Mobilising EU Law Against Islamophobia: Muslim Female Workers’ Anti-Discrimination Framing and Litigation Strategies

Decades ago, social science research demonstrated the pervasiveness of racialization processes targeting certain religious groups. From Said's critique of 'orientalism' to Balibar's notion of 'neo-racism', culture played a crucial role in explaining how 'othering' processes operate, construct differences and justify exclusion. Like 'the Jews', 'the Muslims' are subjected to such homogenizing external racial ascriptions, which are a fundamental dimension of a phenomenon now widely called 'Islamophobia'. One religious and cultural symbol in particular attracted renewed political, but also legal, attention over the past years. Targeting the hijab has in fact served as a profiling technique, one way to pin down 'the Muslim archetype'. In these politics of symbol-hunting, women's bodies have become – as often – a place of projection for societal contestations. Gender performance and gender politics therefore cannot be ignored in our legal dealings with this particular configuration of Islamophobia. Despite the intersectional nature of Islamophobia — a gendered and racialized form of discrimination — litigants, their lawyers and the Court of Justice of the EU chose religious discrimination as a legal frame, as the recent cases Achbita and Bougnaoui (2017) testify. This paper explores the frame dispute arising between the litigants' strategic reliance on religious discrimination claims, a minority rights-based approach, and the prevailing academic understanding of Islamophobia as an intersectional form of discrimination.