A casual glance at the headlines reporting the view of Universities UK on seating and segregation might suggest that it has given Islamist extremists the right to separate men and women at meetings on campus.  This impression might be understandable, but it is inaccurate.  First of all, Universities UK isn’t in a position to enforce anything in this regard: rather, it has issued guidance – which, as its own legal opinion confirms, seeks to “map out the different factors that universities may wish to consider, reflecting both their legal obligations and their practical application”. Furthermore, the guidance doesn’t set out a blueprint for segregated seating: at one point, it refers to the possibility of a meeting having “both segregated and non-segregated seating so that attendees may choose how they make arrangements to hear a particular external speaker”.  And finally, it doesn’t apply to Islamists or Muslims – even though accounts of the guidance have tended to concentrate on the former, if not the latter.

The results have been predictable.  The anti-Islamist Right, not always known for being in the vanguard of the struggle for women’s rights, has rushed to join in alliance with the anti-Islamist Left.  The Left more broadly has split between traditional progressives, who want to protect the social advance of women, gay people, and ethnic minorities (ethnicity being religion-neutral), and others who are in perpetual adolescent revolt against authority, and thus tend to line up with what they see as the enemies of the establishment – which radical Islamists certainly are, since they want to replace liberal democracy with theocratic dictatorship.  These are the kind of people who got a kick when, for example, Channel 4 lined up Mahmoud Ahmadinejad to deliver its Christmas message a few years ago.  Even more widely, the guidance will further encourage many people who don’t identify with the Left to believe that religion has become more trouble than it’s worth, and that liberal norms must be enforced by law and the authorities.

Some Conservatives, probably a small minority, will agree that religion should be expelled from the public square altogether.  Others will take a less hysterical view, believing that much that is good in Britain has grown from Christian roots (schools, hospitals, charities, the monarchy), and that these should not be grubbed up.  Some will also think that the three Abrahamic religions have more in common than that which divides them, at least when it comes to ethics.  The best way of making sense of the various claims and counter-claims is to grasp that the guidance will have been driven, at least in part, by one of the characteristic fears of modern times – namely, of being sued.  Universities UK’s legal opinion of the guidance refers explicitly to our old friends, the European Convention of Human Rights and the Human Rights Act, as well as a newer one – the Equality Act, which imposes on Universities and other institutions the duty to “have due regard to the need to eliminate discrimination… advance equality of opportunity … [and] tackle prejudice and … promote understanding”.

The notion of balancing one right off against another is scarcely new to the courts – in this case, the right to religious belief, protected under Article 9, and the right to equal opportunities, enshrined in the Equality Act and elsewhere.  But deep problems emerge from trying to balance off one abstract right against another – not least, how to choose between the two when they clash, since abstract rights have no formal hierarchy under our legal system.  Whatever verdicts emerge are as likely to be the product of politics as law – in other words, of judges making law rather than interpreting it.  Any decision by the courts to uphold segregated seating, as Universities UK’s guidance hints is likely to be the case, would thus be beyond the present reach of our elected representatives.  But this kind of decision is surely a matter for those we elect, and can thus hold accountable, rather than those we don’t.  By the way, the more one studies the legal opinion, the more striking it becomes.  For example, it suggests that students can voluntarily segregrate on any ground other than race.  Why the exception?

Imagine for a moment that Parliament, rather than the judges, was able to decide the matter.  The people we elect could debate whether or not women who want to sit in segregated meetings are suffering from a kind of false consciousness, which is preventing them from enjoying a universal right to sit with men.  (I think that such a claim is very hard to sustain, but MPs might well believe otherwise.)  They could take a view on whether some Orthodox Jewish groups, as well as some Muslims, ought to be able to hold meetings at which men and women sit in separately.  They could discuss whether or not the real problem with meetings organised by Islamists on campus is incitement to violence propagated by hate speakers – on which the Government, at long last, is planning to clamp down.  They could range wider, consider the place of religion in society, and legislate for whatever view emerged.  For myself, I believe that the segregation of women at meetings is a retrograde step.  But a decision, thankfully, is not for me, or for any one person.  The question is: who should take it? The courts – or the Commons?