Who cares how women dress?

Few issues come around as regularly as the controversy over the hijab (headscarf) and niqab (face-veil). Europe is forever finding new issues with what Muslim women wear. Emotions run high between those who think the hijab is one more symbol of private religious practice—like wearing a Christian cross—that a secular Europe can fairly restrict in public; and those who think secularism is being used to target Muslims.

The truth is a blend of the two. There is a brand of European—especially French—secularism that is perturbed by overt expressions of religion. But it is often selectively perturbed: less likely, for example, to worry about displays of Catholicism, than of Islam.

In March, the European Court of Justice (ECJ) ruled that banning the wearing of “any political, philosophical or religious sign” in a workplace need not constitute direct discrimination. Employers can only impose a ban where existing company rules require all staff to “dress neutrally.” They cannot bow to the wishes of a customer who feels uncomfortable interacting with, say, a woman in a headscarf or a Jewish man wearing a yarmulke. On the face of it, this seems to be a straightforward judgment based on an employer’s right to present a “neutral image.”

Some have nonetheless seen this ruling as legal permission for a discriminatory hijab ban. You can understand this perspective: recall the sight last year of a French policeman forcing a woman on a beach to remove her burkini. But the task of the judges was not easy. While they ruled in the cases of two women, in France and Belgium, who had been dismissed for refusing to remove headscarves at work, they were grappling with a law that covered the limits on religious freedom as a whole, not Islam in particular. The only choice was between the extreme of unfettered freedom for all religions, and freedom for some on an arbitrary basis—depending on the direction in which the winds of tolerance are blowing.

It is not fair to assume the judgment was motivated by Islamophobia; it may merely be a blunt implementation of a dusty old law which itself rests on a nebulous sense of some “European value” of secularism. The problem is not with Muslims being expressly singled out; it is the impossibility of applying secular law in a vacuum. A very similar challenge arises when hate speech is defended in the name of freedom of expression, without any recognition that the effective reach of free speech is affected by what society is willing to tolerate. Witness the recent case of alt-right hero Milo Yiannopoulos, whose bigotry did not preclude him from a book deal with Simon & Schuster, but whose inflammatory comments on child abuse did. The ECJ ruling neatly demonstrates the risks of selectivity, and the murky waters that cloud the clean promise of secular “neutrality.”

All sorts of cultural baggage informs what counts as “neutral.” What is considered normal, and what is classed as excessively public religious expression? Theoretically, a yarmulke, a crucifix or a Sikh turban could be caught by the “non-neutral” definition, but where does it stop? If an orthodox Jewish woman wears a wig, or someone’s faith requires them to wear loose-fitting clothes, would that also be non-neutral? The only objective thing to be said here is that all opinions are subjective. That is why the timing of the case is relevant. After Donald Trump’s travel ban, public shows of being Muslim are being policed aggressively. Even the loftiest judge cannot escape their times.

The litmus test of any law on dress codes should be the extent to which they infringe on a woman’s right to dress as she pleases—whether religiously or not. Not their accordance with a secularism which is overdue for some interrogation. In practice, that ideology may chiefly work against Muslims. But rather than fixate on that, we should be prompted to engage in a wider rethink.