Reconceptualizing Intersectionality in Judicial Interpretation: Moving Beyond Formalistic Accounts of Discrimination on Islamic Covering Prohibitions

Berkeley Journal of Gender, Law and Justice, 2020

UNSW Law Research Paper No. 20-01

22 Pages Posted: 12 Jan 2020

See all articles by Monika Zalnieriute

Monika Zalnieriute

University of New South Wales (UNSW) - Faculty of Law

Catherine Weiss

RMIT University

Date Written: November 21, 2019

Abstract

This article analyzes the United Nations Human Rights Committee’s (HRC) consideration of legal prohibitions on Islamic face-coverings in Yaker v. France and Hebbadj v. France, and argues that the HRC’s recognition of discrimination at play represents a significant departure from the judicial trend of accepting such prohibitions in Europe. We contend that the HRC’s limited interpretation of intersectionality in the cases elides the full extent of harms and violations arising from such legislation. However, we suggest that judicial understanding of discrimination can be enhanced by drawing on a modified UN concept of harmful traditional practices, which allows an understanding of Islamic face-covering as one among many global patriarchal practices. Decolonizing jurisprudence on intersectional discrimination in this way allows an explicit recognition and articulation of how an exclusive focus on prohibitions of practices of members of minority groups, without attention to majority patriarchal practices, contributes to legitimating sexist and racist targeting of minority groups – and entrenches sexism against women more broadly.

Keywords: Intersectionality, Discrimination, Islamic Covering, France, Prohibitions, Human Rights, Decolonial Theory, Post-Colonial Theory, Feminist Theory, Freedom of Religion, Harmful Cultural Practices, Harmful Traditional Practices, Anti-Racism, Radical Feminist Theory, United Nations Human Rights Committ

Suggested Citation

Zalnieriute, Monika and Weiss, Catherine, Reconceptualizing Intersectionality in Judicial Interpretation: Moving Beyond Formalistic Accounts of Discrimination on Islamic Covering Prohibitions (November 21, 2019). Berkeley Journal of Gender, Law and Justice, 2020; UNSW Law Research Paper No. 20-01. Available at SSRN: https://ssrn.com/abstract=3514948 or http://dx.doi.org/10.2139/ssrn.3514948

Monika Zalnieriute (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Sydney, New South Wales 2052
Australia

Catherine Weiss

RMIT University ( email )

Melbourne
Australia

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