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Exclusion through the Law: the Netherlands’ ‘Burqa Ban’

Date:16 September 2019
Author:Aukje Muller
Veiled woman in front of Dutch Supreme Court
Veiled woman in front of Dutch Supreme Court

How does an ostensibly 'neutral' law work to shore up racist notions of national belonging? Aukje Muller reflects on the Netherlands' 'burqa ban' (boerkaverbod).

On August 1, a partial ban on face-covering clothing came into force in the Netherlands. The ban applies in certain designated public areas including hospitals, public transport, and government buildings. Examples of the newly prohibited clothing can be found on the government’s website, which lists full-face helmets, balaclavas, and niqabs. The law also applies to ski masks, burqas, and other similar face-covering items, and is popularly referred to as the ‘burqa ban’ (boerkaverbod).

In what follows, I want to highlight how this law is presented as fitting within a civic and liberal vision of national belonging even as it reflects and maintains an ethnicity-based, racist conception of who is included in the national community. ‘Belonging’ or ‘national belonging,’ here, refers to a person’s membership in a national community, which is based on identification (both claimed and ascribed) with and acceptance or recognition by that national community. The ‘burqa ban’ is an example of a larger trend in which ethno-nationalist arguments for belonging – normatively unfavorable for their association with racist views – are concealed by and receive legitimization from the acceptable language of civic nationalism. Through the ban, access to public spaces has accordingly become racialized and ethnicized. The result is that Muslim women are denied a sense of belonging by the majority population, which ultimately limits their access to rights and resources.

Turning a right into a crime

Problematic for a variety of reasons, the ‘burqa ban’ has resulted in a public controversy in which opponents and proponents argue over women’s freedom from (male) oppression and religious dress, and the right to freedom of religion or belief. The discussion has focused on the ideas of freedom and of state neutrality, which both sides argue is assured by their position alone. Although the Dutch police and other public officials refuse to enforce it and have pledged to ignore the new legislation, criminalizing face-covering clothing reinforces and contributes to a persistent narrative in which Muslims are penalized for not just being ‘different,’ but for being Muslim. This criminalization legitimates the social exclusion of the Muslim community in the Netherlands.

One of the major ways in which the ‘burqa ban’ seeks to avoid the accusation that it is racist is its construction as a law. The legal, civic nature of the ban normalizes the social exclusion of Muslim women because they are breaking the law. This legitimizes stigmatization of Muslim women, increasing the likelihood that they will suffer discrimination, harassment and intimidation in their everyday lives. A painful example took place just days after the ban came into force, when a woman was told she would be removed from a public playground for wearing her niqab. The manager of the playground, as well as the police, later referred to it as a ‘misunderstanding,’ claiming they were unaware that playgrounds did not fall under the designated locations where the ban applies. Other examples emphasize the increased risk of violence for Muslim women wearing a burqa or niqab since the implementation of the ban.

The Dutch government claims that the ban is supposed to ensure ‘social safety and public service’ and explicitly names other clothing items that fall under the new law to support its claim that the ban is ‘neutral.’ Government ministers insist that the law doesn’t target a specific religion or religious expression; after all, to explicitly target a religious minority would be quickly condemned as racist. Yet the same minority is targeted implicitly. Extensive public and political debate since the mid-2000s suggests that the targets of the new legislation are the burqa and niqab and the Muslim women who wear them. Geert Wilders, the architect of the proposal, has been very explicit about his intentions from the start, recently tweeting: ‘Now we can start working on the next step: a headscarf ban in the Netherlands.’

The structure of a law is such that those who ‘choose’ to break it are made unwelcome in public life, which is justified on the civic grounds that those who commit unlawful acts should be excluded. This is problematic when the behavior that is criminalized might otherwise be thought of as a right, and when the criminalization and subsequent social exclusion is rooted in ethno-nationalist conceptions of belonging. 

Ethno-nationalism dressed up as civic nationalism

Adherence to the law, as well as respect for democracy and tolerance of diversity, is seen as a civic value that is embedded in a civic construction of national membership. For people to be included, it is expected of them that they follow the law. In other words, civic nationalism is assumed to be inclusive, requiring that people choose to respect a country’s institutions and laws for belonging. Within the framework of civic nationalism, belonging to the nation-state, and exclusion from its national community, is decided along a set of civic values and shared commitments to codified liberal sentiments to which one is supposed to adhere.

By explicitly naming other clothing items such as full-face helmets and balaclavas under the new law, proponents insist that the ban is not designed to target any particular religion. In this way, it is presented within a civic nationalist conception of national membership - an inclusive, liberal form of nationalism that espouses openness to cultural difference while emphasizes that what is binding a nation is a shared commitment to political structures, procedures, and laws [i]. In this civic form of belonging, national membership is conceptualized in inclusive terms as it considers inclusion in the national community a relatively free choice for newcomers. To be included into this civic framework, is to ‘choose’ for the liberal, civic values mentioned above. The same goes for the public spaces that are subject to the ban. Choosing to play by the rules provides access to them. The problem is, however, that these rules are anchored in an racist conception of national belonging, which is concealed by the civil and ‘religion-neutral’ aim of ensuring social safety and public service.

Ethno-nationalism presents nationhood and national belonging as defined by ancestry, language, religion, customs and traditions [i]. Ethnic or ‘culturalist’ criteria for inclusion are of an excluding nature and differentiate between the majority population – those who belong – and other groups – those who apparently don’t– along ethnic, religious, or cultural lines. Within this framework, the majority society holds the power to define the boundaries of national belonging.

As such, the majority also hold the exclusive ability to define the boundaries of the law. The burqa and niqab are now legally incompatible with the rule of law. As the anti-Muslim sentiments that dominated the debates preceding the ban’s implementation, wearing a burqa or niqab is often conflated with ‘Muslim values’ that are considered incompatible with liberal values. The law, then, seems to stand in for cultural incompatibility, which permits ethno-nationalist views about cultural homogeneity to be expressed in the more acceptable language of civic nationalism. It follows from this that face-covering women transgress these ‘ethnic’ or ‘cultural’ boundaries and subsequently fall outside the boundaries of national membership.

The ‘cultural incompatibility’ arguments, which incite and justify hostility and prejudice based on culture, reflect Islamophobic ethno-nationalism that is strongly connected with and grounded in racist ideas about who belongs and who doesn’t. This civic, liberal construction of belonging through adherence to the law actually reflects prejudice rooted in ethno-nationalism, which drives structural racism, discrimination and social exclusion. The ‘burqa ban’ justifies the exclusion of Muslim women from public spaces and from national membership, which obstructs their access to other rights and their general safety and wellbeing. It legitimizes the social exclusion of and discrimination against Muslims in the Netherlands, and is a form of institutionalized Islamophobia.

 

[i] Ignatieff, M., Blood and belonging. Journeys into the new nationalism (New York 1994) 3-4.

 

Aukje Muller is a PhD candidate at the University of Groningen and Macquarie University (Sydney). Her research focuses on the relationship between religion and belonging in contemporary state-centric politics of migration in the Netherlands and Australia.

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