Islamophobia, racial discrimination law, and the question of self-identification

ABSTRACT

The racialization of religion, particularly in the context of Islamophobia, challenges understandings of race in discrimination law. Legal authorities from common law jurisdictions, such as Australia and the UK, suggest that for the purpose of discrimination law Muslims are not considered a race. The problem is not only a lingering belief that discrimination against Muslims is only religious and not racial in nature. The legal response to Islamophobia also hints a broader problem with law’s understanding of race. Despite legislative references to race, the term itself remains ill-defined in law, and case law suggests that courts draw on a narrow notion of race that, in effect, requires Muslims to self-identify with their racialization to access racial discrimination protections. This article argues that this self-identification requirement misconceives how groups are constituted as racial groups and that it neglects the role of racial attitudes and beliefs for discriminatory conduct.

KEYWORDS:

• Islamophobia
• discrimination
• law
• race
• religion
• ethnicity

Introduction

The racialization of religion, particularly in the context of Islamophobia, has not only challenged theories of race that still often privilege notions of race based on phenotypical markers, such as skin colour, facial features, and hair textures (Husain 2017; Selod and Embrick David 2013). It also challenges understandings of race in discrimination law. Legal authorities from common law jurisdictions, such as Australia and the UK, suggest that for the purpose of discrimination law, Muslims are not considered a race and therefore cannot access protections under racial discrimination provisions. The problem here is not only the lingering belief that Islam is a religion and that discrimination against Muslim individuals is therefore religious and not racial in nature (Meer 2008). Although this perception remains part of the problem, the legal response to Islamophobia also hints a broader problem with law’s understanding of race. Despite legislative references to race, the term itself remains ill-defined in law, leaving courts searching for an understanding of what it means to be discriminated against because of race, which has proven particular challenging in the context of racialized religion.

Traditionally, common law jurisdiction, such as the UK, New Zealand, and Australia, have defined race in the context of racial discrimination and racial vilification legislation as including colour, descent, or national or ethnic origin, a wording that derives from the International Convention for the Elimination of All Forms of Racial Discrimination (1965). To access racial discrimination provisions, groups often perceived primarily in religious terms, such as Jews, Sikhs, and Muslims, must be groups of ‘ethnic’ or, as in some jurisdictions, ‘ethno-religious’ origin. The statutory construction of ‘ethnic’ has been found to include Jews and Sikhs, who are therefore considered a racial group for the purpose of discrimination law. However, this interpretation has not been extended to Muslim.¹ In this article, I argue that one of the reasons for this statutory impasse is that in interpreting the meaning of ‘ethnic’ and ‘ethno-religious’, courts and tribunals have construed ‘race’ in narrow terms that misconceive the process of racialization as well as the relationship between racialization and racial discrimination. In particular, in construing what counts as racial via the terms ‘ethnic’ and ‘ethno-religious’, anti-discrimination law doctrine produces a notion of race that only acknowledges racial discrimination if a group is perceived by others and perceives of itself as a racial group. This self-identification requirement means that it is not sufficient for a group to be perceived in racial terms by others. One obstacle that Muslims have encountered in accessing racial discrimination is their lack of racial self-identification as members of a distinct ‘Muslim community’ beyond their identification with a community of faith.

This article uses Australia as a case study to consider the evolution of this understanding of race in discrimination law via the terms ‘ethnic’ and ‘ethno-religious’ and the failure of the resulting race concept to adequately capture the racialization of Muslims. After briefly setting out the Australian discrimination law context, I discuss the main authorities on the meaning of ‘ethnic’ in common law jurisdictions that continue to shape Australian legal approaches to race. In particular, I trace how the self-identification was developed in cases relating to Jews and Sikhs, partly influenced by popular and social sciences conceptions of ‘ethnicity’. The idea that ‘ethnicity’ requires self-identification is of course not completely misplaced. The emphasis on self-identification as a component of ethnicity has a long tradition in social science theorizing of ethnicity and it may even be unique to the concept of ethnicity (Meer 2014, 37). However, what makes sense for social science theorizing does not automatically make sense in law where the question whether Muslims form an ethnic group for the purpose of racial discrimination provisions is about questions of equality and non-discrimination rather than about analyses of identity formation. I then present two interrelated arguments on why the self-identification requirement in the context of race discrimination law is misguided. First, theoretical and empirical accounts of racialization suggest that groups experience racialization regardless of their own self-identification and that racial discrimination often precedes racial self-identification. Second, I argue that insisting on self-identification limits the effectiveness of racial discrimination laws by diverting attention from the racial beliefs of discriminators to the identity of victims of discrimination. By engaging in identity adjudication, legal decision makers lose sight of what animates racial discrimination and unnecessarily delay protection until a group has been fully racialized.

