Of Headscarves And Turbans – The ECJ’s Fascist Libertarianism

03/16/2017 12:02 pm ET Updated Mar 21, 2017

The European Court of Justice in a wide-reaching judgment ruled last Tuesday that employers would be permitted to institute a ban on Muslim headscarves in the workplace so long as a general ban on other religious symbols such as the Sikh turban and the Jewish kippah was in place. The Court held that a company rule to prohibit the visible wearing of any political or religious signs would not constitute direct discrimination. As such, the ruling effectively means that in future employment may be denied to Muslim women donning headscarves regardless of their professional expertise or suitability for a role.

The obvious detrimental implications of this ruling aside, the ideological premise whereupon the Court makes these findings is deeply flawed. It is well known that the jurisprudential notion of rights comes with a corresponding set of obligations. In John Stuart Mill’s words, “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education or opinion.” The idea of having a valid claim on society to have individual rights protected is a powerful one and means that rights are only fulfilled when their corresponding duties are discharged. The ECJ’s ruling disenfranchises Muslims, Sikhs, Christians and Jews who wish to exercise their right to wear religious symbols in the workplace by relinquishing the state from its obligation to protect this fundamental right. As such, the Court goes against Article 9 (1) of the European Convention on Human Rights (the ECHR) that guarantees an individual’s right, “… to manifest his religion or belief, in worship, teaching, practice and observance.”

A limitation of the rights spelt out in Article 9 (1) is only permissible in, “the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The ECJ, which uses the ECHR as a guiding principle in its case law, does not make clear in its ruling how religious symbols worn at the workplace pose a threat to public safety or are an infringement of the rights of others. The Muslim headscarf is unlike a veil that covers the face, which may in certain instances be required to be removed for security purposes. As such, the Court’s ruling also violates its own tradition of using certain general principles in its decision-making process, one of them being respect for fundamental rights as enshrined in Article 6 (2) of the Maastricht Treaty (or the Treaty Establishing the European Union).

In denying an individual the freedom to choose his or her dress in the workplace, the Court’s ruling will also have deeper repercussions on the exercise of economic, social and cultural rights guaranteed in all major human rights conventions. Thus, it is not simply freedom of religion that is being curtailed by the ruling but wider interconnected rights, importantly, the right to free and fair employment. What happens to for example a Muslim mother in Europe who is a single parent and dons the headscarf and also happens to be the breadwinner for her children? The ECJ’s judgment effectively denies her the right to fend for her family. The irony is profound when I think of the example of my own mother – a single parent who raised us in Pakistan – she wore the Muslim headscarf and was a schoolteacher. If she was to do that again today in Europe – a continent that prides itself on its individual liberties – she would not be allowed to work simply because of her choice of clothing.

The ECJ’s decision also epitomises what may be called almost a fascist form of liberty. While mainland Europe remains committed to protecting women’s choices when it comes to bare-bone dressing, it somehow has not been able to stomach women choosing to cover their heads – of their own free accord. Moreover, this ultra-liberalism is particularly hegemonic when we see women being removed from red carpets in Cannes for not having worn high heels to the infamous film festival. The ideology that there is only one form of secularism that deserves to be respected and society must conform or otherwise be marginalised is almost tantamount to secularist apartheid. What rational, legal, moral or ethical sense does it make for a woman to be forced to wear high heels and be forced to remove her headscarf at the same time? It appears that the bastions of liberalism are on a collision course with their self-crafted archetype of individual rights and paradoxically the long celebrated notions of diversity and equality are under threat from their very own inverted ideals of freedom and liberty.

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