by Ruthann Robson
The legal policing women’s headscarves is rooted in a mélange of sexism, xenophobia, religious bias, and racism. Unlike the niqab (veil), hijab as sartorially expressed by the headscarf does not obscure the face. While the niqab can raise concerns about identification and anonymity, which may be rational in some situations, such as a trial in which the identity of a person is a central issue, the headscarf evokes anxieties of a less logical sort.
One justification for prohibitions of hijab is secularism. While the US Constitution’s First Amendment prohibits the government from establishing a religion, it also protects the free exercise of religion. The free exercise clause, however, has not prevented regulation of religious dress. For example, early in the twentieth century, a number of states banned public school teachers from wearing “religious garb.” Upholding such a statute, New York’s highest court in 1906 reasoned that “There can be little doubt that the effect of the costume worn by these Sisters of St. Joseph at all times in the presence of their pupils would be to inspire respect, if not sympathy, for the religious denomination to which they so manifestly belong.” The anti-Catholicism of such prohibitions was made explicit by another court, which argued that “Quakers or Friends, Omnish, Dunkards, and other sects, wear garments which at once disclose their membership in a religious sect,” but no one has yet “thought of excluding them as teachers from the school room on the ground that the peculiarity of their dress would teach to pupils the distinctive doctrines of the sect to which they belonged.” Even a century ago, justifications based on secularism could be unmasked as preserving a hegemonic, if not strictly homogeneous, religious tradition.
Perhaps it should not be surprising that one of these seemingly antiquated religious-garb statutes would eventually be applied to a Muslim woman wearing hijab. Perhaps more surprising— given their general lackluster attention to employment discrimination—is that the Equal Employment Opportunity Commission, with now-United States Supreme Court Justice Clarence Thomas as chair, and the Department of Justice under President Ronald Reagan vigorously pursued a complaint by Alima Dolores Reardon, described as a “devout Muslim” who had a religiously held conviction requiring the wearing of a headscarf. The Third Circuit in 1990 ruled against Reardon and the federal government, minimizing the relevance of any anti-Catholic bias in the legislative intent of the century-old statute and finding it pertinent that the statute treated all religious attire in a similar manner. Echoing earlier judges who accentuated the effect of nun’s habits on impressionable children, the concurring judge stressed that seeing Reardon’s headscarf might provoke curiosity on the part of students, who then could believe that the public school was establishing a particular religion.
Another justification in the employment context can be the employer’s interests. In the case of a three women working for the private prison contractor GEO, the women had worn headscarves until GEO instituted a “zero tolerance policy” with regard to its rule prohibiting headgear—excepting only baseball caps with the GEO logo. Only one the women was a uniformed guard—another was a nurse and another an intake specialist—but the court deferred to the private prison’s argument that allowing headscarves would “compromise the prison’s interest in safety and security and/or would result in more than de minimis cost.”
But an employer’s interest need not rise to the level of safety. The retailer Abercrombie and Fitch enforces a “look policy” that seeks to brand its sales clerks—whom it calls “models”—as well as its other employees, with a particular style. Its “classic East Coast collegiate” attire does not include headscarves, especially if they are black. While it settled one lawsuit in September 2013, promising to make religious accommodations and allow workers to wear headscarves, it prevailed in another lawsuit in which the Tenth Circuit’s October 1, 2013 opinion found that a seventeen year old “never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy.” In other words, the onus is on the woman to specifically and explicitly claim a religious right rather than to allow the employer to believe she is wearing a headscarf for cultural or fashionable reasons.
A preoccupation with a woman’s underlying rationale for wearing a headscarf accords with many legal doctrines, but it should alarm us as feminists. Whenever the law seeks to apportion rights to women based upon their reason for the exercise of that right—as we have seen in attempts to allow abortions only in cases of rape or to prohibit abortions if based on sex of the fetus—it risks dividing women into “good” and “bad.” Here, the partition is between the sufficiently religiously “sincere” and the irreligious. This segregation can be a double-edged sword. In the American context, the religiously sincere woman will have a better chance at having her sartorial choices protected. However, in a proposal by the Quebec government in September, religious expression is precisely what is prohibited, assuming it is “ostentatious,” as the government specifically labels the headscarf.
More importantly, whether protected or prohibited, the interrogation of a woman’s beliefs related to her attire is deeply problematical. Again, the analogy to the abortion right is apposite. Just as it should not matter whether or not a woman has consulted anyone else about her decision to terminate her pregnancy, it should not matter whether or not a woman possesses a sincere religious belief associated with wearing a headscarf. And it should not matter if the religious sect to which she belongs mandates she wear certain attire. Or if her reasons for wearing a headscarf are more cultural rather than religious. Or if she is wearing a headscarf because her mother did—or did not. Or if she wants to protest American imperialism. Or if she wants to express her solidarity with other women. Or if she simply likes the look.
Instead, we should be more worried about the beliefs and biases of those who seek to control women’s attire, whether they are focused on headscarves or something else.
Ruthann Robson is professor of Law and university distinguished professor at City University of New York (CUNY) School of Law and the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy—From Our Hairstyles to Our Shoes (2013).
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