Hating the coronavirus is pointless. But no good will come from turning anxieties and anger against Chinese people

[Republished with permission from the International Network for Hate Studies blog]

By Mark Walters, Professor of Criminal Law and Criminology, University of Sussex, and co-Director of the International Network for Hate Studies

Just over two months ago Mandy Huang was shouted at by a man who told her to “Take your f****** coronavirus back home!” Her friend who tried to intervene bore the brunt of the offender’s rage when she was punched in the head and knocked unconscious. Since then, hate incidents targeted against Asian people, and those who are perceived to be Chinese, have proliferated globally. Violent incidents have been officially recorded in mainland Europe, UK, USA, CanadaAustraliaJapan and Thailand (amongst others). Despite the current resource pressures that the pandemic has brought, incidents of this type have not escaped the attention of the UK authorities. The Crown Prosecution Service for England and Wales has already prosecuted numerous corona-related offences with one offender from Dudley receiving an additional four weeks on his initial 12 week sentence for demonstrating racial hostility that included reference to the coronavirus during the commission of his offence. Chris Long, Chief Crown Prosecutor and CPS national lead on hate crime, said that there have been cases of “hate crime directed at communities based on incorrect assumptions and conspiracy theories”. These have been in addition to the “attacks and racial abuse targeted at our emergency and essential workers who stand at the front line of this pandemic and are working hard to keep us all safe and well.” He added that “be in no doubt, we will not hesitate to prosecute those who seek to attack, abuse or defraud people.”

The incidents that have come to the attention of the CPS are likely to represent just a handful of the thousands of offences involving corona-related hate abuse that have occurred over the past few months. Social media is replete with examples of individuals being verbally and physically abused for looking Asian. In many cases the word “corona” has been turned into an expression of hate itself, with perpetrators simply shouting it at people as a form of abuse. Other individuals are being made to feel uncomfortable as people make visible efforts to physically avoid sharing space with them, making tutting sounds, and glaring or displaying disapproving looks.  Racist behaviour of this type not only affects those who are targeted but can have damaging psychological and behavioural impacts on entire communities of people who fear they too could become the targets of such hostilities.

The upsurge in anti-Chinese prejudice, while extremely troubling, is sadly unsurprising.  Billions of people are feeling highly anxious and fearful that Covid-19 will kill them or their loved ones. Frightened people are likely to act unpredictably.  Yet while many people have turned to stockpiling toilet paper, tins of tomatoes and, as personally witnessed yesterday, attaching a four-metre paddle to one’s waist to ensure social distancing, a minority of others have chosen to express their internal agitations in more violent form.  It is nothing new that in times of a perceived physical threat, increased numbers of people lash out violently towards those that they believe as being, at least symbolically, to blame. This is frequently observed in the aftermath of what criminologists refer to as “trigger events”, such as where the number of anti-Muslim hate crimes spiked directly after events such as the murder of Lee Rigby, the Manchester Arena Bombing, and most recently the Christchurch mass shooting in New Zealand. We have observed too how hate crimes increased after the EU referendum with hostilities directed towards immigrants and BAME groups surging for a more sustained period of time.

The emergence of the novel coronavirus has for many served as an almighty trigger event that has sparked hostilities towards those perceived to be responsible. Research has shown that where individuals perceive a group of people to pose a physical threat to their safety (often referred to as “realistic threats” by social psychologists) this will frequently result in biased behaviours towards members of these groups. In some cases, individuals can react violently as their internal anxieties and fears trigger an aggressive response that aims to suppress the perceived threat. There is certainly no paucity of examples of such incidents in the initial first few months of the outbreak.  The virus has been reimagined as a threat posed, not by a biological pathogen, but by specific racial groups. Like almost all targets of hate, its victims need a face.

Racial animosities have been worsened still by anti-Chinese political rhetoric. We know that when leading politicians make disparaging or biased comments against certain groups that incidents of hate increase. For instance, researchers have shown that when Donald Trump sends anti-Muslim tweets, hate incidents against Muslim people increase directly afterwards. It is likely that Trump’s theatrical press briefings where he has persistently referred to Covid-19 as the “Chinese Virus” will directly translate into anti-Chinese hate crimes. The leader of the free world has strengthened the narrative that the virus has an ethnic face.

