September 14, 2015 — On Tuesday September 15, 2015, at 9:30am in Ottawa, the Federal Court of Appeal will hear the appeal in Canada (Minister of Citizenship and Immigration) v. Ishaq. The Women’s Legal Education and Action Fund (LEAF) and the Canadian Association of Muslim Women in Law (CAMWL) will keenly observe the hearing.
Zunera Ishaq has fulfilled all requirements to become a Canadian citizen (including security and identity checks), except the final step of swearing the citizenship oath. She is a Muslim woman who wears niqab, and as such is prevented by a recent Citizenship and Immigration Canada (CIC) policy from swearing the oath. The 2011 policy requires citizenship candidates to remove facial coverings during the oath-taking portion of the ceremony before they can receive their certificates of citizenship. Ishaq successfully challenged the CIC policy in Federal Court this February. The government appealed that decision.
CIC’s prohibition of the niqab effectively shuts out niqab-wearing women from Canadian democratic processes, contrary to constitutional principles of equality, democracy, protection of minorities and respect for the rule of law. According to CAMWL Steering Committee member Fathima Cader, “The policy marks a regression in the struggle for suffrage in Canada. That fight was both gendered and racialized, with women attaining full suffrage only in 1960, when Indigenous people were finally afforded the right to vote. Without the right to vote or seek public office, women are excluded from participating in Canada’s electoral democracy.”
“This case is not just about a small number of Muslim women who wear niqab. State control of women’s clothing disadvantages all women. CIC’s policy excludes women from citizenship and democratic institutions, simply because of what they wear,” notes LEAF Legal Director Kim Stanton.
This policy reflects legal and social histories of interpreting women’s clothing as indicators of trustworthiness and character. For example, the victim-worthiness and credibility of a woman who reports a sexual assault will often be evaluated based on her dress and demeanour. Similarly, the CIC policy assumes that niqab-wearing women are more likely than other citizenship candidates to defraud the oath.
Women should not be forced to choose between their religious principles and gaining citizenship. The CIC policy will only increase barriers and vulnerabilities already faced by women who have precarious immigration status. Women who lack the protections of citizenship are more vulnerable to poverty and intimate-partner violence (especially if sponsored by a spouse), and may face special challenges in accessing services or employment. Denying citizenship to an immigrant woman who has successfully surmounted the citizenship process aggravates these conditions and heightens inequality.
While LEAF and CAMWL were very disappointed in the decision to deny leave to intervene in the appeal to all proposed civil society intervenors, including LEAF, we remain actively engaged in the issues raised by this appeal. (Look here for more information on LEAF’s proposed intervention.) We are heartened by the Government of Ontario’s intervention that echoes LEAF’s intended argument that the CIC policy violates the equality rights of niqab-wearing women.
We trust that the Federal Court of Appeal will undertake a contextual and nuanced analysis of the citizenship oath restriction for niqab-wearing women in Ishaq. Such an analysis would address the specific racialized and gendered impacts of discriminatory laws and policies. In particular, this case calls for a careful consideration of the policy’s effects on individuals like Muslim women, whom this policy places at the crux of an impossible contradiction: seen as both aggressor (for insisting on wearing the veil in the face of state suppression) and victim (of Muslim men), this policy’s result is to ensure certain women arbitrarily remain without citizenship in a country that prides itself on its commitments to equality and democracy.
For more information on CAMWL’s intersectional work advancing the rights and interests of marginalised communities in Canada, including Muslim women, click here.
Kim Stanton, LEAF Legal Director
Tel: 416.595.7170 x 223; E-mail: firstname.lastname@example.org
Fathima Cader, CAMWL Steering Committee Member
Tel: 647.606.3470; E-mail: email@example.com