of harassment and victimisation also prohibited
Act covers not only employment but service providers
Public bodies have additional duty to promote equalities
Specific provisions for education – Chapter 6
Part 1 – Schools
Part 2 – Further and Higher Education
Potential exceptions for single sex sport and education under S.158 (Positive Action) and Sport (s.195)
No clear protection for “segregation” in mixed education

6. Equality Act 2010 – Part 3 University must not discriminate
In terms of admission
In provision of education
In provision of service or benefit (includes recreation)
In exclusion decisions
In conferring qualifications (or not)
By subjecting student to any other detriment
Must not harass or victimise
Vicarious liability for actions of employees
Covers policies and procedures

7. Equality Act – Part 4 University must promote equality
S.149 Public Sector Equality Duty
Promote good relations
Advance equality of opportunity
Eliminate discrimination, victimisation, harassment
In effect university must embed equality in its culture and tackle prejudice through policies and procedures

8. Human Rights Act All rights qualified – and potentially competing
Article 9 protects freedom of thought, conscience and religion
Right to manifest (alone or with others) in public or private one’s religion, belief – including right of worship and observance
Right to enjoy freedoms without discrimination on any grounds including sex, race, colour
Article 14 protects against discrimination even where Article 9 rights are engaged
Additional qualification due to restrictions imposed by law (Equality Act)

9. Education Act 1986
Protects rights of freedom of lawful speech and expression
Requires universities promote as far as “practicable”
Requires universities to have codes of practice
Careful balancing act between different interest groups and need to ensure good order on campus
Can restrict meetings and protests if risk to public order or content incites hatred or discriminatory
R v University of Liverpool ex parte Caesar-Gordon [1990]

10. Obligations on LSESU Since 2006 LSESU is separate charity
Has direct obligations under Equality Act in providing services
Has indirect obligations under its MoU with LSE
Subject to LSE policies and procedures
LSE has supervisory role
LSESU must ensure its members and societies comply
LSE able to monitor through MoU
LSE students and staff also have direct obligation to comply with LSE policies and procedures
Direct disciplinary action for non compliance

11. EHRC Overarching view is that gender segregation is unlawful
Limited situations where segregation may be legitimate
Specific guidance for universities
2013 UUK advice had to be withdrawn as it suggested that segregated seating may be permissible at university events
2014 “Gender Segregation At Events And Meetings: Guidance For Universities And Student Unions”
Note - Guidance has not been tested in Court or enshrined in statute so lacks legal certainty

12. EHRC Views – Part 1
Equality law applies to all events on the premises used by a university or the SU (whether on or off campus).
Equality law may apply to premises used by a student society even if the premises is not connected to the SU
Any seating arrangement is directly discriminatory if it disadvantages any participant (actual or potential) on basis of gender
Can be disadvantaged if attends but cannot sit in seating reserved for me
Can be disadvantaged if decides not to attend due to concern about segregated seating
Any attempt to put pressure on attendees to sit in required seats is unlawful harassment
Equality law protection for religion is a “shield” only

13. EHRC Views – Part 2
If a university were to refuse to segregate a venue there is no successful claim of religious discrimination.
Exceptions
Voluntary segregation as long as “wholly and demonstrably voluntary, both at the booking stage and during the event” – no direction or coercion
Religious Worship – but only for the duration of any religious service
Some other limited religious activities may be exempt but narrowly construed as those required to manifest beliefs

14. EHRC Views – Part 3
Gender segregation “is not permitted in universities’ normal academic teaching and research activities and…is not permitted in any academic meetings or at events, lectures or meetings provided for students or at events attended by members of the public or employees of the university or student union”.
“Where religious worship is followed by a guest speaker, or at a meeting to which others are invited it is recommended that information is requested about the purpose of the meeting and about the seating arrangements (as segregation is not permissible unless an exception applies).”

15. EHRC Views – Part 4
“Any seating arrangement amounts to direct discrimination if it results in disadvantage to any participant (actual or potential) because of gender. Disadvantage occurs wherever an individual, male or female, might reasonably take the view that they had been treated less favourably because of gender. Thus a woman who is not permitted to occupy a particular area of the lecture hall because it is reserved for men is disadvantaged because she cannot sit wherever she chooses (or vice versa). The provision of a non-segregated areas within the lecture hall does not prevent that disadvantage arising to either gender”.

16. Possible Challenge to EHRC
The Interim Executive Board of X School v HM Chief Inspector of Education, Children’s Services and Skills [2016]
Segregation in a mixed school caused detriment to both genders equally so Court held it could not be sex discrimination
Only High Court decision – to be appealed
Watch this space…

17. Good Practice Suggestions
Be aware of legal framework
Be aware of EHRC Guidance
Be aware of LSE policies and procedures
Code of Practice on Freedom of Speech
Event Booking procedure
LSE Statement on Gender Segregation
LSE Policy on Equality and Diversity
LSE Code of Ethics
Be clear as to purpose of event
Take advice
Do not direct or prescribe ticketing
Open up events if religious worship is not main aspect

18. Case Study - 1
A philosophical society decides to hold a male only lecture by a radical speaker who is known for openly offensive views on single sex marriage. Females who ask to attend are refused tickets and entry.

19. Case Study - 2
A religious society which believes that worship must be conducted in gender segregated groups invites a guest speaker to an event where ticketing and seating is directed into male and female sections. The event is to be started with an act of worship.

20. Case Study - 3
A religious society holds an SU sponsored dinner off campus but does not alert the SU through the event booking process. The ticketing is not directed but the hall has male and female dinning tables. There is a prayer at the start of the dinner but the res of the event is social. There are areas set aside for males and females to socialise.

21. Questions?

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