Situational contexts are also important to understanding the surge in hate incidents connected to the pandemic. In places where there are more available victims, higher numbers of incidents will be recorded. Given the virus is more likely to spread in confined environments it is unsurprising that initially there were high levels of abuse occurring in enclosed public spaces including on public transport.  However, as the lockdown has been brought into force rail and Tube users have decreased by over 96%, and with this there will be a decrease in the number of hate incidents occurring each day.  Situational theory is important in explaining crime levels more generally. Although social situations do not necessarily explain why people commit crime, they can have a significant effect on the amount, and location of, criminal activity. For example, burglaries have significantly fallen since the lockdown. The historically low levels of burglaries are most certainly not a result of people no longer wanting or “needing” to commit theft. Rather, there are fewer opportunities to successfully commit such crimes while people are indoors. Like most crimes, however, individuals will find new avenues to act out. Consequently, while anti-Chinese abuse and other forms of hate crime may reduce in public spaces (for the time being), online incidents are likely to continue to rise. Zoom bombing, where someone hacks into another’s online meetings, has already resulted in people beaming hateful content into the homes of unsuspecting participants, including one case where a virtual Synagogue service was quickly inundated with antisemitic slurs and symbols.

Conversely, other physical hate-based crimes will flourish while we all spend more time at home. Levels of domestic violence are likely to skyrocket as the tensions of being at home all day exacerbate the underlying causes of these offences. Although people of all identities can experience domestic violence, women, disabled people and young LGBT people are disproportionately affected. Enforced confinement in private spaces where disablist, misogynistic and homophobic attitudes go unchallenged will cultivate toxic micro-environments where violence will likely proliferate.

Given the high levels of domestic abuse experienced each year this is of grave concern. Crime Survey for England and Wales statistics estimate that last year alone 1.6 million women over the age of 16 were the victims of domestic abuse. In the same year 99 female victims were killed in a domestic homicide. Since the lockdown the domestic violence charity Refuge has reported a 49% increase in calls to its helpline. The Home Secretary has responded by announcing a £2 million fund to assist charities working to support victims, and the UK House of Commons Home Affairs Committee has set out a report on steps needed to mitigate the problem.  It remains to be seen whether this will be enough to protect victims. Indeed the charity Counting Dead Women has already calculated that there were at least sixteen domestic abuse killings of women and children between 23 March and 12 April. With the lockdown continuing for the foreseeable future it is likely that many more women will die at the hands of their partners this year.

As knowledge of the virus begins to mature and more and more countries enter into national crises, the nature and dynamics of incidents of hate and hostility will likely evolve in tandem with a changing narrative that accompanies developments in the pandemic.  From the focus of the “Chinese virus” has emerged a commonly stated strapline that the disease is “indiscriminate”, affecting people of all ages and ethnicities (though UK data suggest that minority ethnic groups are being disproportionately affected by the disease, potentially as a result of structural racism). Political and media attention has also been refocused on death rates, trials for new vaccines, a lack of PPE, ramping up testing facilities, and the need to “stay at home”. This second stage of the pandemic has called for new powers and measures of social control to be enforced in order to reduce the rate at which the virus is spreading. While of crucial importance to “flattening the curve”, this has given some governments the chance to roll back human rights protection in the name of public protection of health. Sweeping new powers have been brought in by governments across the world giving them unfettered powers to surveil citizens and greater authority to police the boundaries of acceptable behaviour and identity.  Last month Viktor Orban’s government in Hungary granted the prime minister the power to rule by decree for an unlimited period of time. His new powers include suspending the enforcement of certain laws, not only those related to the crisis. One day after the new law was passed the Hungarian government submitted a bill to parliament that will make it impossible for transgender people to legally change their gender. The old adage of “never let a good crisis go to waste” is a pertinent reminder that critics and human rights observers cannot take their eye off the ball during these frenetic times.

Even seemingly benevolent measures to protect the public can have discriminatory outcomes. Take for example measures by South American countries that only allow women and men out of their homes at different times. This has resulted in some transgender people being stopped and questioned by police, such as in Panama where one trans woman was fined for leaving the house on a day designated for women only.  Other social distancing measures will undoubtedly disproportionately affect individuals from other marginalised groups, such as sex workers who won’t be furloughing anytime soon.

In the coming months of the pandemic, recriminations about the causes of the virus will no doubt be vociferously made as other issues that have captured media attention begin to wane. From the initial anxieties and fears of catching the virus will emerge feelings of anger and rage about its devastating impacts. There are likely to be two salient avenues through which hate and hostility will evolve at this stage. The first, which has already begun, is the propagation by some state representatives and religious leaders of malicious antisemitic conspiracies that Israel is responsible for developing and spreading Covid-19 virus in order to decrease the non-Jewish population and to control the world. Indeed, UN Special Rapporteur on freedom of religion or belief, Ahmed Shaheed has recently stated “I am extremely concerned to see that certain religious leaders and politicians continue to exploit the challenging times during this pandemic to spread hatred against Jews and other minorities.” No doubt these pernicious lies will continue and strengthen over time.

