Niqab and Burka. Source: BBC website.
Sheila Ayala has posted a rebuttal to the CSA’s “Briefing Note Regarding the Veil” (ie: the niqab and burka, left). While she properly deplores compulsory veiling as a form of oppression, her post repeats standard (but fallacious) talking points of the pro-ban side, fails to address important points raised by the CSA paper, and (like every other argument I have so far heard on this topic) fails to address significant practical issues in implementing a legal ban on public wearing of the veil.
Yes, we all hate it
Just to get it out of the way right at the start, let us begin by stipulating: No one in this conversation disputes that Muslim veiling customs are the product of a patriarchal and misogynistic history, and that compulsory veiling — even if enforced only by social pressure — is a monstrous iniquity. Everyone in this conversation (thoroughly godless humanists all) further abhors the invocation of mythical divine command, with its historical close ties to sexual repression and oppression, to reinforce this tradition. And everyone in this conversation acknowledges that the concept of “free choice” for women within the more conservative Muslim communities is deeply problematic — a sick joke, even. And even in the case of women (many of them Western converts from non-Muslim backgrounds) whose decision to veil may reasonably be construed as voluntary, everyone in this conversation still finds the practice at best, well, a bit silly. (By the way: everything I have just said can be found within the CSA paper. Perhaps they could have worded it more strongly, but the points were made).
So lets take all that as “read”. The question at issue is: Does any of the above justify invoking the criminal law? Can the law, in fact, even be usefully and coherently applied to this situation?
On Sheila’s Rebuttal
I want to begin by addressing a few of Sheila’s specific points which I find fallacious:
The CSA disputes that there are no compelling reasons for a state to ban the veil, and there are no reasons for imposing a dress code. They are wrong. There are many cases where the state does impose dress codes. It forbids anyone from appearing naked in public. In the interest of safety, cyclists must wear a helmet; construction workers must wear protective clothing on building sites. Banning the veil is also a safety issue. Wearing the veil while walking and even more while driving, leaves the wearer with minimal peripheral vision.
What the CSA paper actually says is “in the absence of a compelling reason to the contrary, no person should be forced to comply with a dress code imposed by the state”. And in the case of safety equipment, there is indeed a compelling interest: a clear and present hazard to cyclists and construction workers. Similarly, while I can’t be bothered to search the Highway Traffic Act, I’m pretty certain there are already requirements that the driver be able to see clearly. Fair enough: this would prohibit the operation of a motor vehicle while wearing a burka. But you cannot extend requirements pertaining to specific situations to a more general prohibition.
(Tangentially: I am not convinced that our existing prohibitions on public nudity are strictly justifiable on the basis of compelling state interest. Rather it seems to me that they are rooted in traditional religious notions of bodily shame. The Abrahamic faiths have always had an unhealthy love-hate relationship with the human body; other societies have not been so inhibited).
Thieves and terrorists have been known to cover themselves with a veil to conceal their faces when committing crimes making it difficult for witnesses to identify the offenders.
Thieves we have always had with us, and often they have concealed their faces. So I find it…interesting that it is only now — when we are dealing with a noticable influx of immigrants who bring customs (and ideologies, and geo-political entanglements) we find problematic — that we hear calls for a ban on facial concealment.
Covering the whole body except for the eyes has led to severe health problems among Moslem women. Such coverings block out sunlight, depriving these women from receiving vitamin D….
Then they should take vitamin D supplements. As I said above, no one disputes that the burka is a stupid idea — but self-inflicted vitamin D deficiency hardly seems sufficient justification for a general public ban on some behaviour.
CSA reveals its naivety when it imagines that any reforms must come from within the Moslem communities. We know that is not going to happen. How do we know? A prime example is the Catholic Church….
I reject the analogy to the Church’s handling of child sex abuse by priests. The Catholic Church is a monolithic institution which (like all such institutions) seeks to protect its power and prestige. And (also in the manner endemic to such institutions) it reacted to the threat of scandal with the disastrously short-sighted strategy of trying to deny and cover up the problem. Islam by contrast is a community which includes (as I discuss in my next point) significant diversity on the very issue under debate.
CSA claims that whether the veil is required by Islam or not is only a question for debate within the Moslem community. Again, they are wrong. We must examine the reason for such a requirement. If face covering is not in their scriptures, Moslems can’t hide behind religious freedom. If it is not a sacred requirement, then it is a cultural one.
