The Burqa Debate: To Ban or Not to Ban April 15, 2011

For a Ban: Christina Mahfouz

President Nicholas Sarkozy has declared: “We cannot accept that in our country some women will be imprisoned behind a fence cut off from all social life, deprived of identity. This is not a principle that the French republic has about women’s dignity.” He called the bill to ban the burqa a “moral choice”, and similar laws are now being considered across Europe.

Predictably, this has angered opponents, who view the ban as an attack on the freedom of expression and worship. With 0.003 per cent of the French population wearing the burqa/niqab, and in an era in which many extreme behaviours are often tolerated, why does a piece of cloth generate such highly-charged debate?

First, the ban strikes a practical balance between individual liberties and the wider security concerns of the community. It should be noted that the ban will not affect the hijab, the most common type of headscarf worn by Muslim women in the West that covers the hair only. It recognises individuals’ right to cover their heads and bodies in deference to the time-honoured religious principles of female modesty and respect. The issue of contention is in covering one’s face. Second, the French bill does not seek to ban the burqa in private homes, but in public spaces, including post offices, banks and public transportation.

It is also important to note that the ban is not specifically targeting Islamic women. The draft legislation stipulates that “no one can, in the public space, wear clothing intended to hide the face”. Under the legislation, all facial coverings, including helmets and balaclavas, would be prohibited. Indeed, it is reasonable that civilians expect not to encounter masked strangers in public spaces. Accountable and healthy participation in society fundamentally requires identification: the need to be able to recognise our fellow citizens and be recognisable in turn. Lifting the veil upon request does not resolve this issue.

The burqa creates a one-way window through which some members of society are recognisable, while others remain invisible. This is a rather confronting prospect with which to be faced, especially when you are the one who cannot see the person staring back at you. It is not a manifestation of so-called ‘Islamophobia’. It is a basic principle of social cohesion that has developed since time immemorial and is especially important in advanced, mobile-age economies such as ours that place a very high premium on successful communication and interpersonal relations. According to Jean-Francois Cope of The New York Times, the burqa prevents women from engaging in socially meaningful lives, thus undermining employability and the ability to climb the socio-economic ladder.

No doubt, the burqa has a range of meanings for the women who wear it, and speaking from a predominantly Western perspective, it is difficult to appreciate these fully. However, the burqa’s origins lie not in the Qur’an, but rather in an extremely conservative interpretation of Islam known as Salafism. This interpretation is commonly associated with countries such as Afghanistan and Saudi Arabia, where the burqa is mandated by Sharia law, which also forbids women from driving, leaving the home without supervision or engaging in various socio-economic interactions, including minor medical procedures, without the consent of a male ‘guardian’.

It is difficult – perhaps even naive – to separate “choice” from the fundamentalist and inherently gender-biased religio-cultural context in which it is made, especially since the burqa is usually worn by immigrants from these Gulf regions. This is a particularly jarring concept, given that it sits contrary to the ideals of universal human rights, gender equality and individuality.

In the alternative, if their “choice” turns out to be the result of fully autonomous, informed decision-making, the legislature may have no basis for imposing its whim on a woman’s fashion sense. But what if the women inside genuinely need help? Or a platform for liberation? Instead, political correctness is tying the tongues of those who would normally be at the fore to campaign for women’s rights. Unfortunately, evidence points to coercion as being at least one factor that influences women in wearing burqas.

A piece of cloth is just that; but various moral and security dilemmas arise when that cloth is used to entrench social invisibility. Ultimately, the burqa is a visible statement of separateness that entrenches differences and creates distance between its wearer and society. To borrow the words of the South Australian Senator Cory Bernardi, “it’s symbolic barrier is far greater than the measure of cloth it is created from”.

