Hijab Ban Exposes Limits of EU Liberalism

Ensuring Socio-economic Justice

Brecht Jonkers

Dhu al-Hijjah 22, 1442 2021-08-01

News & Analysis

by Brecht Jonkers (News & Analysis, Crescent International Vol. 50, No. 6, Dhu al-Hijjah, 1442)

In a recent landmark ruling, the European Court of Justice (ECJ) upheld an earlier decision, making it possible for employers to forbid employees from wearing any form of religious symbols. The decision would in fact make it legal for companies to sack staff that are considered in violation of this rule, regardless of their past experience in the workplace.

“A prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace may be justified by the employer’s need to present a neutral image towards customers or to prevent social disputes,” the Court ruled in its statement, with which it bolstered an earlier decision made in 2017.

The ECJ ruling came following a court case lodged by two Muslim women in Germany. One of them was a special-needs care worker in a daycare centre for children and the other a cashier at a pharmacy chain. Both ladies decided at one point in their career to henceforth wear the hijab, and were subsequently suspended from work. Both of them now see their hopes to appeal their suspension crushed, as the EU’s supreme judicial body apparently places corporate arbitrariness above religious freedom.

The specific cases brought to the Court’s attention deserve to be mentioned for the fact that they both relate to employment in the non-public sector. The ruling, which may well be called a hijab ban, does not differentiate between the public and private sectors of the economy. This is not a mere matter of “neutrality” of government offices any longer, but potentially affects all spheres of employment.

The discussion on the so-called neutrality of the public office has haunted EU politics for years now. Starting from some sort of idealised, and notably non-existent, idea of a “neutral” government, the liberal thought that dominates the European Union sees any form of religious self-expression as a potential threat to the enlightened power structure of the West. Aside from the fact that neutrality is by definition an impossibility in a political context such as government functions, it is rather obvious by the timing of this train of thought that it has come about specifically in response to the growing number of religiously dedicated Muslims in Europe and beyond. The Islamophobic train of thought is now making its way into the private sector as well.

The EU controversy regarding religiously inspired clothing is not new. France, which arguably is the most radical in its enforcement of a de facto atheist public sphere, banned the wearing of hijab in government schools as far back as 2004. This was followed by a court case in 2014, in which a private school was ruled to be within its rights to fire Muslim staff for not adhering to its so-called code of neutrality. In 2021, the “Anti-separatism Bill” cracked down even more on all forms of what is considered “separatism” from the Republic. A simple reading of the measures introduced shows that this law essentially targets Muslims and Islam. Containing extra provisions for persecution of religious leaders deemed to be a threat to “French values”, it also details at length a series of bans regarding clothing.

The updated version of the Anti-Separatism Bill that was passed by the French Senate would ban Islamic veiling even for parents accompanying children during school outings and sports competitions, as well as ban the full-body swimming suit for women in public pools. Furthermore, it would outlaw any expression of religious sentiment in tertiary education institutions and during both political campaigns and on promotion materials.

The French bill drew widespread concern among Muslims. It even caught the attention of Amnesty International. The group’s French office representative Jean-François Dubost noted that “While the amendments were formulated in a neutral way, the debates around their adoptions specifically targets Muslims.”

The “neutral” formulation of an otherwise obviously anti-Islamic ruling has also been copied by the European Court of Justice. Hiding behind vague phrasing and references to national legislation, the ECJ has taken pains to avoid being too transparent. For example, the ruling specifies that “justification [for sacking employees for wearing religious symbols] must correspond to a genuine need on the part of the employer.”

The definition of “genuine need” remains unclear. It could be argued that any business that fears losing revenue due to Islamophobic customers, could claim to be in “need” of getting rid of all expression of the Islamic faith on the workfloor.

The ECJ also writes that “the national courts may take into account the specific context of their Member State and, in particular, more favourable national provisions on the protection of freedom of religion.” Once again, this provides a handy getaway for the court, by leaving the door open for more tolerant legislation in member states. The problem is that such tolerance is hard to come by in today’s Europe. With the one notable exception perhaps being Austria, where the constitutional court ruled that banning the headscarf for children is discriminatory, most West European countries that have a significant number of Muslims have been moving steadily in the direction of Islamophobic legislation.

As such, the European Court of Justice continues a long-standing EU tradition of taking decisions that overrule the national legislation of member states, while at the same time being vague and unenforceable enough to remain open to vastly differing interpretations.

Interestingly, some of the loudest protest in European mainstream political circles has come from the EU’s former member. An all-party parliamentary group in Britain has fiercely denounced the ECJ ruling, and even called on Prime Minister Boris Johnson to speak out against the EU decision.

“This judgement sets a dangerous precedent for its impact on Muslims but also Jews, Sikhs, Christians and people of other faiths. This ruling not only threatens personal freedoms but creates additional barriers in the workplace, particularly for Muslim women, and opens the door to justify further discrimination and Islamophobia,” the All-Party Parliamentary Group on British Muslims stated.

