Recognizing and Responding to the Seeds of Religious Intolerance: Natasha Bakht

Recognizing and Responding to the Seeds of Religious Intolerance

Natasha Bakht
May 26, 2014

I am going to be talking today about recognizing and responding to the seeds of religious intolerance in Canada, but I’d like to do this by using a case study.

The general approach that I take in my work is that freedom of religion must be robustly protected in a multicultural society and as a feminist I am also deeply concerned about gender inequality. But, I am not of the view that religious freedom and women’s equality are mutually exclusive. So, my focus is on ensuring that women from minority groups are not in the unhelpful position of having to choose between their religious beliefs and other fundamental rights that they are entitled to.

The western world is at an astonishing historical moment, when in the twenty-first century, women’s clothes are the subject of legislation, judicial consideration, and much public approbation. I am thinking in particular about the situation of Muslim women who wear the niqab or the full-face veil and the growing agitation that has been expressed about these women publicly. I’ve chosen this group of religious adherents to talk about today because I believe they are receiving undue attention from governments and members of the public.

There are a variety of reasons that governments, policy makers and members of the public offer in support of their belief that women should not be permitted to wear the niqab in certain venues. I’ve canvassed some of these in a paper I wrote and they range from the niqab oppresses women, prevents integration, offends secularism and tolerance, decreases security and communication, is impolite, encourages proselytism, and is not a religious requirement.

Why women wear niqab?

I am continually surprised by the viscerally negative reaction to women who wear the niqab. The niqab cannot be understood as a symbol with singular meaning. Rather than conceptualizing the niqab as a frozen embodiment of a particular culture or its subversion, most women actively engage with the symbols that the veil represents.

There is a new report coming out of Ontario (produced by the CCMW) that actually interviews niqab-wearing women. The report finds that the reasons provided for wearing the niqab are highly personal and diverse. Contrary to the prevailing view that male family members force niqab-wearing women into this attire, the study suggests that many women in fact, faced familial opposition to their personal decision to wear the niqab. The report really puts into question the contention that we must rescue niqab-wearing women from oppression.

In fact, the decision to wear the niqab or indeed any clothing is likely a strategic choice made in always-already constrained relational environments, and their costs and benefits vary depending on the circumstances. Instead of being unilateral instruments of submission or “free” expression, the “preference” or “choice” to wear the niqab is likely shaped by multiple interactions and regulation.

The CCMW report also found that “the typical profile of a woman in niqab is that of a married foreign-born citizen in her twenties to early thirties who adopted the practice after arriving in Canada. Most of the women possessed a high level of education, having attended university, graduate school, community college or some form of vocational education.”

My research has shown that niqab-wearing women are not the submissive women society believes them to be. They are in fact, acting as advocates in courts of law, teaching in schools, pursuing higher education, litigating their rights in courtrooms and interacting with male cabinet ministers about issues of concern to them. Is this the stereotypical figure of the oppressed Muslim woman? What has become clear to me is that, for these women the niqab is a critical component of who they are. To deny them access to fundamental legal institutions on the basis of their identity is to deny their dignity.

I am often confronted by people who tell me how uncomfortable the niqab makes them feel. I would suggest that comfort is an ineffective measure for interactions in a diverse society. Nonetheless, I’ve tried to really consider what it is it that makes us so uncomfortable. At one level I believe it is simply fear of the unknown, or fear of that on which we have inscribed ideas of radicalism and terrorism. Fear, like discomfort is a bad adviser. Dr. Katherine Bullock has suggested that our discomfort is about the interruption of the “gaze”, that with niqab-wearing women, she sees us, but we do not see her. Thus, she subverts the typical power relations in that she sees but is not seen.

Another explanation is the origins of the dominant Western scopic regime, in which vision (to see and be seen) is central, to the fact of marking Christ as the observable, earthly image of God. Valerie Behiery argues that the Christian West’s foundational ocularcentrism has led to secularism. Whatever the reason for our dislike of the niqab, and there may be others, to live peacefully in a diverse democracy we need to develop empathy that enables us to see the world from the point of view of others. I hope that my talk today will help us do that.

I am going to concentrate my remarks on Canadian prohibitions or attempts at prohibiting the niqab. These debates are of course also happening with vigour in parts of Europe, the UK and the United States. But, amazingly we in Canada, have had four incidents in which niqab-wearing women feature prominently.

1) Veiled voting

Identification arguments play a key role in claims to ban the niqab in public spaces. Veiled-voting became an issue in Canada when the federal government introduced Bill C-6, An Act to amend the Canada Elections Act (visual identification of voters). The bill, which was introduced by the Conservative government in 2007, requires voters to have their faces uncovered to enable election officials to identify them visually, even though there would be no means of taking a visual comparison of the voter’s face with a photograph because people can submit two pieces of non-photo ID in order to vote. The irrational insistence on seeing one’s face apparently defies logic. The bill, which died when Parliament was prorogued, was an attempt to prevent voter fraud, although as pointed out by several opposition MPs, little evidence of a problem of voter fraud exists in Canada. The bill was really an attempt to counter the problem of the “mythical, multiple voting veiled Muslim woman.” As one Globe and Mail editorial pointed out, showing one’s face would only prove that the voter “has a face.”

