Hijab - Not religion?

Once again the headdress of Muslim women is at the center of debate. After a Norwegian hairdresser was found guilty of religious discrimination for denying a hijab-wearing woman entry to her salon, we once again face the question of what the hijab really is all about. In this post I will have a look at the often used claim that the hijab first and foremost is a political symbol, rather than religious practice.

The case

In October 2015, Malika Bayan and a friend approached the hairdressing salon of Merete Hodne with the intention of asking for the price of hair coloring. Both wore hijabs at the time. Hodne stopped them at the door and told them that they would have to find another salon. She said she did not want to deal with their kind, or something to that effect. Bayan pressed charges for discrimination and the case was tried in September 2016. Hodne was found guilty after the Norwegian Penal Code § 186, first part, for “having denied a person goods or services because of the person’s (…) religion. She was given a fine of 10.000 NOK (about 1.000 Euro).

On the surface, this is a rather clear cut case of religious discrimination. Still, the verdict sparked a heated debate about the meaning of the hijab. Hodnes defense is of interest here. She admits that the hijab was the reason she didn’t want Bayan in her salon, but she denies that it was religious discrimination. Because the hijab is not religion, it is a symbol of totalitarian regimes. Or as she said prior to the case, to the Norwegian TV2:

Strong wording aside, this defense is relevant for the case. Because the law she was tried for does not forbid discrimination on political grounds. The subjective motivation behind the discrimination is also important, it must be because of religion. Hodne says to the newspaper VG that “to me it is an extremist symbol. I get sick when I see someone wearing a hijab”. Her attorney, Linda Ellefsen Eide, elaborates that the hijab, although a religious garment, is not necessarily religion per se. To further back their claim that the hijab can’t be seen as religion in this case, they point to the fact that Bayan could not have removed her hijab in the salon if there were men present, thus arguing that Bayan does not have a consistent religious motive for wearing the hijab.

Religion or politics?

In this case, the court didn’t find the defense plausible and rejected the notion of the hijab being a political symbol more than a religious one. Eide, along with several others, criticized the verdict for not making a clear ruling on this:

The debate that followed the trial indicates that this way of separating the hijab from religion and putting it into a political context is worth taking note of. Several members of the right wing Progress Party were vocal on social media declaring the hijab a symbol of extreme Islamism and comparing it to Nazi symbols (thus instantly invoking Godwin’s law). Although these utterances might be seen as rather extreme, this line of reasoning is not unique for the case in question. We can recognize it in several of the other cases where Muslim women’s clothing is being fought over. (The number of such cases is surprisingly high.)

Earlier this year several towns in France banned the use of the burkini, a swimsuit designed for covering most of the body. The line of reasoning seems to be the same. David Lisnard, the mayor of Cannes, stated that the burkini is the uniform of extremist Islamism, not of the Muslim religion. The ban was later declared by the French Supreme Court to be illegal and was thus reversed. In Norway there are also political discussions about banning hijabs for children in primary school, as well as niqabs in schools altogether, including Universities. The reasons given are more diverse in these cases, but here also the question of religious freedom is to be considered. “We did not treat hijab for children as a religious symbol”, says the politicians behind a recent policy document for better integration, where a ban is proposed. In the debates over the niqab, the link to radical Islamism is even stronger, and religious motivation for wearing a niqab is frequently downplayed. The hijab, niqab and burkini are quite different garments, but the debates over their symbolic meaning often follow the same lines.

These battles are fought in the media, but they are to a large degree decided in courtrooms and by legislators. Freedom of religion is clearly defined as a human right and is given strong protection both in Norwegian laws and in the European Convention of Human Rights. Putting emphasis on the way Muslim garments are symbols of Islamism rather than expressions of religion is a way of circumventing this protection. But from a researcher’s point of view (and hopefully from most others as well) this is rather problematic. Reducing for instance the hijab to either a political symbol OR a religious one is not just an oversimplification. It is just plain wrong. That the hijab has been, and is, a political symbol is well documented. But so is its religious dimension. (For a short summary of this by Berit S. Thorbjørnsrud, see this article. Also this more recent op-ed, by Sindre Bangstad. Both in Norwegian.) A lot of empirical studies on Muslim women confirm this. There are different reasons given for choosing to wear the hijab, but the most usual reasons are religious. See for instance Christine M. Jacobsen’s book Islamic Traditions and Muslim Youth in Norway (2011). The hijab can be many things, depending on who you ask, but it is difficult to get around the fact that for many women it is a religious practice.

Returning to the case of the hairdresser, her attorney said that this case might well go all the way to the European Court of Human Rights. She referred to several rulings where the court has said that banning religious garments is not in violation of the European Convention of Human Rights (ECHR). But these verdicts do not in fact support Hodnes claim, but rather the opposite. I’d like to point to the often sited case of S.A.S. vs France (2015) which ruled that the French ban on face covering did not violate ECHR provisions on right to privacy or freedom of religion. One of the points discussed was whether face covering, in case of the woman taking France to court, could be said to be a religious “manifestation”. On this point the verdict states that a manifestation of religion or belief does not have to be mandatory within a religion to be protected. Likewise that the court could not challenge what religious practices someone considers important. The reason that the French ban was not in violation was that the freedom of religion is not an absolute; it can be limited when “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

Women’s clothing, or lack thereof, has been proven by the media time and time again to be a matter of public interest. The debates over what Muslim women wear, and how western societies should cope with it, are many and they span a large number of issues tied to integration, women’s rights, radical Islamism and freedom of religion. A hijab can be a powerful symbol, but it is certainly a complex one. Forcing one specific meaning on such a symbol is problematic. Especially if that meaning is contested by the wearer. It is important that the courts and the legislators have this in mind, even in a seemingly trivial case like this. There may be good reasons for limiting religious pratices in some cases, but hijacking the meaning of people’s religious symbols is not the way to go.