The second and perhaps more mainstream narrative that is likely to form is that “China” is to blame for the devastating global social and economic ills caused by the virus. In racialising the cause of the pandemic, its saviour will likely be equally racialised, with the US and UK institutions racing to find a cure. The cultural chasm between West and East will be entrenched further as US and European governments reel from the impacts of the pandemic and as each seek to control the narrative of who is fixing it.  President Donald Trump has already suggested that China will need to pay compensation to the USA. The Chinese government will no doubt fight back by spreading misinformation about the origin of the virus and by threatening economic retaliation for those who dare to criticise the State’s own actions. A fine balancing act is required here, where recriminations about the factors that may or may not have led to the initial spread of the disease, including the use of live-animal markets, unethical treatment of animals, and secretive governments that withhold or manipulate important public information, need to be fully investigated. However tough this process might be, it must be conducted without the additional mantra of “Chinese viruses” and “Chinese people” as being to blame for the spread of the virus. The actions of governments are not the actions of people. The heroic efforts of doctors and scientists in China must be at the forefront of our learning from this pandemic. Many of them have already died trying to save others.  Each of them deserves our thanks. There will be many state actors, on the other hand, that will deserve our ire.  Governments often act badly and they rightly deserve our anger. Let us resist the temptation to tar an entire nation of people with their misdeeds.

In the aftermath of this global crisis there lies a dangerous risk that the community fissures exposed by the pandemic will leave lasting social scars. Policing of hate crimes will be crucial to combatting any upsurge in public hostility. Paul Giannasi, the hate crime advisor to the UK police said “we know that fear and hostility are never far apart. Those who stir up ideological hatred have seen it as an opportunity to peddle their existing bigotries, through misinformation and bizarre conspiracy theories. We are working closely with communities to encourage victims to come forward and bring offenders to justice.” Beyond the thin blue line, much more needs to be done to prevent hate incidents from compounding the broader socio-economic effects of the pandemic. Political leaders must now start working with social scientists and community groups to develop strategies to enhance social cohesion and to find ways to repair the social disadvantages that entire communities of people have endured for too long. Indeed, the social justice of the future is not just about creating a fairer economic system that adequately recompenses essential workers, it involves recognising and readjusting structural inequalities that expose specific groups of people to hate and hostility in the first place.

Principles into Practice: Protecting Offensive Beliefs in the Workplace – by Amir Paz-Fuchs

[Republished with permission from the UK Labour Law blog]

 

Over the past two decades, there has been a growing interest in the impact of human rights discourse on the employment relationship and employment rights. In particular, in light of the increased opportunity, or risk, of the public exposure of an individual’s life outside of work, more attention has been drawn to the implications of employees’ private life to their place of employment.

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Image by xuanklpt from Pixabay

For progressives, the interest in preserving and protecting one’s right to privacy happily overlapped, for many years, with the substantive actions that the demand for privacy protected. In other words, progressives were determined to stand by the claimants and, where relevant, criticise courts that did not do so, not only in the name of privacy, but also because we/they asserted that the claimants in question did nothing wrong to begin with. Thus, in Pay v Lancashire Probation Service, a probation officer was dismissed because of his involvement in a business venture that was connected to sado-masochistic activities. In X v Y, a gay man was cautioned and placed on the Sex Offenders Register after a policeman arrested him for engaging in sex with another man in a public toilet. In Saunders v Scottish National Camps, the employee’s homosexuality was deemed sufficient grounds for dismissal. In Crisp v Apple Retail UK Limited [2011] ET/1500258/11 an employee was dismissed after he posted a critical appraisal of the new iPhone. And in Mathewson v RB Wilson Dental Laboratory [1989] IRLR 512 EAT the employee was dismissed after being caught in possession of cannabis. In all those cases, the employers’ decisions were upheld by the courts, and these decisions were criticised for neglecting to respecting an employee’s right to privacy, which should be constructed in a way that would ‘protect individuals from employer domination’.

In all these cases, it would seem that the liberal, progressive intuition recoils not only from the conclusion that homosexuality and the private use of cannabis can be grounds for dismissal, but even that they should be the subject of severe moral condemnation.

