Photo Credit: File Photo
Muslim women in hijabs. (This photograph is not of the paintiffs Jamilla Clark and Arwa Aziz.)

Can – or should – government require a religious woman to remove her head-covering for an official purpose?

Two Muslim women have filed a federal class action lawsuit against the NYPD, challenging its policy of requiring arrestees to remove their head coverings for booking photos or “mug shots.” The women were forced, under separate circumstances, to remove their hijabs during their arrest processing, which they allege caused them “trauma and anguish.”

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The outcome of this case will, of course, also affect the rights of Jewish women who wear head coverings, though we hope not in this exact context. Indeed, Emma Freeman, attorney for the plaintiffs, has said that she had the Orthodox Jewish community in mind as well when she filed the suit.

Since 2015, the NYPD has required that every arrestee have an official photograph taken “with an unobstructed view of the arrestee’s head, ears, and face.” The department rule states that those who refuse to remove their religious headcoverings may be transported to One Police Plaza to be photographed, bare-headed, in a private room by an officer of the same gender.

Plaintiffs Jamilla Clark and Arwa Aziz both claim to have suffered violations of their religious rights, but the circumstances of their experiences differ. Clark alleges that a supervising officer at her local precinct threatened her with prosecution if she did not remove her hijab. She was eventually transported to One Police Plaza, where she had her photograph taken by a female officer in a closed room. Thus, Clark was at least afforded a measure of dignity.

In contrast, Aziz was allegedly forced to remove her hijab in a crowded hallway, filled with men, at Brooklyn Central Booking. Officers told her she could choose to be taken to One Police Plaza to have her photograph taken in private, but that it would greatly delay her processing and that she was not guaranteed a female photographer.

The mug shots of the plaintiffs remain in the NYPD database, which they say constitutes an ongoing violation of their rights.

Does the NYPD’s policy have a legal leg to stand on? Plaintiffs say it violates not only their religious freedom rights under the First Amendment and state constitution, but also a federal statute called RLUIPA, which prohibits governments from restricting the exercise of religion by anyone in its custody absent a “compelling governmental interest,” and even then, permits only the least restrictive means of fulfilling that interest.

It’s not clear what compelling interest the NYPD will assert for requiring suspects to remove headcoverings which do not conceal their faces – be it a hijab, wig, tichel, turban, or yarmulke. Assuming the NYPD can put forth a legitimate rationale for its policy, the court will have to balance that against the rights of the individuals involved – a balancing act that has become not only more familiar but also more difficult in this climate of heightened security threats and terrorism.

Notably, the lawsuit lists many other jurisdictions and contexts, including the New York State DMV and the U.S. Passport Agency, which allow individuals to be photographed without removing religious head coverings.

It’s also worth noting that with the current move toward the blurring of traditional gender definitions, the accommodation to have one’s photograph taken by someone of the same gender could raise additional complications.

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Joey Aron is the founding attorney of Aron Law, PLLC, a boutique law firm in Brooklyn, where he focuses on FOIL litigation and matters pertaining to religious discrimination.