It was hardly surprising that Charedim have turned to lawyers in their struggle with Ofsted over talking about LGBT issues in schools. The letter sent by solicitors last week to the Department for Education may have been the initiative of an individual activist, Shraga Stern, a Chasid from Stamford Hill, but its views reflects those of a far wider constituency.
Barristers won’t be reaching for their gowns just yet. The letter itself is not a threat to go to court. Rather, it is an attempt to persuade Education Secretary Damian Hinds that, under the law as it stands, government policy should protect Charedi schools.
It could make the DfE think twice. The government’s efforts to crack down on unregistered yeshivot, where boys receive minimal or zero secular education, were stopped in their tracks after one yeshivah obtained a legal opinion that it did not meet the legal definition of a school and so was exempt from registration. The DfE has shown no inclination to test the argument in court.
Mr Stern’s solicitors, Stone King, who have particular expertise in education law, argue that Ofsted inspectors who criticise strictly Orthodox schools for refusing to talk about same-sex relations are actually going beyond the law.
Official guidelines for independent schools say that as part of teaching “British values” of respect for other people, they should pay regard to “the protected characteristics” specified in the 2010 Equality Act. These include race, religion, age, disability, gender, sexual orientation and gender reassignment.
Mr Stern contends there is no requirement to refer to all the protected characteristics; rather, schools have to teach the broad principle of respect. “There is no mention of an explicit requirement to include any particular teachings about sexual orientation or any other protected characteristic,” his lawyers state.
Ofsted, however, believes otherwise, as its chief inspector Amanda Spielman made clear in a JC interview last year, saying it was acting on its own legal advice.
Stone King also has another legal card up its sleeve. Parents, they argue, enjoy the right to send their children to schools that reflect their religious values, so to make those schools teach something that goes against their beliefs is to breach the human rights of those parents.
The clear position of Charedi schools, the lawyers stress, is that their faith does not permit them to discuss “in a positive manner” issues such as homosexuality, same-sex relations or gender reassignment. “It does not permit them to make any reference at all to sexual matters in the school context in a positive manner.”
The lawyers then warn that many Charedim would choose to leave the UK rather than comply with an obligation “to mention homosexuality, same-sex relationships or gender reassignment in a positive context at school.”
So will Mr Hinds will be influenced? The DfE is revising guidelines for independent schools and drafting new guidance on relationships and sex education in schools. Whether Mr Stern will be smiling when the final text of those documents come out, or whether he presses the button on legal action, we shall have to wait and see.
In the meantime, Ofsted inspections continue. While some Charedi schools have been marked down by inspectors, others have passed their British values test - which raises the question, how?
It could be that some Charedi schools have found a way to refer to LGBT people without compromising their religious principles. Or they have felt able to talk vaguely about alternative lifestyles without going into detail in a way that satisfies inspectors.
Or perhaps some inspectors, sensitive to the ethos of Charedi schools, have sidestepped the problem and simply decided not to press them on LGBT issues.