I thought of these cases recently, following the aftermath of the football match between Manchester United and Manchester City, in which City fans were caught on camera racially abusing United players. The Football Association investigated, and a man was quickly arrested for racially aggravated public order. So far, so reasonable. But the story took a peculiar turn, at least for me, when it was reported that the individual was identified as working for a construction company – Kier Company – which was quick to suspend him, citing the company’s ‘zero-tolerance policy towards any racist and discriminatory behaviour’.

It is here where I became slightly uncomfortable. And perhaps it is worth saying that my discomfort is, in no way, meant to minimise the, quite frankly, terrible times we are currently facing in this country. I could not agree more with the charge that the way politicians, including the Prime Minister, address the issue of migration, fuels this hateful vitriol.

But, those politics notwithstanding, the pertinent question is: should such behaviour, which occurred, of course, outside the workplace, have employment ramifications? Two of the main arguments that favoured the claimants in earlier cases – privacy and freedom of speech – clearly apply here as well. If we (as progressives) are to be taken seriously about our principled claims, i.e. that human rights should apply in the workplace even when the employer does not hold the same progressive values, we should be ready to bite the bullet and apply the same principle when those acts are offensive, and are clearly such that we (as a society) wish did not exist.

This position, simple as it may sound, must confront several objections. First, it is argued that we want to allow employees who express racist views, and hate speech in general, to be dismissed because we want to eradicate those expressions in society. ‘Society’ does not tolerate those views in this day and age. However, this view falls into a couple of familiar traps. First, the historical one: LGBT employees, and those with questionable morals (like the adulterous employee who lost her job for that reason in Spiller v Wallis) suffered from their divergence from public norms at the time, in a way we (justifiably) scoff at now. Of course, we feel that racism and homophobia are different, and that they truly should be eradicated, but some humility should guide us to assess the historical analogies. Second, there is the utilitarian argument: do we really think that sanctioning, shaming and publicly ostracising such behaviour would facilitate its eradication? There is a strong argument to suggest that it would only lead individuals harbouring those inclinations to go underground, feel victimised and even, at times, start wearing their foul opinions as badges of pride. There are examples for all of the above. This, in other words, is the argument that has at its axis the free speech of employees, and finds its justifications in the rationales of free speech in general. And yet, the workplace is a unique micro-cosmos, where people are forced to interact on a daily basis, and where concepts such as (industrial) democracy and (managerial) prerogative are deployed by way of analogy to the relationship between citizens and governments. And yet, those are still analogies, and the different context should be acknowledged.

So if we are to contextualise further, we find that there is a more sophisticated counter-argument to the one just discussed. That is, instead of focusing on public morals and public norms, one can place the centre of gravity on the employer’s values, as expressed by Kier Co (‘zero tolerance policy towards any racist and discriminatory behaviour’). Surely we cannot bar an employer from advancing such a laudable policy in her own workplace? I was considering this issue when a case just published – Forstater v CGD Europe – generated plenty of heat.

In this case, a public policy researcher who had a consultancy agreement with a not-for-profit think tank claimed that the respondent refused to renew her contract because of comments she had made on Twitter, etc expressing her beliefs about trans issues. The tribunal’s decision was limited to the preliminary question of whether the claimant’s beliefs qualified for protection under the Equality Act 2010 section 10(2) as any religious or philosophical belief in accordance with the Grainger criteria (which, in turn, relied on the ECtHR case of Campbell and Cosans v UK, which concerned corporal punishment. In particular, the tribunal found that the claimant’s belief faltered on the fifth, and final, criterion, namely: a belief that ‘must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. The tribunal did not consider in this preliminary hearing any question of unfair dismissal or the application of the Human Rights Act 1998 (including the rights to privacy and freedom of expression, although the latter was mentioned in brief [74]).

Why did the tribunal find that Forstater’s views are incompatible with human dignity and the rights of others? Probably the most problematic of those beliefs, from the tribunal’s point of view, is the claimant’s (factually incorrect) assertion that there are only two sexes in nature – men and women, along with the position that, from the claimant’s point of view, a person cannot transition from one sex to another [84-85]. The tribunal emphasised, at some length, the fact that the first position is scientifically misguided, and the second is legally mistaken. While it is true that the claimant was, in fact, mistaken on both counts, it is not clear how these mistakes affect her power to hold those beliefs.

