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Headscarves in the Operating Room for Any Religious Not Necessarily Muslims

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A woman in her mid-30s wearing a hijab, the traditional Muslim head covering, comes to an urgent care center complaining of leg pain. The first thing she asks: “Are there any woman doctors around?” She declines to be alone in an exam room with a male doctor

She does not want to be touched by a man who is not a family member, even as part of a medical examination. It’s a hypothetical situation, recounted in a new paper in The Journal of Medical Ethics, but the scenario neatly summarizes some of the dilemmas confronting health care workers in hospitals serving observant Muslim patients. When the traditional health care system cannot accommodate their needs, what are doctors and nurses to do?

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Muslim women are a fast-growing segment of the United States population that reflects the breadth of this country's racial, ethnic, and multicultural heritage and includes U.S.-born Muslims of diverse ethnicities, immigrants from many countries and regions, and converts from various backgrounds. Many Muslim women, although by no means all, practice hijab in accordance with their religious beliefs: these women may wear a headscarf, also known as hijab or khimar, and loose-fitting clothing when they are in public and when they are in the presence of men who are not part of their immediate family. Some women additionally cover much of their face with a covering known as niqab. Muslim women, like all people in the United States, have the right to practice their religion. They also have the right to be treated equally and the right not to be discriminated against or harassed because of their religion, their gender, or perceptions about their nationality or ethnicity

Numerous sources of law protect these rights. These rights protect Muslim women's right to participate equally in society, whether at work, at school, at the DMV or other government offices, in the criminal justice system, or in public places. The Fourteenth Amendment and numerous federal civil rights laws bar federal and state officials and some private actors from discriminating against women who practice hijab. The Religious Freedom Restoration Act (RFRA) provides additional protection at the federal level by barring the federal government and its officials from restricting women's ability to practice hijab (either specifically or through generally applicable rules), unless the government can demonstrate that its action was the "least restrictive means" for achieving a "compelling governmental interest." Although RFRA does not apply to state governments, many states have adopted their own "mini-RFRAs" or interpreted their state constitutions to provide the same heightened protections. The Religious Land Use and Institutionalized Persons Act (RLUIPA) bars government officials from restricting women's ability to practice hijab when they are confined to any institution that receives federal funding (such as state prisons), unless the government can demonstrate that its action was the "least restrictive means" for achieving a "compelling governmental interest."

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One way of expressing such a critique has been to account for these tensions and to take them as a point of departure in the examination of the hermeneutical and self-naming practices of ‘secular’ and ‘liberal’ Muslims. This line of reasoning can be found in the work of Ruth Mas (2006) and the fine analysis she offers of the emergence of secular Muslims in France. In an article on two petitions launched by two French movements of secular Muslims (Mouvement des Musulmans Laïques de France and Association des Manifestes de Liberté), Mas unfolds the ways these mobilisations are committed to a reappropriation of the categories ‘Muslim’ and ‘Islam’ that are too often associated with violence or oppression in the current political debates. She describes how such positions depart from a multiple critique (Cooke, 2000): a critique on the negative representations of Islam in the dominant French public, on the one hand, and a critique on what they consider as ‘fundamentalist’, exclusivist and misogynist tendencies within the Muslim community on the other. Such a multiple critical posture was illustrated at the outset of this paper through the case of Saloua, whose refusal to write on veiled women signalled both a refusal of dominant essentialist representations of Muslims as well as a refusal of the normative weight of the hijab on Muslim practice. While she views these petitions as attempts to resist the prevailing categorisations and stereotypes, that is, naming themselves secular Muslim as a way to insist on their difference from the dominant French culture while advocating an Islam in compliance with the grammars of French Laïcité (2006: 604), Mas nevertheless questions the ‘discursive agency’ of these petitions and their capacity to counter exclusionary tendencies towards Muslims. She refers to the way such self-naming practices sit in the continuity of a (neo)colonial legacy and French governmental practices that ‘interpellate’ Muslims as ‘others’, and thus compel such self-naming practices as ‘secular’ or ‘cultural’ Muslim to claim secular allegiance. While Mas does not question the ‘authenticity’ or ‘legitimacy’ of the petitioners, she nevertheless does insist on the importance of acknowledging ‘the role that power plays in the epistemological conclusion that we make about their self-constitution’ (2006: 604). For Mas, the critical potential of these petitioners to ‘rupture both French political designations and normative designations by Muslims of what Islam or Muslims are’ will be dependent of their capacity to account for this historical genealogy and to ‘confront the imperial investments in history’ (2006: 611).

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Summing up, it appears that trusts have not put in place a national policy leaving dress codes open to interpretation in individual trusts. This has led to Muslim professionals experiencing problems with the headscarf in theatre and not being able to cover their arms on the wards when in direct patient contact. In conclusion, there is indirect discrimination occurring, a violation of the human rights to practice one’s religion, due to inadequate provision and guidance on how some Muslim women who choose to wear a headscarf, can do so in theatre and cover their arms on the wards in line with religious sensitivities.

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Mamdani, M. (2004) Good Muslim, Bad Muslim. America, the Cold War, and the Roots of Terror, New York: Three Leaves Press. Doubleday.

Mas, R. (2006) ‘Compelling the Muslim subject: memory as post-colonial violence and the public performativity of “secular and cultural islam”’ Muslim World, Vol. 96: 585–616.

McNay, L. (1994) Foucault. A Critical Introduction, Cambridge: Polity Press.

Mernissi, F. (1975) Beyond the Veil. Male-Female Dynamics in Modern Muslim Society, New York: Wiley.

Mir-Hosseini, Z. (2007) ‘The politics and hermeneutics of hijab in Iran: from confinement to choice’ Muslim World Journal of Human Rights, Vol. 4, No. 1, Article 2.

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