The question whether Muslims indeed count as an ‘ethnic’ and/or ‘ethno-religious’ group and therefore racial group in discrimination law is particularly relevant in jurisdictional contexts that lack religion as a protected attribute, such as federal discrimination law in Australia² and in its most populous state, New South Wales (NSW). Law reform in the UK has included religion as a protected attribute in the Equality Act 2010 (UK). Moreover, NSW introduced a religious vilification provision in 2023, which would capture some of the cases discussed in this article.³ However, despite some law reform, the problem persists. The amendment in NSW does not include religious discrimination and there is no federal religious discrimination and vilification legislation in Australia. The question of whether Muslims fall under racial discrimination and hate speech provisions also remains unresolved in New Zealand.⁴ Moreover, while the inclusion of religion as a protected attribute in discrimination legislation provides a pragmatic, if partial solution for addressing some dimensions of Islamophobia, there remains the need to provide a clearer definition of race that assists rather than confuses courts when dealing with the racialization of religion, such as Islam.

Islamophobia and anti-discrimination law in Australia

Australia is home to 813,392 Muslims, which constitutes 3.2% of the country’s population.⁵ As elsewhere, Australian Muslims have been facing an increase of Islamophobic abuse and vilification in the wake of the ‘War on Terror’ that has rendered them a ‘suspect community’ and subjected them to increased racialized state surveillance (Cherney and Murphy 2016). The Islamophobia in Australia Report (Iner, Mason, and Smith 2023) documents the everyday nature of Islamophobia experienced by Australian Muslims by collecting self-reported data on experiences of Islamophobia. Hate speech directed at the religious visibility of Muslims or the use of xenophobic language, slurs, and associations with terrorism and violence constitute the majority of reported incidents. Muslims also reported discrimination in workplaces and schools (10% of the incidents). According to the report, most victims of Islamophobia have been women, in particular women who wear the hijab and therefore are visibly Muslim (Iner, Mason, and Smith 2023, 2–4). Notably, but beyond the scope of this article, in the few decided cases decided by tribunals, most complaints have been made by men, including the cases discussed below, suggesting that gender might play a role in accessing justice.⁶

Anti-discrimination legislation exists in Australia at both the federal and the state level. Neither federal anti-discrimination legislation nor the law in some states, notably in NSW but also in South Australia,⁷ list religion as a protected attribute in the context of discrimination, although, as noted above, NSW amended its anti-discrimination legislation to add a religious vilification provision. However, religion as a ground of discrimination is still lacking and, federally, neither religious vilification nor religious discrimination are unlawful.⁸ Attempts to introduce a dedicated religious discrimination legislation on the federal level have remained to date unsuccessful for a range of reasons, including longstanding debates about the potential impact of religious discrimination provisions on free speech and on LGTBQI people but also historical concerns from Christian groups (Poulos 2018). This legislative context does not mean that Muslims are entirely unprotected. Muslims in other states and territories have access to anti-discrimination laws that include religion as a protected attribute. Moreover, criminal law protects against the most egregious forms of vilification and abuse.⁹ Yet, the threshold for criminal protections is high and few complaints have resulted in convictions.

Due to the lack of religion as a protected attribute in NSW and in the federal jurisdiction the question arises whether Muslims can access racial discrimination protections. Racial discrimination is rendered a civil wrong in federal and state legislation. The federal Racial Discrimination Act 1975 (Cth) (‘RDA’) closely models the language of the International Convention on the Elimination of All Forms of Racial Discrimination.¹⁰ Section 9 of the RDA makes it ‘unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’. Racial vilification is regulated in s 18(c), rendering it unlawful ‘for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group’. In NSW, racial discrimination is set out in section 7(1) of the Anti-Discrimination Act 1977 (NSW) (‘ADA’) that holds that ‘[a] person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator— (a) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably … ’

As in other common law jurisdictions, the meaning of ‘race’ has not been defined clearly in Australian law. The statutes only refer to what Rees, Rice, and Allen (2018) describe as ‘cognate’ or ‘allied concepts’ (231) such as colour, descent, ethnic origin and national origin, which are either listed alongside race or said to be ‘included’ in ‘race’.¹¹ Since 1994, the NSW legislation additionally lists ‘ethno-religious origin’, a term also used in Tasmania. However, none of these terms is further defined. Moreover, the relationship between ‘race’ and these ‘cognate’ or ‘allied’ concepts is unclear, and there is little guidance on whether they overlap with race or are distinct from it or whether ‘race’ acts as an ‘umbrella term’ encompassing all other terms (Rees, Rice, and Allen 2018, 232).¹² Legislative material indicates that the terms ‘ethnic’ and ‘ethno-religious’ were intended to bring Muslims within the ambit of racial discrimination provisions. The explanatory memorandum to the federal Australian Racial Hatred Bill that introduced a vilification provision to the RDA explained that ‘[t]he terms “ethnic origin” and “race” are complementary and are intended to be given a broad meaning…’¹³ Further, the memorandum stated that ‘[t]he term “race” would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered’. It was also emphasized that ‘[w]hile that term [origin] connotes the idea of common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims’.¹⁴ Similarly, the explanatory note to the 1994 amendment that introduced the term ‘ethno-religious’ in NSW, described ‘ethno-religion as aspect […] of race’¹⁵ and the second reading speech listed Muslims as an ethno-religious group.¹⁶

