Gender and Religious Freedom under Secular Law

Earlier this month the city of Nice lifted its controversial burkini ban after a national court ruling in France. Even while human rights lawyers fight the cases which (in the case of the ban in Villeneuve-Loubet) according to France’s Council of State “seriously and clearly illegally breached fundamental freedoms”, some politicians are adamantly in support of it. This latest ban is only the most recent in the line of France’s secular laws implemented to restrict the wearing of certain clothes; in 2010, France became the first European country to ban the full-face veil in public. It might be useful to contextualise this discourse within a larger history of the relationship between religious freedom, sex, gender and secular law. The following is an excerpt from a roundtable discussion between Christine M Jacobsen, Mayanthi Fernando, Janet Jakobsen on the topic, published in the latest issue of Feminist Review. The full conversation, as well as the list of references, can be accessed here

Christine: Sex and gender are at the heart of much controversy over religion in secular societies, and in general sexual freedom and gender equality are associated with secularism, so that regulating religion is seen as necessary for ensuring gender equality and sexual freedom. Playing on this assumed relationship, Joan Scott (2009) has coined the concept ‘sexularism’, which points to a particularly salient form of body-politics in today’s European secularism, which increasingly plays itself out in the intimate sphere of sexuality and religion. Some of the questions I want to raise in this conversation are: why and how do discussions about religious freedom and secularism tend to coalesce around questions of gender and sexuality, and how can we conceptualise the relation between sex, gender, religion and secularism differently? What is the relationship between the legal and paralegal regulation of gender and sexuality and the regulation of religion?

Mayanthi: One of the things I am interested in is what we might call the sexual protocols of secularism, the way in which one needs to approach secularism not so much as a site of emptiness or a kind of space-clearing neutrality but rather as a formation that has a series of norms and protocols about sex and gender. Working in France has helped me see this, because in France sexual and gender protocols are much more explicit than they are in other European or North American societies—although such protocols exist everywhere. I think there is a lot to gain from approaching the secular and secularity as full of sensibilities, affects and embodied practices. There is a tendency to think about embodied practices as a matter for the study of religion, and this approach leaves the secular unexamined as equally a site of bodily norms. What Joan Scott (ibid.) tries to do with the concept of sexularism is to unpack some of the sexual protocols of secularism and to think about the embodied practices of the secular subject.

Janet: In my work and my work with Ann (ibid.), we have been very focussed not only on interrogating secularism but also on what freedom can mean. Freedom from religion is a marker of modernity, a marker of enlightenment, and this goes back to the reformation concept of freedom from the Church. This freedom has a particular content to it, and, as Mayanthi was saying, it is not just an openness. When people make an argument regarding secularism, it is partly empirical; it is about whether secularisation is happening. But, part of the argument even when it purports to be empirical is also moral, and the moral aspect is very much tied to the idea of freedom and enlightenment. And so freedom secures secularisation, so that, if secularism is happening, the argument is that it must be a good thing, and, if it is not happening, it should be happening.

One of the reasons that these concepts have flowed around gender and sexuality is, if we follow Foucault, the body becomes embodiment through having a sexuality, instead of having sex. And this means that gender and sex are not just about acts but about broader discourses, including moral discourses. The site for securing the sense of moral good is often focussed on gender and sexuality, and this claim to the need to secure moral good is very powerful. Not only does it run in the face of an empirical analysis that might say, ‘Well, secularisation is not happening’, it also runs in the face of the tremendous violence associated with modernity: colonialism. When the violence of US militarism is viewed as in defense of secularism, it becomes peacekeeping. It is creating a better world. It is civilisation. This massive militarism becomes a moral good in part by turning to a question of how women are treated. Are they free? Therefore, a constellation of terms—freedom, women, gender, sexuality and secularism—come together to make an argument that is not only moral but basically anti-empirical. This argument—often condensed into the invocation of one or two of the terms, like women and secularism—nonetheless has a great deal of extensive political power behind it.

