European Journal of Women's
Studies
http://ejw.sagepub.com/
Culture, Tolerance and Gender: A Contribution from the Netherlands
Sawitri Saharso
European Journal of Women's Studies 2003 10: 7
DOI: 10.1177/1350506803010001786
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Culture, Tolerance and
Gender
A Contribution from the Netherlands
Sawitri Saharso
FREE UNIVERSITY AMSTERDAM
Defenders of multiculturalism have been recently criticized for failing
to address gender inequality in minority cultures. Multiculturalism would seem
incompatible with a commitment to feminism. This article discusses two empirical cases that pose a problem for public policy in the Netherlands: a conflict over
wearing headscarves (hijab) and requests for surgical hymen repair. These cases
evoke widespread public controversy, in part because they are presumed to
express or accommodate traditions in violation of women’s rights and thus raise
the question of tolerance. While recognizing the potential discrepancies between
feminism and multiculturalism, the author argues that committed feminists can be
multiculturalists as well, and that good feminism might well require acts of multiculturalism. In addition, she advocates a contextual approach to tolerance. Her
argument is that general justice arguments are too indeterminate to make for good
judgement in concrete cases. The national political culture and institutional setting
in which multicultural conflicts take place should be considered as morally
relevant factors and co-determine our moral considerations. The dispute over
feminism and multiculturalism cannot be settled in abstracto. Using a contextual
approach, the author argues that wearing a headscarf and hymen repair are justifiable and consonant with feminist concerns in the Dutch educational and medical
contexts.
ABSTRACT
headscarves ◆ hymen repair ◆ multiculturalism ◆ tolerance ◆
women’s rights
KEY WORDS
INTRODUCTION
Minority groups demand the right to live in accordance with their culture,
and western states have responded by developing multifarious public
policies aimed at protecting their ways of life.1
The European Journal of Women’s Studies Copyright © 2003 SAGE Publications
(London, Thousand Oaks and New Delhi), Vol. 10(1): 7–27
[1350-5068(200302)10:1;7–27;030786]
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Accommodating minority groups is not so much of a problem where
relative ‘innocent’ practices are involved such as allowing the Amish to
drive horse-drawn buggies on American highways or the Sikhs to ride
motorbikes without wearing helmets. Yet certain minority practices do
seem to violate their members’ civil rights and liberties, that liberal
democracies are supposed to protect; in which case cultural diversification can generate deep controversy.
In this article I discuss two cases, Muslim women wearing headscarves
and surgical hymen repair, that have generated widespread public
controversy in the Netherlands. I selected these cases to discuss in this
journal, however, because of the questions they raise for feminists, in
particular feminists also committed to the project of multiculturalism. The
headscarf is often assumed to express a sexist religious tradition that
denies women full access to the public sphere. Requests for surgical
hymen repair are motivated by the virginity rule that denies girls, but not
boys, premarital sex. In either case, sexual equality seems to be at stake
and accommodating the minority culture would seem to go against
feminists concerns. These cases hence raise the question of how multiculturalism and feminism relate, a topic of heated debate in Europe in
general and the Netherlands in particular.
For some the answer is clear. If minority traditions infringe on the rights
of women, as feminists it is our duty to combat these traditions and multicultural understanding is utterly out of place. This view is expressed by
Susan Moller Okin, who claims in her essay ‘Is Multiculturalism Bad for
Women?’ (Okin, 1999) that multiculturalism poses a threat to feminism.
She feels that multiculturalists do not have an eye for the gender injustices
in minority cultures, and that granting cultural group rights would
encourage the persistence of these injustices. Martha Nussbaum, who
discusses many traditions of western and non-western cultures that are
oppressive to women in her book Sex and Social Justice, is similarly wary
of normative cultural relativism and is not inclined to accede to the
cultural claims of religious or minority groups (Nussbaum 1999, see in
particular Ch. 1, ‘Women and Cultural Universals’ and Ch. 3, ‘Religion
and Women’s Human Rights’).
Recognizing the potential differences between feminism and multiculturalism, I still do not present them in this article as natural enemies.
My difficulty as a multicultural feminist, at home with postcolonial
theory, is that it is impossible to ignore the long western tradition of representing other cultures as inferior, while now witnessing how minority
cultures are demonized for their gender practices (see Mani, 1998;
Mohanty, 1988; Narayan, 1997; Spivak, 1988). In particular, there is the
continued imagery of Islam as a religion predisposed to maltreat the
female sex. It would be tragic though if a commitment to multicultural
tolerance and respect kept us from speaking out against gender injustice.
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This article is written in the hope that taking a critical stance against
minority cultural practices can go together with a sensitivity to the
cultural identities and interests of minority women.
This article engages with a liberal philosophical perspective, and not
because liberal morality is the best in the world – there is no transcultural
standard for assessing that – but because in liberal democracies the legitimacy of the state is derived from liberalism and all the political movements in the Netherlands, including feminism, start from the individual
as the basic moral unit and bearer of individual rights and freedoms. I
believe, and in this I agree with many non-western feminists, that nonwestern women are entitled to the same basic rights as western women
(see Moghissi, 1999). My position is that of a feminism that enables
women to make the choices they feel are in agreement with their culture.
It is a feminism in which freedom as well as equality for women are
considered central feminist tenets.
My position is also informed by the view that moral principles acquire
meaning when they are interpreted and applied in specific contexts. My
second aim is to explore the possibilities of a contextual approach to
tolerance. If contexts counts, how does it or should it count? Joseph
Carens, a leading proponent of a contextual approach, suggests that as
the meaning of liberal principles is not pre-given ‘there is a range of
reasonable disagreement about what the principles of democratic justice
require, and that within that range different political communities are
morally free to adopt different institutional arrangements and policies’
(Carens, 2000: 7). Adrian Favell, another proponent of a contextual
approach, feels we should be more attentive to the very terms the
problem is formulated in by the actors involved and find out what the
normative logic is, working in the national political culture and institutional context that leads to this framing of the problem (Favell, 1998).