However, despite these stated aims, courts have rejected that Muslims fall within the meaning of these terms. The reason is not simply a persistent belief that Muslims are members of a faith – Islam – and therefore not a race, although this assumption continues to linger. The difficulty to extend racial discrimination provisions to Muslims also stems from the failure to clearly define ‘race’ for the purpose of racial discrimination law, leaving courts and tribunals struggling with a statutory language that is seemingly causing more confusion than clarity about what is meant by race and its relationship with the other terms, including the terms ethnic and ethno-religious. Judges too have been critical of the lack of statutory guidance on how to understand race and the allied concepts with Lord Simon in the UK calling the list ‘rubbery and elusive language’.¹⁷ Some limited guidance on the interpretation of race was provided by Deane J in Mabo (No 1) who noted that ‘the word “race” and the phrase “national or ethnic origin” are not to be given a pedantic or unduly narrow meaning’.¹⁸ However, this authority still provides little helpful guidance on how race and its ‘allied concepts’ as well as their relationship are to be understood.

‘A flavour of race’: constructing the meaning of ‘ethnic’ in law

Before considering cases involving Muslims, this section discusses the central authorities on the meaning of ‘ethnic’ that have shaped subsequent interpretations, including interpretations of the term ‘ethno-religious’ used in the legislation in NSW. In interpreting the term ‘ethnic’, courts have established a self-identification requirement, which means that to fall within the meaning of ‘ethnic’ and therefore to fall within the scope of racial discrimination law, a group must regard itself as a distinct community in not merely religious terms. This requirement emerged in cases dealing with the discrimination of Jews and Sikhs and while the characteristics of these groups may have influenced the statutory construction, no clear justification for this reasoning was provided.

King-Ansell v Police

One of the earliest decisions on the meaning of ‘ethnic’ is the decision by the New Zealand Court of Appeal in King-Ansell v Police¹⁹ from 1979. This case involved an antisemitic pamphlet published by the National Socialist Part of New Zealand and concerned the question whether Jews constituted a group with common ethnic origins for the purpose of s 25 of the Race Relations Act 1971 (NZ). In their opinions, the judges grappled with the definition of ‘ethnic’ and the term’s relationship with race and emphasized the self-identification requirement. While they rejected a biological or genetic notion of race, they relied heavily on dictionary definitions and expert testimony provided by a social scientist with expertise on cultures in the South Pacific who proposed to define ‘ethnic group’ as a group ‘consisting of those who conceive of themselves as being alike and who are so regarded by others’. (534) Judge Woodhouse, for example, cited a supplement to the Oxford English Dictionary from 1972 that defined ethnic as ‘having common racial, cultural, religious or linguistic characteristic’ and that suggested ‘ethnic’ as a ‘non-committal term’ to describe a societal subgroup. Jews would constitute a primary example of an ‘ethnic group’. (538) Drawing on the academic expert, Woodhouse J further argued that being an ethnic group requires a ‘subjective belief by the members of the group of being alike by reason of accepting and sharing the characteristics already mentioned and of feeling different on that ground; together with the objective opinion of others that they should be regarded so’. (538)

In his opinion, Richardson J observed that ‘[r]ace clearly is used in its popular meaning’ and wondered how ‘the overtones of “race’ influence the meaning of ‘ethnic origins’’. (542) He then provided the following influential definition that appears to treat ‘race’ and ‘ethnic’ in tandem: ‘The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins’. (542) Richardson J added that this perception ‘must be based on a belief shared be members of the group’. In support, the Judge quotes the Oxford Dictionary as defining race as ‘a tribe, nation or people regarded as of common stock’ and also refers to the Webster dictionary that defines race as ‘a class or kind of individuals with common characteristics, interests, appearance or habits as if derived from a common ancestor’, with the dictionary providing ‘the Jewish race’ as an illustration of this popular meaning’. (542–543, emphases in original) He also cited approvingly the dictionary’s definition of the popular meaning of race as a ‘more or less clearly defined group thought of as a unit usually because of a common or presumed common past’. (543)

Notably, none of the cited dictionary meanings the Judge refers to required group members to have a ‘shared belief’ in their own collective identity as a key element of the popular meaning of race but this belief or self-identification requirement becomes a key element of the meaning of ‘ethnic’ for the purpose of racial discrimination law. In conclusion, Richardson J states that a group is a group of ‘ethnic origins’ if it

is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what is biological terms is a common racial stock.

(543)

He further emphasized that ‘[i]t is that combinations which gives them an historically determined social identity based not simply on group cohesion and solidarity but also on their beliefs as to their historical antecedents’. (543) Although it is not entirely clear from the judgement, it might have been the role of history and peoplehood in Jewish collective identity formation that shaped the Court’s view of the meaning of ‘ethnic’ alongside the social scientific input that had been provided.

