This is a follow-up to my previous post and the discussion that ensued on Quebec Government Bill Upholds Gender Equality and Secularism [1].
The issue of religious symbols in the public sphere has given rise to extensive debate around the world on the scope of freedom of religion. This question touches on the presence of Islamic headscarves (burqa/niqab), Sikh kirpans and turbans, among other symbols, in schools, government offices, courtrooms and workplaces. Legal and public policy acceptance or accommodation of these religious symbols depends on a variety of factors, but is most often rooted in a constitutional proportionality test that balances the right to freedom of religion against the possible threat to safety, security and public order.
Many legal scholars and policy makers offer a view similar to Laura Barnett in Freedom of Religion and Religious Symbols in the Public Sphere [2]:
The Canadian approach to religion has been to promote multiculturalism by celebrating the expression of various religions while recognizing the supremacy of none—the government plays a role of neutral accommodation.
While Canada perceives it’s role as one of accommodating all forms of religious expression in a neutral manner, more recently, one of its provinces, Québec, has decided to apply a more restrictive and formally secular approach. At a general level, this means the official separation of church and state.
However, this proposed policy of secularity (bill 94) clashes with the religious traditions of many recent immigrants to Canada.
To summarize, Bill 94 [3]would require anyone providing or receiving government services to do so with their face uncovered for reasons of identification, security and communication. This includes services from hospitals, schools, universities, and daycare centres that receive provincial funding.
According to the Québec government, the bill,
Makes any compromise to respect the Charter of Rights and Freedoms, including the implementation of equality between women and men and the principle of religious neutrality of the State.
In addition, the bill attempts to provide a clearer definition of reasonable accommodation. It says that an accommodation is considered reasonable if it does not cause undue hardship to public organizations or does not interfere with an organization’s operation and the rights of others.
What does this mean in plain terms? If bill 94 passes, wearing the niqab or the burqa would be banned for those working for the government or being served by it. No religious belief will prevent a government employee or other appropriate person from requiring a Muslim woman to remove her veil for legitimate identification and security when she accesses any of the services mentioned above.
Furthermore, the government argues that, allowing a government employee to wear a niqab or burqa would violate the Charter, because the veil is a symbol of inequality—of female submission to men. The principle being that the state cannot endorse differential treatment of the sexes on the basis of religious or cultural beliefs.
Remember, no Charter right is absolute. All Charter rights are
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
What we must understand is that the Québec government will not fail to invoke any of the above three reasons to ban the wearing of the veil—identification, security or communication—or any other religious symbol that might interfere with them. The implication is that it’s not the religious symbols themselves that are in question here, but rather an obligation to uncover one’s face for these reasons. Based on legal advice obtained by the government prior to tabling the bill, it does not mention or refer to any particular religion to avoid any infringement on freedom of religion.
Clause 4 of bill 94 indicates that any arrangement must respect the Charter of Rights, including
the right to gender equality and the principle of religious neutrality of the State whereby the State shows neither favour nor disfavour towards any particular religion or belief.
This would mean that all current reasonable accommodations of religious persons—for example, that Hassidic Jews or Muslims be served only by persons of the same sex—will cease. According to the government, these accommodations contravene the right to equality between the sexes.
The bill could be justified if those who interpret it make sure there really is a legitimate reason for each refusal of accommodation.
Identification is the norm in a modern society; it is necessary to obtain a driver’s license, passport, marriage license or birth certificate, medical insurance card, to board a plane, etc. A security problem may ensue when officials are unable to identify a person.
As for communication, as stated by communication experts, this involves speech, dress, gestures and facial expressions. Regarding gestures and facial expressions, they are often revealing, and sometimes betray us. Orientation of the eye, hand movements, body sway; these are all benign attitudes that reflect mood, frame of mind, and can say a lot about a person.
Verbal and non-verbal communication are necessary to provide services to a person and to understand if the needs of the person are being met or accommodated.
Man and woman are social creatures; that is to say we live in an environment where verbal and visual contact is essential: indeed, the basis for understanding. Therefore, it is very difficult to communicate with a person whose face is covered; a garment that makes it impossible to see a person’s face creates a barrier to any form of personal contact, and impedes social interaction.
Hence, if the focus and the application of the law are for identification, communication and security reasons, it will withstand any challenges. In short, the constitutionality of the bill depends on the application that it will be given. If its provisions are applied with good judgement, restricted to individual cases, they might be defensible and therefore valid.