The ECJ Headscarf Ruling: Why It Doesn’t Make Legal, Moral or Common Sense

No Comments | April 2017

The European Court of Justice (ECJ) ruled that companies will be permitted to ban staff from wearing ‘visible religious symbols’ such as the headscarf.
Peter Fuchs | Shutterstock

In March, the European Court of Justice passed judgment on two cases (from France and Belgium) concerning the right of Muslim women to wear a headscarf at work. Or, more accurately, the right of employers to prohibit Muslim women from wearing headscarves. In a strange paradox, a court meant to uphold the rule of law and the rights of all citizens confirmed that employers could discriminate against such women by insisting that they do not wear their headscarves to work. Or more accurately, they described such behaviour as not discriminatory – as long as it applied equally to all “religious and ideological symbols.” This judgment does not make sense on many levels.

First, and foremost, it is wrong, legally. The legal starting point is that individuals have rights. This includes being who they want to be, and deciding on the choices that are right for them. It is beyond doubt that this includes the right to wear a headscarf. But rights are not absolute. They can be restricted where there is an overwhelming public interest: where some sort of harm is going to be caused to another person, or to society at large, or someone else is prevented from exercising their rights. But just not liking something is not enough to restrict someone’s rights. So what is the justification for interfering with the right of a Muslim woman to wear a headscarf? Is it that people don’t like it; is it that it is different and weird; is it that it is so restrictive that Muslim women can’t really want to wear it and society must step in; is it that society must be seen to be secular? None of these reasons are sufficient for breaching a right. Indeed, this is almost certainly how any British court would have analyzed this issue.

Second, and perhaps most importantly, there is no moral or ethical case for permitting such a prohibition.  What harm is a Muslim woman with a headscarf doing to anyone else? Does it really cause such a problem to others and to society if a Muslim waitress is wearing a headscarf; or a receptionist; or indeed – God forbid – a teacher? Or, equally, a Sikh wearing a turban, or a Jew wearing a yarmulke? Is it really necessary for the State (or society) to prevent the constructive participation to that State (or in that society) of turban-wearing Sikhs or yarmulke-wearing Jews? Must we all be homogenised? Of course, there may be different arguments regarding the veil, which completely covers the face and sometimes the eyes; quite different from the headscarf which simply covers the hair and neck. It may be argued that the importance of eye contact, or communication for certain professions is necessary in order to be able to do the job effectively. But this ruling is different. This is telling all Muslim women who wear headscarves that they are somehow causing society harm and therefore they can be prohibited from dressing as they wish.

And why all this fetishising of the headscarf as a “religious symbol”? Last checked, it was an item of clothing that a woman chooses to wear. Of course, it goes without saying that many Muslim women wear the headscarf on the basis of their understanding of religious scripture – the Qur’an in this case, which identifies the headscarf as part of morally chaste attire. But in any diverse society, people chose their own morality (often within a spectrum) on the basis of a range of factors – religion, culture, taste and so on. Why would a woman’s choice of attire, based on a religious understanding of chastity, be inferior to a cultural norm of chastity? Surely some alarm bells must be ringing somewhere for our feminist traditions (whilst, of course, noting the range of feminist views that exist): the State is permitting regulation of what a woman chooses to wear. Can that be right? What if a Muslim woman (or indeed, a Christian or Jewish one) chooses to wear a long skirt rather than a knee-length one on the basis of her understanding of morality and chastity, itself based on a religion or religious scripture? Does the religious source of that choice then turn a long skirt, or a long sleeved shirt into a “religious symbol”? Can the state (or an employer) insist that a woman must wear a short skirt, or a low-cut blouse, or so on?

Although this ban will mainly affect Muslim women, it will also affect thousands of non-Muslims who wear religious clothing or symbols.
Paula Sierra | Shutterstock

And why stop with women’s choices? The Court said that an employer could decide against any ideological or philosophical manifestation. But surely everything we do and say – indeed, everything that makes us who we are – is a manifestation of an ideology or philosophy of some sort. Some of us like grays and dark blues. A bit boring, but perhaps borne of an austere ideology. Is it really right that we can be prohibited from being austere, or colourful or professional? What about a small bracelet to commemorate a cancer charity that supported the last days of a dying parent? Is this an “ideology” that must be prohibited? The point seems not to be about prohibiting all ideologies – just some that society doesn’t like. Ultimately, it cannot be for the state to regulate choices unless there is a clear and direct harm to others or to society that must – for the greater good – be protected. I hardly see a Muslim waitress (or doctor, lawyer, nurse or other professions) wearing a headscarf being such a great threat to the very fabric of the society we know and love. If anything, this totalitarian and illiberal dictum is a far greater threat.