Mandla v Dowell Lee

The leading UK decision Mandla v Dowell Lee²⁰ further refined the meaning of ‘ethnic by listing criteria for what is considered a group of ethnic origin for the purpose of racial discrimination law and also reiterated the self-identification requirement, citing approvingly the reasoning in King- Ansell (1067). Mandla concerned whether a school’s refusal to allow a Sikh student to wear a turban amounted to indirect racial discrimination. One of the central legal questions was whether Sikhs are a ‘racial group’ for the purpose of the Race Relations Act 1976 (UK), which depended on whether they were a group of ‘ethnic origins’ as the Act defined a racial group in s 3(1) as ‘a group of persons defined by reference to colour, race, nationality or ethnic or national origins’. In his opinion, Lord Fraser rejected race as a biological reality. He emphasized that a popular meaning of race would apply, noting that ‘“ethnic” conveys a flavour of race’. (1066) Restating the self-identification requirement, Lord Fraser then argued that ‘[f]or a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics’. (1066–67) Lord Fraser then listed the characteristics he regarded as essential:

(1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. (1067)

Lord Fraser further listed what he termed non-essential characteristics, including

(3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups. (1067)

In Mandla, the Court found that Sikhs constitute an ethnic group and therefore a race for the purpose of the law although, as in King Ansell, the exact relationship between those two terms was not spelled out. Following Mandla, it has been found that Jews too fall within the meaning of ‘ethnic’ in and therefore constitute a racial group under UK racial discrimination provisions.²¹ The situation however remains unclear for Muslims although the Equality Act 2010 (UK) now includes religion as a protected attribute, capturing some of the dimensions of Islamophobia.

Are Muslims an ethnic or ethno-religious group?

Whether Muslims are an ‘ethnic group’ for legal purposes has also remained uncertain in Australia and most decisions indicate that the construction of ethnic and, relatedly, ethno-religious under NSW law, to which the majority of the case law relates, has not been able to extend racial discrimination protections to Muslims. In particular, complainants who only identify as Muslim and have not provided another national or ethnic origin, such as Lebanese, have been mostly unsuccessful.²²

Khan v Commissioner

Early considerations of the term ‘ethno-religious’ that is used in NSW law do not refer to the self-identification requirement. Instead, ‘ethno-religious’ is seen as referring to a close tie between a particular ethnicity and religion, such as in the 2002 discrimination case Khan v Commissioner, Department of Corrective Services.²³ In this case decided by the Equal Opportunities Division of the NSW Administrative Decisions Tribunal, the Muslim complainant Mr Khan argued that the prison’s failure to provide him with halal food amounted to racial discrimination. In considering Mr Khan’s complaint, the Tribunal elaborated on the meaning of ‘ethno-religious’, in particular the relationship between the two components ‘ethnic’ and ‘religious’. The Tribunal referred to the Second Reading Speech that had emphasized that the aim of introducing the ground of ethno-religious origin in NSW was to protect only ‘such groups from discrimination based on their membership of a group which shares a historical identity in terms of their racial, national or ethnic origin’.²⁴ The Tribunal found that the diversity of ethnic origins meant that Muslims did not share a historical identity and instead provided its own definition of ‘ethno-religious’: ‘In our opinion, the term signifies a strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices’. (para 20, emphasis in original).

The Tribunal did not engage with the established definition of ‘ethnic’ given that NSW law uses the term ‘ethno-religious’ in addition to ‘ethnic’. The Tribunal also provided a list of what it considered to be better examples of a group of ethno-religious origin for the purpose of the ADA, including ‘Javanese Christians, Bosnian Muslims or Northern Irish Catholics’. The Tribunal’s list associates certain geographical origins with certain religions, an association that the applicant was seen as failing to provide. Under the heading ‘The applicant’s race’ the Tribunal noted that it was insufficient for Mr Khan to simply state his Muslim faith as being a Muslim was not a racial identity. Instead, the Tribunal required ‘some evidence’ of a ‘close tie between that faith and his race, nationality or ethnic origin’ for Mr Khan to fall within the meaning of ethno-religious and therefore race under the ADA (para 21).