Starting with the latter – a person is perfectly entitled to dispute any position taken by the legal system at any time. In fact, many academics have made a career, and scores of activists made history, by doing so. It is true that British law recognises a person’s right to transition and gain a Gender Recognition Certificate. The claimant recognised the legal state of affairs but held that this was a ‘legal fiction’ because a man can never truly become a woman, and vice versa [84]. This, perhaps, is an immoral belief, but it is not undermined by the fact that it contests the current state of affairs. One can think, for example, of (radical, for the time) 18th century advocates for women’s rights who argued that a man’s ownership over a woman is ‘legal fiction’, whilst still acknowledging the practical consequences of that fiction.

And as for the former, clearly the factual veracity of a position is not a precondition for its protection, or else no religion would overcome such an obstacle. And whilst we’re analogising ‘religion’ and ‘belief’, shouldn’t we pause to consider how the fifth criterion, on which the claimant’s belief failed (in a manner that it is controversial in itself), should have barred any of the three major, monotheist religions from protection? In other words, it would seem that as a belief (as opposed to a manifestation of a belief – more on that below) – the claimant failed in her quest for protection because she grounded her positions in her understanding of feminism and the protection of women and girls. However, if she were to ground her position in the tenets of a major religion (e.g. Christianity or Judaism) – it would have been very clear that the religion itself would be covered by the scope of the Equality Act. This distinction between political (or ideological) beliefs and religious beliefs seems, indeed, arbitrary. The question would then turn to the manifestationof the belief. This, I would argue, should have been the focal point of the tribunal’s analysis here as well. Alas, no such discussion is apparent.

Indeed, while the tribunal offers a detailed account of letters and tweets by the claimant, there is not even one occasion in which the claimant’s beliefs are asserted to have targeted a colleague in the workplace. For example, she repeated the need to be polite to others, including referring to all people using the pronouns they prefer; and argued for a ‘broader national conversation about how to reconcile the welfare of people who seek treatment for gender dysphoria and the basic human rights of women and girls’. In other words, this is an occasion where the right to privacy and the right to freedom of speech should have been front and centre to the analysis. And yet, the latter is only mentioned, and its impact is not assessed; whereas the former isn’t even mentioned. Moreover, I would argue that the right to privacy (in this sense – the separation of work from life outside of work) is the more important of the two.

Thus, I believe that the court in Smith v Trafford Housing Trust was absolutely right to conclude that the employer wrongly demoted a housing manager who posted on his Facebook wall a post in opposition to gay marriage. Crucially, Briggs J focused on the fact that the post could not be attributed to the manager’s employer, that he used moderate language and never offended any employee in their interaction with them. Pace Paul Wragg, I don’t find this analysis to be ‘intellectually unsatisfying’ in the least. Quite the contrary. It would be quite problematic for an employer to ignore, in the name of free speech, hate speech of one employee towards another. Indeed, just as acts that may be classified as hate speech can and should be addressed by the state, and prosecuted accordingly (see the very recent ECtHR case of Beizaras and Levickas v Lithuania, with thanks to Virginia Mantouvalou for the reference), it would seem implausible for an employer to ignore similar speech if it happens within the workplace, leading other employees to feel unsafe, and justifiably so. But if such speech happens outside the workplace, it is the preserve of the government to act against those individuals.

Returning to the case at hand: if an employee, such a Forstater, suffers a detriment for actions that happened outside the workplace, the only conclusion that one can reach is that she is sanctioned for her beliefs, and not for the manifestation of those beliefs. To repeat, the claimant asserted that she ‘would of course respect anyone’s self-definition of their gender identity in any social and professional context’. And no examples were given that she behaved differently.Similarly, to close circle on the case of the Manchester derby – whilst it could be that the City fan does harbour racist beliefs, his employer gave no indication that those beliefs were manifested in the work environment.

Sanctioning someone for their beliefs is a dangerous road to follow. I have consistently taught my students that there are very few absolute rights, of which the ‘right to freedom of thought’ is one (a position accepted by the Equality and Human Rights Commission). An employer has a right, indeed a duty, to protect the work environment, to enhance inclusivity and tolerance, and make sure that all are felt welcome. When realising that some workers are (surprise, surprise) impacted by the relentless torrent of hateful narratives coming from the tabloid press and the highest political echelons, but do not act on them in a way that affects others in the workplace, employers should not respond by removing such workers from employment and into victimhood. The authoritarian control of employers, which John Gardner and Hugh Collins recently alluded to, is wide enough within the workplace, and should not extend to ‘thought control’. And as Collins and Virginia Mantouvalou wrote, apropos Redfearn v UK, ‘a democracy cannot eliminate obnoxious views by permitting the imposition of economic hardship through dismissal’. Instead, employers should have the courage of their convictions, opt for opening the discussion, through training and dialogue. That is where their social responsibility lies and so, I would argue, is where the law should be.

