EU: Intersectionality of Freedom of Religion or Belief & Women’s Rights

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The intersectionality of freedom of religion or belief and women’s rights is one of the most complex human rights issues faced by the world today. Down through the centuries, religious extremism and interpretation of holy books have shaped traditions and cultural stereotypes in a number of patriarchal societies. Some of these traditions and stereotypes have been detrimental to women, and have survived until the 3rd millennium. By Willy Fautré, Human Rights Without Frontiers.

The religious, sacred and cultural are sometimes so intimately interwoven that it is difficult to differentiate between them. Societies dominated by men and by the rule of religion have adopted a number of practices which are not explicitly prescribed by their holy books, such as the preservation of girls’ virginity by genital mutilation, or the eradication of sinful sexual relations by honor killings. Clothing restrictions and obligations imposed by states or by religious groups (but also freely chosen by women) whether they are rooted in religious principles or not, are now debated publicly, not only in the traditional Muslim countries but also in European, American and Asian countries where Islam is a minority religion.

Problems arising from the problematic coexistence of women’s rights and freedom of religion or belief are not only acute in countries, regions or societies where Islam has been dominating the culture and the traditions for centuries. Tensions between freedom of religion or belief on one side and women’s rights on the other are also increasingly experienced in the open societies of the European Union where religion has lost its dominating position in politics, society and the daily lives of the citizens. Throughout the last decades, the regular flow of asylum-seekers from Muslim, Hindu and Buddhist countries has introduced an increasing diversity of religions, cultures and traditions in European societies, a number of which have failed to address modernity in due time and to integrate the culture of human rights. This slow but steady process has resulted in overreaction, and even hostility between some autochthonous populations and some categories of migrants on such issues as the veil or the minarets. This has also triggered debates on integration in Western societies, on the defense of national identity and European values.

With regard to the wearing of religious, ethno-religious and cultural symbols, the EU member states have adopted a variety of policies ranging from their ban, to accommodation in the public sphere, in schools and in state institutions.
This paper addresses the issue of the full veil in public space as an example of the political management of intersectionality between freedom of religion or belief and women’s rights by a number of EU member states.

Definitions

The full veil whose purpose is to conceal the face and physical features of the woman’s body can take several forms[1]: the hijab, the niqab, the burqa and the chadri, just to name a few.

The hijab is an Arabic word meaning barrier or partition. The literal definition is defined as veil, screen, cover(ing), or curtain. In Islam, hijab is considered the principle of modesty that is required in the Qur’an and includes behavior as well as dress. The practice of  hijab is observed through the wearing of  a headscarf  by Muslim women, sometimes including a veil that covers the entire face except for the eyes. Muslim communities have differing beliefs regarding how hijab should be enforced.[2]

A niqab is a face veil covering the lower part of the face (up to the eyes). [3]
The burqa refers to a full head to toe body covering with a small opening for the eyes.

The chadri, also referred to as the Afgan burqa, covers the entire face except for a small region about the eyes, which is covered by a concealing net or grille.

As there is a wide variety of clothing used to practice hijab in the Muslim world, it is sometimes difficult to distinguish between veils. Therefore, the terms niqab and burqa are often used interchangeably.[4]

The full veil: a historical perspective

The oldest name of the practice of secluding women from public view is purdah[5]. It was a practice among women in certain societies of living in a separate room or behind a curtain, or dressing in all-enveloping clothes in order to stay out of sight of non-related men or strangers in the Middle East and parts of South-East Asia. The purpose was segregation of the sexes.
Purdah first appeared in ancient Persia and evidence suggests it was also common in Babylon The word itself comes from Urdu, a language closely related to Persian, and literally means 'screen' or 'veil'. The Arabic translation is 'hijab'. Before the spread of Islam, such all enveloping garments were worn in the deserts of Arabia for protection against biting sand and wind.
In India, strict purdah denoted a high social standing. In this respect, the covering of the face and body was more a means of distancing oneself from lower class members of society, as opposed to making oneself invisible. Traditionally, the level of wealth or social standing of a certain family dictated the extent to which purdah could be observed. Richer families, in which it was not economically necessary for female family members to work and contribute, full purdah could be observed.