This is a distinction without a difference. If someone sincerely says “My god wants me to do this”, then ipso facto that is their religion. As it happens, some Muslim authorities think the veil is optional and some think it is obligatory — there is a historical-theological argument going on among the scholars of Islamic tradition. But (and this is the only question relevant in the context of a legal ban in Canada), do we really want our secular courts trying to parse the distinction between the True Core of Islam and mere cultural accretions? In fact the the Supreme Court of Canada has rightly declined to get involved in such intra-faith wranglings (emphasis mine):
Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms) consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials….It is the religious or spiritual essence of an action, not any mandatory or perceived‑as‑mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma.
The CSA is not wrong on this point; they are absolutely right.
And as so typically happens in this debate, we wander off into the topic of personal affront:
The veil is also offensive to Western women. It is a reminder to them that in some parts of the world and in some religions, women are considered possessions and are consigned to second class status. It is gender apartheid. It is like a Jewish person seeing a Nazi swastika or a black person seeing a burning cross. Who wants to be reminded that they are thought of being less than human?
Lots of things are offensive to lots of people, often for very good and just reasons. But (and I keep having to emphasize this rather basic point, because it seems to keep getting forgotten): Are we really proposing calling the cops on someone who offends us? (As an example: do I need to remind readers that public expressions of affection between same-sex couples were, and still are, considered highly offensive by many segments of our society?)
On the long evolutionary road, interpreting facial expressions evolved as an aid to survival skills. When we meet people for the first time, we automatically judge whether they are friend or foe. Can they be trusted? Are they aggressive or submissive? Do they have a happy or sad disposition? This is why in a court of law, it is essential for a jury to see the face of a witness in order to decide whether the person is being truthful or lying. They can’t do that if a face is covered by a veil, nor can they hear a witness properly with a piece of cloth covering the mouth.
This relies on the assumption that people can, in fact, judge truthfulness from appearance with reasonable proficiency. To me, this sounds like one of these abilities that everyone thinks they have (like being a better-than-average driver), but which tends not to hold up when tested rigorously. Perhaps I am incorrect to dispute this, but I would really like to see hard data.
Courts are sensitive to the difficulties that rape victims have in testifying which is why they are allowed to give evidence via a video link, still allowing the jury to see her face.
This brings up the recent case of a Muslim woman, known only as N.S., who accused two family members of having sexually assaulted her as a child. She wished to remain veiled while testifying, saying:
“It’s a respect issue, one of modesty and one of … in Islam, we call honour,” she replied. “It’s also about the religious reason is to not show your face to men that you are able to marry. … I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.”
Now, I have conflicting feelings myself about this case, but lets be very clear on what happened here: she was testifying about a sexual assault that happened to her — and her alleged assailants (via their legal counsel) demanded that she violate her own standards of modesty to do so. If that doesn’t give you a moment of pause, then you haven’t thought about it hard enough. Not surprisingly, many feminist organizations supported the woman in her desire to remain veiled (apparently, notwithstanding the general anti-feminist significance of the practice). Now, if the reply is made that in our society, face-veiling is considered overkill for modesty purposes, then I have to ask: who are you to tell this woman what should constitute modesty for her. Bodily modesty is a personal and variable thing: many Western women happily go out wearing mini-skirts and showing cleavage. Others prefer to be covered from collar-bone to knees. We would not even dream of demanding that a more-covered woman expose a bit more skin, on the grounds that she would still be within the normal range for our society — we immediately recognize that it’s her own damn business, for her own damn reasons, and no one else’s.
In its zeal to protect individual rights, CSA overlooks the facts that make veiling so undesirable. Veiling perpetuates mistreatment of women and hinders integration. Women who are forced to wear the veil are more likely to be subject to other practices that restrict their freedoms. Woman who choose to wear the veil without any pressure are purposely putting up a barrier between themselves and their surrounding communities. It is a drawback to integration when people cannot relate to someone who hides her face and is difficult to hear and understand.
The CSA paper does not overlook the downside of veiling; they acknowledge several of them. I can’t do better than reiterate the CSA’s own words on the central issue of this debate:
The CSA does not believe that the law is an instrument that can effectively address [the problems of forced veiling] while respecting Canadians’ fundamental rights and freedoms.
I will go one step further: advocates too often talk in vague terms about “banning the veil” without specifying just what they think such a law should say. What, specifically is to be prohibited? How is the law to be framed in a way that it is not either clearly directed against a particular group (ie. xenophobic), or so broad that it prohibits innocuous, even desirable, behaviours by everyone?
I have further thoughts on this topic, but this post has been stuck in the editor long enough; I will continue later if I find the time.
Suggested reading: http://www.legalfrontiers.ca/2010/04/whats-wrong-with-banning-the-niqab/