Complex equality: Muslim women and the 'headscarf'

Droit et Societe

Volumn 68, Issue 1, 2008, Pages 127-152

  Malik, Maleiha ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

Equality; European citizenship; Gender; Great Britain; Headscarf; Muslim women

Indexed keywords

EID: 67549142351     PISSN: 07693362     EISSN: None     Source Type: Journal    
DOI: 10.3917/drs.068.0127     Document Type: Article

References (50)

1. Christopher A. BAYLY, The Birth of the Modern World 1780-1914: Global Connections and Comparisons, Oxford, Blackwell, 2004, 17.
2. Joan W. SCOTT, 'Symptomatic Politics: The Banning of Islamic Headscarves in French Public Schools', French Politics, Culture and Society, 23 3, 2005, 106. Scott concluded that in France: "There are, in addition to domestic reasons, international events that help explain the timing of the head scarf affaires. Ongoing anxiety about the meaning of national identity in the face of European unification provides the backdrop. On the one side, French Muslims identify more strongly with beleaguered Muslims elsewhere and the wearing of head scarves is more likely to signify that identification; on the other side, the nation's defence against real threats of terrorism has been equated with the need to protect all republican institutions from any perceived challenge to their integrity."
3. For the letter which raised the issue of full facial veils see Jack STRAW, 'I Felt Uneasy Talking to Someone I Could Not See', The Guardian, Friday 6 October 2006. For media commentary: in favour of Straw, see Yasmin ALIBHAI BROWN, 'Its not illiberal for liberal societies to disapprove of the veil', Time Europe Magazine, 16 October 2006; against Straw, see Madeleine BUNTING, 'Jack Straw has unleashed a storm of prejudice and intensified division', The Guardian, Monday 9 October 2006.
4. For a discussion of the international context in which the British facial veil incident arose, see Maleiha MALIK, 'This veil fixation is doing Muslim women no favours', The Guardian, Thursday 19 October 2006.
5. Matthew PARRIS, 'Never mind what the woman thinks, wearing the veil is offensive to me', The Times, 27 August 2005.
6. See the summary of the post July 7 critique of British multiculturalism in Tariq MODOOD, 'Remaking Multiculturalism after 7/7', openDemocracy, 29 October 2005: " To take just three examples from a waterfall of commentary over the last ten-to-twelve weeks: William Pfaff states that "these British bombers are a consequence of a misguided and catastrophic pursuit of multiculturalism" ("A monster of our own making", Observer, 21 August 2005) ;
7. Gilles Kepel observes that the bombers "were the children of Britain's own multicultural society" and that the bombings have "smashed" the implicit social consensus that produced multiculturalism "to smithereens" ("Europe's answer to Londonistan", openDemocracy, 24 August 2005) ;
8. Trevor Phillips questions, in the context of a speech concerned with "a society becoming more divided by race and religion", an "'anything goes' multiculturalism which leads to deeper division and inequality . In recent years we've focused far too much on the 'multi' and not enough on the common culture." ("After 7/7: Sleepwalking to segregation", Commission for Racial Equality, 22 September 2005)."
9. John GRAY, 'Islam rejects the liberal consensus: the best we can hope for is tolerance', The Spectator, 17 February 2007;
10. Tariq MODOOD, Multiculturalism, Cambridge, Policy Press, 2007, 139.
11. For this paradoxical representation of Muslim women as both passive victims and aggressive symbols of political Islam see Joan SMITH, 'The Veil is a Feminist Issue', The Independent, 8 October 2006.
12. See also Joan Smith's comment on the practice of Muslim women who wear the veil as both a 'political act' to impose radical Islam on secular societies and, at the same time, a practice which is imposed upon and isolates Muslim women, see Joan Smith's lecture to The Fawcett Society, available at http://www.fawcettsociety.org.uk/documents / (accessed on 12 June 2007).