Purdah was adopted by Muslim invaders in the 7th Century. Historians have pointed out that the tent-style burqa became the dominant form of veiling only after the Muslims defeated the more advanced Persian and Eastern Byzantine empires. When these empires fell to the Arabs, the latter began to imitate this practice since they were the new upper class in society. Thus when the caliphate of Baghdad, under the Abbasids, had consolidated, the black burqa became a status symbol of upper class families and naturally those from the lower orders who wanted to enhance status would require their women to follow the same. Most of the ahadith, which prescribe complete coverage of women, were a product of the period that corresponds to the annexation of Asia Minor and Persia by Muslims.
Purdah was incorporated as one of the tenets of Islam by the prophet Mohammed, and through Muslim conquest, this practice of segregation spread throughout the Middle East. It is possible that crusading Islamic armies adopted it because it corresponded to teachings in the Qur'an regarding modest conduct and dress. In this respect, its roots are cultural as opposed to religious.

Families observing purdah in the past often upheld strict segregation of men and women inside the home; the women's quarters or harem, was a place that was off limits to all men. Women were not expected to leave the house except in extreme emergencies. In such cases, a special shrouded horse drawn carriage was used to transport the woman, in the company of a male relative.

The practice of purdah has almost disappeared in India, and is followed to varying degrees in Islamic countries. The burqa is the most visible surviving remnant of purdah in today's society.

The full veil in the EU

In November 2006, European Commissioner Franco Frattini stated that he did not favour a ban on the burqa[6] but the EU member states have now adopted a wide range of positions on the issue.

Austria
In Austria, there is an ongoing debate initiated by Social Democrat Minister for Women, Gabriell Heinisch-Hoseck, towards formulating laws that would ban the full veil in public spaces if the number of women wearing it were to increase dramatically.[7]


Belgium
In Belgium, there is no Federal law banning the burqa. Issues regarding it are dealt with at the level of the municipalities. Several have adopted regulations prohibiting the covering of the face so as to render identification impossible, with the exception of carnival. The local decrees make no explicit reference to the burqa, but they were adopted especially in communes of the Brussels Region that have sizable Muslim populations (like Molenbeek and Schaerbeek), and Antwerp. The wearing of the full veil can result in a €75 fine from local police.

In March 2008, the city of Verviers decided to introduce a city-wide ban on the burqa and any other form of headscarf covering the face for security reasons, the justification being the need for police and other authorities to be able to recognise a person’s face at all times.

In December 2008, the city of Londerzeel announced that - as of 2009 - it would ban the burkini from the city’s swimming pool. The burkini - a two-part bathing suit with long sleeves, long pipes and a headscarf, which name is a composition of the words burqa and bikini - is worn by a number of Muslim girls in public swimming pools. The city declared that it decided to introduce the ban for hygienic reasons.[8]

Denmark
Proposals on how best to prevent the wearing of the niqab and burqa have been called for by the Danish government. The majority of Danes support the government’s stance against the wearing of the veils by Muslim women in the streets, while Prime Minister Lars Lokke Rasmussen has said that the dress code is not welcome inside Danish educational institutions. He said that he was waiting on new reports with suggestions on how to prevent teachers, students and public servants from wearing the burqa or niqab. Rasmussen claimed that neither the niqab nor the burqa have any place in Danish Society. There is a penalty for Muslim men who force women to wear the burqa, which has recently been increased to four years imprisonment.[9]

A Copenhagen University report suggested that just three women wear a burqa in Denmark while around two hundred, mainly Danish converts, use the niqab, although several politicians have queried these statistics. Rasmussen says that the number of women involved is irrelevant to the government’s stance.[10]

France
The interior ministry says an estimated 2,000 women out of a total French population of 65.4 million, of which 5 million are Muslims, wear the burqa and that this is seen by many as “a threat to the republic”. Though statistics are hard to come by, anecdotal evidence suggests that the popularity of the burqa is on the rise. French legislators indicated their fear of the growing popularity of the garment by signing a proposal in 2009 to investigate its spread throughout the country. In January 2010 a parliamentary commission recommended a ban on the total veil – to be applied  in public places like hospitals and schools, and on public transport.

The Commission members maintained that their recommendation was by no means an invasion of the privacy of a Muslim woman or an attempt to curtail her human rights. It was agreed, however, that donning the burqa was a sign of the demeaned status of Muslim women. It may be recalled that the controversy started when French President Nicolas Sarkozy declared last year that such attire had no place in France. He asserted that the burqa was not a religious symbol; rather it symbolised the subjugation of women. He called for a ban. The security risk linked to the burqa and its clash with French republican values are the two main arguments that have been put forth.