Jones and Harbour Radio v Trad

In the 2011 vilification case Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD),²⁵ the Appeal Panel of the Administrative Decisions Tribunal developed a sophisticated notion of race that grappled with the dynamic, ambiguous, and fluid nature of race and emphasized the role of perceptions and actions by others for how a group comes to be seen as a racial group. Moreover, the Tribunal also explicitly embraced the notion of race as a social construction. The Tribunal stated that the category of ‘ethno-religious origin’, which it considered ‘an extension of the “problematic” concept of race’, does not refer to an ‘unchanging entity’ but to ‘a social construct or a set of social constructs that is to some degree changeable, chiefly depending on the attitudes of others, including vilifiers, to those enduring aspects of the group that can fairly be said to be related to its religion’. (para 248) The Appeals Tribunal further noted that to be considered an ethno-religious group, the group must have a shared religious origin and it provided a list of matters (‘in no particular order’) that ‘may be relevant to determining whether a particular group qualifies for the Act’s protection’. (para 36)

According to the Tribunal, some of these matters relate to the perceptions of the group by non-group members, such as whether the ‘belonging’ of the group in Australia is commonly questioned compared to ‘more “authentically” Australians’; whether the group is ‘a readily socially recognizable minority’; whether group members are seen by society as outsiders, whether the discrimination suffered by group members would be ordinarily perceived by unprejudiced observers without expert knowledge about the intricacies of the meaning of race as ‘racial discrimination’; whether global events involving other ‘co-religionists’ have led to widespread serious condemnation of the group as a whole’; and whether ‘the name given to adherents of the religion come to have overtones of cultural, social or political, and not only religious, significance’. Other relevant matters relate to group behaviour and characteristics, including immigrant status or descent from immigrants and the depth of their roots in Australia; the existence of ‘a supplementary orientation to ethnic or religious kin in other countries’; and a language other than English. (para 36) Notably, nowhere did the Tribunal require self-identification with being a distinct ethnic/racial community. Instead, it emphasized the role of perceptions and attitudes in society, while only requiring certain communal bonds. This notion of ‘ethno-religious’ is able to capture the racialization of Muslims and the Tribunal appears to accept that Muslims can be a group of ethno-religious origins and therefore a race for the purpose of racial discrimination law. The complaint, however, ultimately failed because the Tribunal found that that the relevant speech targeted Muslims as a religious and not as a racial/ethno-religious group.

Ekermawi v Nine Network

However, in 2019 in Ekermawi v Nine Network Australia Pty Limited,²⁶ another vilification case, the Tribunal returned to the insistence that self-identification is a necessary requirement to be considered a group of ethno-religious origin and therefore a racial group for the purpose of discrimination law. The case concerned Islamophobic comments by a TV presenter who called for the borders to be closed for Muslim migrants. The Appeals Tribunal noted that Jones and Harbour Radio v Trad was not binding as the comments on the meaning of ethno-religious were only in obiter (para 60). Instead, reiterating the self-identification requirement in relation to the term ‘ethnic’ by citing King-Ansell approvingly, the Tribunal emphasized that in order to be considered as a group of ethno-religious origin group members need to have a ‘historically determined social identity in their own eyes and in the eyes of those outside the group’ (para 65).

The Appeals Tribunal acknowledged the racialization of Muslims following the War on Terror, noting that they had been ‘treated as a “single community” which is regarded as “suspect” as potential terrorists or sympathisers of terrorism’ and ‘are grouped together based upon their practices and looks’ (para 100). However, the Tribunal found that there was no objective evidence that Australian Muslims ‘regard themselves as being a distinct community irrespective of their different ethnic origins, religious traditions (conservative or liberal, Sunni or Shia), place of birth or how long they have lived in Australia’. (para 101) Consequently, the Appeals Tribunal found that Muslims were not a race for the purpose of discrimination law. The renewed emphasis on self-identification may have been a response to how the complaint had been framed, with the complainant arguing, perhaps in response to cases such as Khan, that Muslims in Australia did indeed see themselves as distinct community – Australian Muslims (paras 79–92). However, this strategy failed as the Tribunal noted a lack of evidence for the fact that Australian Muslims had ‘ethnicised’.

Self-identification: should it matter for racial discrimination law?

The case law suggests that for discrimination law, at least when it comes to groups commonly understood in ethnic or religious terms to whom other proxies of race, such as colour or national origin do not readily apply, race is a matter of how both others (e.g. society, the state, discriminators, villifiers) see a group and how a group sees itself. Given that the law speaks of ethnicity, this requirement could also be called ethnicization (Bloul 2008) but in light of ‘ethnic’ constituting a proxy or allied term for race in law, here I suggest that it might be better to understand the required process as self-racialization. That to be considered a race or a member of a racial group requires a level of racialized self-understanding also underpins scholarly theorizing of race and racialization. For example, Miles and Brown (2003, 102) describe racialization as a ‘two-way process’ that involves elements of racialization by others and by groups/individuals themselves. Similarly, in the philosophy of race, Charles W. Mills (1998, 59) describes race as an ‘objective ontological status’ that arises out of ‘subjective internalization and intersubjective recognition’. However, context and purpose matter for definitions. Theorizing race in philosophy or in the social sciences has a different purpose to understanding race in law.

In this section, I argue that self-identification should not be a necessary element for finding that someone has been discriminated against based on or on the ground of race for two interconnected reasons: Firstly, insisting on self-identification and internalization misperceives how groups become constituted as ‘racial’ and disregards the dialectic and constitutive relationship between racialization and racial discrimination. Secondly and relatedly, the self-identification requirement imagines race as unambiguous and objective, an understanding that does not achieve the purpose of the legislation, which is to protect people from racial discrimination.

