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Don’t Ban the Burqa

On 5 August 2018 former foreign secretary Boris Johnson published an


editorial in The Daily Telegraph discussing the recent Danish ban on the
burqa and niqab, and arguing that the burqa and niqab should not be
banned in the UK. His article caused a furore because of certain incidental
remarks he made in connection with the burqa, but his conclusion that
the burqa and the niqab should not be banned seems to me sound.

Before I set out his conclusion, let me clarify the meaning of some terms.
The burqa is a full-body garment that has a gauze grille over the eyes to
enable the wearer to see. It looks like this:1

1
Photo credit: By Rama - Own work, CC BY-SA 2.0 fr,
https://commons.wikimedia.org/w/index.php?curid=10595988, accessed 18 August 2018.
A niqab, by contrast, does not cover the eyes, but allows a tiny slit
through which the wearer can see. (It also does not cover the rest of the
body other than the face.) It looks like this:2

Although both garments are associated with the Islamic tradition, the
burqa is, in fact, worn also by a small minority from ultra-Orthodox
Judaism. What the two garments have in common, of course, is that both
prevent the wearer’s face from being seen. In that respect they are no
different from a balaclava, or a motorcycle crash-helmet, or, as
Christopher Howse points out, a wedding veil. In fact, the veil used to be
standard dress for respectable women in many parts of Europe, so much
so that in the French city of Arles municipal Law 50 (1162–1202) forbade
prostitutes from wearing them.

The burqa is now banned in thirteen countries, including some Islamic


ones: Austria, Bulgaria, Cameroon, Chad, China, the Congo, Denmark,
France, Gabon, Latvia, Morocco, the Netherlands, and Tajikistan. In the
UK, only the British National Party favours a total ban on the concealment
of the face, though schools are permitted to ban face-covering garments,
and border and prison officials are permitted to request the removal of
the veil if only female staff are present.

2
By Bernard Gagnon [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 3.0
(https://creativecommons.org/licenses/by-sa/3.0)], from Wikimedia Commons.
Johnson’s conclusion is that it is wrong to tell ‘a free-born adult woman
what she may or may not wear, in a public place, when she is simply
minding her own business’. I agree: the presumption has to be that one
may wear what one wishes, as long as it does not harm or offend anyone
else.

But what of the arguments for the opposite conclusion? The French ban
on the covering of the face has been pronounced on by the European
Court of Human Rights in the case of SAS v France. The French
government put forward two arguments in defence of its ban.

The first was that the ban was needed to ensure “public safety”; the
second was that it was necessary to protect “the rights and freedoms of
others” by ensuring “respect for the minimum set of values of an open
and democratic society” (para 82). The French government picked out
three particular values that were, it suggested, undermined by the
wearing of the burqa: respect for equality between men and women,
respect for human dignity, and respect for the minimum requirements of
life in society (para 116).

These reasons do not seem adequate to justify a blanket ban of the


wearing of the veil in all public places. The requirement on safety can be
met by making it the law that the veil has to be removed if requested by a
police officer, or in certain sensitive locations, such as banks and airports.
As for respect for equality between men and women: it could be an
offence to force someone to wear a burqa, as Switzerland is considering,
without its also being an offence to wear one voluntarily. If men and
women freely choose to dress differently it would seem unjustifiable to
force them to dress in the same way.

Similar considerations apply to the question of human dignity: it is an


affront to the individual’s dignity to prevent someone from wearing a
burqa if that is a genuine, freely chosen wish.
The European Court of Human Rights also rejected all these arguments
from the French government, but it was persuaded by the government’s
final consideration, that the public wearing of the burqa was
incompatible with the minimum requirements of life in society. The Court
found that because of the ‘important role in social interaction’ played by
the face, and because ‘individuals who are present in places open to all
may not wish to see practices or attitudes developing there which would
fundamentally call into question the possibility of open interpersonal
relationships’, it could accept that ‘the barrier raised against others by a
veil concealing the face’ breached ‘the right of others to live in a space of
socialisation which makes living together easier’ (para 122). While it is
true that it is easier to socialize with people whose faces one can see, it is
not impossible to form relationships with those whose faces one cannot
see, since blind people do it all the time. In addition, the concealment of
the face is a matter of degree, and can be effected by large sunglasses,
beards, and headgear designed to keep out the cold such as balaclavas,
none of which produces an insuperable problem for socialization.
Moreover, the French burqa ban affects individuals walking alone or with
family to the mosque in situations where socialization is not really in
view.

What about offence? Should the burqa be banned because it offends


others to see it being worn? The law does, rightly, allow for some
offensive clothing to be banned. For example, people have been
convicted under section 5 of the Public Order Act 1986 for wearing
clothes ‘displaying abusive writing likely to cause distress’. It is also a
crime in the UK to wear clothes that ‘arouse reasonable suspicion’ that
one is a member or supporter of a terrorist organization. And, of course,
the law has to deal with people like Stephen Gough, the naked rambler,
that refuse to wear any clothes at all. On the other hand, the mere fact
that somebody finds one’s clothing offensive is not sufficient for it to be
banned in all public situations. In 1995 Andrea Guglieri, then mayor of
Diano Marina in Italy, said that, while ‘a beautiful woman in a bikini was
fine’, when it came to people that didn’t ‘have a good physique’ but
nevertheless were ‘walking the streets in their swimming costumes’: ‘Our
policemen know perfectly well what they must do’. (There are videos of
him later measuring women in swimwear to see if their figures match his
stipulations.) The fact that he finds such people’s wearing of swimwear
offensive doesn’t justify his trying to ban them from wearing such.
Indeed, Boris Johnson himself defended a few years ago a man’s right to
wear a provocative shirt. It is surely a matter of common sense that the
amount of offence that the wearing of the burqa does occasionally cause
is nowhere near to the level of obscene or pornographic clothing, and,
accordingly, should not be banned.

It is hard not to suspect that underlying the desire to ban the burqa is the
desire to get rid of certain extremist attitudes that are thought to go with
the burqa. Interestingly, Britain has been here before: in the 18th century,
in response to the Highland Uprisings, the Dress Act 1746 banned the
wearing of the kilt in Scotland. The law was repealed in 1782, and cannot
be judged to have been a success. It is to be hoped that history does not
repeat itself here, and that considerations of short-term political
expediency do not triumph over Britain’s rightly cherished tradition of
freedom.

Daniel J. Hill September 2018