Canada’s Citizenship and Immigration Minister Jason Kenney recently announced that henceforth, Muslim women will be prohibited from covering their faces with the niqab during citizenship ceremonies. The move was met with general support and the federal opposition parties have also largely avoided commenting on the issue.
For me (and perhaps for many Canadians), the niqab is one of those issues that isn't easy to navigate. As a Sikh, I know that Guru Amardas, the third Guru specifically spoke out against the practice of veiling and Sikh women (or men for that matter) are not permitted to cover their faces.
That having been said, Guru Nanak also spoke out against the Hindu holy thread (janeu) and refused to wear it. But when it came time to defend the right of Hindus to wear the janeu, it was Guru Tegh Bahadur, the ninth Sikh Guru, who sacrificed his life in Delhi, standing up against the oppressive Mughal regime.
The question for me isn’t whether I agree with the wearing of the niqab. The issue is whether it’s wrong to deny Muslim women the right to choose. This is about human rights. Beyond just my personal convictions and beliefs on the matter, what also deserves consideration is what such a ban means in the context of Canadian law and what it means for freedom of religion in Canadian society.
The Social Argument
One of the prime reasons offered to support the ban on the niqab in Canadian citizenship ceremonies and elsewhere is that it is an affront to the equality of women, a treasured Canadian value. Gender equality is certainly something worth defending and it is also one of the founding principles of the Sikh faith. But in my understanding, gender equality necessitates choices. Women must have the right to dress as they please. State interference in women’s ability to dress as they choose is paternalistic and limits women’s autonomy and freedom.
If we look at other items of clothing through the lens of gender equality, it’s possible that short skirts, high heels or even nuns’ habits might be objectionable. But I doubt we would move to prohibit them as a society.
If the argument is that prohibiting the niqab will help ‘liberate’ women who may be forced to wear the face covering by their male family members, a prohibition still doesn’t make sense. The best way to help such women would be to create safe spaces for them where they can interact with others and become a part of society. Telling niqab-wearing women that they can’t become Canadian citizens or that they can’t access public services (as was proposed by Bill 94 in Quebec) further isolates and marginalizes them.
Overall, forcing people to abandon certain cultural or religious practices is not the Canadian way: it creates an atmosphere of intolerance and inequity.
The Legal Argument
The prohibition on the niqab has been justified as a necessary step to ensure that the identities of women can be established and so that the presiding citizenship judge can confirm that the oath of citizenship was indeed recited. Minister Kenney and others have stated that the wearing of the niqab is not required in Islam and it is a cultural practice.
The leading case which explains freedom of religion in Canada is the Amselem decision (WSO was an intervener in this case). The Supreme Court of Canada in Amselem said that as long as a belief is sincerely held by an adherent, it deserves protection regardless of what religious ‘experts’ or clerics may say.
When it comes to Muslim women wearing the niqab, it’s not up to us or even the court to determine whether it is required in Islam. It only matters whether the women who wear it feel it is something they must do as a part of their religious observance.
As a Sikh, I can appreciate the wisdom of this approach. Before Amselem, in cases involving Sikh articles of faith such as the dastaar (turban) or kirpan, so-called “experts” were presented in court who would testify that the dastaar wasn’t necessary or that the kirpan can be reduced to a lapel pin or necklace. These experts were often not observant Sikh and in some cases, weren’t Sikhs at all.
If a woman feels that she must wear the niqab in order to be true to her faith, that has to be enough.
In Canada, accommodation of difference is fundamental to our law. It’s what makes Canada such an open and welcoming place and it is what guarantees equality in our society. According to Canadian law, women who wear the niqab must be accommodated to the point of undue hardship. This is a very high standard, and in my opinion, it is not met in the case of citizenship ceremonies.
There has been to date, no attempt to accommodate women who wear the niqab. In order to confirm their identities, veiled women could be asked to reveal their faces to women citizenship officials. The veil also isn’t a sound barrier. If the issue is whether veiled women are actually reciting the oath of citizenship, they can be asked to speak loud enough for the oath to be heard through the veil. I’m sure there are many other accommodations that could be made.
What was also disturbing to me about Minister Kenney’s announcement was that it came only a week after arguments were heard in the Supreme Court of Canada in the case involving N.S., a Muslim woman who wished to testify in her sexual assault trial while wearing the veil. It would have been prudent to wait for the Supreme Court to weigh in on this issue before announcing the ban on veils at citizenship ceremonies.
Overall, the prohibition on the niqab isn’t something that affects just that small minority of Muslim women who choose to wear it. It’s about who we are as a country and what kind of society we have in Canada. Do we marginalize the most vulnerable amongst us or do we create a space for them? As a Sikh I may disagree with the practice of veiling. But I disagree even more with its prohibition. If we are not careful, this announcement may mark the first step in what could prove to be the significant erosion of the rights of women, and all minority religious communities living in Canada.