Against a Ban: Grace Brown

The burqa debate is a microcosm of the broader issue of Islamaphobia. At the radical end of the Islamaphobic scale, Pastor Jones attempted to hold a “Burn a Koran Day” in Florida last September 11; at the conservative end, Switzerland prohibited minarets. This year, France’s Senate voted 246 to 1 in favour of banning the burqa and the niqab, which leaves eyes uncovered. Yet targeting the symbols of Islam will not improve national security; it will unhinge it, by alienating Muslims domestically and reaffirming the belief of extremists worldwide that Islam and the West are inherently incompatible. This fuels terrorists’ fire; already, al-Qaida has threatened “dreadful revenge” if France’s ban is enforced.

The security rationales for a burqa ban may conceal anti-Islamic sentiments towards the growing visibility of Islam in secular backyards. If security is the objective, why not ban gun licenses? Instead, the French multi-party panel that recommended the ban also suggested that France refuse residence cards and citizenship to anyone with “visible signs” of “radical religious practice”. Although there are Islamic states that would not allow non-Muslims to dress freely, extremes exist on both sides and two wrongs cannot make a right: merely a lowest common denominator.

The media have stirred the phobia, exaggerating the extent of ‘Islamisation’ as a sovereignty threat. One morning show in Australia sensationalised a story about “why Victorians are forced to cover up”. In fact, as Jackie Frank, Marie Claire’s Editor-in-Chief, correctly noted, it was a request, not a requirement, and limited to a Muslim sports event in wintry August. Conversely, the original journalistic inaccuracy may have generalised a controversial expectation across an entire group.

Some legislators argue that a ban will liberate Muslim women from ‘subjugation’; but the extent to which Sharia law or community dress coercion exists in secular societies is limited. Many migrant women argue that they wear it against their families’ wishes, in the exercise of their constitutional rights to freedom of self-expression and religion to emulate the wives of the prophet Muhammad. One burqa-wearer asserted on the ABC that her burqa is as much an exercise of individuality as tattoos and piercings. Saliently, unlike some exercises of liberty such as smoking, that decision does not adversely affect others.

While Premier Kristina Keneally affirmed that “a burqa ban has no place in multicultural New South Wales”, in Western Australia, Muslim women giving evidence must now remove their veil. While the legislative intent is to facilitate fair process by mitigating jury prejudices, it also compounds the emotional burden of giving evidence, acknowledged in rigorous restrictions on cross-examination nationally. Compelling witnesses to remove a meaningful piece of clothing could increase their discomfort, confounding the reliability of their testimony or, worse, deterring them from testifying at all.

Muslim women are not only at risk of being alienated in the administration of justice, but in society. France’s proposed bill broadly prohibits burqas and niqabs in “public spaces”, which encompasses streets, markets, government buildings, public transportation and even private businesses. They will be ‘free’ to choose between one of three equally austere options: bear punishment, abandon their faith, or become prisoners in their homes. “I won’t go out … I’ll send people to shop for me … I’ll stay home, very simply,” said Oum Al Khyr, who wears a niqab.

This contradicts everything that a free and democratic society represents and undermines the ban’s very subject: the women experiencing it. Ironically, wearing a burqa is, for many, an exercise of liberty; the ban is a constraint. Freedom is forfeited not in choosing to wear a burqa, but in being unable make that choice at all. A Muslim mother of four in Avignon, Kenza Drider, considers France’s ban “a law that is unlawful … against liberty of conscience”.

Overall, if the legislative intent of the ban is to improve security, or the quality of life of Muslim women, it reflects paternalism at its most naive. In failing its objectives, it could be unconstitutional. Consequentially, judicial challenges are expected in France’s Council of State and the European Court of Human Rights. It may also be unenforceable; women wearing it will be fined 148 euros, while men pressuring them will be fined 29,757 euros and risk a jail sentence. But how will police determine whether a woman was wearing it under duress, or assuming responsibility to avoid her husband incurring tougher penalties?

Burqa and niqab bans are unconstructive, unconstitutional, unenforceable, and their justification opaque. Rather than arbitrarily administering discriminatory laws, we must give unwavering attention to the aims of such laws and consider whether they are appropriate and adapted to achieving those aims. In doing so, we must assess not only black and white headline-worthy extremes, but every shade of grey in between. And we must acknowledge our own ignorance before legislating in murky waters; the truth may be as difficult to perceive as the affected woman herself.