It is important to integrate our analysis of gender and sexuality into major issues like militarism or the study of religion and secularism. One way to think about social shifts is to think about the ways in which they are sexual revolutions, as well as changes in political structure and nationalism. For instance, the Protestant Reformation is also a sexual revolution. For both Luther and Calvin, freedom from the Church is freedom from monastic life, a freedom that is embodied by leaving celibacy behind and entering into marriage. Marriage becomes the sign of freedom. That is one of the reasons why the current debates in the United States over gay marriage are often made in terms of ‘freedom to marry’, when the freedom being sought is regulation by the state. Similarly, neo-liberalism is both a revolution in economic and political relations and a sexual revolution. Neo-liberalism is a change in protocols of sexuality and also protocols about what freedom can mean. This contest over the meaning of freedom is part of what is being worked out through discourses about gender, sexuality and secularism at the trans-national level, the national level and the local level.

Christine: Before we pursue the question of freedom, I want to unpack the notion of secularism a bit more. What is running through many conceptualisations is that it has to do with separating and maintaining some sort of division between politics and religion, church and state. Gil Anidjar (2007) likens the distinction between politics and religion to the distinction between women and men. The question is, he says, ‘How do you define this or that difference? Where do you say that a difference occurs or cuts? Clearly there are differences between religion and politics, as there are perhaps between men and women. Who will argue with that? Yet, does that mean that there should be or that one could claim to know in any exhaustive and fully determined way what the difference is? The problem occurs at the moment one tries to identify where the difference or even differences lie and what their significance is. We know in biology, as in cultural studies and history, that when there is a claim made identifying where the difference between men and women, male and female, is, something is at stake that has little to do with the difference, as such’ (ibid., p. 226).


One thing that, for instance, Hussein Agrama (2012) writes about is how the relationship between politics/religion and the public/private is a question less of an established division and more of a continual redrawing and re-separation of these distinctions within what he calls the problem-space of secularism. Mayanthi, you have written insightfully about the paradox that is created in France: when the state claims to be neutral about religion and wants to keep it in the private sphere, while at the same time the state is getting involved in regulating religious practices also in the intimate sphere.

Mayanthi: Even though public/private is a binary opposition with which we are constantly working, determining whether something actually is public or private is in fact never clear. The headscarf is a prime example of this. It is a personal religious practice, but it is read as an entry of religion into the public sphere and therefore as a public religious practice, because the line between public and private is drawn in a particular way. It is a perfect example of the ambiguity of public/private, where it becomes very difficult to determine where public ends and private begins. The ‘nanny law’ proposal that Christine (Jacobsen, 2013) has been writing about, which is a proposition in France to ban the wearing of religious symbols by childcare providers, be they public employees or privately employed, shows how that line between public and private is increasingly difficult to determine and delineate.

Christine: The other interesting thing about that case was the consternation in France that the state was overstepping its bounds, that the law was stepping into a sphere in which it had no business, which was ostensibly business.

Mayanthi: One solution proposed to avoid the state overstepping was that the businesses themselves should be allowed to make internal regulations saying that employees could not wear headscarves to work. The employees could not file suit under discrimination regulations, because the principle of secularism was outsourced to the businesses. If we think seriously about neo-liberal governance as precisely the state farming out its citizen-making techniques to private enterprise, then it makes perfect sense that even privately employed nannies would become key to forming ‘good citizens’. There is an interesting shift here in the distinction between what is public and what is private in relation to the hijab. There used to be a lot of faith in the public school to do its work of making citizens, such that girls coming to school in headscarves would learn for themselves to take it off. By the early 2000s, those very same people who had put their faith in the public school shifted their opinion, not simply because they see a so-called Islamisation of France, but also because they have lost faith in the school’s ability to turn these ‘bad Muslims’ into ‘good French citizens’. That is what I am trying to invoke by talking about the anxiety of the loss of national sovereignty. Even if this is a myth in some ways, it is a reality in the sense that people feel as if there is a loss of national sovereignty and an inability of state institutions to do what they once did; hence, these moves of punishment and incarceration and the discourse of reassertion of state authority. And I believe the shift in thinking about the headscarf is indicative of a larger set of anxieties.

Christine: Yes, the proliferation of legal regulations of religious symbols in France these days is related to a certain anxiety and loss of faith in the socialising institutions that were entrusted with the task of forming ‘good republican citizens’. This also highlights the ways in which the proliferation of law goes hand in hand with the normalisation of religious and other subjects—and as you have shown, the public/private distinction is crucial to such legal and paralegal processes of governance. How are religion, gender and sexuality entangled in relation to governance of subjects that are deemed ‘problematic’ in the current French context?

