Islamophobia and the Law: Unpacking Structural Islamophobia

Most forms of structural Islamophobia manifest through limiting and controlling visual signifiers of ‘Muslimness’ in the public sphere. Muslim women are often the targets of this type of Islamophobia. A number of European nations have passed legislation curtailing expressions of ‘Muslimness’ and Islam through laws that prohibit face and head veils. In some instances the laws are framed in general terms, banning clothing that covers one’s face for security reasons, while in other instances there is no pretense of neutrality and the law specifically targets Islamic face coverings. In 2011, one of the first European nations to implement a face-covering ban was Belgium. Belgium implemented a nationwide ban on full-face covering clothing including burqas and niqabs. This law was challenged on the basis that it violated basic rights of religious expression; however, in 2017 the European Court of Human Rights ruled that the ban did not “violate the rights to private and family life and freedom of religion, or discrimination laws.” In 2016, a number of smaller European states followed suit and implemented similar face-covering bans. Both Bulgaria and Latvia implemented laws banning face veils. Individuals found wearing the face veil in Bulgaria could face fines up to £660, while in Latvia, this law was instituted despite there being only three known instances of people wearing such clothing in the nation. In 2017, The Austrian Parliament adopted a face-covering clothing ban in public spaces. This law was implemented under the guise of preserving national security. Individuals wearing face veils such as the niqab were fined 150€. Similarly, in 2018 Denmark passed a law banning face veils. People violating this ban would be fined £115, and repeat offenders could face fines ten times that amount. The Netherlands also passed a face veil ban in 2018. Under this law the face veil was banned in public spaces such as schools, hospitals, public transport, and government buildings; however, it was still permitted in public streets. Face veils were not the only visual signifiers of ‘Muslimness’ that were banned.  Restrictions were even placed on Islamic looking structures in some European nations. For example, in 2009, Switzerland held a referendum to ban the construction of minarets on mosques. Media coverage of this issue included inflammatory rhetoric from the political Right arguing that minarets were a symbol of the impending Islamization of Switzerland, despite the fact that there were only four minarets in the country at the time of the referendum. In all of the above-mentioned examples, these laws and bans were implemented through support from right-wing and far-right political parties that came to power in these nations. However, not all instances of Structural Islamophobia have been at the hands of right-wing and far-right political parties. In the case of France, the notion of French secularism was used to advance structural Islamophobic discourse and legislation.  

France was the first European nation to implement formal restrictions of Muslim women’s dress in the public sphere. As early as 2004, under the guise of advocating state neutrality and secularist ideals, France implemented a ban on religious clothing in state schools. Though this ban affected a number of religious minority groups, Muslim women were overwhelmingly targeted through this law, as it was regularly referred to both in public and political discourse as the ‘veil law.’ The state went on to ban Islamic face veils through a niqab ban in 2010, and even attempted to ban the burkini, a full-body swimsuit worn by some Muslim women, in a number of French municipalities in 2016. The lines between public and private policing of Muslim women’s dress became blurred in France through a recent controversy over the selling of sports hijabs by sports retailers. In February 2019, Decathlon, Europe’s largest sports accessories vendor, decided against selling sports hijabs because of growing criticism and scrutiny from French politicians over such clothing. This distaste for visual signifiers of ‘Muslimness’ within French culture and society is not a recent phenomenon. Rather, it has an enduring legacy that can trace its roots back to the colonial era.

In his critical essay ‘Algeria Unveiled,’ Frantz Fanon discusses the French colonizers’ project of removing the Muslim headscarf from Algeria in the 1930s. According to Fanon, the colonizers perceived the headscarf as a cultural identifier. They believed that by eliminating the headscarf they would be taking steps towards destroying Algerian culture in the colony. Dismantling Algerian culture was essential, as the colonizers viewed themselves in stark contrast to the colonized. According to Al-Saji “[t]he representational apparatus of colonialism not only constitutes the image of the ‘native’ but posits this image in opposition to a certain self-perception of colonial society and against an implicit normalization of gender within that society.” It is through this dichotomizing gaze that a civilized self emerged in contrast to a barbaric ‘Other.’ This perception of the ‘Other’ constructed the Muslim head veil as a deviation from French society and was therefore deemed unacceptable. This historic legacy of racism and limiting religious and cultural expression in the public sphere has fostered an atmosphere in France where political parties can legislate laws that target minority communities, claiming they are threatening French culture and identity. In addition to policing Muslim women’s dress, structural Islamophobia has manifested through legislation that has disproportionately targeted Muslim men. The most virulent example of this can be seen in anti-terrorism laws and programming aimed at curtailing and preventing individuals from violent extremist activities.

