The dishonest nature of court’s hijab decision

HA Hellyer reacts to the European Court of Justice ruling on wearing religious objects such as the Hijab in the workplace

Muslim women wearing hijabs visit the Montmartre hill in Paris. Fred Dufour / AFP

The topic of Islamophobia is a live one, especially on the European continent and North America. It has been for years, but there is a renewed resurgence of anti-Muslim bigotry – and it shows no signs of abating. Indeed, current indications would imply that it is becoming institutionalised. A few years ago, that kind of assessment might have been condemned as fearmongering. Today, however, it is quite undeniable – because western political leaders are leading with the rhetoric, and western institutions are taking their cues. That will make it more difficult to roll it back.

When it comes to political rhetoric, we have already seen that numerous political figures in the United States and many parts of Europe have pushed the envelope in terms of anti-Muslim bigotry. It used to be a type of bombast limited to marginal figures on the far-right, but it has now become mainstream.

Following recent anti-Muslim statements by Geert Wilders in the Netherlands, a member of the US Congress offered his explicit support to the Dutch politician’s outrageous declarations. Steve King, a Republican congressman, has openly said he would like to see “an America that's just so homogeneous that we look a lot the same”. A few years ago, it might have been unthinkable that it would be possible to express such blatant racism and intolerance so publicly – not any more.

But the rhetoric doesn’t end with the final media story covering the outrageous comments. Repugnant rhetoric has consequences and violent repercussions. On Tuesday morning, the European Court of Justice ruled that if an employer wanted to ban Muslim employees from wearing the headscarf or hijab, they were perfectly entitled to do so. On the face of it, such a ruling is so patently opposed to the upholding of religious freedom, and legally institutionalises religious discrimination. And yet, the court felt entirely empowered to do precisely that.

The reasoning was specious, and duplicitous. The hijab is a religious observance, and one which the vast majority of Muslims recognise as being compulsory, even though many do not actually practice it. In this regard, it is different from, for example, the face veil, or the niqab, which many Muslims over history have religiously differed upon. But the court failed to take any notice of that, in favour of allowing a ban if it was “objectively justified by a legitimate aim” by an employer.

What “objectively justified” and “legitimate aim” actually mean are extraordinary – because they are utterly arbitrary, but presented as being impartial. There is nothing impartial in this ruling in the slightest.

On the contrary – an impartial and objective reading of the ruling leaves little doubt that it is both sexist and directly aimed at curtailing the religious freedom of Muslims, specifically Muslim women. It will be Muslim women who are disproportionately affected by this ruling, far more so than Muslim men – and despite the protestations that this is some kind of effort to promote “neutrality”, it is nothing of the sort.

A very simple test in that regard is clear – can we imagine that Jewish Orthodox males who seek to wear the kippah would ever be stopped from doing so by any employer in Belgium? Of course not – it would be condemned, rightly, as an infringement of religious freedom.

This ruling ought to be called out for what it is – telling Muslim women what to wear, under the facade of freedom. The deceitfulness is frankly staggering. A Muslim woman who freely wears the hijab out of her own conviction is faced with the following choice: to reject her own religious practice, or to go to work. Why should she have to make that choice, when her religious practice has no observable effect on the safety or security of others? Indeed, it has never been suggested that the hijab has any security impact at all – why should it be banned?

Some argue that it may not have security implications, but that it is a sign and it affects the neutrality of the company the employee works for. If the hijab is a sign, then it is merely a sign that the wearer is a Muslim woman. If we have a problem with that, then quite simply, we really are admitting our vigorous Islamophobia.

But what is also dishonest is to call out this ruling in isolation. The ruling did not happen in a vacuum. There is a wide-ranging political and social context at work. Anti-Muslim bigotry is becoming more and more mainstream and this ruling reflects both the social dynamic at play, as well as providing a modicum of empowerment to ensure that this bigotry becomes more widespread.

What the court has done simply, is to put the law into the hands of bigots, to further their intolerance.

That’s not what the rule of law is meant to look like – the law is supposed to defend the vulnerable from the injustice of the powerful. The court could have struck a blow for religious freedom, and upheld tolerance at a time when Europeans need to be reminded of how hard won this right was on the continent. Instead, it pandered to and appeased bigotry. It is a sad day for Europe.

Dr HA Hellyer is a senior non-resident fellow at the Atlantic Council in Washington and the Royal United Services Institute in ­London

On Twitter: @hahellyer