Leiden Law Blog

Redressing the Discourse on the Burqa Ban

Posted on by Machteld Zee in Public Law , 2
Redressing the Discourse on the Burqa Ban

The Dutch parliament suspended the voting on the proposed law to ban the burqa, as the motivation for the ban – public safety and uninhibited communication – was deemed flimsy. These grounds were indeed insufficient. With new elections coming up, it is time to restart the debate on the burqa, and this time, we should use decent arguments. I would like to take a head start, and propose to rid ourselves of some of the arguments often used by opponents of the burqa ban.

First of all, banning the burqa is said to be intolerant and discriminatory (or Islamophobic or xenophobic). Of course, some Muslims of certain minority groups are confronted with real discrimination, this is a disgrace and we should not tolerate it. Yet, ‘discrimination’ elicits such an emotional response, because we take equal treatment to be foundational to human dignity. Now, the burqa covers a woman from head to toe, including her eyes. It is the most obstructive piece of clothing Islam has on offer. The reason one should oppose the burqa, is not because we are intolerant of other cultures, but because these women are just like us. Being in favor of the ban is not discriminatory, it is egalitarian. We want these women to enjoy the same freedoms as we have. Having to walk on the streets covered in a suffocating robe which is assigned on the basis of your gender, is not egalitarian. It is discriminatory.  

But, is it not possible that a burqa-wearing woman chooses to wear it freely? And shouldn't we respect that freedom? Sure, she may have consented or even actively chosen to cover herself up. However, recognition of individual consent to subjugation – particularly for a woman – is problematic. Consent in the case of the burqa is suspect, as members of an oppressed group often do not have the autonomous position some people imagine them to have and proceed to project upon them. (Curiously, this ‘choice’ is one that men never choose) And even so, the argument of free choice is not sufficient to oppose a burqa ban, because it is not mere fantasy that some of these women are, in fact, not able to wear what they want. This also eliminates the ‘numerical’ position, which runs as follows: there are only a few burqa-wearing women in the Netherlands, it is not a real problem, it is symbolism etc. Hypothetically, if there would only be one who is forced, the ban is needed.

But, then the opponent asks: Is a ban not counterproductive? Will men who force their women to wear burqas outside now force them to remain inside? – moving them from a cotton prison to house-arrest. There are two suitable responses: (1) this underlines the degree of severe oppression these women are faced with, and (2), a state that holds freedom high for every citizen, should not succumb to this form of blackmail. 

Here one could argue that the burqa is not Islamic, as the Holy Qur’an does not mention it, and it is not widely practiced either currently or historically: namely, it is culture not religion. In that case, we have side-stepped the legal dilemma between freedom of religion and equality: if it is not religion, it is not protected by the Constitution. The ban can be based on the Convention on the Elimination of All Forms of Discrimination against Women, the UN Treaty which has been called to life primarily to remedy the tension between religious freedoms and gender equality. States ratifying the Convention are required to enshrine gender equality into their domestic legislation, and enact new provisions to guard against discrimination against women.

The burqa is a horrible piece of clothing, designed to manifest the inferiority of women, something we should not allow, especially not under the guise of tolerance or of individual liberty. It is a pity that the discourse on the burqa so often follows the path of politically-correct statements on toleration, when the proposed ban actually offers to restore some gender equality and liberty to those who have been denied it – it will even tolerate Muslim women’s faces, eyes and forms in public. Proudly stating that the Netherlands is a tolerant country where ‘everyone is free to wear what they want’ neglects women who are oppressed, even if there are only a few.

2 Comments

Warren
Posted by Warren on September 6, 2012 at 10:38

On one level, I don’t havbe a problem with Burqas. Logically, any legal limit on miminum acceptable dress for a female that lies between cover everything and nudity is OK is arbitrary.  These are social standards, set by societies.On the other, I do:  social standards which are very rigid, strictly enforced, and unfairly unbalanced between men and women are destructive.  Maybe things would be better if men and women had equally cumbersome dress codes? You can’t go out in just a Tee shirt, Hussayn, put this on.  Oh hell no.  Yes, I could see things would be changing very quickly if this was the case.  But at least, it would be fair.On the third hand, communication is the key.  Facial expression and gesture is an important part of communication, which is why face to face discussions are so much more fruitful than telephone discussions (and these in turn are so much better than email conversations, because tone of voice also is important!)Therefore, a burqa cuts off an important element of communication.  Poor communication is a factor in, by my very rough but experienced guess, maybe 90% of the disputes between people.  (This is why in the USA, lawyers of opposing parties NEVER wish their clients to meet in person- they are afraid that once able to communicate fully and unhindered, they will resolve the dispute without the lawyers!) Therefore, a burqa contributes to disuptes.In the most extreme of societies, perhaps they think they’ve gotten around this little problem by putting an end to male-female disputes entirely, but that does not so much remove the problem as it does hide the problem from view.Ben

Vincent
Posted by Vincent on August 9, 2012 at 11:11

Hey Machteld,

Good stuff, and while I agree with most, I’m not sure I agree with this:

“Hypothetically, if there would only be one who is forced, the ban is needed.”

This maybe so if government was free and of unlimited capacity. However, since it is not, and capacity of lawmakers, prosecutors, judges and especially police being stretched as it is, I think there are other, more pressing issues to focus and spend the ever decreasing budget on. There are already too many laws and rules that are not enforced, we don’t need too many more. The problem is too small and it is too uncertain that the proposed solution (a ban) will actually help the victims. At least, that’s what I think.

Best, Vincent

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