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Amir Paz-Fuchs is Professor of Law and Social Justice at the University of Sussex, where he teaches Employment Law and is Director of Sussex Clinical Legal Education.

 

 

(Suggested citation: ‘A Paz-Fuchs, ‘Principles into Practice: Protecting Offensive Beliefs in the Workplace,’ UK Labour Law Blog, 12 February 2020, available at https://wordpress.com/view/uklabourlawblog.com).

Racist hate crimes: Why do they do it?

Mark Walters
Mark Walters

The massacre of nine African Americans in Charleston by a young man hell bent on starting a “race war” has sent shock waves across the world. Such brutal acts of violence remind us of what seems to be an ever increasingly fractured global society. Despite the wilfully blind trying to maintain the myth of a ‘post-racial society’, many others are no doubt unsurprised by the events of last week given the ongoing problem of racism in the US. However, the US is by no means alone in suffering from post-colonial racism through 21st century reassertions of white supremacy. Currently, Zack Davies, 26, from Mold, Flintshire, in Wales is being prosecuted for the attempted murder of Dr Sarandev Bhambra. Davies is said to have followed his victim into a Tesco’s supermarket where he set about hacking at him with a hammer and a machete almost severing his victm’s hand while shouting ‘white power’ and ‘this is for Lee Rigby’.

Such heinous demonstrations of racism have far-reaching effects on the cohesiveness of our multicultural communities. Unfortunately rather than being one off incidents, these acts of violence represent just the tip of the iceberg of racist hate crime in both the US and the UK. For instance, last year police services in England and Wales recorded a total of 37,484 racist hate crimes; that made up 84% of all hate rime recorded by the police. This figure represents a 5% increase in racist hate crimes recorded in the year 2012-13. Yet police recorded data shows only part of the picture. More representative data provided by the Crime Survey for England and Wales estimates that there is an average 154,000 incidents of racially motivated hate crime per year, the majority of these are personal in nature including assault, wounding and robbery.

So why is there so much racist hate crime? It is difficult to even begin to understand the nature and extent of racially motivated violence without an appreciation of the history of racism in countries such as the US and UK. Though both nation’s pasts are distinct, they are intertwined by histories influenced by the enlightenment philosophies that gave rise to practices including slavery, racial segregation, and more directly to the violent persecution of Black people throughout the US and Europe. The tumultuous history of racism on both continents has inevitably left a nasty residue. Left behind is a system of social, political and economic governance from which white privilege has continued to proliferate within and across generations. That is not to suggest that progress has not been made. The emergence of a civil rights movement in the 20th century has ensured that there are now equal rights in terms of voting, working and use of public spaces.

Nonetheless, racism remains deeply imbedded in contemporary society; in its institutions, its schools, its workplaces and most pertinently in its governments. This means that people of colour remain constantly on the back foot. Their otherness means that they often have to endure everyday forms of discrimination. Some of these become systemic leading to institutional racism as well as to direct expressions of prejudice, including the murder of black men by police officers. Other forms of prejudice are formed by subtle processes of discrimination that are not overtly detectable, such as dirty looks in public spaces, but nonetheless lead to feelings of otherness. In fact, there is some evidence to suggest that racism is getting worse. Recent data from the British Social Attitudes Survey showed that racial prejudice is on the rise again. From an all-time low of 25% in 2001, levels of racial prejudice have since risen to 30% in 2013. It is by no means coincidental that during this period of time that we have also seen the insurgence of nationalist parties such as UKIP, and to the renewed activities of right wing racist groups across Europe.

It is against this backdrop that we observe the continued proliferation of racist hate crimes across the US and UK. Within what continues to be a divided society, some, such as Roof, take it upon themselves to eradicate those deemed as racially ‘different’. American criminologists Jack Levin and Jack McDevitt refer to these perpetrators of hate as “Mission offenders”, as they make it their mission in life to eradicate certain groups of people. They ascribe to an ideology of hatred that fuels and emboldens their hate-motivated acts. While it is likely that Roof embodies such a type of hate crime offender, we do not yet know Roof’s reasons for acting as he did. I do not pretend to know his inner thoughts and what compelled him to sit in a room for almost one hour before pulling a revolver and opening fire. It is likely, though, that he felt immense fear before doing so. It is the emotion of fear that seems to tie most theories of hate crime together. The racist attacker’s fear relates to the threat that others pose to his way of existing as a social being. It is this perceived threat that impels him to act in order to protect his own way of life. Many racists fear that black people will one day take away the power that the white man has built over centuries and which is maintained via social processes and state institutions. This power relates not just to social norms, values and customs but also to economic power and capital. In responding to this threat, some racist offenders take it upon themselves to police the boundaries of acceptable community membership through acts of violence.