The process of racialization and the role of discrimination

Racialization has become an important concept in research on race. While there remains disagreement about the exact definition and usefulness of the concept of racialization, here I use racialization to refer to the process by which groups come to be identified and/or represented as races based on false beliefs of the reality of biological races (see also Hochman 2019, 10; Khalifa and Lauer 2021). Scholars describe racialization as a process ‘that is done to a group, by some social agent, at a certain time, for a given period, in and through various processes, and relative to a particular context’. (Garcia 2003, 285, emphasis in original). Similarly, Garner and Selod (2015) point out that racialization is a process in which those being racialized often have little agency and which is imposed on them. Racialization, they argue, ‘draws a line around all the members of the group; instigates “group-ness”, and ascribes characteristics… sometimes because of ideas where the group comes from, what it believes in, or how it organizes itself socially and culturally’. (14) Racialization implies homogeneity in spite of heterogeneity because of the ‘unity of the “gaze” itself’ (14.) As critical race theorist Neil Gotanda (2011, 187) explains in the US context,

both the black and the white racial categories in America are categories constructed through the erasure of tribe, ethnicity, and nationality. Slaves from Africa had tribal and ethnic identities that were forcibly suppressed, and settlers from Europe arrived with nationality and ethnicity that for racial purposes were dissolved into the white racial category.

Thus, racialized perceptions of groups do not necessarily align with how group members see themselves and their own individual and collective identities. Racialization constitutes a group of people in homogenizing and essentialising terms regardless of their own self-understanding. Such a process underpins the contemporary racialization of Muslims. Gotanda (2011, 188) observes that the ‘power of racialization is that the “Muslim terrorist” is imposed upon groups regardless of their subjective wishes’. Racialization, Gotanda notes, transform a person of a certain religion or nationality to a person of a certain ancestry by projecting a common descent. For Muslims, Gotanda suggests, the ‘ancestral link is not through Africa and slavery as for African Americans or through the national homeland as for Asian Americans but through religion – the faith of the ancestral homeland’. (ibid.) Eventually, a racial category emerges (e.g. ‘the Muslim’) that flattens and erases internal diversity and differences based on a projection of a shared descent to which racial meanings are attached.

Yet, being racialized does not necessarily mean that the racialized group self-identifies this way immediately. Gotanda (2011, 189) observes that it took a century of racial subordination of diverse Asian populations in the United States, including Chinese, Korean, and Japanese people, before they embraced a pan-ethnic category of Asian American. Eventually, this category was recognized legally under the American census. This stage can be seen as full racialization where racial identification by others matches the racialized self-understanding of the group. Of course, self-identification does not mean that racialized people simply adopt the often pejorative and negative stereotypes ascribed to their racial identity. Instead, self-racialization can involve strategies of resistance, counter-narratives, empowerment, and political mobilization (see e.g. Goldstein 2005).

Based on the case law, it appears that the law requires full racialization whereby society racializes groups but groups also racialize themselves. Thus, there is what I termed a self-identification requirement that necessitates that the self-understanding of the group needs to somewhat match the perceptions of others. Given their lack of racialized self-understanding, Muslims are seen in law, in effect, as only partially racialized and therefore not yet/not quite an ethnic or racial group. However, this approach is problematic because it disregards that racial discrimination often precedes a racialized self-understanding and therefore full racialization. Put differently, partially racialized groups experience racial discrimination, which can be a constitutive experience in their eventual full racialization.

Research indicates that experiences and perceptions of racial discrimination can contribute to adopting a racialized self-understanding. For example, in the United States, Latino identity has been described as a partially racialized identity (Garcia 2003, 286) because it is not yet seen consistently as a racial identity given that racial and ethnic conceptions of Latino identity co-exist. While the US census designates Latino identity as an ethnic classification, societal practices and perceptions treat Latino identity also as a racial identity. At the same time, many Latinos/as see their identity as an ethnic identity but are increasingly also asserting their identity as a racial one, partly due to experiences of discrimination based on stereotypical views of Latinos/as a homogenous community regardless of how they self-identify (Cardenas, Silber Mohamed, and Michelson 2023). Cardenas, Mohamed, and Michelson (2023, 1860) speak of a mobilizing effect of discrimination in which the embrace of a racial identity constitutes a political and strategic response to shared experiences of discrimination. However, if the law insists that groups must be fully racialized before it acknowledges racial discrimination, it ignores how racial discrimination already occurs before full racialization and how discrimination plays a constituting role in constructing groups as racial ones. From this perspective, the self-identification requirement appears absurd as it requires a long history of discrimination before extending protection, which undermines the law’s purpose of protecting people from racial discrimination.

