The European ruling on headscarves opens the way to rank discrimination | Polly Toynbee
It’s a puzzle that so many religious people identify themselves by what they wear. Among Christians I find it macabre that they choose to wear, in gold around their neck, an instrument of one of the cruellest tortures known to man. But they do. It’s their choice and no one else’s business.
Today the European court of justice confirmed the right of private employers to fire staff for wearing headscarves or other religious insignia. All an employer need do is claim a policy of an “image of neutrality”. This judgment springs from two cases of Muslim women in Germany dismissed for wearing headscarves. The German courts found the sackings not only discriminatory but in contravention of the country’s constitution – but the case proceeded on up to the ECJ, which had opined in 2017 that employers do have the right to sack women in headscarves. There’s a strange legal clash here, as the European convention on human rights – which is independent of the European Union, although every EU country must sign up to it – proclaims freedom to manifest religious belief.
Britain is among the better countries in Europe for upholding religious freedom – France among the worst. The British presence within the EU was a force for good in this area. As it happens, the ECJ’s admirable advocate general was the British QC Eleanor Sharpston, who was about to deliver a firm and decisive expert opinion that sacking women for wearing headscarves was discriminatory on the grounds of both religion and gender. But just then the Brexit shutter slammed down. As Britain left the EU, she was automatically removed from her post. She revealed her opinion afterwards – but it had no authority.
Over the years, British cases have upheld personal religious rights: when Nadia Eweida was put on unpaid leave by British Airways for refusing to hide her crucifix, BA lost. The European court of human rights found the British government failed to uphold her convention right to manifest her religion. But just as important, the convention also prevents religious people in Britain from imposing their beliefs on others. The registrar refusing to conduct civil partnerships, the Relate counsellor refusing to counsel gay couples: all such cases were lost.
Maryam H’madoun, policy officer at Open Society Justice Initiative, part of the George Soros-backed Open Society Foundations, warns the ruling will have far-reaching implications, allowing employers to discriminate against and to sack Muslim women. Racist clients or staff could pressure companies not to hire women in headscarves. In France, laïcité – the strand of secularism that dates back to the revolution – can give intellectually respectable cover for discrimination and worse against Muslims.
British humanism, also campaigning for political secularism, will have none of it. As vice president of HumanistsUK, I might not understand the reasons why, but visible symbols of belief and religious identity plainly matter greatly to many. Unlike French secularists, we stand with Voltaire, famously reported as asserting: “While I wholly disapprove of what you say, I will defend to the death your right to say it.” Personally, I am uncomfortable with the symbolism of the headscarf as an idea of modesty that applies only to women, not to men. To that, Muslim women frequently reply that for them it’s empowering, not something imposed by men.
As a humanist, I wish people to be free of all religion and superstition. I live in hope that future generations will shed subservience to their gods and heavens, opting instead for reason in the here and now, in this one-time-only life on Earth. But that’s just my opinion. Humanists campaign to keep the state out of people’s private beliefs and unbeliefs. In a largely non-believing country, why are a third of state schools run by religions and why are 26 Church of England bishops making laws in the House of Lords? Religious pressure still wields unwarranted power in restricting fertility rights – and preventing altogether a humane right to die, something that is supported by more than 80% of people.
But HumanistsUK also devotes itself to protecting the private religious freedoms of believers it profoundly disagrees with: it has no truck with racism hiding under a veil of secularism to which the European court of justice has just given its blessing. In Britain these questions of religious garb seem to have been long settled, at least in law, even if Boris Johnson notoriously gives licence to racists with his unapologetic abuse of women who cover themselves.
Johnson’s culture war may have fallen apart this week, amid public revulsion at racist abuse of young England team heroes. His every attempt to cover his tracks digs him in deeper, when even rightwinger Steve Baker tells his fellow Tories: “We just have to get alongside those players who are taking the knee.” Whether defending Victorian views of colonial history or statues of slave-traders, they may find pursuing their culture-war dog whistles embarrassing in the face of the quiet dignity of Gareth Southgate’s Dear England letter. So while the EU wrestles with today’s racist headscarf judgment, Britain has no clean bill of health: its own reckoning with racist attitudes continues.