In this article I explore the idea of a range of morally permissible arrangements by empirically establishing what policy arrangements are developed in the Netherlands and seeing whether they can be explained as
typically Dutch interpretations of the liberal democratic tradition. In the
case of headscarves there is jurisprudence enabling me to work this way.
In the case of hymen reconstruction that is not the case. There is a
practice, but no formal policy. This is why I collected the arguments pro
and contra that were put forward by the parties involved. I made an
effort to incorporate them into an argument that would generate an
answer to the question of whether or not hymen reconstruction should be
allowed, taking into account the Dutch national medical health context as
well as feminist concerns.
My aim is twofold: to describe how the two ‘hot topics’ are dealt with
in context and to show that within the disputes on them, feminism and
multiculturalism are not necessarily at loggerheads.
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HEADSCARVES
Headscarves in Haarlem
The Islamic rule that women should wear headscarves in public spaces
like schools or work sites, seems to serve in the public debate as the paradigmatic example of intercultural value conflict.2 But what values are at
stake? To begin with, there is no unanimity among Muslims about
whether or not headscarves are prescribed. People who consider wearing
a headscarf religiously prescribed generally claim that according to Islam,
modesty requires women to cover their heads in situations where there
are men who are not their relatives.3 Some people feel that in doing so
they are exercising their freedom of religion, others see the headscarf as a
means of excluding Muslim women from full participation in the public
sphere. According to Haleh Afshar, for over two centuries this was why
many Muslim women and men spoke out against the imposition of the
veil (Afshar, 1998: 13). The prevailing view among feminists in the
Muslim world is that the veil should, as Azza Karam puts it, ‘be based on
a woman’s choice and conviction’ (Karam, 1998: 12). Others, notably in
France and Turkey, consider wearing a headscarf in public as a threat to
public neutrality (cf. Bloul, 1997; Landman, 2000; Wayland, 1997). It is also
noted that the rule can and often is read as following from the requirement that both sexes dress modestly or that women wear the veil because
they feel it keeps them from becoming commodified sex objects (see
Afshar, 1998). In other contexts wearing a veil is a way of ‘accommodating
protest’ (MacLeod, 1991). It is also a known fact that young women from
cultural minorities in the West sometimes react to the negative stereotyping of Islam by defiantly emphasizing their religious identity and wearing
a headscarf (see Afshar, 1994). Wearing a headscarf is thus an act of
religious consciousness. Hence, wearing a headscarf can take on many
meanings, with ‘gender inequality’ as one possible interpretation. How is
wearing a headscarf interpreted in the Netherlands and why?
On International Women’s Day 2001, Cisca Dresselhuys, editor-in-chief
of the Dutch feminist magazine Opzij, stated in an interview that she
would never hire an editor who wore a headscarf because she saw it as a
symbol of women’s oppression by Islam (De Volkskrant, 8 March 2001).
Dresselhuys represents a certain position in public opinion, but it is not
this position that is decisive for Dutch policy on wearing headscarves. The
ruling of the Dutch Commission on Equal Treatment has been far more
influential for the policy development on this issue. Since wearing a headscarf regularly leads to conflicts the parties themselves fail to resolve, they
sometimes bring the case before the Commission on Equal Treatment.
Although the judgements of the Commission on Equal Treatment are not
legally binding, the parties usually voluntarily accept them. One case
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11
brought before the Commission concerned a conflict between a primary
school and a trainee in the town of Haarlem.4 The conflict started in 1997
and was about the headscarf the trainee insisted on wearing, though the
director insisted she remove it. After a meeting with the staff, the director
suggested a compromise. The trainee would refrain from wearing the
headscarf in her own classroom. The trainee refused to do so, stayed away
from the school, and brought the case before the Commission on Equal
Treatment in April 1998. In February 1999, the Commission ruled in
favour of the trainee.
What makes this case different from other headscarf cases is that it was
not a pupil, like in the French Affaires des Foulards, but a future state
school teacher who demanded the right to wear a headscarf while
teaching. The fact that it was a future state school teacher, formally representing the ethically neutral state government, who wanted to wear a
headscarf thus raised the question of whether the neutrality of a state
school allows for this. In the opinion of the school the answer was ‘no’;
‘educational neutrality’ was the main argument the school rested its case
on. The school sustained its position, however, with more contextually
bound pedagogical arguments.
Some of the pupils were of Turkish origin and some of the Turkish girls
had started to wear headscarves. When the trainee arrived the school had
just formulated a deterrent policy with regard to wearing headscarves
and had reached an agreement with the parents that the girls would not
wear a headscarf at school. The school claimed that when they were not
wearing headscarves, the girls behaved more freely, were teased less, and
felt more at home in the group. Moreover, in the school’s opinion the
teacher should set an example in this respect. Although sexual equality
was not mentioned as an argument, concerns about women’s emancipation might well have played a role.
Another reason for the school’s deterrent policy was that there was a
silent battle going on between the liberal and more orthodox factions
among the Turkish parents, with the headscarf as one of the issues at
stake.5 The orthodox faction, it seems, put pressure on the liberal
members of their community to behave more in accordance with their
version of Islam (De Volkskrant, 4 March 1999). The school apparently
wanted to ‘protect’ the girls from more liberal homes with its deterrent
policy. Although the school did not mention this dispute in the local
Turkish community in its own defence before the Commission, it was
probably underlying the school’s remark, made in its own defence, that
. . . it seems evident that an Islamic woman who thinks that even in the
privacy of her own classroom she has to wear a headscarf is exhibiting, as
compared with the great majority of her fellow believers, very stringent
convictions and can implicitly be experienced as threatening by women and
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The European Journal of Women’s Studies 10(1)
girls of the same religion who, often with great difficulty, have acquired the
right to a freer lifestyle. (Commissie Gelijke Behandeling [Dutch Commission on Equal Treatment], Judgement 99-18: 4)
In this interpretation the tolerant ruling of the Commission on Equal
Treatment was playing into the hands of a community that pressured its
individual members to behave in accordance with its religious rules,
thereby even endangering the neutrality of the state school.