The commission stopped short of recommending a full ban because not all of the 32 commission members could agree. A parliamentary vote is due to take place in the coming months[11]. Polls have indicated that 65 percent of the French population, including Muslims, would like a law banning the burqa.
A ban on the burqa may not help liberate the 2,000 or so women in France but it would symbolise the need for Western societies to take an interest in the welfare of the weakest section of their immigrant populations.

Germany
The Interior Ministry of Germany, a country of 3.2 million Muslims, has no plans to implement any ban on the burqa. It is up to individual states in Germany to make policy on issues such as the veil and burqa. However 7 of Germany's 16 states have banned teachers in state schools from wearing Islamic headscarves. A recent move by an ultra conservative premier of the state of Hesse to ban burqas in schools backfired when it was pointed out that there were no students who wore burqas in the state schools.

Italy
The burqa is currently not referenced in Italian law. However, there exists legislation that forbids covering the face in public places. In existence since 1975, the law was introduced as a counter-terrorism measure against homegrown guerilla groups and makes no reference to religious expression. Some politicians have called for this decades-old anti-terror rule to be enforced against veiled Muslim women.

In October 2009, Italy’s anti-immigrant Northern League proposed a burqa ban. However, as of 1 March 2010 no such draft law had yet been debated by Parliament. An Italian politician of a northern Italian  town  provoked a national controversy in October 2010  by permitting women to wear the Islamic burqa in public despite the laws opposing it. The prefect of Treviso, Vittorio Capocelli, who represents the interior ministry in the city, says women should be allowed to wear the garment for religious motives as long as they can be identified if requested.[12]

According to a survey conducted in October 2009, 71 per cent of Italians are in favor of a ban. However, a burqa ban in Italy would be largely symbolic, since the full veil is hardly ever seen in the country.

Netherlands
Legislation in the Netherlands limits the wearing of burqas and other total coverings on public transport or in schools. The Immigration minister announced in November 2006 that the government was preparing to introduce legislation to fully ban the burqa and face-covering Islamic dress in public.  Although a ban had been publicly debated earlier, the decision results directly from a motion tabled in the Dutch House of Representatives by the anti-immigration politician Geert Wilders. [13] Since this time, the cabinet has not taken a final decision on whether to introduce a ban.  Cases of dismissal or exclusion from school are handled by the Netherlands Equality Commission, creating de facto national guidelines on what constitutes discrimination. A February 2007 opinion poll indicated that 66 percent support a ban and 32 percent oppose it[14]. 
The Dutch cabinet has not made a decision to implement a broad ban on the burqa or niqab in public. There are fears about the legality of such a ban under European human rights laws.[15]
According to the Muslim community, only about 50 women were wearing the head-to-toe burqa or the niqab. They said a general ban would heighten alienation among the country's Muslims, who number approximately 1 million.

The United Kingdom
The UK don't have a council for integration. Ethnic minority groups are not only left alone by the state to practice their faith, language or culture, but are encouraged and subsidised to do so. In one or two schools, the wearing of headscarves has caused trouble; but this was seen as a problem for school governors, not politicians.

A recent survey found that 70 percent of Britons would be in favor of a ban in public places, schools, universities and airports.[16]. In January 2010, the leader of the UKIP (United Kingdom Independence Party) appeared to align itself with the ultra right wing BNP by calling for a ban on burqas and headscarves in public. Justice secretary Jack Straw said that this would be “a waste of police time” and reiterated that the current administration had no intention of imposing such a ban.

Ban on the full veil: Pros and cons

Three categories of arguments are used by the supporters of a ban on the full veil: security, women’s rights and integration in the European values system.

1.      Security
The identification of a person by their face has become a necessity in many aspects of modern life. Pictures showing the full face including the ears are requested for a passport, an ID card, a driving license, access to special services and public institutions, or the enjoyment of social advantages.

The police need to be able to see a person's face in public because they may be on a missing persons’ file or be wanted in connection with a crime. Doctors and dentists need to be able to identify the patient they are treating, and the surgeon those on whom they are operating. In France, there have been cases of social security abuses whereby foreigners assuming the identity of a social security-entitled French citizen were treated in healthcare institutions free of charge. For school and university examinations, it is also necessary to identify students. The burqa hinders the ability to perform these basic functions.
Failure to abide by these procedures and obstructions rendering individuals unidentifiable in modern society generate human security risks.