One of the most widely criticized aspects of the United Kingdom’s response to countering violent extremism programming has been the Prevent strategy. The Prevent strategy forms a branch of the UK’s overall countering violent extremism policy referred to as Channel. Prevent came about in the mid-2000s and was aimed at identifying individuals who may be on a trajectory towards violent extremist activity and to prevent such individuals before they engaged in these activities. In 2015 the program was instituted on a statutory basis. This required people working in the public sector, such as teachers, nurses, and other healthcare professionals, to report individuals they suspected were vulnerable to radicalization. Not doing so could involve institutional repercussions. The Prevent strategy did not claim to target any specific ethnic or religious group; however, in practice, the Prevent strategy has unfairly and overwhelmingly targeted Muslim communities in the UK. According to data collected by UK government in 2018, ‘Islamist extremists’ are 17 times more likely to be referred to Prevent than individuals engaging in ‘far-right’ extremist activities. Despite only representing 5% of the UK population and accounting for roughly 5% of the terrorist-related activities in the nation, Muslims represent 65% of the referrals to Prevent. Furthermore, 95% of the Muslim referrals to Prevent require no further Channel intervention. In other words, 95% of the Muslims referred to Prevent are falsely identified and pose no threat to UK society. Muslims are 40-50 times more likely than non-Muslims to be referred to the Prevent strategy, a quarter of these referrals are youth under the age of 15. Clearly, the Prevent strategy has disproportionately targeted Muslim communities in the UK and consequently has had far-reaching effects in these communities. Many Muslims in the UK feel stigmatized because of the wide net cast by this program. Muslim parents have to think twice about how they educate their children about Islam and may even encourage them to engage in self-censorship out of fear that they may be flagged through this program. These concerns are very real and legitimate, as Muslim children as young as four-years-old have been misidentified by this program. A similar process of structural Islamophobia can be observed in North America through legislation policing visual signifiers of ‘Muslimness’ and through state surveillance and securitization programming.

Structural Islamophobia in the Canadian context can be observed at both the provincial and federal levels of government. Some Canadian provinces have passed laws and legislation targeting Muslim minorities in ways that are specific to their localized contexts, while the federal government has also enacted nationwide policies that have adversely affected Canadian Muslims. With regard to localized manifestations of structural Islamophobia, the province of Quebec recently passed legislation banning religious clothing, including the hijab, in certain public spaces in the province. With the emergence of a right-leaning nativist government recently coming to power in Quebec, the Coalition Avenir Québec (CAQ), emboldened by their majority election victory, was able to pass Bill-21. Bill-21 is a law, under the guise of promoting state secularism in the public sphere, that would prohibit state employees in positions of power, such as teachers, police officers, judges, and others, from wearing religious symbols. A number of religious minorities have been affected by this ban, as it prohibits the Sikh turban, Jewish skull caps, and the hijab, to be worn by public sector employees. However, as was the case in the European context, this ban disproportionately impacts Muslim women, as a number of women who wear the hijab work within educational institutions throughout the province. This is not the first time the province of Quebec has targeted Muslim minorities through discriminatory laws.

In the mid-2000s there was an uproar in the province around the notion of reasonable accommodation—permitting religious minority groups to adhere to their religious practices in the public space. These concerns were precipitated by a series of highly publicized cases including a Sikh boy wanting to wear a kirpan to school, an 11-year-old Muslim girl being disallowed by a referee from participating in a soccer match because of her hijab, as well as a synagogue requesting an adjacent YMCA to frost their windows so that women wearing tight-fitting clothes would not be visible to members of the congregation. A few other incidents exacerbated tensions such as the Quebec Human Rights Commission ruling against a local French university, École de Technologie Supérieure (ETS), forcing them to accommodate Muslim students attending the school with prayer space, as well as cases of disputes of pregnant Muslim women requesting female doctors in Quebec hospitals. Ultimately, this led the Quebec government to launch a wide scale investigation into the issue of reasonable accommodation. The commission investigating the issue found that Quebec identity and culture were not in any significant way under threat. However, in the aftermath of these public debates, municipalities across Quebec instituted horribly ignorant and racist immigration codes of conduct, despite these municipalities having a practically non-existent immigrant population. These immigration codes banned things such as the stoning of women, honor-based violence, and other acts, which were already illegal within the province and country. Clearly, a number of the declarations by these municipalities were banning practices commonly associated with a perception of Muslim barbarism. These declarations, not so subtly, made certain assumptions about the backwardness and incivility of Muslim immigrant communities and unapologetically proclaimed their incompatibility with Quebec society and culture. Structural Islamophobia can also be observed at the federal level in both the USA and Canada through securitization practices and countering violent extremism programming. The most blatant examples of this can be seen in the USA PATRIOT Act and the Canadian Anti-Terrorism Act.