As the case became known nationally, it appeared that other towns and
cities were facing the same problem. Several Rotterdam schools testified
that the parents of Turkish pupils had said they would remove their
children and send them to another school, if the school continued employing a headscarved teacher or trainee.6 This reaction on the part of the
Turkish parents was interpreted by the schools as having to do with their
Turkish background. The schools noted that there is a much stricter separation between church and state in Turkey than in the Netherlands, a
separation that is vehemently contested, and the parents were said to see
things in a national Turkish context (Judgement 99-18: 4; NRC Handelsblad,
1 May 1999).7 Their reaction may or may not have been informed by
religious political strife in Turkey, but the parents’ objection to a teacher
wearing a headscarf was clearly a matter of principle. While ‘educational
neutrality’ was a concern for this faction of the Turkish parents, this was
not the case for the Rotterdam schools. What worried the schools most
was once again an educational concern, the threat of withdrawal, which is
understandable as schools need parents to trust them. Mieke der
Kinderen, one of the Rotterdam school directors, expressed this concern
as follows: ‘Parents must share the education of their children with the
teacher. They should not only be able to accept the teacher, but also to trust
her’ (NRC Handelsblad, 1 May 1999). If parents threaten to take their
children out of a school, there is clearly a lack of parental trust. How did
the Commission on Equal Treatment deal with these various concerns in
its ruling?
The Judgement and its National Context
In nearly all the cases where it was consulted, the Commission on Equal
Treatment ruled that it was not justified to prohibit wearing a headscarf,
because this contravenes Dutch anti-discrimination law. In this ruling the
Commission referred to the Dutch Constitution, section 6 subsection 1,
that stipulates as one of the individual liberties the freedom of religion
and philosophy of life. Furthermore, ‘practices that, considering their
character and the meaning of religious rules and regulations, are a direct
expression of a religious conviction, are protected as well by the fact that
it is prohibited to discriminate on the basis of religion’ (Judgement 99-18:
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6). The Commission has thus far considered the headscarf ‘one of the
requirements that follow directly from the Muslim conviction’. In its
ruling on the Haarlem case, this was qualified by the statement that ‘a
Muslim woman or Muslim girl wearing a headscarf can be one of those
expressions of her religious conviction’ (Judgement 99-18: 6, emphasis
added). It was added that it is not the role of the Commission to enter into
a theological dispute about the interpretation of the Koran. It is this
interpretation of wearing a headscarf as a practice that follows directly
from the religious conviction that makes prohibiting anyone to wear a
headscarf a case of direct discrimination on the grounds of religion. There
are hardly any grounds that make direct discrimination justifiable before
the law; freedom of religion is a fundamental right that can only be
outweighed by a second party’s other fundamental rights (see Verhaar,
1999a). Hence in the Netherlands a woman who wishes to wear a headscarf and presents her case to the Commission will nearly always win. The
Commission only deviated from this ruling in cases where the reason to
prohibit someone from wearing a headscarf concerned safety.
Saying that wearing a headscarf can be an expression of someone’s
religious conviction meets the critique expressed by Dutch Muslim and
non-Muslim feminists on earlier judgements by the Commission. One of
them, cultural anthropologist Willy Jansen, put it as follows:
The Commission confirms with this ruling [i.e. the interpretation of wearing
a headscarf as a religious obligation] the view held by fundamentalist groups
that are trying to represent the headscarf as a necessary Islamic requirement.
. . . This ruling obstructs pluralism in the Muslim community. . . . The
Commission, via its reference to religion, declares the views of one specific
group to be generally applicable, which is at the expense of the freedom of
choice and the religious interpretations of others. (Jansen, 1995: 164)
So according to Jansen, with its ruling the Commission was playing into
the hands of fundamentalist factions in Islam. The Commission’s later
formulation leaves space for the notion that Muslim women do have a
choice as regards wearing a headscarf, since different believers may have
different convictions about the requirements of the faith.
The Commission on Equal Treatment did not consider the pedagogical
arguments put forward by the school. This might well have been because
the Commission was reasoning from a liberal philosophical model,
according to which one first establishes which principles of justice are at
issue (here: freedom of religion vs educational neutrality) and then determines whether wearing a headscarf is consonant with them (see
Kukathas, 1997; Williams, 2000). Consequently, the Commission need not
consider the pedagogical arguments, since there were no principles of
justice at stake.8 Then there was the communal dispute over wearing a
headscarf. To promote peace among the various parties – the school, the
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The European Journal of Women’s Studies 10(1)
trainee and in the background the divided Turkish community – the
Commission could have settled for the compromise the school had
proposed, i.e. that the trainee would only refrain from wearing a headscarf in the classroom. However, the Commission would have had to
depart from the hierarchy of values assumed in the liberal model of moral
reasoning. ‘Freedom’ and ‘equality’ stand as justice arguments above
‘peace’, which is merely considered a prudential argument. The idea is
that state policy should stand the test of justice and under normal circumstances, social pacification is not a compelling enough reason to sacrifice
the principles of justice. Within the limits of the liberal model of moral
reasoning, the Commission could not consider this compromise option.9
The concerns of the Rotterdam schools were directly related to the fact
that for the Turkish parents who threatened to take their children out of
school a teacher wearing a headscarf contravened the neutrality of state
education. This brings us back to the question of educational neutrality,
since if parents distrust the school for the wrong reasons, it clearly would
not be right to give in to their wishes.