There have been instances of terrorists and criminals wearing the burqa to hide from the police and authorities. One of the suspects of the failed attempts to bomb London in 2005 wore a niqab, or a veil covering his whole face except the eyes, as a disguise.  Al Qaeda and the Talibans have drafted young men and occasionally women into suicide bombing missions, sometimes using a burqa to avoid any suspicion or control. Such tactics have legitimately created fear and anxiety among governments. Muslim countries like Turkey and Tunisia have laws that prohibit the wearing of hijab in government buildings, schools, and universities for identification purposes. 

Furthermore, the privacy of the individual, including that of pious Muslim women, has now been made irrelevant. The new screening machines that are being installed in international airports will make possible an inspection of even the private parts of individuals. It has been pointed out, in this respect, that if anyone is responsible for undermining Islamic values, it is the terrorists who have been using the human body as a weapon of extensive if not mass destruction. Banning the burqa is one way of reducing the terrorist risk factor, if not eliminating it, some think.

2.      Women’s rights: the burqa as a coercion
Some argue the burqa represents a perverted view of piety. According to the well-known Islamist, Dr Israr Ahmed, men in the West have lost their manliness because they see and work with women. That affects their perception of their sexuality. By strictly segregating men and women, Islam keeps men in their most natural state of virility. The burqa contributes to that “positive segregation”.

To the Western world as well as to many Muslim women, the treatment of women throughout history under Islam is symbolized by the burqa: coercion and segregation. Under Islam, many women traditionally must remain covered, are denied contact with non-related men, can be denied the ability to get jobs and education to the same extent as men, are subject to violence and forced marriage, are treated as having less, if any, political or social worth than men, and are discriminated against in a variety of ways. Westerners, non-Muslims, and many Muslim women are actively fighting what they consider the subjugation and subordination of women through the imposition of the burqa. Liberal Muslims and women’s rights groups are advocating the cessation of compulsory enforcement of the burqa so that women can choose if they want to wear it. In France, the burqa ban is strongly endorsed by left-wing feminists such as Fadéla Amara, herself a Muslim and Secretary of State in the French government. She argues that the burqa is “a kind of tomb for women” and that such garb is not their choice but it is imposed by male tradition.
However, in relation to women’s rights, a burqa ban could further worsen the plight of those who are coerced by family or by the dictates of tradition to cover themselves in public. Many believe that by making the burqa illegal, many women would be forced to     stay at ho me,further alienating them and depriving them of their freedom of movement and their right to education.
Last but not least, some Muslim women do want to wear the full veil, including converted French citizens, and claim that their choice is also part of women’s rights.    A Frenchwoman, who took to the burqa entirely through her own volition,     protested: “France is supposed to be a free country. Nowadays, women have the right to take their clothes off, but not to put them on.” [17]

3.    European Values & Integration
The starting point of most discussions on European identity is the idea that a community needs a common set of values and references to ensure its coherence, to guide its actions and to endow these with legitimacy and meaning.[18]
One of the most pervasive underlying assumptions in the discourse on European Muslim integration is that Muslim religiosity is a threat to European values. Those who believe in the irreconcilability of western and Muslim identity generally argue that Muslim piety, expressed in religious symbols and moral conservatism, contrasted against the backdrop of secular and sexually liberal Europe, is a recipe for increasingly insular Muslim communities and profound alienation from European national identity. [19]
Muslim women in Europe are pulled in all directions: traditions which often dictate conservative dress codes and conduct, strong familial and cultural obligations, but also pressure from the larger community to be seen as visibly liberated, modern and empowered- in other words, integrated.

In Britain, Tony Blair called the burqa a “mark of separation”. Muslim dress, particularly the burqa or niqab are seen as stumbling blocks to integrating minorities into mainstream society, or even a rejection of broader society. The burqa debate is widely seen as a proxy for discussing latent fears and concerns about integrating Muslims. Racial and sectarian discrimination are important issues in Europe,—and bans on religious clothing are likely to aggravate them. [20]

The debate on integration also rages in France. However, several studies indicate that France is the European country where Muslims integrate the best and feel the most for their country. Some attribute this to the longstanding tradition of secularism and the burqa is seen as an affront to this principle. Some argue that the burqa ban is a vital tool in the battle for the integration of religious minorities. Banning the burqa and the niqab can therefore be seen as positive steps towards fostering integration as it breaks down barriers of perceived “separation”. With regards to security, integration, defined as conformity with majority culture, is seen as a vital security measure and a defence against dual loyalty citizens.