The ambiguity and fluidity of racial identification

The self-identification is also misguided as it treats race as unambiguous and objective as if there is a clear alignment between how others (discriminators, vilifiers) see a group or an individual and how the group or the individual sees themselves. However, racial identification is much more complex. Wendy D. Roth (2010, 1294) distinguishes several dimensions of racial identification, including subjective self-identification (personal race), expressed race (the race someone decides to project to others), observed/social race (the race others assume someone to be), and phenotype or physical appearance. These different dimensions can match or diverge. But which race is meant when a statute says that a person has been discriminated based on (their) race? To personal race or to social race? Or to both? The self-identification requirement appears to insist on a match between personal race and social race. However, this insistence does not account for the ambiguity and fluidity of racial identification.

Here, the phenomenon of so-called misperception discrimination is instructive as it draws attention to the role of perceptions in discrimination. Misperception discrimination refers to cases in which the discriminator misperceives the racial identity of the discriminated person. For example, in the US case Burrage v. FedEx Freight Inc.,²⁷ a man of mixed race identity who self-identified as Black was misperceived as Mexican by his co-workers. He brought a claim under Title VII of the Civil Rights Act of 1964 alleging that the name calling and racial abuse by his colleagues amounted to racial discrimination. The Court, however, found no racial discrimination as the actions had not been directed at his self-identified race (Black) but at his misperceived Mexican identity. Similarly, in Lewis v. North General Hospital²⁸ and in El v. Max Deatwyler Corp.,²⁹ the courts dismissed discrimination cases in which plaintiffs were misperceived as Muslim. Other than the ADA or the RDA in Australia, Title VII of the Civil Rights Act recognizes religion as a protected attribute. Yet, as the Court held in Burrage ‘[i]t is true that Title VII protects only those who are actually in a protected class, and not those who are perceived to be in a protected class’.³⁰ (emphasis in original) Wendy Greene (2013, 90) criticizes the tendency of US courts to impose an ‘actuality requirement’ as ‘categorically wrong’ because it narrows the scope of discrimination law and contravenes the purpose of the statute. In particular, the requirement ignores that the subjective perceptions about a victim’s identity animate discriminatory conduct. Indeed, research suggests that what discriminators believe a person to be is often more important in motivating discriminatory conduct than what victims subjectively believe about their own identity (Roth 2010, 1291). Thus, how a discriminator racializes a victim animates the racially discriminatory conduct and not necessarily whether the victim identifies with the racial identity assigned to them by the discriminator.

Misperception cases are of course different from the cases discussed in this article given. In misperception cases, there is a lack of correlation between the self-identified racial identity of the plaintiff and the protected attribute but both identities may well fall within the meaning of the protected attribute. In the cases discussed here, the lack of self-identification with the racialized group identity means that the identity is not seen as a protected attribute at all. However, there is something that misperception cases share with the cases here. They highlight that making the question of how an individual or a group self-identify a concern in racial discrimination cases can distract from a central factor of what leads to racial discrimination: racial beliefs and perceptions by others. Similar to the actuality requirement, the self-identification requirement shifts the focus from the racial attitudes of discriminators and their role in perpetuating the racialization and discrimination of the victim group to the identity of the victim.

Discrimination law, including in Australia, already recognizes that the wrongfulness of discrimination cannot be limited to actions because of a person’s identity but can also include acts of stereotyping and prejudice that underpin discriminatory actions regardless of whether a person in fact has a protected attribute. This idea is particularly well developed in the context of disability discrimination. For example, s 4 of the Australian Disability Discrimination Act 1992 (Cth) defines disability as including a disability that ‘is imputed to a person’ (subsection k).³¹ By recognizing that a person does not actually need to have a protected attribute, the law acknowledges that the wrong of discrimination lies with the ableist beliefs, stereotypes, assumptions, and prejudices of the discriminator. Of course, under this statutory definition, the ableist beliefs still correlate with a protected attribute (disability), whereas in the case of Islamophobia, there is the idea that Islamophobic attitudes do not correlate with a protected attribute (race). However, even in the context of disability discrimination, there are cases that fall through the cracks. In the UK, as Michael Connolly (2023, 636) observes, the statute requires that the discriminator imputes a disability that aligns with the legal definition of disability. Connolly discusses a case³² in which a disability discrimination complaint failed because the applicant’s imputed disability did not align with the statutory definition of disability. However, as Connolly points out, it seems artificial to require that perception aligns neatly with the legal definition of a protected attribute given that the intricacies of the statutory definitions of a protected attribute may never enter the mind of a discriminator. Thus, Connolly argues that the focus should be on whether the discriminator acted because of ableist assumptions and stereotypes regardless of whether they have a precise knowledge of the legal definition of what constitutes a disability for the purpose of law (639). A similar argument can be made for racial discrimination. Discriminators may have little knowledge of the precise legal definition of race but are nonetheless engaging in actions that stem from conscious or unconscious racist beliefs and that reproduce the racialization of groups, including Muslims.

