Many traditional societies still maintain a separation of male and female roles, but to our eyes, these separations which are often governed by religious prohibitions, appear backward. When we, in the West, look at the prevention of women in Saudi Arabia from driving a car or entering a cemetery, we view these sorts of restrictions as discriminatory and retrograde.
Judaism cannot ignore its hosts and in fact Jewish law insists that the law of its host takes precedence over Jewish law on the proviso that an interpretation of Jewish law can be made compatible with its host's law. The formulation, dina d'malchuta dina (the law of the land is the law) or dina for short, is a conflict of laws device designed originally to facilitate Jewish communities' survival in exile. How can we make sense of English law in the context of some of our Jewish traditions? Which should take precedence?
The UK - since the Sex Discrimination Act of 1975 and more recently the Equalities Act 2010 - has made it unlawful for anyone to be treated less favourably as a result of their gender. If a person is prevented from doing "X" because of gender, then this would be unlawful. There are exceptions to this rule, most relevantly the exemption religions enjoy in some instances; for example, an Orthodox synagogue would not be compelled to perform a same-sex marriage. But how many of our traditional prohibitions are robust enough to meet the religious exemption test under UK law?
The dina rule should operate in the same way as the 1998 Human Rights Act operates on English law. An old law has to be interpreted in such a way as to make it compatible with the new rules. So English law might have previously allowed the expulsion of an immigrant because of criminal activity; but, under the Human Rights Act, he may be able to remain because he has family in England.
The dina rule was brilliantly designed to provide rabbis of future generations the power to preserve tradition but in such a way as to operate sympathetically with host nations. To bolster the power of modern rabbinic interpretation, Jewish law also insists that all rabbinical rules must be decided with the balance tipping towards leniency rather than stringency. The notion that modern Jewish practice can't be amended on the basis of minhag, custom, or even rabbinic ruling, is false. The recent lurch to stringency is also odd given the rule prescribing leniency.
Why can’t Orthodox communities permit pre-batmitzah girls to sing Anim Zemirot?
So, given these laws, why is it that Orthodox communities can't permit pre-batmitzvah girls to sing Anim Zemirot, the beautiful song near the end of the Shabbat, and occasional Yomtov, service which is routinely sung by pre-batmitzvah boys?
A number of divisive traditions about women can be traced back to the laws surrounding tzniut, modesty. One of those restrictions is kol ishah, a rule which suggests that a man cannot be exposed to the voice of a woman in the belief that her voice reveals her nakedness.
The rabbinic debates on the strictness of these rules is by no means settled, ranging from an outright ban to the modern Orthodox stance which permits joint singing. What is notable about the debate is that it is entirely derived from rabbinic rules which themselves are subject to, firstly, the rule of leniency and, secondly, the rule of dina. This means that in the context of English law they are all apt for review.
The issue of kol ishah in respect to pre-batmitzvah girls doesn't apply, even on the most stringent interpretation of tzniut. Nor do any other fig-leaf excuses such as not wanting to give girls the impression they can continue singing when they are older. The ban on letting girls sing in Orthodox shuls belies a deeper, more worrying maintenance of a tradition which cannot have any basis in anything other than a preference to discriminate.
When one considers the existing Orthodox prohibition on preventing girls from singing in shul on Shabbat, we are witnessing not just a breach of English law under the Equalities Act 2010, but we are also witnessing a breach of Jewish law, the dina. We live in a society which enshrined in law that unless there are specific religious prohibitions - not rabbinical rules which can be reinterpreted, not taste or preference, not minhag - then we are breaking the laws of the religion we purport to represent.
It is high time that rabbis recognise the power of the modernising devices Judaism has provided them with in order to sustain, refresh and regenerate Judaism. The real value of Judaism lies in its capacity to set a moral standard worthy of following.
We are hundreds of years behind in the emancipation of women. The shamefully slow pace of reform is already doing its damage as young women unsurprisingly turn away from an Orthodoxy that refuses to liberate, but rather lamely excuses itself behind the fig leaf of minhag as a reason to prevent positive change.
Dr Brassey is a lawyer and member of Hampstead Garden Suburb (United) Synagogue
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