The question that arises when unfounded and unexamined objections to the niqab are raised is whether the restriction on attire is actually a subterfuge for discrimination. In the veiled voting incident, identification was obviously not the real concern. I would argue that the claim of identification was simply made as a maneuver to manage the majority’s discomfort.

2) Citizenship Ceremonies

In December 2011, in a unilateral move by Immigration Minister Jason Kenney, face veils were banned during Canadian citizenship ceremonies. Minister Kenney was able to make this move without any consultations because the changes were made under the regulations to the Citizenship Act. This is actually a very sneaky way of making substantive changes to the Act and I believe there are several organizations hoping to challenge his decision under the equality and religious freedom provisions of the Canadian Charter of Rights and Freedoms.

The reason for the change was that some MPs and citizenship judges had complained that it was “hard to tell whether people with their faces covered are actually reciting the oath of citizenship”, which is a requirement under the Act. So, women who have overcome all of the concrete hurdles to Canadian citizenship, which are by no means minimal, are denied this coveted privilege because of complaints from some that they are not engaging in the symbolic act of declaring one’s Canadianess. Niqab-wearing women, it seems, cannot be trusted to pronounce the words of the oath. We need to actually see their mouths moving.

Minister Kenney also said in his explanation for the new regulation: “Allowing a group to hide their faces while they are becoming members of our community is counter to Canada’s commitment to openness, equality and social cohesion.” His comments I believe disclose a very particular and polarized construction of ‘us’ as insiders and ‘them’ as outsiders. The idea of citizenship necessarily creates a privileged group who has certain rights while others are deliberately left out of this community.

Although we describe them as immigrants, foreigners, outsiders, guests in ‘our’ countries, in fact we need niqab-wearing women in order to create a self-portrait that is flattering — one that is virtuous while she is aberrant, innocent in contrast to her guilt and powerful as she is weak.

In her book Strange Encounters: Embodied Others in Post-Coloniality, Sara Ahmed examines the figure of ‘the stranger’ in multicultural discourse. She suggests that the nation requires strangers in order to exist. “The stranger’s proximity is required if the stranger is to be known as the limit of the ‘the nation.’”

In Ahmed’s analysis of official multiculturalism in Australia, she suggests that multiculturalism may seek to differentiate between those strangers whose appearance of difference can be claimed by the nation, and those stranger strangers whose difference may be dangerous to the well-being of even the most heterogeneous of nations. Muslim women who wear the niqab represent these “stranger strangers” who it seems cannot be incorporated into the identity of the nation state.

While some outward appearances of difference can be assimilated and even welcomed into the nation so long as the person is “the same underneath”, the dress of some strangers, the niqab in particular, is simply the outward representation that the stranger refuses to be “native underneath”.

3) Niqabs in Courtrooms

In R v NS, the Supreme Court of Canada examined whether a devout Muslim woman sexual assault complainant, who wears a niqab publicly, could wear her niqab while testifying in court. NS is a Muslim woman from Toronto who has worn the niqab for over eight years. She made a request to wear her niqab while giving testimony in a preliminary inquiry in which she alleged that two male relatives of hers, sexually assaulted her over a period of several years. The lawyers for the accused objected to the complainant wearing her niqab on the basis that it interfered with their clients’ right to a fair trial including the right to make full answer and defence and the right to disclosure upon a preliminary inquiry.

They argued that in order to effectively cross-examine the complainant, they needed to be able to see her face to gage her reactions to their questions. They also argued that the trier of fact would have difficulties making credibility assessments unless they were able to see the complainant’s face.

As you may know, judges and juries are permitted in law to assess the credibility of witnesses and the accused based on demeanour evidence. That is, triers of fact are permitted to evaluate the trustworthiness of a person in court based on their appearance, attitude and/or disposition. Although much case law exists to support this contention in Canada, there is also a growing body of case law and social science literature that warns judges about the excessive use of demeanour evidence because of its inherent unreliability.

It is very common for individuals to believe that they can determine when they are being lied to. But, Prof. Paul Ekman in his study of lying found that with rare exception, “no one can do better than chance at spotting liars simply by their demeanour.” Prof. David Tanovich has written that in racial profiling cases, perfectly innocuous behaviour is often interpreted as suspicious simply because the observation was occurring through stereotypical lenses.

In the sexual assault context, the concern is that demeanour evidence will result in reliance on inappropriate myths about the way women ought to react to sexual assault, penalizing those who do not fit into such rigid characterizations. It is women’s words that matter, not women’s bodies, or how we look or what we are wearing.

So, the NS case challenged a foundational premise of our legal system: that those who see the witness are at the greatest advantage. The social science evidence suggests strongly this is not the case. The question was whether the SCC would be wiling to overhaul our system accordingly. It was not.

