Religion and Human Rights (27): Muslim Headscarves – Between Religious Liberty and Gender Discrimination, Ctd.

Once more on the issue of Muslim headscarves, because the controversy doesn’t seem to be going away. Belgium, my home country, has the dubious honor of being the first western country outlawing the burqa. Other countries like France seem set to follow, or have already interpreted existing laws on masks or police checks creatively in order to impose fines on women wearing a veil. Forcing Muslim women to show their faces is no longer a fringe xenophobic fantasy.

First of all, and before you get upset that a human rights activist such as me doesn’t take a more outspoken position against the veil, let me stress that I do worry a lot about gender discrimination (as regular readers can attest). I do believe that the veil – especially the complete face and body veil such as the burqa or the niqab – is an expression of a culture in which equal rights for women are – to put it mildly – not a priority. That doesn’t mean that every woman who wears a veil does so because of coercion or discrimination, or because she doesn’t have a right not to. Some do, but others wear it voluntarily, although the degree of “voluntariness” is something that’s always difficult to establish given the subtle effects of social pressure, tradition and education that are often difficult to notice – even for the self. However, it can be argued that also those women who wear the veil in a truly voluntary way – if truly voluntary can be something real, which I hope – contribute to an ideology of female inferiority and make it harder for other women who would like to remove the veil to do so.

Moreover, there can be different motives for wearing the veil voluntarily. Women can believe that this is a requirement of their religion (the Quran only seems to require “modest dress”), and that disregard of such requirements amounts to sin. Or women can decide to wear the veil for strategic reasons. They may believe – correctly I think – that wearing the veil enhances their freedom, for example their freedom of movement. One can argue that this strategic use of the veil isn’t truly voluntary, but that doesn’t make it wrong. I’m personally open to the argument that a prohibition of the veil can result in de facto house arrest for some women: their husbands may decide to force them to stay at home if they aren’t allowed to wear the veil in public. Now you might say that one evil doesn’t excuse another, but there is something called a lesser evil (I’ve made a similar point about sweatshops not so long ago). If wearing the veil allows women to venture outside of the home that is undoubtedly a positive side effect of something that in general may be a moral negative.

What about the arguments in favor of prohibition? Some of them are very weak indeed. It’s not because the veil makes some people uncomfortable that it should be prohibited. It’s not difficult to imagine the horror of the place where everything that makes someone uncomfortable is outlawed. Security risks also aren’t a very strong reason for a general ban, since women can be required to lift their veil in specific circumstances. The argument that modern democracies should be “secular” and that this requires the banning of religious symbols in public is indefensible in view of the human right to freedom of religion.

Some claim that the ban on the burqa is just one of many existing and undisputed restrictions on how people can dress in public: people can’t walk naked in the streets; or wear stockings on their heads inside bank buildings etc. But this confuses types of dress that are not religiously inspired with types that are. Religion does receive special protection in the system of human rights, and this special protection should be recognized if human rights are to be respected. Conflating religious dress with dress in general does not allow you to fully respect human rights. That doesn’t mean that the burqa can’t be banned in specific circumstances where there’s a good reason to do so – in Court rooms, in schools etc. But these exceptions don’t justify banning it altogether. (The justification for a ban in Court rooms is obvious and doesn’t need spelling out. A ban in schools – for both teachers and pupils – is justified on the grounds of the need for adequate education. In addition, there’s a phenomenon of peer pressure in some schools, where girls who wear the veil force others to comply).

How about the argument based on gender equality? That seems a lot stronger at first sight. But isn’t it true that gender equality wouldn’t be advanced a whole lot by a burqa ban? (Maybe a ban would even be bad for gender equality, if it forces women to stay home). And isn’t it also true that other measures in favor of gender equality, such as better education, stricter laws and better enforcement on domestic violence etc., would prove much more effective?

There’s another argument in favor of a ban, and it’s a pretty strong one, although you hardly ever hear it. A democratic community requires a common citizenship and a public space in which people can deliberate freely on their preferred policies. If democracy was just an exercise in voting, it would be compatible with the veil. It would even be compatible with complete solipsism and individuals never meeting each other. But it’s more than that. The burqa and niqab are – to some extent – incompatible with deliberation. One could argue that this only justifies a partial ban, namely a ban in places where deliberation occurs, and when it occurs. Just like the partial ban in Court rooms is justified. The question is of course whether proponents of the veil can accommodate a partial ban. Perhaps their religious belief requires the veil in all circumstances. However, we are allowed to require some level of flexibility of them. Rights often come into conflict with one another (take for example the right to free speech of the journalist wishing to expose the private life of a politician). And that’s the case here: the right to democratic government and the right to religious liberty should be balanced against each other, and maybe the former should take precedence. After all, not everything is justified on the grounds of religious liberty: for example, no one in the West argues that mutilation as a punishment for crime is justified, not even when it is prescribed by a religion.