Prior to the Haarlem case, the considerations about the neutral public
sphere, that were predominant in the French debate on headscarves,
never entered the Commission’s argumentation. Earlier headscarf cases
were typically conflicts between an employer’s interest and a woman’s
freedom of religion (e.g. a company that claimed that an employee
wearing a headscarf was not presentable or a general practitioner who
expressed the fear that a nurse wearing a headscarf would cause him to
lose patients). National political culture differences are presumably
responsible for this. The framing in the French public debate as a conflict
between the French national democratic secular culture and the religious
Islamic culture is usually explained by the strong French republican
tradition (see Bloul, 1997; Wayland, 1997). Within that framework the
headscarf appeared as a religious symbol that threatened the French
neutral public sphere.10 In the Netherlands the dominant political culture
until the 1960s was pillarization, a form of consociational democracy
whereby society was divided into highly autonomous vertical social
segments (pillars). There were four ‘pillars’: Catholics, Protestants, socialists and liberals, and public life was organized around them (see Lijphart,
1975). Pillarization is a specifically Dutch interpretation of the view that
the liberal state ought to be neutral between rival conceptions of the good.
In contrast to a strictly secular model of neutrality such as the French one,
which can only recognize thin forms of collective identity, it is a model of
neutrality where all conceptions of the good have an equal right to
manifest themselves in public (or, to borrow Carens’s term, it is a conception of neutrality as evenhandedness between rival conceptions of the good
[Carens, 2000: 9, but see his note 5]). Pillarization is a system that allows
for public recognition and support of much broader versions of collective
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15
identity and a system that made religion highly visible in the public
sphere. The history of pillarization explains why the Dutch generally take
a relaxed attitude towards wearing headscarves and other public expressions of collective religious identity.11
In the Haarlem case, the Commission on Equal Treatment had to take
arguments about state neutrality into consideration because the school
based its defence on them. Again, the context of pillarization is highly
relevant for a better understanding of the Commission’s ruling. As a
legacy of pillarization, parents in the Netherlands have the constitutional
right to establish schools corresponding to their religious beliefs (Dutch
Constitution, section 23). Moreover, the Constitution guarantees that
denominational schools have an equal right to public funding. This right
to public funding is associated with the Dutch interpretation of neutrality
as evenhandedness. The right to equal treatment of all conceptions of the
good is interpreted as a material rather than only a formal right to
equality. Hence, in the Netherlands state and denominational schools are
both fully publicly funded. One difference is that a denominational school
has the right to stipulate religious requirements, i.e. to discriminate on the
grounds of religion, and a state school does not. According to the law,
‘state education respects everyone’s religion or philosophy of life’ but it
also states that it ‘contributes to the pupils’ development while devoting
attention to the moral and social values of Dutch society and in recognition of the meaning of the diversity of these values’ (Law on Primary
Education, section 29). The trainee’s lawyer referred to the first part of the
law. According to her it meant a state school is obliged to admit persons
of all religions and cannot make demands about practising or not practising a religion. The lawyer representing the school concentrated on the
second part of the law, claiming that a state school teacher should have an
open attitude towards all moral and social values, which necessitates
reticent behaviour and in her view wearing a headscarf in the classroom
could not be considered as such (Judgement 99-18: 3, 4). The Commission
noted that ‘the fact that the claimant [the trainee] believes in a religion and
expresses this by wearing a headscarf does not preclude her having an
open attitude and being capable of teaching in accordance with the character of the school as a state educational institution’ (Judgement 99-18: 4).
It was neither said nor proved that the trainee did not have this attitude
and according to the Commission, it was the school’s responsibility to
question the trainee on this point. However, this had not been done.
The Commission did not consider another solution that was feasible
within the Dutch context. This solution was suggested by the one public
reaction I could trace expressing the opinion that a teacher wearing a
headscarf had no place at a state school. If she wished, the trainee could
wear a headscarf at an Islamic school, where a headscarf is allowed and
often even required. According to this author Jan Slomp, the teacher’s
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The European Journal of Women’s Studies 10(1)
freedom of religion was not at stake, as it concerned here a self-imposed
restriction (Slomp in NRC Handelsblad, 5 June 1999). In other words, the
pillarized Dutch school system gave her a free choice and free exit
options, so she had no right to demand that a state school accept her as a
teacher. Slomp thus raised the context-specific question of whether individuals should not only have the freedom to institutions within their own
pillars, but also the freedom to move between their own pillars and the
‘neutral’ public sphere without being forced to abandon their religious
identities. In response to the Commission’s ruling, the trainee said she
was very relieved, because she had feared that if the policy of the Haarlem
state school was sanctioned by the Commission, in the future she would
be compelled to only teach at Islamic schools. Christian or Jewish teachers
can teach in either system, so it is clear that the Dutch feel the pillarized
system should no longer lock people up in their pillars. Moreover, if a
Muslim teacher wearing a headscarf is not allowed to teach at a state
school, whereas Christian or Jewish teachers can teach in either system,
compared to them she does not have an equal choice of job options, which
amounts to unequal treatment of people of different religious faiths. The
option of teaching at Islamic schools should thus be rejected as unfair to
the trainee.
