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Western standards. This includes the duty of wearing tight
skirts, which some airlines still impose on their female flight
attendants. 21 The difference between the two cases is evident:
While in the case of the headscarf “too much“ (culturally
deviating) femininity is the problem, the flight attendant
who wears trousers allegedly shows too little. But the
logic remains the same: Women are supposed to remain on
the terrain of culturally familiar conventions of (attractive)
femininity.
Accordingly, I would argue that putting women at a disadvantage
for wearing religiously motivated, gender-specific
garments can be regarded as direct discrimination on the
basis of gender, if the notion of gender one uses focuses on
gender norms. That way antidiscrimination law can be made
to work for women who deviate from stereotypical expectations
concerning gender performance, be they religiously
conservative 22 or of the gender bending variety. A few years
ago, the US Supreme Court recognized the respective need
for protection in the case of a woman, who had been denied
partnership in a law firm because her behaviour had not been
feminine enough. 23 The ECJ has not yet taken a stand on
the issue.
The approach I suggest here takes the deconstructivist
thesis seriously that gender is fundamentally a construct,
which has no necessary consequences and which should not
be invoked light-mindedly. It should be of benefit for all those
who do not stereotypically fit, be they pious, unconventionally
feminine or masculine or transgender. According to this
approach, any norms of gender performance may only be
enforced if, in the terms of EU anti-discrimination law, they
show a characteristic which “by reason of the nature of the
particular occupational activities concerned or of the context
in which they are carried out, […] constitutes a genuine and
determining occupational requirement, provided that the objective
is legitimate and the requirement is proportionate.” 24
The margin for such exceptions should – in accordance with
the current case law of the ECJ – be narrow. 25
As shown, gender is not “one (of two)”, but an utterly
complex phenomenon and always culturally specific. Taking
this seriously demands a high standard of justification for
prohibitions of the wearing of headscarves in the name of direct
discrimination on the ground of gender. Stating this does
not intend to disregard that the religious duty of wearing a
headscarf is itself the expression of normative femininity.
Such legal recognition of the headscarf may have the consequence
that the options of those who want to resist wearing
it are curtailed because their standing against the wish or
pressure of their parents or their environment is weakened
by the legal acknowledgement of wearing the headscarf as
a gendered religious duty. Whether this is the case is hard
to assess in general. One should not succumb to the illusion
that the protection of headscarf wearing women by gender
equality law only has gender equality enhancing effects. Of
course, religious powers, which advocate a rigidly conservative
perception of “woman,” are thereby strengthened. This
side-effect has to be kept in mind as a possible concretization
of the “paradox of multicultural vulnerability”, calling
for creative solutions which do not come at the expense of
women and girls. 26
The road to freedom to or from wearing a headscarf and
the concern of the state to generally enhance the autonomy
of women with a migratory background, however, cannot
be paved by way of discriminating women who do not even
conform to the stereotype that they merely sit at home and
wait to be married off, if necessary by force. Those who are
discriminated against on the labour market for wearing a
headscarf show through their actions that they attach high
importance to education, financial autonomy and professional
advancement. They want to accomplish all this without
assimilating to mainstream norms of gender performance.
We should not miss the convergence with classical feminist
concerns here, when the aim is to pursue inclusive gender
equality politics, which meet the complex requirements of
the intersections of gender, religion, culture and nationality
in the context of globalization.
EU law can make an important contribution by placing
special emphasis on the interlacing of the various grounds of
discrimination and the aim of generating inclusive measures
of equality. The challenges for the future are to render the
fine words of political declarations of intent and the scrawny
norms of the directives and national bodies of laws into living
rights that can be used by those who need them and which
do not run counter to the complexities of the living conditions
of all genders by invoking unidimensional concepts of
“masculinity” and “femininity”.
Dr in . iur. Elisabeth Holzleithner is assistant
professor at the Institute of Legal Philosophy,
the Law of Religion and Cultural Law, University
of Vienna. In the winter term 2006/07, she was
visiting professor at the Competence Center
for Gender Studies (KGS), University of Zurich;
elisabeth.holzleithner@univie.ac.at
21) One example are Casinos Austria, who
oblige their female employees who work in the
gambling hall to wear a skirt. E-Mail from Ing.
Buchinger, Hauptabteilung Personal of Casinos
Austria AG, 25.06.2007.
22) The respective motivations are, of course,
rather diverse. See, e.g., Amir-Moazemi, Politisierte
Religion. Der Kopftuchstreit in Deutschland
und Frankreich (2007) and Schröter,
Mohammeds deutsche Töchter. Bildungsprozesse,
Hindernisse, Hintergründe (2002).
23) US Supreme Court, Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989); cf. Franke, The
Central Mistake of Sex Discrimination Law: The
Disaggregation of Sex from Gender, University
of Pennsylvania Law Review 1995, 95.
24) Art 14 (2) Dir 2006/54/EC; analogous
provisions can be found in Art 4 Dir 2000/43/
EC und Art 4 (1) Dir 2000/78/EC.
25) See already ECJ, Marguerite Johnston v.
Chief Constable of the Royal Ulster Constabulary,
Case 222/84.
26) Cf. Shachar, Multicultural Jurisdictions.
Cultural Differences and Women’s Rights
(2001).
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