The majority decision does not prohibit niqab-wearing women from courtrooms outright. Instead, it offers trial courts an analytical framework to structure their reasoning, but it is one that skews the balance in favour of a ban of the niqab more often than not. The court has said that when evidence is uncontested credibility assessment and cross-examination are not in issue and the woman can wear a niqab. But in sexual assault cases, the evidence will necessarily be contested. The majority repeatedly discusses the possibility of a wrongful conviction if a woman were to wear her niqab. Their concern is the accused’s right to a fair trial, which is of course important. But interestingly, they fail to consider their own guidance from a previous case called Mills in which they said what constitutes a fair trial is consideration not just of the rights of the accused but also the public interest in the effective prosecution of criminal charges that are sensitive to the needs of victims and witnesses.

The effect of the judgment will be that niqab-wearing Muslim women will be less likely to report their sexual assaults, an already underreported crime, thus renewing rape myths about the way sexual assault complainants ought to appear. The decision further marginalizes an already stigmatized group and tells them that justice will not be done for them.

4) Bill 60 – Niqabs and Public Service

The province of Quebec was until recently embroiled in a debate about the “Charter of Quebec Values”. This bill proposed to amend the Quebec Charter of Human Rights and Freedoms by, among other things, making it mandatory to have one’s face uncovered when either providing or receiving a state service.

Essentially, niqab-wearing women (and in fact all people who wear “conspicuous religious symbols”) would have been prevented from working in government service despite their competence and training. Indeed those skilled workers already employed with government could have lost their jobs simply because of an unproven legislative assertion that they would be unable to perform their jobs neutrally or without religious bias.

Niqab-wearing women, and no one else, would also have be prevented from accessing government run services such as childcare, health care, and education despite the contention that bill 60 is in part about the equality of men and women.

We continually hear that the niqab is a symbol of women’s oppression. But, there is no evidence that the wearing of this religious garment is causally related to inequality between men and women in Quebec. Rather, restricting public employees from wearing garments they sincerely believe to be required by their faith subverts gender equality as it could make many Muslim women more dependent on the patriarchal sectors of their communities by further estranging them from the public sphere. Education and employment are some of the best means to ensure integration and autonomy.

The state should never be in the business of telling people how to dress. In my view, the major oppression these women face is coercive and state-sanctioned attempts at removing their clothing publicly, and discriminatory attitudes and systems in place that prevent them from effectively participating in all parts of society.

Though most federal political parties denounced Bill 60, it is very telling that there was little concern over the bill’s predecessor, bill 94, which targeted only niqab-wearing women and not all people who wear religious symbols.

Statues aimed at a despised or feared minority group stimulate on-the-ground effects that exceed the legislated text. Though Bill 60 did not become law, the Quebec government’s backing of these discriminatory ideas legitimized and emboldened public views, and we saw an increase in acts of vandalism, reports of harassment, and acts of anti-Muslim intolerance, from spitting to racist insults.

Let me finally discuss the incongruous messages deployed about niqab-wearing women in the previous examples. The fact that the messages about Muslim women are entirely contradictory seems to only heighten the veracity of such claims. The veiled woman is both threat and threatened. Niqab-wearing women are threatened and in need of rescuing from their male oppressors that force the niqab upon them. And they are threatening in the attire that they wear publicly to hide their identity, defraud the electoral system, prevent a fair trial and open communication with the state.

Niqab-wearing women are the source of tension, bringing their “new cultures, religions, traditions and social practices” from outside Canada. Their practices “clash” with Canadian “constitutional values.” Niqab-wearing women’s signification is primarily reducible to women’s oppression. But, niqab-wearing women also belie neutrality. Regardless of their professional training, simply being identified as religious casts doubt on her ability to perform her job in a fair and impartial manner.

These examples reinforce a conception of “us”, and the nation as secular, equal in its relations between men and women and religiously neutral; whereas, “they” are wholly religious, unequal, repressed and incapable of neutrality. The nation can be inclusive of some and indeed it “advertises its modern record of respecting cultural diversity and human rights”, but niqabi women take things too far and cannot be incorporated into the identity of the nation. She must remain Other.

These mixed messages transmit and reinforce xenophobic and racist ideas about niqab-wearing women. They shape the way the public views niqab-wearing women and legitimizes attitudes and behaviour about Muslims and those perceived as Muslims in ways that have a very real effect on peoples’ everyday lives. Indeed, these examples shore up the pervasive belief that wearing the niqab is a practice that asks too much of the rest of society. These ideas seep into mainstream consciousness and lower the bar in terms of what can appropriately and publicly be said about Muslims, and indeed what can be done to them.

Women who wear the niqab seem to challenge people’s core convictions about how one should pursue the good life. Our visceral reactions to these women reveal incongruous messages about Muslim women, but fairly clear notions about who we are and our intentions. We seem to underscore our experiences of being confronted by niqab-wearing women. We are uncomfortable; we find it impolite, suspicious and difficult to communicate. The integration of Muslim women in society is articulated as a problem, but its cause is located not in society with its systemic barriers to inclusion that we benefit from and perpetuate, but in Muslim women’s choice to veil. I’d suggest that we keep in mind that it is only by considering the plight of the most marginalized that justice can be achieved.