Discrimination law has often been criticized for elevating and privileging the discriminator’s perspective and losing sight of the victim’s experience of discrimination (Gaze 2002). In cases involving misperception, or partially racialized groups it appears that the law overlooks the fundamental role that the perpetrator perspective plays for discriminatory actions. This focus is not surprising given that statutory language, such as in the NSW legislation, speaks of ‘the aggrieved person’s race’, which indeed directs attention to the identity of applicants and encourages identity adjudication instead of centring on processes of racialization and the role of racial attitudes and beliefs in constituting the race of a person in social interactions.

Conclusion

In this article, I have argued that self-identification should not be a necessary requirement for a group to be considered a racial group for the purpose of racial discrimination law. Does my argument against self-identification mean that self-identification should never matter in legal definitions of race? It does not. The exact definition of race will depend on the purpose and function of a certain law. For example, if the law provides a form of affirmative action to a historically marginalized group or confers group-specific rights, then self-identification may be relevant. Thus, what the law needs is a notion of race that is able to capture the complexities, idiosyncrasies, and contradictions of race in a given context, as well as the dynamic and ongoing nature of racialization. Moreover, it requires an understanding of race that appreciates how discrimination often has very little do to with who or what victims of discrimination, including Muslims, are but rather depends on what discriminators believe them to be.

Acknowledgements

The author would like to thank Therese MacDermott, Vanessa Rau, and the two anonymous reviewers for their insightful comments and feedback. Any mistakes are mine.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. On case law regarding whether Muslims are an ethnic group under the Race Relations Act 1976 (UK) see Kuljeet S. Dobe and Sukhwinder S. Chhokar. 2000. ‘Muslims, Ethnicity and the Law’. International Journal of Discrimination and the Law 4: 369–386. It appears that the Equality Act 2010 has not changed the view that Muslims do not constitute an ethnic group for the purpose of the definition of race. I mainly discuss case law from Australia in this article.

2. But see s 153 Fair Work Act 2009 (Cth).

3. Anti-Discrimination Amendment (Religious Vilification) Act 2023 (NSW).

4. See the findings in Ko tō tātou kāinga tēnei: Report of the Royal Commission into the Terrorist Attack on Christchurch Masjidain on 15 March 2019, Chapter 4.

5. Australian Bureau of Statistics, Census 2021 (Religious Affiliation in Australia), 2022, https://www.abs.gov.au/articles/religious-affiliation-australia.

6. In Australia, most discrimination complaints are resolved through conciliation and only proceed to a tribunal if unsuccessful. Tribunal cases therefore only present a small proportion of all complaints.

7. But see s 85T(1)(f) Equal Opportunity Act 1984 (SA) on discrimination because of religious appearance and dress.

8. See note 1.

9. See e.g. s 93Z of the Crimes Act 1900 (NSW).

10. 1965, 660 UNTS 195, entered into force 4 January 1969.

11. See s 4 of the ADA and section 9 RDA. In New Zealand, ‘race’ is not defined and either listed separately or as part of a list, e.g. in section 61(1) Human Rights Act 1993 (NZ) that speaks of ‘colour, race, or ethnic or national origins’. Section 9 of the Equality Act 2010 (UK) defines race as including ‘(a) colour; (b) nationality; (c) ethnic or national origins’.

12. See also Toben v Jones (2003) 129 FCR 515, 525, pondering whether there is distinction between ‘race’ and ‘ethnic origin’ or whether these are used interchangeably.

13. Explanatory Memorandum, Racial Hatred Bill 1994 (Cth), 2.

14. Ibid. 3.

15. Explanatory Note, Anti-Discrimination (Amendment) Bill 1994 (NSW).

16. New South Wales, Second Reading Speech, Legislative Council, 4 May 1994 (J. P. Hanaford).

17. Ealing London Borough Council v. Race Relations Board [1972] AC 342, 262 (interpreting the meaning of race in the Race Relations Act that used similar language for the definition of race as the later Equality Act 2010 (UK) and the ADA and the RDA in Australia.

18. Mabo v Queensland (no 1) (1988) 166 CLR 186, 230

19. (1979) 2 NZLR 531.

20. [1983] 1 All ER 1062.

21. See e.g. R (E) v Governing Board of JFS [2009] UKSC 15. For Australia see Jones v Scully (2002) 120 FCR 243.

22. But see Abdulrahman v Toll Pty Ltd Trading As Toll Express [2006] NSWADT 221.

23. [2002] NSWADT 131.

24. See note 13.

25. [2011] NSWADTAP 62.

26. [2019] NSWCATAD 29.

27. 2012 WL 1068794 (‘Burrage’).

28. 502 F. Supp. 2d. (2007).

29. 2011 WL 1769805.

30. Burrage, at 5 (emphasis in original).

31. See also Equality Act 2010 (UK), Explanatory Note 63 on imputed race.

32. Richmond Adult Community College v Mc Dougall [2008] ICR 431 (CA).