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Opinion Bill 62: The European experience shows us it’s a bad idea

Mihad Fahmy is a lawyer based in London, Ont., and serves as the human-rights legal adviser to the National Council of Canadian Muslims (NCCM).

To understand the effects of Quebec's Bill 62, it is important to understand what is going on in Europe. Driving the wedge deeper into an already divided society, Quebec politicians are copying policies that produce predictable results: rising xenophobia, violence against minorities and discrimination.

Historically, Canada has had a more accommodating approach to individual liberty than European countries, where the case law and legal discourse is built on the premise that public spaces and, by extension, public institutions and actors must be made to be religiously "neutral" in both form and substance.

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In March, 2017, the European Court of Justice extended this principle when it ruled that private employers, like their public counterparts, can ban Muslim women from wearing the hijab in the workplace, so long as the rule applied to all employees.

The case reached the European court as a result of appeals by an office receptionist in Belgium and a professional design engineer in France, both of whom were fired for refusing to remove their headscarves at work.

In its ruling, the ECJ held that rules banning "the visible wearing of any political, philosophical or religious sign" were not discriminatory so long as they applied to religious garb from all faiths. Activists, lawyers and academics alike agree that this decision is significant, as it marks the first time the neutrality argument has been successfully used to justify restrictions on religious accommodation in the private sector.

European human rights advocates now fear that private-sector employees, predominately Muslim women, but also Sikh and Jewish men who wear religious garb, will be impacted by employers' newfound entitlement to cloak discriminatory policies in the veil of religious neutrality.

Against this backdrop, the potential ramifications of Quebec's Bill 62 are magnified. Despite its limited provincial reach, the law's sweeping internal scope is alarming.

Women who wear the niqab (face veil) will be shut out of public-sector jobs and won't be able to access municipal and provincial services. This includes going to university or college, registering kids for daycare or school, getting on a bus, applying for social assistance, taking out library books, registering kids for city recreational activities, and the list goes on. And despite their qualifications, niqabi women will also be ineligible for jobs within any of these workplaces, thereby further marginalizing an already vulnerable group of women.

As was evident this week, neutralizing the public sphere is not a straightforward endeavour. In attempting to clarify how this will all work, Quebec Justice Minister Stéphanie Vallée explained that faces need to be uncovered only at the point of contact with the public servant. For example, a woman is required to show her face when signing out library books at the circulation desk but not while browsing new releases; the niqab will have to come off when boarding a bus that requires photo ID, but not once the woman sits down. Such formulaic pronouncements cannot restore the dignity of women seeking to go about living their day-to-day lives and will do little to quell principled public discontent.

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Similar guidelines have not been provided with respect to other provisions of the bill that are garnering less attention but are of no less concern – those which seek to regulate not dress, but behaviour. The bill reads: "In the exercise of their functions, personnel members of public bodies must demonstrate religious neutrality." There is no telling how this vague obligation will be interpreted and enforced.

Quebec employers would do well to heed the advice of the European Network Against Racism (ENAR), when it argues that cultivating workplace neutrality entails turning one's attention to the actual service being provided rather than the person delivering it. Otherwise, employers risk perpetuating discrimination.

The European experience tells us that nothing good can emerge from Bill 62. The Quebec government's ill-conceived legislation only strengthens those elements in society pushing a dangerous us-versus-them agenda at the expense of constitutional rights and social cohesion. In a pluralistic society, this does not bode well for the future.

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