13. For a detailed discussion of the legal regulation (and legal cases) on headscarves see Dominic McGOLDRICK, Human Rights and Religion: The Islamic Headscarf Debate in Europe, Oxford, Hart Publications, 2006.
14. R v. Headteacher and Governors of Denbigh High School (ex parte Shabina Begum) 2006 UKHL 15 (hereinafter Shabina Begum).
15. Ludin BverfG, 2 BvR 1436/02 (24 September 2004; decision of the German Federal Constitutional Court). For a detailed discussion of Ludin (both the decisions of the Federal Administrative Court and the Federal Constitutional Court) see Matthias MAHLMANN, 'Religious Tolerance, Pluralist Society, and the Neutrality of the State: The Federal Constitutional Court's Decision in the Headscarf Case', German Law Journal, 11 4, 2003, 1099. See also the article by Schirin Amir-Moazami in this volume.
16. Dahlab v. Switzerland, Application 42393/98, ECHR 2001 - V.
17. See the chapter on Belgium in this volume. There has been no decision of a higher appellate court in Belgian on this issue to date. See 'Racism and Xenophobia in EU Member States: trends, developments and good practice', Annual Report 2005, Part 2, 73-74, Vienna, EUMC, 2005, (available at http://eumc.eu.int, accessed on 18 October 2006).
18. Karaduman v. Turkey 1993, 74 Dec. O & Rep Eur Comm H. R. 93;
19. Dahlab v. Switzerland, Application 42393/98, ECHR 2001 - V;
20. Leyla Sahin v. Turkey, European Court of Human Rights, Decision of 10 November 2005, Application 44774/98.
21. See 'Racism and Xenophobia in EU Member States: trends, developments and good practice', op. cit.
22. Dominic McGOLDRICK, Human Rights and Religion: The Islamic Headscarf Debate in Europe, Oxford, Hart Publishing, 2006.
23. Martin LOUGHLIN, 'Constitutional Theory: A 25th Anniversary Essay', Oxford Journal of Legal Studies, 25, 2005, 183-202.
24. See for example the discussion of the 'public career of the Islamic veil in France' in Claire DE GALEMBERT, 'L'Affaire du foulard in the shadow of the Strasbourg Court: Art. 9 ECHR in the public career of the veil in France' (draft copy with author).
25. Christopher A. BAYLY, The Birth of the Modern World 1780-1914: Global Connections and Comparisons, op. cit., 13.
26. Ibid., 17.
27. This explains why women's clothing has always been an important focus for the European and Anglo-American women's movement. In the Anglo-American tradition, see for example the campaigns of the US Suffragette Amelia Bloomer (1818-1894) for a change in women's clothes from restrictive skirts to bloomers (i.e. trousers for women). See the review article which discusses some of these issues in the context of the US suffragette movement, Reviewed Work (s) by Kathryn Kish SKLAR: 'Life and Writings of Amelia Bloomer', by D. C. Bloomer; 'Weathering the Storm: Women of the American Revolution', by Elizabeth Evans; 'Womanhood in America: From Colonial Times to the Present', by Mary P. Ryan, see The American Historical Review, 81 3, 1976, 672-673.
28. For example, during the British 'niqâb' debate, the constitutional affairs minister, Harriet Harman, said that she was opposed to the niqâb 'as a feminist' See http://news.bbc.co.uk/1/hi /uk-politics/6040016.stmmen (accessed on 29 October 2006). A leading feminist political commentator supported this political position, see Polly TOYNBEE, 'Only a fully secular state can protect women's rights', The Guardian, 17 October 2006.
29. For a discussion of the role of French feminists in the political mobilisation against the veil see John BOWEN, Why the French Don't Like Headscarves: Islam, the State, and Public Space, Princeton, Oxford, Princeton University Press, 2006.
30. See Maleiha MALIK, 'Minorities and Human Rights', in Tom CAMPBELL, Keith EWING and Adam TOMKINS (eds.), Sceptical Essays on Human Rights, Oxford, Oxford University Press, 2000.