Let us now return to the actual problem: did the school have the right
to require the trainee to take off her headscarf while teaching? It is characteristic of Dutch political culture that as a legacy of pillarization, freedom
of religion includes the public manifestation of religious identities. This
understanding underlies the general ruling of the Commission on Equal
Treatment; the ruling of the Commission was based on a contextual
reading of liberal principles. Second, this does not change in the case of a
state school teacher, since the common reading of the second part of the
law is that a state school should promote an attitude of tolerance by
teaching pupils to respect each other’s ways of life. As the Commission
rightly stated, there is no reason to assume that a teacher wearing a headscarf is not capable of teaching mutual respect. In the Dutch context,
public neutrality does not provide an argument against a state school
teacher’s wearing a headscarf, in fact there are several equality arguments
supporting a decision to allow it. Given that context, I think the
Commission on Equal Treatment was right not to deviate from its ruling
in this case.12
We can conclude that this case was perceived as primarily a conflict
between religious freedom and educational neutrality. Sexual inequality
only played a marginal role in the deliberation, so there is no conflict
between multiculturalism and feminism.
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SURGICAL RECONSTRUCTION OF THE HYMEN
The Problem
The norm prevails among immigrants to the Netherlands from Turkey
and Morocco that a girl should be a virgin until marriage.13 If it comes out
that a young unmarried woman has lost her virginity or has the reputation of no longer being a virgin, it is considered a disgrace for herself
and her family and there are serious sanctions. The loss of honour often
leads to the girl’s expulsion from her family and the community. The girls
themselves express the fear that no man will ever marry them and they
will have no other option than prostitution (see Verhaar, 1999b: 131). They
are afraid of being maltreated or even murdered by a family member to
avenge the loss of the family’s honour (Verhaar, 1999b). There is empirical
evidence that the girls do indeed have good reason to fear community
sanctions.14 This is why some girls ask for a surgical reconstruction of
their hymen. The operation is now probably being performed quite regularly in the Netherlands; figures range from three cases by each practitioner a year to 10–15 cases a month (Bekker et al., 1996). Medical
professionals have indicated that they have problems performing the
operation, because it goes against their own norms and values, and they
have asked for professional guidelines to be developed (Mouthaan et al.,
1997).
As far as we know, the moral problem is a practitioner’s problem. The
girls’ main problem is their lost virginity, and they want it to be restored.
Their requests for an operation are informed by a mixture of motivations.
Fear of sanctions is one, and another is that although they have already
shamed their parents’ trust by having sex, they still want to pay respect to
them and do not want to damage the family honour (see Verhaar, 1999b:
139).
The moral problems of medical professionals are manifold and have
been summarized by Verhaar (1999b: 133–4). A reconstruction of the
hymen is a medically unnecessary operation. Most practitioners reject the
virginity rule that necessitates the operation, because it is based on a
double standard that allows boys but not girls to engage in premarital sex.
The virginity rule thus infringes upon the girls’ sexual autonomy and the
value of sexual equality. Practitioners fear the surgery will only help
maintain and reconfirm the virginity rule, and this is their main reason for
not operating. By performing the operation, medical professionals feel
they become accomplices to a lie and contribute to keeping up the myth
that all women have a hymen that bleeds upon penetration. A further
argument against operating is that it hampers the public debate that
might eventually lead to the abolition of the rule. Proponents of this
argument refer to the public debate in Turkey about virginity certificates
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The European Journal of Women’s Studies 10(1)
(a medical doctor declares that he has examined a girl and found her still
a virgin), which led to the abolition of this practice in Turkey. However,
medical professionals are well aware that an operation can spare the girls
a great deal of suffering, and not performing it can also lead to sexual
inequality because in effect only the girls are punished for a deed that was
committed by two people. Lastly, in the present situation it is normally the
Dutch Public Health Service that pays for these operations, which so far
has passed unnoticed, since doctors write something else on their bills like
‘vulva plastics’. This raises the question of whether these operations
should be publicly financed. Using scarce public resources for a medically
unnecessary operation that is only being performed due to a sexist
cultural rule seems hard to defend.
Surgical Reconstructions of the Hymen: Morally Defensible?
One defence might be to consider the virginity rule a cultural custom that
is culturally embedded and should not be judged on its content alone. As
Bhikhu Parekh explains, this is because ‘cultural practices (unlike selfchosen practices) are part of a way of life, have a normative authority and
are generally regarded as binding by the members of the community
concerned’ (Parekh, 1999: 163). Edien Bartels (1998) seems to follow this
line of reasoning in her claim that the virginity rule is central to the Islamic
way of life in the Netherlands, that this way of life is endangered if
Muslim girls lose their virginity before marriage, and that the deflowered
girl should have the freedom to choose to remain part of the community
that requires virginity upon marriage. She thus justifies a surgical reconstruction of the hymen as a practice that allows the group to continue its
way of life and allows deflowered girls to remain members of the group
that requires their virginity. This amounts to a justification of surgical
hymen repair as an accommodation that enables a group to keep up its
cultural norm of virginity. Bartels herself points out in a later publication
that Moroccans and Turks generally disapprove of the operation (Bartels,
2000: 46); they see it as deceit. Instead of an accommodation to their
cultural rules, they are more likely to perceive it as an attack. At any rate,
it is questionable what the effect of operating will be in the long run. It
may help the norm to be upheld, as medical professionals assume, but it
is equally plausible that widespread hymen reconstruction might serve to
subvert the norm.15 So it is impossible to say that to allow hymen reconstruction is to accommodate the minority culture or that to refuse to
operate would bring sexual equality any closer. A utilitarian argument is
not possible either way.
Another possibility is to take the ‘shared moral understandings’ of the
medical field as a starting point for our reasoning. What would be our
response to the practitioners’ moral dilemma concerning hymen
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19
surgery? The leading principles of medical ethics are autonomy, beneficence, non-maleficence and justice (see Schermer, 2001). While in the
arguments of the medical professionals the girls mainly appear as
bearers or victims of their culture, ‘autonomy’ is central to the argument
developed by Odile Verhaar (1999b). She refutes the argument that operating reconfirms a cultural rule that violates the autonomy and bodily
integrity of women, by noting that it is the girls themselves who request
the operation. The decision to have the operation is made by young adult
women, whom we assume are capable of calculating the consequences
and balancing their various interests (Verhaar, 1999b: 138–9). We should
respect their choice, I would like to add, particularly if we are concerned
about female autonomy. Verhaar recognizes that it is difficult to maintain
that a choice made under threat of severe sanctions is a free one, but
notes that the girls do have other options, like leaving the community.
