Going Burq-o

By Legal Eagle

[Now cross-posted at Online Opinion – 21/5/10]

There’s been a lively discussion at Larvatus Prodeo about the possibility that the French will ban the burqa. Of course, this follows on the heels of Liberal Senator Cory Bernardi’s suggestion that the burqa should be banned in Australia. Bernardi suggested that the burqa was not only a symbol of women’s oppression, but also now ‘a disguise of bandits and n’er do wells.’

Kevin Rudd and John Brumby slammed Bernardi’s comments. Personally, I thought Bernardi’s argument about the risk of burqa clad robbers was a pretty pathetic reason for banning burqas. Still, it was interesting to see that both Julia Gillard and Tony Abbott agreed that the burqa was confronting, but that they would not outlaw it.

As a couple of commenters over at LP noted, France differs from Australia because it has an official policy of laïcité or secularism. So France is starting from a different point than Australia. The other notable democracy which has an equivalent policy of secularism is Turkey. After the fall of the Caliphate, Kemal Atatürk specifically incorporated the principle of laïcité into Turkish society. Religion and governance is strictly separated. As part of this, women who wear headscarves are banned from holding public office in the Turkish Republic.

It’s a difficult one, for me at any rate. My own personal instinct is that the burqa should not be banned, taking a leaf from Mill’s harm principle. As long as a woman consents to wear a burqa willingly and does not harm herself or others by doing so, then she should be allowed to make that choice.

But I do have a considerable degree of discomfort about it. As I’ve argued in a previous post, the reasons why people wear religious garb are threefold:

  1. As an outward sign of inner faith. In essence, you are telling the world by your religious garb that you are faithful to God and proud of it.
  2. As a gesture of modesty before God.
  3. To reflect a belief that the body should be covered because it is lewd and may incite lewd thoughts in others.

Now, I don’t have any problem with the first two reasons. But the third reason is one that I find very problematic. This is because it’s almost always the woman’s body that is particularly lewd, and it’s always her fault that she incited lewd thoughts in others. Of course, in many religions, people of both genders have to cover themselves up to an extent when visiting holy places. But you never see a guy in a burqa. Maybe if both men and women wore it, I’d feel less ambivalent towards it as a symbol of sexism — but then the point occurs to me that any society which did this wouldn’t be able to function…

One of the things that makes me so very uncomfortable about the burqa is that it reduces the woman who wears it to a non-person. I’m someone who talks with my hands and my face as much as my voice. I don’t like telephones as a result, and I vastly prefer face-to-face contact if at all possible. It’s very hard to interact properly with someone whose face is wholly covered, or whose eyes are the only part of their body showing. That person is also vastly hampered in how she can interact with others, how she can interact with society outside her immediate family, and what jobs she can do. I can’t imagine how I would go wearing such an outfit.

But should my discomfort be a reason for banning the burqa? I don’t think so. There are many things in society which make me uncomfortable. Those billboards on Alexandra Parade which say, “Want Better Sex Now?” make me pretty damn uncomfortable, but obviously in a very different way to the burqa. Clowns make me want to vomit and scream, but I wouldn’t want to ban them either. There must be some people on this earth who like them and find them amusing, just not me. As long as no one demands that I wear a burqa because they do, then I’m happy for others to wear them if they choose.

The more difficult question for me is whether we treat women who wear burqas in the same way as we treat other women in our society. I think we should acknowledging that wearing a burqa is a choice women are entitled to make, but we should also acknowledge that it hampers them in certain important ways which means they can’t be treated in exactly the same way as other women in our society. If they want to work in a job where face-to-face communication is particularly important, and they have to wear the burqa, it’s likely that they can’t do that job.

If the burqa obscures the vision of a female driver, they should not be allowed to drive. Of course, this is a vexed one, and the recent debate in France was sparked anew by the fining of a woman in Nantes who was driving while wearing a burqa. The woman claims that her peripheral vision was not affected by the veil. I suspect one would have to do tests on the particular veil in question. Certainly someone with a veil with gauze over the eyes could not drive a car. Mind you, I’d suggest equally that someone whose rear window was populated with piles of fluffy animals should remove the fluffy animals if they obscured vision. I find it disquieting to drive behind cars with piles of fluffy animals in the rear window for the precise reason that they may obscure vision.