31. See for example The Employment Equality Directive 2000/78/EC implemented in Britain via the Employment Equality (Religion or Belief) Regulations SI 1660 2003 (introduced/presented 26 June 2003; in force 2 December 2003).
32. For a general discussion of the relationship between law and social spheres see Dennis J. GALLIGAN, Law in Modern Society, Oxford, Oxford University Press, 2007, especially chapters 2 and 6.
33. Maleiha MALIK, 'Faith and the State of Jurisprudence', in Peter OLIVER, Sionaidh DOUGLAS SCOTT, and Victor TADROS (eds.), Faith in Law: Essays in Legal Theory, Oxford, Hart Publishing, 2000.
34. For a detailed discussion of these points see Maleiha MALIK, 'Faith and the State of Jurisprudence', op. cit., 137.
35. In the common law tradition R. Dworkin has explored the relationship between law and community, see Ronald DWORKIN, Law's Empire, London, Fontana Press, 1986. More specifically R. Cotterrell has developed this vision of law's function as the creation of a 'community' in Roger COTTERRELL, Law's Community: Legal Theory in Sociological Perspective, Oxford, Clarendon Press, 1995.
36. Gerald POSTEMA, Bentham and the Common Law Tradition, Oxford, Clarendon Press, 1996, 73.
37. For a detailed discussion of these points see Maleiha MALIK, 'Faith and the State of Jurisprudence', op. cit.
38. Dennis J. GALLIGAN, Law in Modern Society, Oxford, Oxford University Press, 2007, 275.
39. Nilufer GOLE, Civilization and Veiling: The Forbidden Modern, Michigan, University of Michigan Press, 1996.
40. Dahlab v. Switzerland, Application 42393/98, ECHR 2001 - V.
41. Sarah HANNETT, 'Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination', Oxford Journal of Legal Studies, 23, 2003, 65.
42. Kimberle CRENSHAW, 'Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, The University of Chicago Legal Forum, 1989, 139.
43. Angela P. HARRIS, 'Race and Essentialism in Feminist Legal Theory', Stanford Law Review, 42 3, 1990, 581-616.
44. Nitya IYER, 'Categorical Denials: Equality Rights and the Shaping of Social Identity', Queen Law Journal, 19, 1993, 179-207, at 188-191.
45. Élizabeth ALTSCHULL, Le voile contre l'école, Paris, Seuil, 1995. É. Altschull justifies her decision to order a thirteen year old woman to remove the headscarf as more 'feminist' than 'laïque'. See also Jeanne-Hélène KALTENBACH and Michèle TRIBALAT, La République et l'Islam: entre crainte et aveuglement, Paris, Gallimard, 2002, who argue against the Islamic interpretation of 'woman' and 'feminine modesty'.
46. Kathryn Abrams has observed this tendency in the context of sexual harassment. The phenomenon of 'disciplinary harassment' ensures that those who are biological members of a protected group (e.g. men) may seek to control - and where there is transgression discipline - those such as gays, bisexuals or transexuals who " attempt to escape from the social characteristics ascribed to their groups". See Kathryn ABRAMS, 'Title VII and the Complex Female Subject', Michigan Law Review, 92 8, 1994, 2479-2540, at 2533.
47. There is no evidence of coercion of, or lack of consent by, Shabina Begum in any of the affidavit evidence. For personal testimony that wearing the jilbab was a personal choice see Shabina Begum's statement to Jasper Gerard in 'Jasper Gerard meets Shabina Begum', The Times, March 26, 2006.
48. See the judgment of the House of Lords, R v. Headteachers and Governors of Denbigh High School, ex parte Shabina Begum, 2006 UKHL 16. Para. 10 refers to young men (her brother and one other young man) who attended meetings with the school with Shabina Begum; there was also a demonstration outside the school but this was not related to Shabina Begum.
49. See Catherine BENNETT, 'Of course women have the right to choose. But agreeing to wear a jilbab is no choice at all - even Mrs. Blair can see that', The Guardian, 15 September 2005.
50. Judy SCALES-TRENT, 'Black Women and the Constitution: Finding Our Place, Asserting 0ur Rights', Harvard Civil Rights - Civil Liberties Law Review, 24 1, 1989, 9-44, at 43.