Mayanthi: In France there is a demand for Muslim women to keep both their religiosity and their Islamic sexual protocols private. Yet there is also a constant demand on them to account for their non-normativity, to account for the fact that they are not like ‘us’ and to bring their ostensibly private, intimate, religious and sexual lives into the public sphere where those practices and beliefs can be examined. And, if they are deemed normal, they are allowed to be private, but if they are not normal, they have to be changed. Even though secularism ostensibly depends on a distinction between public politics and private religion, certain subjects are compelled to prove their normality precisely by transgressing that boundary between public and private. But by bringing their ostensibly private religious and sexual lives into the public sphere, they are judged as having transgressed the boundary between public and private on which secularism depends and therefore become problematic non-secular subjects. That is one of the major paradoxes of secularism and secular power.

Christine: There is an interesting parallel here to the discussions about the French nanny law, and how declaring one’s intention to practise one’s religion in the work contract was suggested as a possible way of regulating religion in the private without violating religious freedom in the way that an outright ban would do. I am wondering, though, whether normativity operates differently in the US and in France, and what the particular relationship is between the regulation of sexuality and the regulation of religion in these two contexts. Mayanthi, how do you see the disciplining of a particular form of Muslim religiosity in relation to what has been said about sexuality here?

Mayanthi: The regulations of Muslim sexuality and Muslim religiosity are parallel processes and also intertwined in the sense that that which is properly sexual is that which is not religious. And that which is properly religious is that which is not sexual. Veiling is not just criticised as the entry to that which should be private—that is, religion—into the public sphere. There is also a whole discourse about gender equality, which itself is based on certain deep-rooted conceptions of sexual difference and femininity and what it means to be a properly secular, that is, feminine, woman. The headscarf is both not secular and also not properly sexually normal, because it is seen as a form of sexual repression. Its problematic status as a religious practice hinges on its problematic status as a sexual practice, or a practice of sex and gender. So there is a kind of double regulation of the headscarf in France as both sexually abnormal and religiously abnormal. I do not know whether this would make sense in a US context, because the reaction I often get is that the sexual protocols that I am talking about, the investment in the female body, are a kind of obsession peculiar to France.

Janet: Yes, and the obsession with sex in the States is often supposed to be Christian rather than secular: ‘Oh, we have secularism so it’s just a problem with conservative Christianity’, which is why part of my argument is that one of the powerful forces that creates the obsession with sexuality in US public discourse is the content that is given to secular freedom. I want to be clear that there are a whole range of discourses of freedom, including in modernity, that we could be talking about instead of the mainstream idea of secular freedom. Part of the contestation over sexuality in the US is a contestation among freedoms. The possibility of multiple ideas of freedom almost completely disappears in mainstream politics, though, because it is assumed that there is secular freedom and there is religious regulation. There are some differences between dominating theories of freedom and sexual difference in France and the US, but the overall idea is that we should have two genders, masculine and feminine, they should lead to one sexuality and that sexuality builds families, and families build the nation. Therefore, it is not about differing sexual practices; it is about a different idea about what the nation should be.

Mayanthi: And what would you make of Winnifred Sullivan’s (2007) argument that religious freedom actually presents a kind of impossibility? Does predicating sexual freedom on the model of religious freedom present the same kind of impossibility? Is that part of your critique of freedom itself—the use of the term freedom?

Janet: What I say about religious freedom in the United States is that it is the freedom to act like Protestants. But there are also other religious freedoms that people have built in various forms of intensive practice and various sets of relations of refusal to the state. One of the things that I am interested in is not just leaving these terms to the state-based version of them, freedom as defined by the law, but in fact shedding light on other ways in which they have been built up in various communities. And similarly, for sexual freedom there are all kinds of practices that people have built up that are not free from freedom, from the reach of the law’s freedom, but that are different.

Christine: One crucial question we have not tackled so far is how gender, sex, religion and secularism are also racialised, and also how race and religion are entangled in the genealogies of Christianity and secularism.

Janet: In the US context, and specifically in the law, this intertwining certainly has a genealogy. Historian John Sweet (2003) has traced the shifting of a religious distinction between ‘Christians and strangers’ into a racial distinction that legitimated slavery in colonial America. Therefore, thinking about an assemblage or entanglement is very, very important. More recently, after 11 September 2001 there was an intense racialisation of Muslims. The presumption, particularly on the part of the security sectors of the state but also by perpetrators of extra-legal violence, that Muslims must be racially different in some way and that racial profiling could tell you something about how to run a security state is certainly part of the ways in which race and religion are fundamentally intertwined.

