burka denmark
© Reuters: Mads Claus Rasmussen
Denmark has become the latest European country to dictate what a woman can and can't wear. Its parliament passed a new law imposing a penalty of 1,000 Kroner on anyone who wears a garment that hides the face in public.

Although couched in anodyne terms, the law is really aimed at the burka and niqab as revealed by its legislative history and parliamentary intent.

Given the trivial number of women who wear the burka in Denmark (in the low hundreds), what is really animating this costly exercise in lawmaking?

The Justice Minister, Søren Pape Poulsen, claimed that covering one's face in public is "incompatible with the values in Danish society", and "disrespectful" to others.

What exactly are these Danish values? What about the laws being disrespectful of the basic individual liberty of a person's right to wear clothes of their choice?


Comment: What about laws requiring people to be clothed being disrespectful to the basic individual liberty of a person's right to wear no clothing? Societies have customs. If you don't like them, you're free to be naked in your house, or wear a burka in your house.


The Justice Minister claimed he did "not want police officers pulling items of clothing off people - burkas or otherwise," and that, "if they live nearby, they will be asked to go home".

He said policemen will have to use their "common sense" when they see people wearing the burka.

A woman's right to wear garments of her choice is to be subjected to a policeman's "common sense?"

To be clear, this law is not about clothing but about what is implied by "Danish values".

Denmark's burka ban is just another step in a creeping shroud of prejudice slowly spreading over Europe.

Burka ban about sending a message to Muslims

Recall that France struck the first blow against the burka in 2011 - a bizarrely retrograde move for a country that gave us liberty, equality, and fraternity.

Again, the number of women wearing the burka in France was trivial, as I noted in an article in The New York Times then.

So, the law was more about sending a message to Muslims and underlining the broader prejudice against minorities in France.

Since then, Germany and Austria have also adopted laws against burkas or hijabs.

Last month, a Berlin court upheld a government decision to stop a Muslim woman wearing a hijab from teaching primary school students.

The justification was that "primary school children should be free of the influence that can be exerted by religious symbols".

The logic is oxymoronic. Greater exposure rather than insularity might be expected to free children from any negative influences exerted by religious symbols.

The bankruptcy of the state's argument is also evident when viewed against other German attempts targeting the headscarf and promoting Christian religious symbols.

The state of Bavaria decreed on April 24 that all government buildings should display crosses at their entrance.

The display is mandated as "a visible commitment to the basic values of the legal and social order in Bavaria and Germany" and its "cultural identity and Christian-western influence".

How does this square with the previously asserted need to be free from the influence exerted by religious symbols?

In addition, recently, an Algerian-origin woman was denied French citizenship because she declined to shake hands with male public servants due to her religious beliefs.

According to the French Civil Code's article 21-4, that government may "on grounds of indignity or lack of assimilation other than linguistic, oppose the acquisition of the French nationality by the foreign spouse within a period of two years ..."

The court supported the government's decision and said the woman's refusal to shake hands "in a place and at a moment that are symbolic, reveals a lack of assimilation".

To be sure, religious expression has to yield when there is a compelling state interest that warrants it.

Burka-wearing women not a security problem

Public safety is often used as a justification to intrude on religious expression - hence the bans on veils during airport screening procedures, in courtrooms, public offices, while driving, etc.

Properly limited based on necessity, such intrusions on liberty may serve important public interests in safety, administration of justice, customer service, and efficiency.

Equally, religious beliefs or practices that are contrary to a country's constitutional values can be rendered illegal - polygamy, honour killings, forced marriage, child marriage, female genital mutilation, are examples.

Similarly, paternalistic legislation to advance gender equality in communities where inequality is ingrained due to cultural or religious practices cannot be stopped in the name of religious freedom.

However, the burka bans in Denmark and other European countries do not fall under these permissible justifications.

The trivial number of women wearing burkas on Denmark's public streets has not manifested in a security problem.

And there are other less intrusive ways of promoting Danish values.

In Germany, a hijab ought not to interfere with the ability of a teacher to instruct her students any more than it would in other countries.

A handshake is not conclusive proof of lack of assimilation in France or elsewhere.

burka hijab
© ABC News: Lucy Fahey
Explained: the differences between the burka, niqab, hijab, chador and dupatta.
Group-think produces suboptimal outcomes

Stigmatising Muslim women - who are likely already burdened by discrimination - will only be counterproductive.

It is likely to push Muslim women out of vocations they are most likely to pursue - stymieing their career choices and reinforcing disempowerment.

A woman who has to choose between going to work or wearing her burka might choose the latter. Or worse, have that choice made for her by others.

The ban also deprives women of financial independence and confidence - both are essential for empowerment.

Finally, prejudice and exclusion on spurious claims about "values", neutrality, and assimilation deprive societies of the benefits from incorporating the full range of talent within it.

Research shows that group-think and homogeneity produce suboptimal outcomes compared to decisions that incorporate diversity.

Why not seek to promote Danish values through education and other means rather than through criminalisation?

If women are incentivised to voluntarily shed the burka and engage actively in the public domain, European societies will benefit from their talents.

That's surely better than pushing them underground.
Dr Sandeep Gopalan is the pro vice-chancellor for academic innovation at Deakin University and a professor of law.