And what of our own collective European heritage? Many Europeans can still recall their grandmothers and other older female relatives refusing to leave the house without their heads covered. It was culture and tradition, whether in Ireland, Portugal, Greece or Poland. Should the convent schools prohibit their nuns from wearing habits? Should we censor all the beautiful murals in churches across Europe that always portray Mary – seen by some as the mother of Christian Europe – wearing her traditional headscarf? Of course not; this would violate all sense.

Many see this ban as an infringement of religious rights. When the Constitution of Madinah was devised in the time of the Holy Prophetsa, it clearly stated that all citizens would be granted freedom to practise their own religious values and the state would not infringe their rights in any way.
Samet Guler | Shutterstock

And finally, such an approach as advocated by the Court is practically disastrous. There is a lot of talk today about integration – that’s what’s needed: integration of immigration populations. But talk is just talk. How on earth can any integration take place when Muslim women (who place great weight on the importance, to them, of wearing a headscarf) are told – we want you to integrate, but by the way, we are stopping you from working (or entering public buildings and so on). That doesn’t sound like integration to me. There is a lot of talk – rightly – about certain unjust laws in the so-called Muslim world that prevent women from actively contributing to society. But this is just the same, with an added dose of hypocrisy. As a result of this, an already marginalised and disenfranchised group of European citizens are being further marginalised and disenfranchised – not by some tyrannical populist regime, but by the highest court of law in the European Union. There are many Muslim women who are highly-educated, competent, good people who have so much to give to society. But as a result of these unjust laws, they will not be able to contribute as doctors, lawyers, nurses, journalists, teachers, professors. Instead, they will be forced into their homes – an odd mirror of the anti-feminist policies from many so-called Muslim countries.

At a time when women were severely mistreated, Hazrat Khadijara, the blessed wife of The Holy Prophetsa, was a highly influential businesswoman of the Quraish. She had an extensive trade caravan that would travel far and wide, forming a formidable business empire. After accepting Islam, she used all her wealth and influence to assist in the spread of Islam
danm12 | Shutterstock

The problem seems to be particularly bad in continental Europe. Very few indigenous Europeans have ever met and conversed, as equals, with practicing Muslim women who wear headscarves. Many see them as backward, ignorant, uneducated and coerced beings that must be saved. Would they say that about my mother: a fiercely independent woman who ran her own business for 30 years? Would they say that about me, someone who, as a lawyer, proudly defends the rights of those less fortunate than myself? How would the case have been dealt with had the advocates before the court themselves been Muslim women wearing headscarves? But it couldn’t have been that way: one of the cases came from French courts where Muslim women who wear headscarves can’t even enter the courthouses. But perhaps a British barrister could have defended the rights of European Muslim women. There are many Muslim women at the English Bar who wear a headscarf. And they are some of the best lawyers. Not only do they serve their clients’ interests, and those of the state and society just as well as any of their counterparts, they don’t seem to be threatening the fabric of society in such a way that their choices must be curtailed.

The University of Al-Qarawiyyin, Fez, Morocco, is recognised at the oldest institute in the world. It was established by a Muslim woman,
Fatimah al-Fihri, in 859 CE.

The British account of freedom, rights and liberty is a much more fundamental one. It doesn’t matter whether you are black or white, old or young, the same as me or different: as long as you are a decent human being serving society and not harming anyone else, just get on with it. And as a result, in the UK, there are Muslim women with headscarves (and indeed, those of all backgrounds and experiences) in the highest echelons of all segments of society: law, journalism, medicine and so on. There is no doubt much more progress can and should be made in this regard. But compared to our continental European counterparts, it is a completely different picture.  Indeed, it is British liberalism – and the experience of globalisation, multiculturalism, and diversity – that has allowed integration to actually work in the UK (at least better than elsewhere in Europe). That London – one of the great Western capitals of the world, has a practising second-generation immigrant Muslim, son of a bus driver, as its mayor – one for whom millions of people voted – is perhaps something you may not see in many other parts of Europe. It is a credit to the UK.

Brexit has brought fear to many who care about freedom. Is this vote a move towards close-mindedness? To xenophobia and racism? To oppression and cruelty? I don’t think so. Not because Brexit is necessarily a good thing – that’s for history to decide. But because it is not the British way. The British people have always been a fundamentally open, tolerant, kind, warm-hearted people. And indeed, the levels of integration already reached mean that it is hard to go back. Many, many people in the UK will have had immigrant doctors, lawyers, teachers, accountants, mechanics. Once someone has served you and helped you, it is hard (albeit not impossible) to reject that person. It is imperative that in the days to come, Britain continues to hold fast to its love of tolerance and spirit of welcoming, and not follow the illiberal trends in Europe that the recent judgment of the European Court of Justice represents.

About the Author: Shazia Bhatti is a practising lawyer in London, specialising in immigration law.

 

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