She suggests that leaving the community does not necessarily mean
becoming a prostitute, as there exist in the Netherlands shelters for
runaway girls and women. So it is only if the girls want to remain within
the family and the community, and presuming the girl’s family is indeed
as merciless as she presupposes, that the operation is the only solution
available (Verhaar, 1999b: 131). Verhaar refutes the argument that
refusing to operate would stimulate the public debate that might lead to
the abolition of the virginity rule by noting that it does not offer a
solution for girls who have already lost their virginity and are asking for
help (Verhaar, 1999b: 138).
Confronted with a request for a hymen reconstruction, most medical
professionals comply with it. I think this is an understandable, and within
their personal and professional morality, a defensible choice. First,
fighting an ideological battle with the Islamic communities in the interest
of future generations, while ignoring the actual suffering and requests of
real individuals, can hardly be considered to be consistent with liberalism’s concern for the individual. Second, a doctor’s duty is to act in the
best interest of the patient. This is based on an understanding of the
patient as an individual person, not the abstract category of ‘women’. This
individual is asking for a hymen repair and fears real harm if it is not
made available to her. Third and most important, the main argument
against hymen repair surgery is that it helps uphold cultural norms that
subordinate women. Yet this is precisely what remains to be seen, since it
is unclear what the consequences of hymen repair will be in the long run.
Hence, while the principled argument about women’s subordination thus
disappears, refusing to make hymen repair available to girls would
infringe on their right of autonomy and go against their interests. Consequently, hymen repair should be made available to them. The procedure
could include an individual interview where alternative ways to solve
the problem are discussed, as is already common practice in some
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The European Journal of Women’s Studies 10(1)
institutions. This would recognize the girls as moral agents who can
choose and allow the doctors to make it clear that their decision to operate
should not be viewed as consent to the virginity rule.
Surgical Reconstruction of the Hymen: At Whose Costs?
Let us now turn to the question of the public funding of the operations. To
answer this question, it is relevant to examine the principles underlying
the Dutch health care system. As Kathy Davis explains, that system is a
welfare model of medicine that operates on a discourse of needs (Davis,
1995).16 It is typical of welfare models of medicine that they are always
confronted with a dilemma: a patient has a right to any form of health care
he or she needs, but there is the need to limit government expenditure on
health care. There is usually unanimous agreement that unnecessary
services should not be included in the basic health care package (Davis,
1995: 32). Yet until some years ago cosmetic surgery, usually considered a
luxury, was covered by National Health Insurance. The medical
professionals’ justification of the public funding was that cosmetic
surgery was not for purposes of vanity; it relieved psychosocial suffering.
It was therefore consonant with the principle of beneficence. Later the
rules were tightened in an effort to cut costs, but a controversy arose about
whether tattoo removal should be covered by National Health Insurance.
Initially, it was agreed that tattoo removal should not be covered. Since
the patient had presumably been tattooed voluntarily, it was argued, it
was only reasonable to take it off the same way. Then numerous Moroccan
immigrant women began coming in to have their tattoos removed.
Medical professionals now doubted the voluntariness of these tattoos,
and saw them as a symbol of cultural constraint. As Davis writes, they
saw them as ‘detrimental to immigrant women’s integration into Dutch
society and, by implication, their well-being’ and decided that an exception should be made (Davis, 1995: 36). This case illustrates how the
‘psychosocial suffering’ category is sometimes interpreted within a
cultural context.17 This opens the door for a justification of public funding
of hymen reconstruction, whose central aim, after all, is to prevent suffering. I find it difficult to assess whether this is sufficient justification. I am
inclined to say it is not, if this means including it in the basic health care
package. Numerous other sources of psychosocial and physical suffering
are not covered by National Health Insurance. It would be hard to make
it plausible that the suffering related to a broken hymen is greater than
other suffering. Hymen repair could be included in the extensive health
care package, just as the Amsterdam branch of the National Health Insurance (ZAO) has included male circumcision as a measure of multiculturalization in the extensive package. The issue is, of course, that in the
immigrant cultures this problem is not supposed to exist. Hence, hymen
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21
repair should be paid for by the patient herself or, if that is unfair to girls
who do not have the money, by an emergency fund.
In the first instance, hymen repair seems to be an accommodation to a
cultural rule that flaunts the feminist values of sexual equality and
women’s right to self-determination. It is a clear case where feminism and
multiculturalism collide. Yet, arguably the operation can either help
uphold or undermine the virginity rule, thus refuting the principled
argument about gender injustice. I argue that the feminist concern for the
autonomy of women means respecting other women’s choices, even if we
do not agree with them. This in turn means that making hymen repair
available is a deed of multiculturalism and good feminism.
CONCLUSION
By examining these two cases, I hope to have demonstrated that feminism
and multiculturalism can coexist. In the Netherlands, conflicts over
wearing a headscarf are usually not framed as cases where sexual equality
is at stake, but as cases involving freedom of religion vs employers’ interests or, as in the Haarlem case, conflict with educational neutrality. If
women in the Netherlands demand the right to wear a headscarf, this
entails an individual and voluntary chosen religious obligation. Even if
the headscarf is viewed as a symbol of gender inequality within Islam, as
is sometimes the case, the conflict would still be about sexual equality vs
women’s autonomy and freedom of religion, or the question would be
whether autonomy requires us to respect women’s right to choose a way
of life that does not value sexual equality. In either case, feminism and
multiculturalism would not be opposed since the conflict is largely
between the various values that feminists endorse.