Similarly, many of the racist and anti-Muslim attacks that occurred directly after the murder of Lee Rigby can be understood through the lens of fear. Hate crime rates often surge during periods of time when one ethnic or religious group feels under attack from another. Spikes in racist and Islamophobic attacks occurred in the aftermath of 9/11, 7/7 and more recently in the months following the murder of Lee Rigby. These retaliatory acts of hate are sparked by the fear that Muslims are ‘taking over’, and must therefore be resisted. Some politicians and certain media outlets go on to conflate the words ‘Muslim’ with ‘extremist’ and/or ‘terrorist’ as means of social and political resistance. Government agencies go on to disproportionately enforce anti-terrorism laws while some even ban Islamic clothing in public places. For the man on the street, his resistance is often his fists, or worse a machete or worse still a hand gun.

So what is to be done? Histories of oppression and the structural forces that maintain them cannot be reversed over night. But if we are to see fewer incidents such as those in Charleston and Flintshire, change we must. As Dr Martin Luther King so poignantly put it, ‘I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality… I believe that unarmed truth and unconditional love will have the final word.’

Dr Mark Walters is Senior Lecturer in Law at the University of Sussex and Co-Director of the International Network of Hate Studies

The post originally appeared on the INHS website on 30 June 2015, and is reprinted with permission.

 

SAS v France: Does Anything Remain of the Right to Manifest Religion?

Stephanie Berry
Stephanie Berry

The following is cross posted with permission and thanks from EJIL: Talk

 

The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqaban’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. In Dahlab v Switzerland the ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. (para 12)

Neither Dahlab (a teacher) nor Sahin (a medical student) conformed to the idea of Muslim women as victims.  Yet, in these cases, the ECtHR accepted that the hijab was contrary to gender equality, and disregarded the meaning attributed to it by the applicants. This position both patronised the applicants and essentialised Islam as a religion that discriminates against women. By refraining from analysing the applicant’s choice of religious attire in SAS v France, the ECtHR has avoided repeating these errors. It is contradictory that the ECtHR has been willing to accept that the hijab is contrary to gender equality but not the burqa. Nonetheless, this is a welcome development in the ECtHR’s jurisprudence and it is to be hoped that SAS v France signals the end of the ECtHR making sweeping value judgments about items of religious clothing.

The ECtHR’s dismissal of the French argument that the ‘burqa ban’is necessary to protect human dignity also highlights a change in the approach of the Court.  The ECtHR pointed to the lack of evidence to support the State’s assertion

that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others. (para 120)

The Court further recognised

the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. It notes in this connection the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body. (para 120)

Thus, rather than adopting an essentialised view of Islam, the ECtHR recognised that pluralism entails the recognition of different perspectives.

While gender equality and human dignity were not found to be legitimate aims pursued by Loi no 2010–1192, public safety and ‘respect for the minimum requirements of life in society’ or ‘living together’ were (para 115, 121-2). Consequently, the ECtHR went on to consider whether the restriction on the applicant’s freedom of religion was ‘necessary in a democratic society’ and proportionate to the aim pursued.

As noted in an earlier post (here), the ECtHR in Mann Singh v France accepted restrictions on the right to manifest religion on the grounds of public safety without requiring evidence of the necessity of the restriction. In SAS v France, the ECtHR accepted the justification that ‘a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud’ (para 139). However, although the burqarestriction pursued a legitimate aim, the ECtHR did not find that it was necessary in a democratic society.  In the absence of ‘a general threat to public safety’, the ECtHR found that a blanket ban was disproportionate (para 139). Consequently, the ECtHR again departed from its previous jurisprudence to exercise a higher level of scrutiny of the legitimacy of the restriction and the evidence needed for a blanket ban. This perhaps indicates recognition of the serious consequences of a blanket ban and the need for particularly weighty reasons to justify it.