One of the ways in which we are likely to see this intertwining happen is that certain forms of conservative religion will provide a path towards whiteness. Over the history of the United States, the category of whiteness has expanded when there has been a demographic threat to it. When it seems as though white people might be disempowered or become a minority, more people become white so as to shore up the category. Irish and Italian immigrants, for example, were not always considered part of the white majority. Now there are various ways in which, for example, conservative Catholicism may be a path towards whiteness for Latinos. Various paths towards the expansion, and then consolidation, of new forms of whiteness may happen through discourses that are religiously inflected.

Mayanthi: One sees this intertwining of race and religion in the figure of the Arab Muslim. Part of the difficulty of thinking about Islamophobia as either a form of racism or a form of religious discrimination is that it is both. I am hesitant to talk about the racialisation of Muslims in France as a post-9/11 phenomenon, because I think they have always already been racialised. If one thinks historically about French colonial Algeria, for example, and the legal system that was put in place, there were different laws and different legal regimes for different Arab Muslims, for Jews, for Kabyles and others. These communities were under customary law rather than French civil law, and you were born into and ontologically attached to your legal personal status. Religion was not understood as any sort of choice, and you could not escape it. Part of the alterity of the figure of the Arab was that he was Muslim, and part of the alterity of the Muslim was that he was Arab. In other words, there has long existed a nexus of race and religion.

One also sees this nexus in the figure of the Jew. Is ‘Jewishness’ religion or is it race or is it both? One of the things that happens with Jewish Emancipation is that the figure of the Jew is split across race and religion and can never quite fully occupy either category. This reappears in the contemporary period where the discourse of Islamic terrorism and the discourse of black and Arab criminality come together in a carceral discourse about the banlieue. The fear is that the petty juvenile delinquency of what is now called ‘the Muslim boy’, if unchecked, will become Islamic militancy, because he is supposedly much more susceptible to radical Islam in the banlieue. So this is one way in which these two seemingly quite different articulations of race/religion—one as criminality and one as terrorism—come together in the figure of the Arab Muslim.

Christine: These examples show how the entanglement of religion and race is also gendered. It is the male Muslim Arab who is both the terrorist and the criminal, and there is a very different sort of racialising of the Muslim woman.

Mayanthi: Yes, although I think white female converts who are ‘visibly Muslim’ all of a sudden go from being white to being Muslim simply by wearing certain forms of dress. It is sort of the opposite of what Janet was talking about, where to transition to a different type of religion actually means losing your whiteness rather than gaining it.

Christine: One thing that is striking is how race and religion also come to be entangled with security issues and crime prevention, which also has a gendered and sexual dimension. Mayanthi, you draw on US literature on carceral feminism to point at how some feminist groups and movements in France are invoking state and legal regulation and the use of punishment to regulate religious and sexual subjects.

Mayanthi: I found Elizabeth Bernstein’s (2012) work on carceral feminism helpful in thinking about the way in which mainstream feminist critiques of certain social practices in the French immigrant suburbs rely on the state to do justice, to punish and to bring these unruly subjects under control. There is an almost symbiotic relationship between some feminist groups and the state, because these groups are able to deploy the power of the state and rely on the state to be recognised as legitimate social actors. But, the state also relies on these feminist groups to do two things. One is to provide an alibi to go into these spaces and punish and incarcerate. Second, these carceral practices enable the French state to reassert its sovereignty in the face of the ostensible neo-liberal de-sovereignisation of the nation state. I say ostensible because I do not buy the argument that the neo-liberal state has lost its national sovereignty. Many of the decisions that were made to let neo-liberal capital in, to destroy nation state borders, were national sovereign decisions made by governing elites. And many of the same elites are also European and World Bank elites. Therefore, there are all kinds of entanglements between the national and the post-national. The myth of the loss of national sovereignty perpetuates a kind of anxiety that is assuaged by the carceral state going into these unruly areas and reasserting its authority. So it is not simply that certain feminist groups justify the state’s regulating of black and brown bodies. The regulation of these black and brown bodies is also doing much more for the nation state itself, and for governing elites who can thereby evade responsibility for the neo-liberal decision-making that has made life precarious for so many in Europe.



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