Making hymen repair available means meeting with culturally
informed requests that have to do with a cultural norm that infringes
upon the rights of women. Hymen repair, however, cannot simply be
viewed as an accommodation of the virginity rule. This is because in the
long run the consequences of the surgery on the upholding or undermining of these norms are rather ambiguous. It is equally unclear what
feminism would require us to do. This being the case, I argue that
hymen repair should be made available, since withholding it would
infringe upon women’s autonomy and go against their interests. As I
argue, there is good reason to consider the girls, although young and
pressured, as morally competent actors who do have a choice and are
able to state their preferences. Making hymen repair available is a policy
measure that is culturally sensitive in that it acknowledges culturally
informed suffering. Yet, this act of multiculturalism cannot be equated
with uncritically acceding to sexist cultural norms. Hence, this case
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The European Journal of Women’s Studies 10(1)
illustrates that good feminism may sometimes even require acts of
multiculturalism.
My other main point is that context matters. The liberal model of moral
arguing reasons from fundamental principles to particular cases. While
this may be understandable, given the philosophical ambition to formulate generally valid foundational propositions (it is obvious that our
judgements should be governed by principles of justice), this model also
has its limitations. One problem is that if we seek to address real, existing
problems, liberal principles are – as generic principles – too indeterminate
to reach a judgement in specific cases (see Parekh, 1997: 36). Moreover,
Melissa Williams notes that if we look at particular cases, justice arguments provide strong foundations for tolerating and accommodating
cultural minorities, but they also provide strong reasons for limiting tolerance and liberal principles often pull against each other (Williams, 2000).
‘Equality’, as is clear from the Haarlem headscarf case, can be an
argument either for or against wearing a headscarf in public. If we accept
that moral values can take on different meanings in different contexts, it
follows that abstracted from context, we cannot make judgements
whether acceding to minority wishes is consonant with feminist concerns.
In short, the claim that multiculturalism and feminism are antagonists
wrongly assumes the meaning of principles to be pre-given; it is not
tenable because it is too general.
What is distinctive about the Dutch context in the cases I discuss? The
Dutch Commission on Equal Treatment ruled that in the Netherlands a
state school teacher wearing a headscarf is compatible with educational
neutrality. I argue that this ruling should be understood within the
context of pillarization. Pillarization is a system whereby public neutrality is interpreted as evenhandedness between different religions and
philosophies of life and does not demand a strictly secular public sphere.
Second, the Commission’s ruling implicitly acknowledges that the pillarized system should no longer lock people up in their pillars. In the
Netherlands the public space is open to everyone, including their
religious identities.
In the case of hymen reconstruction the national context is less clearly
decisive; arguably in countries where there is general agreement that
premarital sex is out of the question for girls, the moral problem would
be a different one. The institutional context plays a role in medical
professionals’ hesitation to operate. Since they doubt whether operating
is consonant with the leading principles of medical ethics like the
autonomy and beneficence principle. The Dutch health care system is a
distinctive feature of the context in that it is a system that operates on a
discourse of needs. Although these needs have occasionally been read as
culturally informed needs, an operative principle of this system is that
only necessary services should be covered. I argue that hymen repair
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Saharso: Culture, Tolerance and Gender
23
should be made available, but in the context of the need to limit government expenditure on health care, it should not necessarily be publicly
funded.
As a kind of a personal coda, I would like to reveal how these debates
challenged my idea of what it means to be a feminist scholar. When I
began I was quite convinced that no matter how contextualized it might
be, feminism constitutes a certain moral position. There may be different
limits in different contexts, but surely there are also limits to what a
feminist can accept. Now I am no longer so sure. The lesson of a contextual analysis is that as moral principles do not unequivocally tell us what
to do, neither can feminism be an a priori position that tells us what is
required as a matter of justice. Once again, in each individual case
reaching a coherent feminist position requires hard work. So yes, we need
moral arguments, now as much as ever, but we can do without fixed
moral positions.
ACKNOWLEDGEMENT
This study was carried out within the framework of the Incentive Programme for
Ethics and Policies, which is supported by the Netherlands Organization for
Scientific Research (NWO). I would like to thank Kathy Davis, Bert Musschenga,
Melissa Williams and Odile Verhaar, my colleague in this project, for their helpful
comments.
NOTES
1.
2.
3.
4.
The distinction between ‘religion’ and ‘culture’ is often a contentious issue.
Some may defend a practice as religiously prescribed, while others contest
this. This can and sometimes is relevant for our judgement on tolerance,
since based on the principle of religious freedom, religious practices are
usually more safeguarded than ‘merely’ cultural practices. I examine how a
practice was classified in a particular context and what consequences this
had for the actors’ judgement on tolerance.
There are different styles of veiling in the Islamic world. The prevalent style
among Dutch Muslim women is the hijab or headscarf that covers the head
but leaves the face uncovered. The public discussion in the Netherlands is
hence about wearing headscarves.
As regards the hijab as something that is prescribed, in addition to the
general admonitions to dress modestly, there is Sura 33: 59 of the Koran,
which the obligation to wear a headscarf is said to be based on: ‘O thy
prophet, tell your wives and your daughters and women of the believers that
they let down upon them their overgarment; this will be more proper, that
they will be known, and thus they will not be given trouble’ (my translation
into English of the Dutch Koran translation by J.H. Kramers [1997]).
My reconstruction is based on judgement 99-18 of the Commission on Equal
Treatment and press cuttings (De Volkskrant, 12 February 1999, 4 March 1999;
NRC Handelsblad, 1 May 1999, 5 June 1999, 19 June 1999).
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24
5.
6.
7.
8.
9.
