In May 2013, the Council on American-Islamic Relations (CAIR) petitioned the U.S. Department of Justice (DOJ) to establish a uniform policy for all local, state and federal correctional facilities to allow Muslim women to wear hijab head coverings while incarcerated and when photos are taken, such as during the booking process.
According to an interview with Al Arabiya, a Saudi-owned news outlet, Nadhira Al-Khalili, CAIR’s legal counsel, said, “I’m working on several pending cases in different states and I’m in touch with an attorney for the [DOJ’s] Office of Civil Rights.”
The executive director of CAIR’s Michigan chapter, Dawud Walid, said the city of Novi, Michigan had adopted a policy to allow Muslim women to keep their hijab while in jail. “If hijab is allowed in the military, and U.S. driving licenses permit women IDs with hijab, then the same logic can be applied,” he noted. “Hijab doesn’t impede the identity of women.”
The federal Bureau of Prisons allows Muslim women prisoners to retain and wear hijab headscarves pursuant to BOP Program Statement 5360.09. While some federal facilities require prisoners to remove their hijab for inspection upon arrival at the prison and after visits and outside trips, they are otherwise permitted to wear hijabs. State Departments of Corrections have varying protocols regarding religious head coverings.
Whether a national policy could be implemented is unclear, but Al-Khalili remains optimistic. While noting that “[t]he courts generally don’t want to intervene in the professional judgment of a sheriff,” he said some courts have ruled in favor of Muslim women with respect to wearing hijabs.
One case involving a prisoner’s right to wear a hijab was heard by the en banc Ninth Circuit Court of Appeals, which reversed a panel decision holding that Orange County, California deputies hadn’t violated a Muslim woman’s right to wear a hijab. See: Khatib v. County of Orange, 639 F.3d 898 (9th Cir. 2011) (en banc), cert. denied.
Souhair Khatib had been detained in a courthouse cell on a probation matter in June 2006 when a male booking officer ordered her to hand over her hijab. Having her head uncovered in public, especially in front of men, was “a serious breach of [her] faith, a deeply humiliating and defiling experience.”
She sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), claiming a substantial burden of her right to practice her religion. The Court of Appeals initially ruled against her, finding that a courthouse holding cell is not an “institution” as defined by RLUIPA. However, an en banc decision sent the case back to the district court for review on the merits, to determine whether Khatib’s right to wear a hijab was protected under RLUIPA.
The case settled after remand in February 2013, with Orange County agreeing to prohibit sheriff’s deputies from ordering prisoners to remove religious attire in ways that violate their beliefs; the settlement applies not only to Muslims but to those of other faiths, such as Sikhs (who wear turbans) and Jews (who wear yarmulkes). The county also agreed to train sheriff’s deputies on the new policy and to pay $85,000 in damages, fees and costs.
“I praise Allah and thank Him that I live in a country where I can practice my religion freely,” Khatib stated. “While not everyone understands Islam or what it requires of me, I’m grateful that the U.S. government protects my right to fulfill my duty to Allah, whether at work, on a public street or, yes, even in a sheriff’s holding facility.”
In March 2013, CAIR announced that it applauded a decision by the Alvin S. Glenn Detention Center in Richland County, South Carolina to change its policy to allow Muslim women to wear hijabs. CAIR had contacted the jail after a Muslim prisoner claimed she was intimidated into removing her hijab when a booking photo was taken.
“As requested, we have reviewed and updated our policies to ensure clarity with our staff on the processing and searching of female detainees of the Muslim faith, and specifically have exempted the wearing of religious headwear from our facility’s ‘Prohibited Acts’ policy,” stated Ronaldo D. Myers, the jail’s director.
Similarly, as of January 2013, prisoners at the King County jail in Washington state are permitted to wear generic hijabs and other religious head coverings that are provided by the sheriff’s department. The head coverings can be inspected for security purposes, but only by a guard of the same gender as the prisoner.
Sources: www.correctionsone.com, http://dailycaller.com, www.washingtontimes.com, www.aclusocal.org, www.wistv.com, KPLU
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