/ 21 October 2007

… and another one for nose studs

Several weeks ago the Constitutional Court ruled in a landmark case on religious and cultural expression in public schools.

In 2004, Sunali Pillay, then a learner at Durban Girls’ High School, pierced her nose and inserted a small gold stud. The school objected to the stud on the basis that it contravened the school’s code of conduct, which prohibited the wearing of jewellery, apart from earrings (“ONE in each ear lobe at the same level”) and wristwatches.

Sunali’s mother explained to the school that the nose stud was part of a time-honoured South Indian family tradition, in which a young woman’s nose is pierced and a stud inserted when she reaches physical maturity, to indicate her eligibility for marriage. After the school governing body consulted experts in Hindu tradition, it again informed Sunali that she was required to remove the stud. Sunali’s mother applied on her daughter’s behalf to the Equality Court, alleging unfair discrimination. The Equality Court sided with the KwaZulu-Natal education department and the school, but on appeal, the High Court found in favour of Sunali.

The Consitutional Court decided that it was in the interests of justice to hear the appeal even though Sunali was now at university. This was the first time that it had considered discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act).

Chief Justice Pius Langa, author of the main judgement, wrote that the school’s code, coupled with the decision to refuse Sunali an exemption, was capable of constituting “discrimination” under the Equality Act. The norm embodied by the code “is not neutral, but enforces mainstream and historically privileged forms of adornment, such as ear studs … at the expense of minority and historically excluded forms”.

The next question was whether Sunali was discriminated against on the facts. Both religion and culture are central to human identity and human dignity. “The nose stud is a voluntary expression of South Indian Tamil Hindu culture, a culture that is intertwined with Hindu religion,” wrote Langa. So in this matter, “culture and religion sing with the same voice” and the nose stud expresses both. The school had therefore discriminated against Sunali on these grounds.

The court also pronounced on whether the discrimination was fair as articulated in the Equality Act. Fairness required the school to take reasonable steps to accommodate diversity. Also, the infringement of equality was severe: it did not help the school to argue that Sunali could wear the nose stud outside school (sending the message that her religion and culture are not welcome at the school), nor that the cultural practice was voluntary (the practice was central to Sunali’s culture and identity, applying a subjective test).

The court also rejected a number of counter-arguments: it was not good enough to argue that Sunali could have gone to another school that allowed her to wear a nose stud, or that the status of nose studs as fashion symbols should affect their constitutional protection. And the slippery slope argument — that setting a precedent would result in a “parade of horribles” at schools — was exaggerated. Rather, the display of culture and religion in public is a “pageant of diversity which will enrich our schools and in turn our country”.

The court’s decision will not, as some have claimed, result in chaos regarding uniformity at schools. The court was at pains to point out that rules and uniforms are important.

Rather, this decision should be celebrated for providing salutory guidance on how to accommodate diversity in our heterogenous society.

Dario Milo is a partner at Webber Wentzel Bowens attorneys