So let’s talk about the burqa

The first time I remember having seriously reflected on the prohibition of religious clothing or clothing symbols was more than 20 years ago, when I became aware of the existence, in France, of a commission, appointed by then president Jacques Chirac, to examine the issue.

One of the reasons for reflection, from what I understood, was the realization that Muslim girls were being socially pressured to wear hijabthe scarf that covers the hair, suffering more or less serious retaliation (there was news at the time of savage attacks on teenagers who were not wearing it). Individual freedom and the right of children and young people to the free development of their personality were therefore at stake.

I read with great interest the report of the said committee (the Stasi commission), with whose recommendations I agreed: that the use of overt signs of belonging to a religion be prohibited in French public schools (excluding universities, as they are attended by adults) hijabbut also the Jewish kippah, non-discreet crucifixes, etc. — and that in public services, employees who contacted the public maintained a secular appearance, without using any religious symbol or clothing.

The commission also recommended, in its aim to certify religious freedom, that believers of all religions could, on an equal footing with Christians/Catholics, request exemption to celebrate festivals of their faith and that in public canteens there would be dishes complying with dietary restrictions based on religion. And, of course, the ban on religious proselytism in the State’s relationship with citizens included in France the public buildings themselves, which were obliged to be devoid of religious symbols.

There were protests, but the law prohibiting the wearing of “religious” clothing in French public schools came (and remains) into force. Six years later, then under the aegis of President Sarkozy, the government decided to move towards a general ban, in all public spaces, on the use of clothing concealing the face.

The saying diplomawhich passed parliament almost unanimously, would be the subject of a complaint (by a Muslim woman) to the European Court of Human Rights (ECtHR), which considered that among all the reasons presented by the country — “public security”; “respect for the basic set of values ​​of a democratic society”, namely “gender equality”; “respect for human dignity” — only one was acceptable. Namely, “respect for the minimum requirements of life in society”, which includes “living together” — living together in which the viewing of each person’s face by others plays, according to the ruling, a fundamental role, thus integrating the fundamental rights and freedoms guaranteed by the Convention.

This decision deserved the dissent of two judges, who argued that individual rights enshrined in the European Convention on Human Rights were being sacrificed in the name of abstract principles.

“It can hardly be argued that an individual has the right to come into contact with other people, in public places, against their will. If this right exists, there would have to be a corresponding obligation. Which would be incompatible with the spirit of the Convention”they write in their losing vote. “While communication is clearly essential to life in society, the right to respect for private life includes the right not to communicate and not to come into contact with others in public places — the right to be outsider.”

Furthermore, we can also read in the opinion of these magistrates that “people can socialize without necessarily looking others in the eye”, and “if each person’s face plays a very important role in human interaction, this idea cannot lead to the conclusion that human interaction is impossible if the whole face is not on display”. How, they continue, prove examples perfectly rooted in European culture, such as skiing and motorcycling, in which faces are hidden, and the use of masks during Carnival. No one, they conclude, “could say that in these situations (excepted in French law), the minimum requirements of life in society are not respected.”

One could, to the examples cited in this dissent, add the use of surgical masks, imposed throughout the world during Covid confinements (and for which France had to create yet another exception to the law under analysis). Masks that are, let’s say, a “trick” commonly used by Muslim women — both in the (several) countries where there are laws like the French one and in those, like ours, where the law doesn’t (yet) exist — to cover their face without having to resort to a niqab (the costume that covers the entire body and leaves only the eyes exposed).

This leads to where, those who read me ask, who must be thinking at this point “but this one never says what she thinks again”? Well, this is to get to the legal, or philosophical, core of the issue: what grounds can be invoked, what arguments can be used, within the legal framework of a democratic State of law obliged to respect not only the respective Constitution but also the European Convention on Human Rights, to prohibit a piece of clothing (or whatever) that covers the face?

Because it is not enough, the ECtHR tells us, to claim that the niqab ea burqa (the Islamic costume that covers everything, even the eyes) are symbols of the oppression of women (undoubtedly being so) and their representation as beings-for-man, objects above all sexual whose existence is subordinated to them in everything, to the point that they cannot be seen as this constitutes a “challenge” to their ability to control.

It is not enough to say that when someone brings a niqab or a burqa we don’t know who is there and what they are carrying (because obviously there are many more types of clothing that allow you to hide weapons, explosives, whatever, and in cases where identification is mandatory for security reasons, such as at an airport, bank, etc., it is mandatory and there are no exceptions).

It is not enough to say that a piece of clothing designed to make women disappear, making them invisible and removing all their individuality from public space, is symbolically an unbearable attack on human dignity (which it is).

No: we have to affirm, because this is the only reason that the ECtHR accepted, that none of us has the right not to make ourselves visible, that none of us can live in society without showing our face, because it is the right of others to see it.

It will not only be, as they point out, in opinions sent to parliament, the Bar Association and the Superior Council of the Public Ministry (the MP, that body that would have to apply the law), for reasons of obvious religious discrimination, and therefore unconstitutional, or due to the lack of “densification of norms” — because it was done with its feet, in short — which Chega’s billapproved last week in parliament with the votes of PSD, IL and CDS-PP, should shame those who approved it.

It is because, despite invoking the Constitution and the ECtHR, those who, blinded by hatred, opportunism and populism, did so and made it possible, did not understand either what the Constitution and the ECtHR impose or what is at stake — which is, basically, establishing, as the dissent of the two Strasbourg judges makes clear, that individuals do not have the right to anonymity in the public space (which, if taken to the letter, would have to determine the end of anonymity in general and on the internet in particular). It is, in fact, a peculiar and paradoxical totalitarianism that is involved: that, under the pretext of saving women from the imposition of invisibility, determining that they have no right (no one has) not to be seen/identified.

Finally, because it is important to say, as a feminist, I exhort — I have written it so many times — costumes that aim to erase women from public space. How I exhort any dictate, religious or otherwise, that is based on the notion, consecrating it, that women are less than men — an example of this being the prohibition, in the Catholic Church, of access to the priesthood. For me, it’s all up for debate and questioning. But seriously, because it really is very serious.

Note: After completing this text, I became aware of the opinion of the Portuguese Association of Women Jurists on the bill approved by the Portuguese parliament, which, like the opinion of the Bar Association and that of the Superior Council of the Judiciary, which it endorses, declares the diploma to be unconstitutional. Expressing “repudiation of the entire content of the diploma”, the opinion accuses: “The grounds invoked in the Explanatory Memorandum (…) appear to be dictated by a persecutory, security and offensive intention of individual freedom, which as a whole, qualifies them as illustrative of hate speech, xenophobic and attacking the dignity of their recipients, which will only generate more violence not only against women, but also against girls and boys“.