Nkosikhulule Nyembezi

The right of Muslim women to wear headscarves and of men to keep moustaches and beards in workplaces has, once again, come under greater scrutiny.

This time, following a new dress policy issued by the Department of Health director-general, Dr Sandile Buthelezi, prohibiting nurses from wearing headscarves while on duty.

It is a right that many people have long been contesting, the government departments and institutions whose policies and subcultures the conservatives trump as guarding a strict divide between the state and religion. Until the January 2021 court decision in favour of Major Fatima Isaacs, the SANDF restricted the right of women to wear scarves.

But the rise of populism and polarisation nationwide is fanning the debate elsewhere. As immigration and integration have become increasingly salient political issues governing coalitions in local and provincial governments, which have shared constitutional authority over healthcare services, the health department is pursuing similar restrictions.

Some labour union leaders who aspire to be parliamentarians after the 2024 elections, endorsed the arbitrary ban which will commence in January next year.

In this fraught context, the department says the policy will guide the National Policy on Nurses Uniform implementation plan that was approved by the National Health Council Committee on March 30.

It is as if the government benevolently believes the role of the workplace is to dissolve ethnic or religious identity in a shared commitment to the rights and responsibilities of South African citizenship, as if to say to citizens: “No one should not be able to distinguish or identify the employees’ religion by looking at them.”

The policy also states that moustaches and beards must be neatly trimmed and aligned to mask-fitness-testing prescripts of occupational health; hair needs to be clean and neat and should be tied if longer than shoulder length, while wigs and extensions should be able to fit into a theatre cap.

Fury lingers over the many instances where government departments have violated the religious freedom of Muslims, and organisations representing the Muslim community have protested.

Some nurses, wearing scarves at work, have taken to social media to illustrate their view that the ban is arbitrary, and a fierce debate has erupted over whether the department’s move is an attention-seeking provocation or a necessary defence of the promotion of hygiene practices in public health facilities.

Dr Irshad Moosa, the president of the Islamic Medical Association of SA, says that while they understood the importance of maintaining a professional appearance in health-care settings, they oppose the ban because headscarves held immense cultural and religious significance, serving as symbols of identity, modesty and personal faith.

“Embracing an approach that respects cultural diversity, religious expression and empirical data can lead to regulations that maintain professional standards while upholding the values enshrined in our Constitution.”

In a letter to the department, he noted that the successful legal case of Isaacs versus the SANDF (January 2021) provided a notable precedent that underscored the importance of accommodating religious practices within professional environments.

“This legal victory highlighted the need to recognise the rights of individuals to express their beliefs, even within their roles as public servants,” he wrote.

“Major Isaacs’s case is a guiding example of upholding constitutional rights within government institutions.”

While some have welcomed the policy, human rights and religious groups condemn it as trampling individuals’ religious freedoms.

It would indeed be alarming if its policy on nurses’ uniforms paved the way for employers to adopt general rules about dress that, while in theory, apply equally to everyone, but in practice, arbitrarily exclude employees of particular faiths.

It is too soon to know whether that will be the effect on the school governing bodies nationwide grappling with pressure to halt kicking out learners who wear (iintsimbi) traditional beads associated with intswaso (a journey to become a traditional healer). The Traditional Healers Organisation is appealing for an accommodative school code of conduct, allowing for the wearing of beads and dreadlocks with the prescribed school uniform.

Just as significant is what the nurses’ uniform policy has left open to the interpretation of health-care facilities, as a general workplace ban on religious or political symbols such as the headscarves and beards may constitute indirect discrimination if it puts people of particular faiths at a disadvantage.

It is up to individual health-care facilities to determine whether such bans are a proportional way for employers to pursue legitimate aims, taking into account factors such as the conspicuousness of the religious symbol, the nature of the employee’s job and the national identity of the location of the facility concerned.

The policy will be contested on interpretation because some prohibitions might not interfere with nurses’ work, but others might risk patient health and safety.

Who qualifies to judge how to balance an individual’s freedom of religious expression against its impact on others and the right of the state to demand assimilation with the cultural norms of the majority?

There are common sense rules of thumb: it would be grossly unjust for a hospital to dismiss a nurse for wearing a headscarf that does not materially affect their ability to do their job.

On the other hand, a ban would seem reasonable where there is proof that religious dress impacts on hygiene in health-care workplace settings.

But it is in the grey areas that this balancing act becomes fiendishly complex.

The policy makes clear much is left to individual health-care facilities, allowing shared values to be applied differently in diverse cultural and geographic contexts.

However, it may lead to some hospitals and clinics legally adopting approaches others may find difficult to accept. The political ramifications of the policy will unfold over time. For now, it appears clear that in a restive South African society, the policy will mostly be more polarising than unifying, the declared aim of the nurses’ uniform policy.

Nyembezi is a policy analyst, researcher and human rights activist

Cape Times