Indeed, some of the fiercest anti-Islamic, and indeed anti-religious, blowback has come not from the Anglosphere but from seemingly progressive states on the European continent. France just recently founded an interministerial committee tasked exclusively to protect its very strict interpretation of secularism known as “laicité”. De facto, the Committee is aimed first and foremost against “radical Islam”, and wil replace the Observatory for Laicité that was considered to be “too soft” after its leader Nicolas Cadène had publicly denounced Islamophobia. Paris has furthermore moved to ban the Collective Against Islamophobia in France (CCIF), using the murder of teacher Samuel Paty as justification.

There are certain obvious reasons for the rising tide of Islamophobia in Europe. The growing powerbase of openly or covertly racist political parties trying to pin the blame of society’s woes on the “alien element” of Islam is one of them. Scapegoating “the other” is a long and tragic part of Western history, and has seen a resurgence in the past decade following continuous economic hardship and years of harsh austerity measures. The economic and social failure of European liberal capitalism has been exacerbated by the moral and spiritual failure of liberalism as such, leaving many wanting and searching for deeper meaning and for a way to make sense of it all. Unfortunately, this has led not so much to a religious reawakening, but rather to the growth of ethnic supremacist thought in which religion has been relegated to being a mere part of ethnic identity.

However, the gears of Islamophobia have been turning for far longer than just this last decade. Consider the reason why countries such as Germany have four million Muslim inhabitants. A significant part of the Muslim community in Western Europe is made up of descendants of the so-called “guest workers”. From the 1950s onwards, a growing need for labour force led countries such as West Germany, Belgium, the Netherlands, Norway, Sweden and Denmark, to attract thousands of foreign workers. While Southern Europeans constituted a big part, both Turkey and Morocco were exceptionally big contributors to the guest worker program. In many cases, the original plan was to employ a rotation system of some kind, in which workers would return to their country of origin after a specified time period.

The economic and social reality of such a vast undertaking imposed different demands. Industries which employed foreign workers in physically straining and often hazardous conditions were not content with seeing experienced workers replaced with inexperienced newcomers every couple of years. For workers, the prospect of guaranteed employment for the foreseeable future was also an attractive proposition. The result is that after the 1960s, a Muslim community of often Moroccan and Turkish migrants and their children was established across northwestern Europe, which of course added to the already existing Islamic populations in countries such as France.

The existence of a sizable Muslim population did not immediately raise red flags among the powers that be. The economic benefit from these often underpaid employees seemed to outweigh the “risks” in the eyes of the business elite and political establishment alike. Furthermore, in typical haughty European liberal fashion, many expected that the seductive powers of the materialistic and consumerist society of Western capitalism would pull away devout Muslims from their faith and lead them to embrace a life devoid of spiritual meaning and dedicated to work and material wealth.

However, as is often the case with immigration, there came a time when immigrants demanded full recognition of their status as citizens of their country of residence. As decades passed, new generations were born and raised in the European states, often with dual nationality. However, these children and grandchildren of immigrants often found themselves treated as foreigners. And while their participation in civil society grew and the descendants of migrants entered tertiary education, the public sphere of society and even politics, it started to become clear that for the most part the plan to “de-islamise” them was not working. Often relegated to the margins of society, generations of Muslims born and raised in the West have remained committed to their Islamic faith and identity, while at the same time being law-abiding citizens of their country of birth.

In the modern European context, where the nation-state and the free market have been the only powers higher than the individual for the past two centuries, the very idea that someone could combine devout religious affiliation with obedience to the law seems almost alien. It’s no surprise therefore, that religious Muslims often get portrayed as a threat to society and are called upon to “integrate”, even if they are already law-abiding and tax-paying citizens. It should also not come as a shock that the Islamophobic right-wing surged across Europe starting in the 1980s after the 1960s economic boom had ground to a halt and neoliberal austerity started cutting hard. There was simply no more economic incentive for the presence of “foreigners” in Western Europe, especially if those “foreigners” were by this point legal citizens demanding equal treatment and fair pay. And since the 2008 economic crisis hit Europe even harder, the ancient weapon of racist scapegoating has become all the more attractive to the political establishment. After all, it is easier to complain about women swimming in full body swimsuits, than to explain a PFOS pollution scandal that exposed hundreds of thousands of people to dangerous chemicals with full knowledge of the government.

Faced with liberal dishonesty on one side and rabidly Islamophobic hatred on the other, the Muslims of Europe were left to choose between submission to the demands of the elite or dedicated defence of their faith. And if the European governments refuse to allow Muslims to be themselves within the traditional venues of power and society, Muslims will have no other choice than to set up their own parallel structures to defend the Ummah.

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