Kimberlé Crenshaw at the German Federal Constitutional Court: religion at the crossroads between race and gender

Kimberlé Crenshaw at the German Federal Constitutional Court: religion at the crossroads between race and gender

Kimberlé Crenshaw takes the legal definition of race and the force of its legal impact seriously. She centralizes race as a category in intersectional thinking. It is her work on critical race theory that brought her to intersectional law. As with every attribute of discrimination, race on its own frequently does not tip the scale but, as historically shown, has always been linked to other attributes. Crenshaw has, above all, highlighted the categories of race and gender as examples of interlaced attributes of exclusion and translated them, in legal terms, as a violation of equal rights legislation. On the strength of her seminal research into critical race theory and intersectionality, we are now in a position to bring to light such overlapping and interdependent attributes as a legally tangible exclusion, to give it a name, and to more precisely describe the demands for equality.

In Germany, intersectionality thinking in jurisprudence is slowly but gradually meeting with approval. In jurisdiction, this was perhaps most prominently reflected in a ruling passed by the German Federal Constitutional Court in 2015. The Court pointed to the fact that banning instructors from making political, religious, ideological or similar symbolic visual statements in school might not only represent religious but equally gender discrimination. In terms of the purpose of such a regulation, these bans target headscarf-wearing Muslim women, as chronologically speaking, the bans were issued and applied as an immediate response to the first headscarf ruling of the German Federal Constitutional Court in 2003. In this ruling, the Court had put forward the option to the state legislators to pass the headscarf ban into parliamentary law. In this constellation, the ban crucially illustrates that the group of headscarf-wearing women is especially impacted at the interface of two typical attributes of discrimination, namely religion and gender.

Not only is a woman wearing a headscarf discriminated against “as a woman” (as male Muslims and females not wearing scarfs are employed), and not only “as religious Muslims” (as only non-headscarf-wearing women are employed) but most certainly two categories converge: religion plus gender. The legal significance of arguably the first-ever juridical linkage between religion and gender in the decision of the German Federal Constitutional Court in 2015 is not to be underestimated and encourages an accentuation of forms of intersectional discrimination also in different constellations before the courts.

Yet, the headscarf case should have been read with Crenshaw: The constellation of religion and gender cannot be read without race. The “race-religion constellation“ (A. Topolski, 2018) or “the entanglement of race and religion” (Aguilar/Ahmad, 2017) has a tradition: with “Arabs as Muslims” in mind, and vice-versa, Edward Said described this as orientalism (1979). Even though he did not work with the race category, he did illustrate the Orientalizing and racializing European view of the hierarchization of people. The long-lasting European hierarchy between Christian and non-Christian has, today, given way to the modern understanding of the secular and religious, but frequently produces the same exclusions. These, above all, become influential and visible when the religious element comes to the fore, in particular based on clothing and lived or legally demanded practices.

What religion and race have in common is that both are used as discourse on “difference” and presented as different, threatening and “naturally” backward. Religion is therefore racialized and, at the same time, thus risks being warranted a lower level of state protection—because Germany still does not talk about race. Whilst many areas in Europe have put race as a biological concept behind them, it can be observed that, when referencing religion, especially Islam, an exclusion argument is accepted that is racially charged.

By way of example, during her final submission on the Achbita case in 2017, the Advocate General at the European Court of Justice, Juliane Kokott, requested that one can turn in their headscarf, unlike the color of their skin, at the cloakroom. This undercuts the looming potential for violence of such enforced, violent and top-down inclusion, which, in and of itself, would only be possible if those concerned were to rescind their constitutive practice. Such a stance clearly also reveals that it only acknowledges the other, the Muslim identity if being different no longer remains visible or must not be acknowledged.

In terms of research into the relationship between religion, race and gender as legal categories, Crenshaw’s works are essential—not solely but also in order to comprehend the legal situation facing Muslim women wearing a headscarf in Germany and Europe, or even to comprehend what overlaps exist between racial profiling and religious profiling, which includes the male gender specifically. Crenshaw’s research has given me the possibility to play a part in the “Critical Race Theory Europe” and “Intersectional Justice” fields and to elaborate on how legal contexts in the United States of America could be relevant for legal issues in Europe. It also gives me the opportunity, together with Kimberlé—as a scholar and, above all, a sister— to invite my German colleagues to collectively adopt a more explicit focus on religion, race and gender in our research activities.

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