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irreversible procedure, or may be traumatised by the procedure itself. However,
if consent is given, and if it is informed, then the state ought not to legislate to
protect people from these forms of harm (by analogy, the state ought not to
prohibit sex change operations, or tattooing, on the grounds that a person may
later come to regret her gender reassignment, or all-over body tattoo). Of
course, giving an account of what constitutes consent, when it is informed, and
devising workable tests for when it has been given, is fiendishly difficult. But
this difficulty permeates all aspects of law in which the notion of consent figures
and does not recommend abandoning consent as a normatively significant cate-
gory relevant to establishing the presence of political harm at the level of
principle. Now it may be that in fact most women (perhaps all women) who
have undergone FGM would not pass the test of volenti non fit injuria (however
conceived and applied), in which case the regulation of FGM would manifest as
a prohibition on the ground . But the fact that consensual FGM lies within the
limits of reasonable pluralism means that blanket prohibition is an intolerant
approach at the level of principle.44
Of course, there are differences between consensual FGM and the Spanner
case. First, the men in the Spanner case were driven by sexual desire, whereas
the aim of FGM is certainly not the enhancement of women s sexual pleasure.
However, at a more general level, both sorts of activity are related to the defini-
tion of sexual identity (albeit in different directions), and so it is not clear how
far this difference will take us in justifying different reactions to the cases.45
Second, FGM is a traditional practice whereas SM sex is not. This fact could
112 TOLERATION
affect our thinking about consensual FGM in two ways. First, we might take
more seriously the claim that, for some women, FGM is integral to their
membership of a community of meaning, and search for medical procedures to
lessen health risks and accommodate the practice (for adult, consenting
women) within the bounds of liberal toleration.46 Or second, reflection on the
patriarchal power structures of traditional communities in which FGM is prac-
tised should raise suspicions about the claim that the consent of women who
undergo FGM is sufficient to place its practice within the limits of toleration:
the pervasive inequalities suffered by most women who agree to FGM proce-
dures should raise the question of whether their agreement is evidence of
genuine consent, or rather of submission.47 However, to raise suspicions is not
to have them confirmed: as Simmons notes, sufficiently unorthodox tastes
[such as for FGM, or genital mutilation] should not be taken lightly as a sign of
insanity , or as necessarily involving coercion or unfair bargaining .48
In order to move forward on the question of whether to tolerate consensual
FGM in immigrant groups, liberals need to beware of making the limits of their
own cultural experience the limits of the thinkable: it will not do to prohibit
consensual FGM on the grounds that no woman could, or ever does, possibly
consent to such a procedure.49 At the same time, liberals should demand a proper
account of the significance of the practice to women who wish to practice it (as
indeed they should of those who wish to engage in SM sex practices and other
forms of bodily mutilation) to place in the context of a more general, philosoph-
ical account of the importance of membership of communities of meaning to the
individual good. And, to have currency in a liberal account of toleration informed
by rights that realises equal concern and respect, this account must do more than
articulate attitudes of fearful submission on the part of women. Testimony from
immigrant women who have undergone FGM does not tend to support a view of
the practice as a free expression and confirmation of cultural identity, but the
reasonableness defence does not contain the resources to rule out this possibility
and place every case of consensual FGM outside the limits of toleration. This may
strike many as a high price to pay for toleration. But the alternative in which
blanket prohibitions are applied at the level of principle on the grounds that no
woman can alienate her rights to physical integrity, or could ever consent to
FGM imposes a burden of proof on its advocates to defend their claim to a priori
knowledge of the limits of consent for all women which, I submit, is too heavy a
burden,50 and is anyway a morally unacceptable strategy given a commitment to
political justification within the limits of reasonable pluralism.
L affaire du foulard
On 10 February 2004 French MPs voted by 494 to 36 to ban the Islamic head-
scarf (the hijab), and other ostensible religious symbols (for example, Jewish
skullcaps, large Christian crosses, and Sikh turbans) from state schools. The bill
was supported by 70 per cent of French people. Prior to the vote President
Jacques Chirac voiced his support for it, stating that
CULTURE AND CITIZENSHIP 113
It cannot be tolerated that under cover of religious freedom, the laws and
principles of the republic are challenged. Secularism is one of the great
achievements of the republic. It is a crucial element of social peace and
national cohesion. We cannot allow it to be weakened. We have to work to
consolidate it.51
There are an estimated 10 million Muslims living in France, and many of them
disagreed with Chirac.52 On 17 January 2004 tens of thousands of Muslims
(mostly women) rallied in Paris and other French cities to protest against the
proposed bill, claiming discrimination and intolerance on the part of the state.
The secretary-general of the Union des Organisations Islamiques de France
stated that Chirac s version of the secularist state . . . excludes religions and
limits freedoms . . . the law is unfair ; and a spokesman for Collectif des
Musulmans de France stated that the law created a climate more hostile
towards us than it has ever been in France before .53
The hijab is a head covering worn by Muslim women as a symbol of, and in
order to protect, their modesty. Although not all Muslim women wear the hijab,
it is an important religious practice mentioned in the Qur an.54 The roots of the
recent French controversy over the hijab are in a chain of events which began in
October 1989 in a state school in Creil, when three Muslim girls took to wearing
the hijab to school.55 The principal reacted by requiring that the girls drop their
scarves to their shoulders during classes, but permitted them to wear the hijab on
school grounds outside of class periods. The principal s justification for this
prohibition was that permitting the girls to wear the hijab during class would
open the floodgates to the demands of other children at the school (in a cultur-
ally mixed area) that exemptions from school requirements (on attendance,
dress, etc.) be made for them on religious grounds. One of the girls refused to
obey the prohibition and was excluded from the school; and Muslim girls across
France wore the hijab to school in protest. In response, the national Minister of
Education, Lionel Jospin, decreed that no girls should be excluded from school
for wearing the hijab, and was consequently attacked by intellectuals on both the
left and the right. His instruction was replaced in 1994 in a directive to all prin-
cipals of public schools issued by a subsequent Minister of Education, François
Bayrou, stating that conspicuous and provocative religious symbols should be
prohibited in the classroom, and the controversy flared up again. President
Jacques Chirac set up the Stasi commission to enquire into the question of secu-
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