Sex Discrimination Act 1975

This Act was a big change to women because it marked a departure from the gender ideology that lingered until the mid 20th century (see Jex Blake v Senatus of the University of Edinburgh11)12. However, despite all the positive change the Act brought, there still appears to be some criticism in arguing that it doesn't go sufficiently far in attempting to provide guarantees for equal access to education for the underrepresented sex. The aim of the SDA within education was to abolish a "hidden curriculum of differentiation" 13 by making it unlawful for anyone to be excluded from studying any subject because of their gender.

However, evidence suggests the SDA only offers equal access (the ability to choose any subject) rather than equal entitlement (the ability to make such choices without prejudice from any source)14. In my opinion, the failure to centralise decisions relating to the curriculum, which results in gender division and the undermining of girls' rights to opt for subjects such as Economics and Science, is an inherent flaw of the SDA. Milma and de Gama elaborate further in their article, that "equal access policies have paved the way for examination success for girls, but have had limited impact on curricular choice for girls"15.

A curriculum should correspondingly reflect the fact that girls are beginning to do better than boys in public examinations and should aim to promote the position of women in subjects they are not as likely to participate in, like Physics or Information Technology. It is clear that there needs to be a change to ensure that girls are no longer victims of curricular assumptions as it can lead to their decline, because of the unconscious discrimination as to their capabilities in a subject that is more commonly male dominated16.

Personally, the fact that the curricula comes across to be more male biased and asymmetrical seems to act as a barrier to the notion of equal access to education for all (rather than remove it). Lord Swann in his report admitted that racial prejudice and discrimination add an extra dimension of deprivation to the prospects of those already adversely affected by poor socio-economic status. This just reinstates the fact that the law should try and remedy this inequality.

However, nothing is without its flaws and the arguments that follow will aim to show the weaknesses of the RRA 1976. Despite the surprising lack of cases on race discrimination, there are still a number of criticisms of the Act. The case of Mandla v Dowell Lee17 is the leading case on what is meant by "ethnic origins" for the purpose of RRA 1976. The House of Lords were faced with the question of whether or not Sikhs constituted a distinct racial group (and therefore could be protected the RRA).

The Lords overturned the Court of Appeal judgement and found in favour of the Commission for Racial Equality who were claiming that the headmaster was unlawfully discriminating against the prospective pupil by making it a condition for his admission, that he remove his turban and cut his hair in line with the uniform regulation of the school. It has been argued that the RRA was passed at a time where "race discrimination was regarded as a significant social problem, but discrimination associated with religious identity or affiliation had received little attention in Britain"18.

Despite Mandla extending its protection to ethnic groups, it can be disputed that it does not go sufficiently far to cover "world religions" such as Islam. I believe this to be another weakness in the Act, especially post 9/11 where Muslims are more susceptible to abuse and discrimination. The RRA doesn't go sufficiently far enough to ensure that they are are able to rely on the direct discrimination provisions of the RRA (s. 1(1)(a)).

Hypothetically, if a Muslim girl was being discriminated in the process of her admission on the basis of her religion, she would not be able to rely on the protection of RRA – unless she can show that she is of a race that is covered by the Act (e. g. Bangladeshi). This is evidence that the law doesn't go far enough in this sense to guarantee an equal access to education for the girl. However, there has since been reform on the matter through the implementation of Part 2 of the Equality Act 200619 – although the effect of this new piece of legislation has yet to be seen.

It should also be noted that the case of Malik v Bertam Personell Group20 seems to suggest that Muslims may be able to get protection by proving indirect discrimination. The RRA is especially complex and inconsistent. Section 1(1)(a) states that in order to find discrimination, there needs to be less favourable treatment compared to another person. Realistically, finding a comparator that would be treated better in the circumstance is difficult. The case of Pearce v Governing Body of Mayfield Secondary School21 is a clear example of this.

Even where explicit racial hostility is alleged, and a claim is brought under the act, the requirement for a comparator is still there. It is clear to me, that this seems to go against what the RRA is supposed to stand for, i. e. provide guarantees for equal access to education. One has to ask, how can guarantees be provided when there are unrealistic barriers such as this to overcome? It has also been argued that the definition of "race" in British law is "defined as it would be by a racist on the street"22.