The USA PATRIOT Act is a piece of legislation that was introduced in the aftermath of the 9/11 terrorist attacks ostensibly to strengthen national security. Measures within the Act have been widely criticized by civil rights organizations as it introduced extensive measures to enable a hyper-securitized state that compromised fundamental human rights. Provisions within the Act enable the state to detain non-citizens suspected of terrorism indefinitely; use secret evidence, without granting permission to the accused to access the evidence; monitor religious and ethnic groups; obtain wiretaps and searches without warrants; as well as many other abuses of power that are tantamount to pre-emptive punishment—a situation where people are being punished before they have committed any crime or wrong-doing. In the Canadian context, similar laws have been enacted in the form of the Anti-Terrorism Act (2001 and 2015) and the Immigration and Refugee Protection Act.

Measures within the Anti-Terrorism Act (2001) include:

the strengthening of state powers of surveillance and detention; the imposition of greater restrictions on immigration and refugee policies; the increased scrutiny of immigrants and refugees (both at the borders and within the country) and a strengthening of the powers of deportation; a commitment to fighting the war against terrorism under the leadership of the Bush administration, most specifically to participate in the war on Afghanistan; and the intensification of intelligence, security, and military alliances with the United States.

Although not as many Muslims have been affected by this law in Canada as in the US, a number have been racially profiled, intimidated by Canadian Security Intelligence Services (CSIS), and most notably, provisions within this law allowed for the illegal detention, extraordinary rendition, and torture of Maher Arar, a Canadian citizen of Syrian descent in 2002. The Immigration and Refugee Protection Act authorizes the Minister of Citizenship and Immigration in conjunction with the Solicitor General to issue a security certificate. Security certificates, like the provisions mentioned above, suspend rights and due process for non-citizens residing within Canada. The majority of security certificates in the post-9/11 context have targeted Muslim men of Middle Eastern origin. A security certificate permits:

the detention and expulsion of non-citizens who are considered to be a threat to national security. Detainees have no opportunity to be heard before a certificate is issued, and a designated judge of the federal court reviews most of the government’s case against the detainee in a secret hearing at which neither the detainee nor his counsel is present. The detainee receives only a summary of the evidence against him. Detention is mandatory for non-permanent residents…and there is no possibility of release unless a person leaves Canada, or the certificate is struck down, or if 120 days have elapsed and deportation has still not taken place.

Additionally, detainees deported to their countries of origin as a result of a security certificate face the possibility of torture there. These provisions strip away basic and fundamental human rights. Muslims detained on the grounds of security certificates in the post-9/11 context include Hassan Almrei, Mohammed Mahjoub, Mohammed Jaballah, Mohamed Harkat, and Adil Charkaoui. All men have languished in prison for three to seven years and have spent varying amounts of time in solitary confinement. All five men have spent time under house arrest with extremely strict conditions; some of them felt the house arrest conditions were so humiliating and difficult that they preferred to return to prison. Another component of the structural Islamophobic security apparatus in the post-9/11 context has been the use of agent provocateurs by the state.

There have been a number of instances, both in the US and Canada, where agent provocateurs have been employed trying to fish out terrorists where they would not otherwise exist. A report published by New York University’s Center for Human Rights and Global Justice entitled Targeted and Entrapped (2011) found that the government often resorted to “a dangerous incentive structure” by offering informants reduced criminal charges or changes in immigration status. The report goes on to mention that the “government’s informants introduced and aggressively pushed ideas about violent jihad and moreover, actually encouraged the defendants to believe that it was their duty to take action against the United States.” This has been the case with a number of informants and agent provocateurs including Shahed Hussain in the case of the Newburgh Four; Craig Monteilh who infiltrated a Southern California mosque for the FBI, Shamiur Rahman, who was paid US $1,000 a month by the NYPD to ‘bait’ Muslims into making incriminating statements; as well as Mubin Sheikh and Shaher Elsohemy, the informants who provided a firearm, three tons of ammonium nitrate, and were paid $300,000 and $4.1 million, respectively, in the Toronto 18 case. The practice of pre-emptive punishment and the use of agent provocateurs is indicative of how a constant cloud of suspicion is cast over Muslims in North American societies and demonstrates how Muslims have experienced structural Islamophobia in the post-9/11 context. Structural Islamophobia in the European and North American contexts has also had serious negative effects on young Muslims in these nations.