10.
11.
The European Journal of Women’s Studies 10(1)
I have struggled with the terminology. In the view of some it is not very
liberal to try to forbid wearing a headscarf, nor should the distinction imply,
as it inevitably does, that liberal believers are less devoted or more lenient
believers, but as I have not come up with a more satisfactory term, I kept to
the distinction between liberal and orthodox.
In this sense the case also differs from the classical American conflicts over
religion and state education, since in those cases (Wisconsin v. Yoder and
Mozert v. Hawkins) Old Order Amish parents claimed a right to exempt their
children from schooling after eighth grade or, in the Mozert case, fundamentalist Christian parents claimed a right to exempt their children from the
school’s basic reading curriculum because they feared the liberal citizenship
values taught at school would lead their children astray. (See Becker and
Kymlicka, Ethics 105 (1995); in this special issue on education, several
contributors discuss these cases.)
At the time there was great consternation in Turkey when Merve Kavakci, a
member of the Islamic Party of the Virtue, refused to take off her headscarf
to be sworn into parliament and the ceremony was stopped. I want to add
that although I agree that in the eyes of the Dutch Turkey does follow a very
strict policy of secularism, I do not explain away, as the Rotterdam schools
do, the Dutch Turkish parents’ convictions concerning secularity as mere
ideological indoctrination, that need not be viewed as sincere convictions.
Of course, one might wonder whether the outcome would be different if the
Commission had considered these arguments. Actually, had the
Commission done so, I do not think these arguments would have been
strong enough for the school to win its case. If the school wanted to protect
girls from liberal homes from community pressure to wear a headscarf, there
are other ways to do so besides banning headscarves. Teachers could for
example explain to the children that wearing a headscarf is a matter of individual choice. The teasing suggests a hostile environment that might be, but
is not necessarily informed by anti-Islamic sentiments. The proper answer is
clearly not to ban headscarves from the school, but to deal with the teasing.
Then there was the freer behaviour of the girls when they were not wearing
a headscarf. Our sources give no information on this point, but it is conceivable that even in the absence of a hostile environment, the girls’ behaviour
was more timid because the headscarf worked as a reminder that as Islamic
girls, decent behaviour (at least in their parents’ eyes) is expected from them.
Again, this is not a very convincing argument against wearing a headscarf
in school, as the self-assertive behaviour of the trainee is the best example
that wearing a headscarf need not be an impediment for participation in the
public space.
Personally I regret this. See Melissa Williams’s excellent case for taking the
claims of peace more seriously as ethical concerns (Williams, 2000).
Note, however, that in France, contrary to public expectations, the Council
of State, France’s highest administrative court, ruled that signs of religious
membership are in themselves not incompatible with the principle of secularism (see Bloul, 1997; Wayland, 1997). Hence, the Council of State ruled
that headscarves were permissible in schools, albeit that wearing headscarves was subject to a long list of conditions, e.g. wearing headscarves may
not constitute acts of pressure, provocation, proselytizing or propaganda
(see Wayland, 1997: 553).
This changed, however, after the terrorist attacks on 11 September 2001 in New
York and Washington. In the following weeks, women wearing a headscarf
were harassed in public and there was a sharp rise in anti-Islamic incidents.
(information from RADAR, 10 June 2002).
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Saharso: Culture, Tolerance and Gender
12.
13.
14.
15.
16.
17.
25
I do not agree, however, with the Commission’s suggestion that the school
should have examined whether the trainee had the open attitude required
of a teacher at a state school. As the Commission said itself, there was no
indication that she did not have this attitude. An examination would have
meant invading her privacy and it would have put an extra burden on her
that is not put on people of other religions and would only be justified if
there was concrete evidence of her malfunctioning. I owe this argument to
Melissa Williams (in a personal communication).
This is often explained by referring to their Islamic background. While it is
empirically the case that it is girls from Muslim backgrounds who ask for a
hymen reconstruction, the virginity rule is not exclusively a Muslim rule.
There are all across the globe many groups that have the same norm.
From a certain age there are usually strict limitations on the girls’ freedom of
movement in an effort to preserve their virginity, and any behaviour that may
damage the girls’ reputation is heavily penalized (see Brouwer, 1992). It is an
established fact that Moroccan girls are heavily overrepresented in Dutch
youth prostitution (Nabibaks, 1998). While honour killings are exceptional,
they do occasionally occur. One fatal incident occurred on 15 November 1998,
when a Dutch Moroccan father stabbed his 13-year-old daughter to death
after he saw her kissing a boy (NRC Handelsblad, 5 August 1999).
Consider the further complication Melissa Williams pointed out to me: ‘If it
turned out, empirically, to be the case that hymen reconstruction did not
have this subversive effect, would this be a reason against providing it? And
if the hypothesis is correct, is this a reason to provide the surgery? Should
the liberal state be in the business of supporting policies that subvert illiberal
cultural norms because they have this effect? Or is such subversion permissible only when it is an unintended consequence of otherwise-legitimate state
policies?’ (Williams, pers. comm., 9 April 2000).
She contrasts this with the American system that is a market model of
medicine where controversies on medical services tend to centre around the
quality of the services (see Davis, 1995: 29–32).
To be fair to Davis, I should add that she considers this cultural reading an
example of ethnocentrism (Davis, 1995: 37).
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Sawitri Saharso works as a lecturer at the Department of Sociology at the Free University
in Amsterdam. Her research interest is in the area of multiculturalism and
feminism. She has published on the following topics: Islamic headscarves, sex
selective abortion, surgical hymen reconstruction and honour killing. Address:
Department of Sociology, Faculty of Social Cultural Sciences, Free University
Amsterdam, De Boelelaan 1081c, 1081 HV Amsterdam, The Netherlands.
[email:
[email protected]]
◆
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