Is the Islamic Headscarf Ban Part of an Ongoing Cultural Rift?

stelios article

A guest post today by Stelios Hadjithomas, another MA alumni. This post was originally published on March 21 on Pulse, and offers a perspective on the recent European Court of Justice ruling regarding religious symbols in the work place. BBC article on the ruling here. (VZ)

In the wake of the terrorist attacks at the headquarters of the Charlie Hebdo magazine in Paris on January 7, 2015, people gradually formed groups and protested out in the streets in solidarity with the French. The groups, which later spread throughout the globe with the help of the media and the internet, were believed to distribute awareness regarding freedom of expression. Within hours, everyone tweeted #JeSuisCharlie, advocating for the right to express oneself. But soon a new threat came to life; Islamophobia being deployed by radicals who would exploit the attack to promote extreme beliefs. Shortly after, thoughts concerning public safety due to an alleged Muslim-threat arose. The issue of security being undermined due to women and men wearing symbols rooted deeply in the culture of the Muslim religion was brought again to the surface. Since then, a number of European states have taken measures against individuals – mostly Muslim women – who withhold their identity by covering or veiling themselves, hence posing a threat to public security. A bit over two years after the Charlie Hebdo attack, with the Trumpean anti-Muslim policy climaxing across the Atlantic, and an Islamic religion under fire, the European Court of Justice (ECJ) ruled that wearing “any political, philosophical or religious” apparel at work can be legally banned.

Is a wider total ban on headscarves and similar headwear in public space possible?

Legally speaking, a total ban on religious headwear would provocatively oppose sovereign states’ international obligations: to guarantee individuals the right to freedom of belief and equality before the law, for countries which are acceded parties to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), as well as the European Convention on Human Rights. These multilateral texts include provisions safeguarding the rights to autonomy and self-expression, as well as religious freedom and equality. Enforcement of such a ban would particularly discriminate against Muslim women, by excluding them from social life in their society, on the grounds of faith and culture, thus rendering them unable to freely express their identity, autonomy, and religious beliefs.

Generally speaking, arbitrary and generalized restrictions of religious symbols in public places, translate to restricting a practice followed mostly by females associated with the religion of Islam and damage these subjects’ enjoyment of fundamental rights. A total ban on religious symbols would specifically endanger freedom of religion and, potentially, gender equality. Manipulation of a person’s religious beliefs by law violates the right to freedom of religion and equal treatment when in fact, international human rights standards protect these rights, i.e. the ability to choose what to wear and the ability of each person to exercise control over their religious beliefs. Coercion in issues of conscience should, as a rule, be avoided. It is undeniable that an obligation to wear a headdress against one’s wishes is in clear violation of the right to personal autonomy and is opposed to international law (i.e. article 11 of the CEDAW and ICCPR). The same applies to the prohibition of the right to wear a specific garment. The right needs to be practiced voluntarily. Legitimate efforts to support those who do not wish to wear a specific type of headwear, but are coerced into doing so, do not justify coercing others into not doing so. And assuming that all those who wear religious headwear are forced to do so, is not representative of reality.

Particular protection for women

According to international human rights law, countries are required to respect the human rights of women specifically, including their right to privacy and self-expression, and to provide equal treatment without discrimination. In addition, by ratifying CEDAW, member states accepted an obligation to act towards ending discrimination against women in all forms. The first article of the convention calls upon its members to extirpate

“any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women…, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

Furthermore, the Human Rights Committee, which is responsible for the supervision of states’ compliance with the ICCPR, declared (General Comment No. 28,  Art. 3) that states are responsible for ensuring for both men and women the equal enjoyment of all rights provided for in the ICCPR without any discrimination, by taking all necessary steps, including the removal of obstacles to the equal enjoyment and the adjustment of domestic legislation. The Committee has also emphasized that

“[any specific regulation of clothing to be worn by women in public] may involve a violation of a number of rights guaranteed by the [ICCPR], such as: article 26, on non-discrimination… articles 18 and 19 when women are subjected to clothing requirements that are not in keeping with their religion or their right of self-expression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the woman can lay a claim.”

The right to freedom of expression is also set out in the Universal Declaration of Human Rights (Art. 19), although non-legally binding.

In the case of headscarves, burqas, niqabs and hijabs, which play a significant part in the cultural identity of women who choose to wear them and also reflect their religious beliefs, arbitrary restrictions are in violation of the corresponding rights, and particularly prevent women from having a personal cultural identification through the display of their religious symbols, which is unfair, illegitimate, and inconceivable in democratic societies. 

When can rights and freedoms be restricted?

Traditionally, under the law, in cases where needed, rights can be limited if necessary, in order to safeguard a greater value. The rights to freedom of religion and self-expression are considered relative, as opposed to absolute rights. Restrictions can only be justified when they’re necessary to regulate a legitimate interest, such as the protection of public safety and order, health or morals, or of the fundamental rights and freedoms of others; and should be applied with caution to avoid damaging the relevant rights in their core principles. According to the Human Rights Committee (S.W.M. Broeks v. The Netherlands, CCPR/C/29/D/172/1984, April 9, 1987), the restrictions should be based on reasonable and objective criteria, pursue a legitimate goal, and be proportionate to the aim sought to be realized.

Terrorism and public security

A total ban of religious apparel on the grounds of terrorism prevention and maintenance of national and public security might seem the way to go at first glance; however, it would practically denounce an entire group of females without assessment of the actual behavior of the individuals wearing the apparel. This would amount to a reversal of the burden of proof and would discriminate against minorities on the grounds of gender and religion. There are more efficient ways to confirm the identity of the people wearing these garments where needed, with the help of technology, increased security, and other methods. A complete exclusion of religious facial attires in public is not a proportionate response to maintaining public security. It is not the responsibility of women who feel religiously obliged to wear a prescribed attire to maintain political harmony by sacrificing parts of their religious and cultural identity. Authorities should take particular steps to ensure the protection of religious minorities so that they can practice their faith. They have an obligation to preserve diversity and pluralism as the proper values that democracy stands for. When an issue like human attire becomes a source of tension and argument, the role of the officials is not to remove the cause of tension by disabling pluralism. To paraphrase the words of Marjane Satrapi, a minority group established on the soil of a foreign country should not be judged by the wrongdoings of a few extremists in the same or another country.

Ideological symbols at work: What does the ECJ decision mean in practice?

Did the ECJ’s decision have a legal foundation? In short, yes. But is it moral? It is the first time the European court has issued a – pretty straightforward – decision on wearing religious (and other) symbols at work. The court assigns to the national judge the responsibility to ascertain whether the criteria that are set out are fulfilled, while clearly indicating “that an employer’s desire to project an image of neutrality towards both its public and private sector customers is legitimate,” when this is clearly indicated and expressed in the internal regulations of the company. While this may be interpreted as an innovative decision for the court and a clear win for corporate freedom, for Muslim women who consider wearing a specific garment a fundamental aspect of their religious practice, the decision practically requires them to choose between violating their deeply held beliefs by respecting the law and suffering social condemnation, or disregarding the law and suffering the consequences. At the same time, the decision raises public concern and is seen as a harbinger of future unjust behaviors as the global war on Islam rages on. Has Europe officially embarked on a journey to purify the continent of Islam? It remains to be seen. But the future looks bleak.

Stelios Hadjithomas works in online media. He holds a law degree and a master’s degree in Cultural Policy & Arts Management and enjoys writing about the things that are important to him. His poetry has been published in literary journals online and in print in Ireland and the UK.

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