If, like the woman in this post, they won’t unveil for the judge when giving evidence in a legal case, then it is likely that they cannot communicate their evidence as effectively as a woman who does not wear a veil. This was a controversial one over at LP, but I think the point still stands — communicating face-to-face is generally more effective than any other means of conversation. The woman’s evidence would not be totally worthless, but it would render it no better than evidence given via phone, for example. It would be slightly better than evidence handed up in written affidavit. Generally one is not allowed to give evidence via phone, or from behind a screen, or wearing glasses or clothing which obscure the face — this seemed to surprise many people on the LP thread, but a fundamental part of assessing someone’s credibility as a witness is seeing them face-to-face.

Ultimately, it’s a woman’s choice, and if she believes that she has to wear such clothing according to her religion, then she should have the freedom to do so. Part of religious freedom is that people are entitled to wear clothing which is an outward sign of their inner faith, and which professes their modesty before God (the first two reasons listed above). I just cannot quite feel comfortable with the French concept of laïcité, perhaps because I’ve never lived in a theocracy. Nonetheless, I think we should take care that when we accept the freedom to wear a burqa, we do not imply in any sense that the third reason has validity. Our belief should be that men should take responsibility for harassment and for their own actions, and a woman’s body is not inherently lewd or something of which a woman should be ashamed.


  1. peter jones
    Posted May 26, 2010 at 6:21 pm | Permalink

    It’s true that blokes don’t have to wear the burqa – which is a cultural thing that Muslims picked up after Islam spread from beyond the Arabian peninsula – but they are supposed to dress modestly too, between the navel and the knees. I guess that knocks lycra and budgie smugglers on the head.

    The burqa outcry is rubbish as very few women in Europe or here wear it – as for criminals wearing it, better ban the balaclava too along with hoodies. It’s just anti-Muslim prejudice, the old White Australia doesn’t die easily and we just have to fear something different.

  2. Posted May 27, 2010 at 5:04 pm | Permalink

    as for criminals wearing it, better ban the balaclava too along with hoodies

    People can’t wear a balaclava without drawing attention to themselves and someone wearing one in a bank is regarded with reason as a criminal before doing anything. Hoodies don;t cover the face. Someone can wear a burqa in a bank and refuse to remove it on religious grounds. That does create a security concern. Ditto airport customs. Just sayin’.

    I guess that knocks lycra and budgie smugglers on the head.

    Hah! I knew Tony Abbott was an immoral sex fiend!

  3. Patrick
    Posted May 28, 2010 at 3:59 am | Permalink

    Come on guys, that was clearly a stir!

  4. Posted June 7, 2010 at 8:52 pm | Permalink

    As is his want, Lorenzo has written a very thoughtful followup post to this, available here.

  5. Posted June 7, 2010 at 9:12 pm | Permalink

    SL: Thanks!

    LE: Boys love stirring because
    (1) It is exploring what make things tick
    (2) Push a button, get a reaction, what’s not to like? 🙂

  6. Peter Patton
    Posted June 23, 2010 at 8:13 am | Permalink

    Sorry to resurrect this, but I cannot believe this issue is actually being pushed by an Australian legislature. Fred Nile has successfully introduced a burqa-ban bill into the NSW Upper House.

    Why are both Labor and the Libs supporting a private members bill by serial christian cook Fred Nile?

    And to our legal eagles and skeptics, why is the NSW upper house able to initiate legislation in the first place?

    The only parties to oppose it were The Greens and FF. WTF?


  7. AJ
    Posted June 23, 2010 at 5:17 pm | Permalink

    Last year Nile wanted to ban topless sunbathing to protect muslims. I wonder if he finds it difficult to keep all the rationales for things he wants banned straight in his head.

3 Trackbacks

  1. […] whatever religious outfit they want (yes, including burqas); […]

  2. […] Legal Eagle did a good post on this last month: Going Burq-o. […]

  3. […] Now, I have written a series of posts about this issue over the years (here, here, here and here) in which I opined that I thought women should be free to wear burqas in public if they so chose, […]

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