Abstract

Excerpted From: Khaled A. Beydoun and Nura A. Sediqe, Unveiling: The Law of Gendered Islamophobia, 111 California Law Review 465 (April, 2023) (256 Footnotes) (Full Document)

Villains and victims, terrorists and the terrorized are strategic tropes ascribed to Muslims bodies exclusively along gendered lines. These tropes define Western public discourse surrounding Muslims' lives and form the foundation of a narrative used to justify the War on Terror--a narrative which imposed distinct indictments upon the heads of Muslim women and men. More than twenty years after the beginning of this War, this Article interrogates the gendered anatomy intrinsic to Islamophobia and its attendant discourses. Drawing on critical and feminist theory, this Article then contributes a theory of gendered Islamophobia rooted in law missing from legal scholarship.

Much legal scholarship has examined Muslim women's experiences over the past two decades within “intersectional” theoretical frameworks. Scholars have used intersectional lenses to analyze foreign policy, counterterrorism, employment discrimination, and other matters of law to bring the experiences of Muslim women into existence. While intersectional approaches generally focus on the convergent spaces of two or more subordinate identities, this Article directly interrogates the gendered dialectic built into standing Islamophobia discourses. This dialectic has been obscured by scholarly fixations on terrorism and resulting theoretical frameworks that distort and erase the genuine experiences of Muslim women.

In response, this Article introduces “gendered Islamophobia” and its attendant concepts into the legal literature. It develops the framework as an analytical tool to examine how potent normative judgments, which spur high stakes legal consequences, are produced squarely from within a cogent discourse objectifying the Muslim female and male bodies. Across law, politics, and academia, this discourse selectively orients the Muslim female and male body along shifting and oppositional situational interests. The discourse is most saliently characterized by a “masculine Islamophobia” which casts Muslim men as the protagonists of terrorism, and a “feminine Islamophobia” which frames Muslim women as their obedient accessories, submissive underlings, and most consequentially, their immediate victims.

By centering Muslim women in the analytical framework, this Article disrupts the male-centric presumptions drawn from foundational Islamophobia theory. It looks within the discursive contours of Islamophobia itself, then unveils the relational dialectic that fluidly produces and reproduces how societal and state actors:

(1) Position Muslim masculinity as oppositional and antagonistic to Muslim womanhood;

(2) Ascribe unique political meaning to Muslim male and female bodies, and normative value to identity markers associated with their respective gender expression; and

(3) Enforce law distinctly across gender lines, particularly within the areas of religious exercise, counterterror policing, and immigration--legal realms where Islamophobia is pervasive and pronounced.

A gendered Islamophobia theory unveils the layered and distinct experiences of Muslim women confronting societal and state-sponsored Islamophobia. Further, to reveal how feminine Islamophobia is shaped by the deeply heterogeneous identities of Muslim women, this Article presents original empirical data derived from a 1,300-subject survey and case analysis that adds flesh to our theory. After all, our gendered Islamophobia theory is rooted in law, and analysis of high stakes cases illustrates the courts' production and reproduction of it.

In Algeria Unveiled, Franz Fanon offered the trenchant yet sobering observation that “it is ... the plans of the occupier that determine the centres of resistance around which a people's will to survive becomes organized.” These predetermined “centres of resistance” are both physical and intellectual, illustrated by the first and subsequent waves of Islamophobia theory that centered Muslim men as the presumptive victims of state and societal violence. This Article builds on formative postcolonial theory, feminist theory, and contemporary Critical Race Theory, and by reclaiming Unveiling in our very title, it confronts the imperial literatures that have caricatured the hijab as oppressive and the women who don it as victims of Muslim men. By positioning Muslim women at the center of this new language of resistance, Unveiling contests Islamophobia at the very imperial roots that gave rise to bygone conquests and modern culture wars.

This Article will proceed in three parts. Part I surveys standing theories of Islamophobia within and beyond the legal literature. It then proceeds to outline “gendered Islamophobia,” a novel theoretical framework that centers Muslim women within legal literature. Part II presents empirical data focusing on the public imagining of Muslim manhood and womanhood. It contributes original data sets that measure the gendered dimensions of private Islamophobia and distill how Muslim female and male identity are publicly imagined and understood. Part III turns its attention to the law. It examines how legislation and court decisions distinctly impact Muslim women in three areas of critical Muslim concern: hijab bans and policing of religious freedom, terrorism prosecution, and immigration and asylum adjudication.

[. . .]

Western constructions of Muslim womanhood pervade imperial histories and modern narratives. Feminists including Lorde, Saadawi, and the milieu of Muslim female scholars cited throughout this Article have spilled ink and blood struggling to claim self-definition and wrestle self-determination away from a War on Terror that denies them both. By contributing a theory of Islamophobia that centers Muslim women, this Article ushers this struggle into the legal literature.

Unveiling a gendered Islamophobia theory, and the original empirics and legal analyses that manifest it, is only the first front of a longer struggle. This Article aims to inspire a new reckoning of Islamophobia, and specifically, to spur analyses that delve into the complexity of gender and womanhood. While the corpus of standing literature fixates on terrorism and the privileging of masculinity that accompanies it, the experiences of Muslim women have been rendered marginal at best, and too often, “eaten alive.”

Reimagining the effects of Islamophobia on Muslim women highlights the law's production of gendered Islamophobia. During a War on Terror impasse when speaking the truth is as dangerous as ever, Muslim women continue to fight to be “wom[e]n who [don't have to] apologize for being a Muslim and [don't have to] apologize for being a woman.”

In order to emancipate Muslim women from the imperial fetishes and fantasies that continue to confine them, a gendered Islamophobia theory must not only be unveiled, but boldly applied.

Harvard University, Scholar-in-Residence, Berkman Klein Center for Internet & Society, Initiative for a Representative First Amendment (IfRFA). Associate Professor of Law, Arizona State University Sandra Day O'Connor School of Law.

Michigan State University, Assistant Professor of Political Science and Public Policy; Princeton University, Postdoctoral Fellow, School of Public & International Affairs.