Framing Headscarves and other Multi-Cultural Issues as Religious, Cultural, Racial or Gendered: The Role of Human Rights Law
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| Author | Titia Loenen |
| DOI | 10.1177/016934411203000406 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 30/4, 414–430, 2012.
472 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
FRAMING HEADSCARVES AND OTHER
MULTI-CU LTUR AL ISSUES AS RELIGIOUS,
CULTURAL, RACIAL OR GENDERED:
THE ROLE OF HUMAN RIGHTS LAW
T L*
Abstract
In many European societies emotions run high on claim s for accommodating religious
and/or cultural manifestations, such as wearing a headscarf at work or not being
required to shake hands with persons of the opposite sex. People may perceive these
issues in di erent ways as be ing about religion, culture, gender or race/ethnic origin. is
article explores the question how human rights law feeds into this process of framing,
concentrating on European human rights standards. What does human rights law
(potentially) add to the way the issues are perceived and interprete d? What speci c ways
of framing will human rights law perhaps enable or stimulate? e overall conclusion
is that human rights law is not a neutral factor in framing the headscarf and shaking
hands issues a s either cultural, religious, racial and/or gendered.
Keywords: EU equality directives; framing; headscarf; non-discrimination; shaking
hands
1. INTRODUCTION
Many topical multicultural issues have resulted in heated debates in European
societies, such as headscarf and burqa bans, ‘shaking hands’ controversies and
all kinds of claims for accommodating religious and/or cultural manifestations.
Emotions o en run high and may cover di erent elements of the issues involved, as
they intersect with several identity markers. Some will stress the cultural aspects,
others the religious ones. O thers still will point out the r acial/ethnic overtones given
the immigrat ion and integration context of the debates or may view the gender aspects
* Titia (M.L.P.) Loenen is professor of le gal theory, Utrecht Universit y, the Netherlands.
Framing Head scarves and Ot her Multi-Cultura l Issues
Netherlands Qu arterly of Human Ri ghts, Vol. 30/4 (2012) 473
as most troubling. Various ‘schemata of interpretation’ are available for framing the
matter as cultura l, religious, racial and/or gendered.1
From the perspective of human rights law an interesting question is how it feeds
into this process of fra ming. What does human rights law (potentia lly) add to the way
the issues are perceived and interpreted a nd what speci c ways of framing wil l human
rights law enable or perhaps stimulate? is is the topic to be addressed in t his article.2
Answering the question posed is important as many of the issues end up in court.
Law, and more speci cally hu man righ ts law, is used as one of the w ays to decid e such
matters. Partie s may try to get their way by resorting to law and legal procedu res (for
instance instead of negotiation). Whatever its setbacks, the legal way is particularly
attractive bec ause of the binding and enforceable status of court deci sions.
Translating social issues into legal claims has its own dynamics. Social scientists
have shown this process to be far from neutr al.Law can only process a social issue if
it is translated on law’s own conditions, that is in legal terms.3 When translating the
social issue into a legal one, it may modify it in a more or less profound way. At the
same time, law o en provides various ways to do the tra nslating. Several actors may
be involved in this process: litigants, lawyers and judges to name the most obvious
ones. If we take a look at the examples mentioned above, the position of a public
school teacher who objects to not being allowed to wear a headscarf in class or to
refrain from shaking hands with persons of the opposite sex can be framed legally
in several ways. She could try to avail herself of various human rights to frame her
claim. In addition to t he right to freedom of religion, this could be t he right to cultural
identity and perhaps the right not to be discriminated against on grounds of sex or
race/ethnic origin. C ommon sense suggests that she will bas e her claim on those legal
provisions that are most promising in getting her what she wants. In this respect,
human rights law may exert its own in uence on how she frames her claim in terms
of culture, religion, race a nd/or gender.
us, the availability of di erent human rights to base a claim on, raises the
important question of which rights, indeed, are the more or most promising for the
public school teacher to resort to. In this article I intend to re ect on and answer
this speci c question. I will do so without rendering a normative judgment which
possibility would be (more) ‘right’ or ‘wrong’. e answer to the research question
1 e concept of framing originates i n the work of Go man, E., Frame Analysis: An Essay on the
Organization of Experience, Harvard Universit y Press, Ca mbridge (Mass.), 1974. In thi s contribution
I use it in a very genera l sense to convey the idea that the s peci c articulation of legal nor ms can
in uence the way social is sues are perceived or inter preted.
2 In this respect it takes up and builds on some of the issues brie y e xplored in Loenen, T.,
‘Accommodation of Religion a nd Sex Equality in t he Workplace under the EU Equal ity Directives:
A Double Bind for the Europea n Court of Justice’, in: Alidad i, K., Foblets, M.-C. and Vrielink, J.
(eds .), A Test of Faith? Re ligious Diversity a nd Accommodation in the Euro pean Workplace, Ashgate,
Aldershot, 2012, pp. 103–120.
3 For some insightf ul examples of the mechan isms at stake see for exa mple Conley, J.M. and O’Barr,
W.M ., Rules vers us Relationships: e Eth nography of Legal Discours e, University of Chicago Pres s,
Chicago 1990.
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