According to one study conducted by Suleiman, young American Muslims feel exasperated at the need to demonstrate their ‘Americanness’ in the present climate. Such a status was not a taken-for-granted experience for these youth. In a sense, these young American Muslims feel they need to prove their ‘credentials’ as their ‘Muslimness’ may have brought their loyalty to their nation into question. Such a scenario is hardly surprising when the state has legislated and legalized Islamophobia. Suleiman’s study also suggested that the mental anguish brought on by heightened anti-Muslim sentiment in society has caused young Muslim women in America to question the extent to which they display visual signifiers of ‘Muslimness.’ Suleiman described how the vast majority of the young women interviewed in his study who wore the hijab considered taking it off out of fear. Almost half of the respondents said that they did take off their hijabs in certain settings because they felt threatened. Undeniably, structural Islamophobia has had serious repercussions, especially among Muslim youth. When visual signifiers of ‘Muslimness’ become increasingly seen as a violation against the state, and targeted laws associated with national security overwhelmingly police Muslims, it reinforces the notion that Muslims are ‘Other’ in society. Consequently, Muslims may feel conflicted between being Muslim and American and in some instances may feel that they need to choose between those two identities. In other words, due to structural Islamophobia, some youth may feel an incongruity between their Muslim and American identities, seeing these categories as mutually exclusive. As such, structural forms of racism, like Islamophobia, can cause young American Muslims to devalue their position in society and can have damaging effects on their mental health and self-identification. 

Structural Islamophobia has become increasingly pervasive in western nations in the post-9/11 context. It frequently manifests as legislation policing Muslim women’s dress, as well as policies that promote securitization practices and targeted countering violent extremism programming. This type of Islamophobia is more impactful than private Islamophobia as it legalizes anti-Muslim bias. Laws aimed at regulating visual signifiers of ‘Muslimness’ like the hijab, niqab, and burqa in the public sphere are often framed as measures to promote national security or state neutrality, while simultaneously viewing such clothing as an affront to national values, culture, and ideals. Laws that promote the securitization, surveillance, and policing of the Muslim subject are also lauded as neutral laws and necessary measures for national security. Structural Islamophobia is far more insidious than private Islamophobia because it is subtle and indirect. Furthermore, it can have harmful effects on Muslim youths’ self-identification, as many young Muslims have internalized Islamophobia through the ‘Othering’ caused by structural Islamophobia. This ‘Othering’ may cause some youth to feel that being Muslim is incompatible with being a westerner. Islamophobic legislation are usually framed in neutral terms not identifying any specific groups. But how neutral are these laws when they overwhelmingly target a specific group?

These laws are framed as exceptional in nature. In the example of laws that limit visual signifiers of ‘Muslimness,’ it can be argued that personal rights of self-identification, freedom of expression,  and freedom of religion are values that are trumped by national security or the values and culture of that society. But in how many instances do such measures even promote national security? Are children not allowed to wear masks on Halloween? Do people not cover their faces and heads because of weather conditions? Has anyone dressed in a niqab or burqa committed crimes and used these forms of dress to hide their identity? Furthermore, by arguing that these visual signifiers somehow contradict state values, culture, and identity, it is further excluding vulnerable and marginalized members of society. Does this not contradict the western ideals of inclusion and diversity? Laws that target Muslims through securitization and countering violent extremism programming are also described as states of exception necessary for national security in the current climate. As such, racial profiling and targeting of specific groups for securitization measures have become endemic, while other groups or individuals who do not fit a Muslim profile often fly under the radar.

Introducing laws and legislation that are framed as states of exception is an extremely slippery slope, as those states of exception become normalized and embedded in law and society. Though such practices may initially be sanitized through rhetoric concerning national security, the eventuality of these states of exception is that certain groups become excluded from society by law indefinitely. It is essential for Muslims living in the west to understand structural Islamophobia and to resist it, as silence in the face of these targeted laws and practices threatens our existence in these nations. Furthermore, the existence and promotion of structural Islamophobia emboldens Islamophobes and feeds into the narrative promoted by Islamophobic hate groups that promote a “clash of civilizations” viewpoint, arguing that Muslims do not belong in these nations. Ultimately, structural Islamophobia adds fuel to the private Islamophobia fire. It creates living conditions for Muslims in western nations that are increasingly challenging and may cause doubt with regards to their sense of belongingness to these societies.