Even though the ECtHR was not willing to accept that the restriction on the applicant’s freedom of religion was justified on the ‘usual’ grounds of gender equality and public safety, it was willing to accept that the ‘burqa ban’ pursued the legitimate aim of ‘living together’ under ‘the protection of the rights and freedoms of others’. Despite not being listed in articles 8(2) and 9(2) as a legitimate justification for restricting a convention right, the ECtHR was willing to accept that this ‘far-fetched and vague’ concept (dissenting opinion para 5) fell within the ground of ‘the protection of the rights and freedoms of others’ (para 117). In assessing the scope of the concept, the Court recognised that

the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. (para 122)

Consequently, after recognising that the restriction only impacted a relatively small number of Muslim women (para 145) and that the law was framed in a neutral manner (para 151), the ECtHR accepted that the practice of wearing the burqa or niqab was ‘deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”’ (para 153). Therefore, the ‘burqa ban’ was proportionate to the aim pursued (para 157) and the applicant’s rights had not been violated.

A number of inconsistencies in the ECtHR’s consideration of ‘living together’ warrant further elaboration. The Court expressly recognised ‘the flexibility of the notion of “living together” and the resulting risk of abuse’, and, thus, the need to ‘engage in a careful examination of the necessity of the impugned limitation’ (para 122). However, the Court’s recognition that it should ‘engage in a careful examination of the necessity’ of the ‘burqa ban’ was contradicted by the acceptance of the ‘wide margin of appreciation’ of France (para 155). It is difficult to see how these two concepts are compatible with one another. In particular, the ECtHR recognised that France had a wide margin of appreciation because the ‘burqa ban’ had been adopted following a democratic process (para 154). However, in Young, James and Webster v United Kingdomthe ECtHR established the position that

[a]lthough individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. (para 63)

Consequently, the democratic process does not per se justify restrictions being placed on the rights of minorities. In fact, in SAS v France, the ECtHR emphasises that it was ‘very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010’ (para 149). The ECtHR should in this instance have prioritised ‘a careful examination’ above the ‘wide margin of appreciation’ of the State, as legitimate concerns had been raised regarding prejudice and intolerance against Muslims in French society influencing the adoption of the law in question.  As surmised in the dissenting opinion of Judges Nussberger and Jäderblom:

While it is perfectly legitimate to take into account the specific situation in France, especially the strong and unifying tradition of the “values of the French Revolution” as well as the overwhelming political consensus which led to the adoption of the Law, it still remains the task of the Court to protect small minorities against disproportionate interferences. (para 20)

The concept of ‘living together’ used by France to justify the restriction placed on the religious manifestation of Muslim women pursues a distinctly assimilationist agenda. Although the ECtHR, throughout the judgment, reiterates that ‘pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”’, the ECtHR’s conclusion that there is no violation of the applicant’s rights legitimises a law which eliminates pluralism from the social sphere and, thus, the associated intolerance against Muslims. Indeed, as stressed in the Dissenting opinion ‘… the blanket ban could be interpreted as a sign of selective pluralism and restricted tolerance … It has not sought to ensure tolerance between the vast majority and the small minority, but had prohibited what is seen as a cause of tension’(para 14).

In sum, the decision is a distinct departure from the ECtHR’s jurisprudence in other cases concerning the rights of Muslim women to wear religious attire. The rejection of France’s justifications based on gender equality and public safety makes progress towards rectifying some of the criticisms of the ECtHR’s earlier decisions in this area. However, the recognition of the concept of ‘living together’ as a justifiable ground for the restriction of the right to manifest religion is cause for concern. The concept, which does not find expression in the ECHR, has been prioritised above ‘concrete individual rights guaranteed by the Convention’ (para 2 dissenting opinion). This introduces the risk that the majority will be permitted to dictate that minorities assimilate in order to ‘live together’ instead of pursuing the more integrationist aims of ‘pluralism, tolerance and broadmindedness’.  Although the ECtHR has recognised the ‘risk of abuse’ of this concept, by affording France a wide margin of appreciation, the ECtHR has not heeded its own warning. The concept of ‘living together’ has the potential to proliferate into future judgments concerning the right to manifest religion, in a similar manner to the concept of secularism following the Sahin case (paras 115-16). As noted in an earlier post, the ECtHR must decide whether it is willing to protect the rights of Muslim women to manifest their religion. The addition of ‘living together’ to secularism, gender equality, public safety and the protection of children as permissible grounds of limitation in these cases gives little cause for optimism. What little remained of the right to manifest religion may just have been eroded.

Dr Stephanie Berry is Lecturer in  Public Law at the University of Sussex. She acted as a legal adviser for the applicant in the case of SAS v France. The opinions expressed in this post are the author’s own and do not necessarily represent the views of other members of the legal team.