Who is That Masked Woman? Masking and Unmasking in Public Places
From On The Identity Trail, January 2007. See also Fraudulent Identification and Biography

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By Gary T. Marx

In the Netherlands the government has proposed a public ban on covering the face with clothing such as the burqa, the Islamic head-to-toe robe. Similar restrictions have been suggested, and in specific contexts are in place, elsewhere in Europe. For Dutch leaders in a government facing re-election, the issue reflects contemporary religious and political conflicts, however miniscule the number of effected women. But the issue goes beyond current events to broader questions involving expectations about public behavior.

In modern societies the law is relatively clear about the rights others have with respect to the image an individual offers in "public." Unlike some traditional societies in which the eyes must be averted or where veils are mandatory, in our culture appropriate looking is permitted (and can even be a sign of respect). In the United States what can be seen in public can also generally be photographically captured.

The presenting individual has rights as well. He or she can appear in ways that others may find offensive or provocative (whether sexually or stylistically). While the fashion police and the reticent may disparage such appearances, the real police have no criminal sanction to enforce. The enlightenment heritage protects the freedom to present the self as one chooses. In appearance (if not in using credit cards) –I am free to be me and maybe even you. This contrasts markedly with societies where dress and body adornment are rigidly controlled and tied to social position.

In our society individuals are permitted and even encouraged to alter and disguise their "natural" appearance. They can wear baggy or padded clothes or those that accentuate muscles and curves. They can dress in age inappropriate ways and wear the cloths of the opposite sex. Cosmetic surgery, liposuction, botox, hair implants, elevator shoes, makeup and tinted contact lens are viewed by many persons as admirable forms of self-expression and self-help.

There are of course limits. The law in principle is clear about what must not be offered in public. The famous "naked man" of Berkeley was arrested many times for what he failed to wear. In many jurisdictions women who breast feed in public places (or even in "private" places accessible to and visible to the "public") may face arrest or exclusion.

The law and our expectations however are less clear and in conflict regarding what must be offered in public. When must the face be revealed?

It is well within the bounds of a pluralistic society to accept covering the face for legitimate purposes in public places, whether for religious reasons, anonymity in political communication, modesty or to hide disfigurement (e.g., the phantom of the opera). The acceptable link between form and function with respect to a mask on the ski slopes, the motorcycle helmet visor, the respirator or a mask for a costume party is clear. Society, or at least literature, might have been worse off if Zorro and the Lone Ranger lost their anonymity.

But what of settings in which a mask is worn for anti-social purposes, has unintended undesirable consequences or its link to religion is disputed? What happens when a valid religious justification conflicts with other important goals?

In the later 19th century a number of states passed anti-masking laws directed against the Klan. Consider as well prohibitions on wearing hooded sweatshirts in shopping malls or entering a bank while masked. The issue is not just that malls like banks are private places and hence freer to set their standards, but that as means of deterrence, accountability and identification there are strong grounds for prohibiting masking. In Denmark a series of bank and post-office robberies were carried out by a woman dubbed the “burka-robber”. Wanted men have sought to escape by wearing a burka. In some jurisdictions there are additional penalties for wearing a mask when carrying a concealed weapon or in the commission of a crime. Police, whether male or female sometimes make use of the burka as a means of surveillance and surprise apprehension.

The modern notion of a public sphere (whether a physical or cyber place) invites all citizens to participate regardless of social attributes. It implies legal rights of access, observation and expression. But it also involves more informal expectations of reciprocity in which individuals encounter each other as equals and are expected to behave within the bounds of civility (whether required legally or simply by manners). One aspect of this is being able to respond to the other by reading facial appearances and expressions.

The masking of the face brings a lack of reciprocity relative to those who present their faces (however adulterated). The masked person can see us, why can’t we see them? One way mirrors are not very appreciated in open societies. Beyond inhibiting interaction, the inability to see an individual’s face may engender fear and discomfort given the symbolism associated with the mask of the hangman and the criminal and the presumption that those who are hiding do indeed have something to hide.

But what is being hidden when a women covers her face and body? And why? In Islam and Judaism covering the head is a sign of humility before God. Yet the burqa in being restricted to women goes far beyond this to issues of gender equality. Clerical supporters of the burqa suggest that it is a way of calming male passions, as well as an expression of modesty. Whether it has this impact (or the reverse given our fascination with what is hidden) is a question for empirical research. But even if it is factually correct, why not be consistent and consider female passions that may be aroused by viewing the unmasked male? In a less sexist and sexualized environment perhaps the need to mask the face would not be felt. Until then, gender equity would suggest the need to mask men as well as women, or neither.

A number of European cases involve prohibiting teachers or students from masking their faces. Courts have ruled that the interaction that occurs in the classroom is inhibited when the face can not be seen. Similarly the broad vision required in driving a car may be impaired and a photo-id on a passport or driver’s license becomes moot.

Rather than legal prohibition, there may be indirect pressure against masking because of the secondary consequences it is presumed to have. For example in Amsterdam and Utrecht there are proposals to deny benefits to unemployed women who wear the burqa because it is seen to make them unemployable. An alternative of course would be anti-discrimination legislation in employment.

Opposition to masking based on its functional consequences is distinct from that based on implications for separating church and state or for the maintenance of order. In France for example the prohibition on head scarves and skull caps in schools reflects secularism and goals of equity and assimilation. In Germany there have been proposals to do an end run around the issue by requiring all students to wear uniforms. In some United States high schools there are prohibitions on clothes reflecting gang colors or those deemed to be too provocative.

Such cases reflect the inherent value conflicts between the individual and the community (or better between various communities) which need to be continually debated. Yet these self-presentation cases are not based on a concern with making the individual’s unique identity public. Indeed with respect to symbols of group affiliation, the situation is reversed –the individual seeks to advertise rather than hide an aspect of identity, while authorities seek to prohibit this.

Given the ubiquity and controversy over public surveillance and the move toward facial recognition technology, masking the face in public might even be seen as heroic resistance to the loss of public anonymity (let alone a way to resist disease). In one sense it is equivalent to using a paper shredder, pseudonyms, encryption and a floppy hat and sun glasses to protect privacy.

The issue may also be temporary as a result of the pace of innovation in the tools of identification. In a few decades it could even be seen as a quaint historical remnant of a backward age when identity was still determined by appearance and cards in the wallet, rather than by involuntary transmissions from implanted chips or distinctive scent.

But until then, it would be as wrong to categorically prohibit masks related to religious beliefs in public as it would be to require them. As with so many of our most contentious social issues the answer to masks should not be “never” or “always” but “it depends”.

What it ought to depend on is the context, motives, consequences and alternatives. In settings where the social costs can be significant or where an important community goal is subverted masking is undesirable. For benign activities such as walking on the street or visiting the library tolerance is required, although it is not cost free.

One would also hope that those who support masking are aware of the impact this may have on others and of the legitimate reasons for opposition to masking motivated not by religious intolerance, but by a different weighing of competing values.

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