The 32-member parliamentary commission that drew up the report on the wearing of the burqa in January 2010 claims that all of France is saying ‘no’ to the burqa because the garment is “contrary to the values of the republic”[21]. And if it is not religious attire, then, argue the parliamentarians, the Muslims should support the release of Muslim women from an outdated and outmoded garment that only reinforces the inferior status of women in ultra-traditional Muslim societies. 

In February 2010, the French government refused to grant citizenship to a foreign national on the grounds that he forced his wife to wear the full Islamic veil. The man needed citizenship to settle in the country with his French wife. But Immigration Minister Eric Besson said this was being refused because he was depriving his wife of the liberty to come and go with her face uncovered. Later, the minister stressed that French law required anyone seeking naturalisation to demonstrate their desire for integration.
"It became apparent during the regulation investigation and the prior interview that this person was compelling his wife to wear the all-covering veil, depriving her of the freedom to come and go with her face uncovered, and rejected the principles of secularism and equality between men and women," he said. [22]

Can a civilisation that treats its women as inferior and its men as sexually uncontrollable claim to be the bearer of the best values of common humanity? This is a decisive argument in the debate on the burqa in France.

Conclusions
Freedom of religion or belief may be invoked both in terms of the positive freedom of persons who wish to wear or display a religious symbol, and in terms of the negative freedom of persons who do not want to be confronted with, or coerced into it. Some women do want to wear the burqa on religious grounds. Women’s rights has two faces, but one common denominator: freedom of choice. Therefore a total ban on the burqa in the public sphere cannot be justified by the desire to free women from male coercion.

However, a state can decide to ban the full veil on other grounds.

A state can decide that wearing a full veil is incompatible with national values. As the problem almost exclusively concerns female migrants and women living or staying temporarily in an EU country, a state might have to clarify its national values and grant asylum or visas only to those who declare that they share those values, and that they will respect them.

A state can ban the full veil on the grounds of public safety. The police need to see the faces of everybody on the streets in order to prevent criminal activities (i.e. hold ups) and suicide-bombings, to identify criminals or prisoners on the run, to find missing persons, and so on.

There may be features of certain institutional settings which are incompatible with the wearing of a full veil. People must be identifiable by teachers and professors (for a university exam or), by healthcare institutions (for medical exams and surgery), by social and administrative services (for allowances, passports, ID cards), at post-offices (to get a registered letter), on public transport (for holders of a pass), etc. For security reasons at the workplace, the full veil may also need to be banned.

In his 1959 study of discrimination in the matter of religious rights and practices (E/CN.4/Sub.2/200/Rev.1, p. 33), the then Special Rapporteur of the Subcommission on Prevention of Discrimination and Protection of Minorities, Arcot Krishnaswami, said: “A prohibition of the wearing of religious apparel in certain institutions, such as public schools, may be motivated by the desire to preserve the non-denominational character of these institutions. It would therefore be difficult to formulate a rule of general application as to the right to wear religious apparel, even though it is desirable that persons whose faith prescribes such apparel should not be unreasonably prevented from wearing it.”

In her report about her fact-mission in Macedonia in 2009, UN Special Rapporteur on Freedom of Religion or Belief Asma Jahangir wrote: “If a policy decision has been taken at the national level that interferes with the freedom to manifest one’s religion or belief with regard to wearing religious symbols, issues of proportionality and religious tolerance need to be thoroughly respected. In this regard, the Special Rapporteur would like to reiterate that the following questions should be answered in the affirmative: Was the interference, which must be capable of protecting the legitimate interest that has been put at risk, appropriate? Is the chosen measure the least restrictive of the right or freedom concerned? Was the measure proportionate, i.e. balancing of the competing interests? Would the chosen measure be likely to promote religious tolerance? Does the outcome of the measure avoid stigmatizing any particular religious community?”

On the other hand, the state alone should not bear the burden of accommodating specific religious and cultural practices. There is sometimes a price to be paid by the persons who choose to put their conscience above the law. Jehovah’s Witnesses and non-religious pacifists who are conscientious objectors to military service have opted for decades to pay a high price for their choice: a prison term, a criminal record and the denial of access to employment in the public sector. Women who have chosen to wear the full veil in a country where such garments are banned may also have to pay a price for their choice. Time will show if their commitment was genuine or if most of them will find some form of reasonable accommodation with the modern world.