My Thoughts on the Ruling

Last week an administrative court in Amsterdam ruled in favour of the plaintiffs who contested the licensing of the 2013 Sinterklaas Parade in Amsterdam. The plaintiffs argued that granting the organizers of the Sinterklaas parade a permit constituted an infringement of their right to respect for private and family life, since the figure of Zwarte Piet, which plays a huge role in the public Sinterklaas parade, is a negative stereotype of Black people.

The plaintiffs argued that Foundation Sinterklaas Parade Amsterdam, which organizes the parade, could not have otherwise organized the event without the permit the Mayor granted. Because Mayor Van der Laan had not fully considered the objections to Zwarte Piet in his decision to grant a permit, he was summoned by the court to reconsider the licensing of the 2013 Sinterklaas parade. The decision was heralded, as Chandra Frank notes, as “an important outcome of years of protesting and activism by those opposed to Zwarte Piet.” Even though, I could understand why Black folks were happy with the decision, the reasoning upon which the court ruling is based bolstered White supremacy.

The court’s decision is based on a provision in article 8 of the European Convention on Human Rights (ECHR), and places culturally sanctioned racism in the (neoliberal) realm of “personal autonomy.”

“The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. The Court further reiterates that it has accepted in the past that an individual’s ethnic identity must be regarded as another such element. In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.” [emphasis mine]

Under this provision, the government is obligated to guarantee the right to respect for private and family life, even when it concerns matters between individuals. Due to a degree of severity (…), the court ruled that there was, indeed, a violation of the right to respect for private and family life. The Black plaintiffs testified that they felt discriminated against during the parade; they said their self-esteem was affected to such an extent that they felt like they were worth less than a white person.

The Black plaintiffs presented their case and sought vindication through the language of distress. The use of the language of distress to draw attention to the lived realities of racism, however, is not entirely without drawbacks. It has the potential, as Natalia Cecire observes, “to psychologize and individualize [racist] harm and render it unavailable to structural analysis.” Similarly, Ngọc Loan Trần (as cited in the brilliant It’s Not All About Feelings) notes that,

“oppression is not a feeling. reducing it how to a community ‘feels’ they are being treated minimizes the violences that are enacted upon them, makes structural injustices a matter of perception of individual acceptance or rejection of oppressive conditions. oppression creates feelings, definitely. it creates trauma, internalized conflict, dissonance, confusion. but oppression is not a feeling.”

It was not coincidental that the court’s ruling is based on an article that only adds to the idea that racism is a private pain that Black folk choose to address in the public sphere. What follows from the ruling is that anyone seeking redress (for racist stereotyping) based on article 8 of the ECHR has to be affected personally. In this case, some of the plaintiffs are White. The court concluded that they are thus not directly personally affected by a racist stereotype of a Black person—as such, they couldn’t appeal to Article 8 of the ECHR. Both Article 8 and the court depend, in this case, on Black articulations of suffering, that is a violated Black body: no broken (Black) body, no infringement.

In the ruling, the court positions the White plaintiffs as objecting to the negative stereotyping of Black citizens—or, to put it differently, the White plaintiffs came to the defence of the Black plaintiffs. In one self-serving stroke the court anointed White folk as ‘saviours’. This ruling lets White folk pretend that racism only affects Black folk—that racism leaves White folk unaffected except, perhaps, by pity and compassion, which then moves them to perform acts of charity towards Black folk.

In order to comprehend the severity of blackface, we need to reflect on what it actually is rather than what the court makes it out to be. Blackface plays on a racial sentiment that articulates the Black “in modern (slave) culture as an inchoate, irrational non-subject, as the chaos that both defines and threatens the borders of logic, individuality, and basic subjectivity. In that schema, all Blacks become interchangeable, creating among the population a sort of continual restlessness, a terror.”

It is this schema that captured Tilly Kaisiëpo as a threat and rendered her an object of attack. Kaisiëpo was at a pro-Zwarte Piet demonstration in the Hague last year to show support for their cause and to raise awareness for her own struggle: the independence of West Papua. However, the pro-Zwarte Piet demonstrators read her, based on her dark skin colour, as being anti-Zwarte Piet. The police, instead of protecting her, removed Tilly Kaisiëpo from the Malieveld, where the demonstration was taking place, ‘for her own protection’.

Beautiful Pieten demonstration in The Hague. What more could you ask for!!!
Beautiful Pieten demonstration in The Hague. What more could you ask for!!!
Politie malieveld 2
Many Pieten in The Hague at the demonstration on the malieveld, naturally something like that goes down without violence.

Blackface is an act of dehumanization, because it makes all Blacks interchangeable and disposable: in the eyes of White society, all Blacks become Zwarte Piet.

Mandela Zwarte Piet
One less Piet. Mandela has left the building.
Say! Is anyone still interested in whether the draw for # WK2014 (world championship soccer) tomorrow is going to be fair? After the death of the main piet. #dtv (dare to ask)
Say! Is anyone still interested in whether the draw for # WK2014 (world championship soccer) tomorrow is going to be fair? After the death of the main piet. #dtv (dare to ask) – A tweet, John de Laet, a member of the Green Left party, sent after Nelson Mandela’s passing.
Robin van Persie and his Black Petes.
Robin van Persie and the Black Petes.

The reason why I am against Zwarte Piet is not because it causes me pain, or negatively affects my self-esteem, I am against it because the figure of Zwarte Piet is, in fact, dehumanizing; it contests insidiously the humanity of Black folk. The court’s elaborate process to determine whether Zwarte Piet negatively affects Black folk, as well as its use of gingerly phrased language, gave me the impression that the severity of dehumanization is up for debate:

“The court will determine, based on the documents in the case file, whether the figure of Zwarte Piet negatively stereotypes black people. If that is the case, the court will then assess whether the negative effect on black people is such that it constitutes a breach of privacy of the plaintiffs.”

The court also issued a caveat,

“However, not all negative stereotyping leads to an infringement of privacy. The effects of negative stereotyping must have a certain degree of severity.”

The following shift in emphasis exposes the ridiculous tenor of the court’s statement:

However, not all acts of dehumanization lead to an infringement of one’s humanity. The effects of dehumanization must have a certain degree of severity.

Even though, the court admits that Zwarte Piet is racist, it stated—due to the potentially limited and conditional effects of negative stereotyping—that it does not automatically follow that the Mayor had to categorically refuse to grant the license. The court reasoned that in the case of an infringement of the right to respect for private and family life it must be assessed whether refusing to grant a license is justified. The different interests should be weighed.

Based on case law in the context of Article 8 of the ECHR a “fair balance” must be established, which, of course, leads to the well beaten path of ‘reasonable dialogue’, or ‘proportionate responses’—the desired modes to achieve a “fair balance.” Minister Asscher was quick to express the hope that the debate on the future role of Zwarte Piet is conducted in a “business-like manner.”And it’s now up to the Mayor to establish this “fair balance.” In order to achieve this, the Mayor of Amsterdam is expected to weigh the interests of the Black plaintiffs against the interests of ‘society at large’.The interest of Black people are, in effect, pitted against the interest of ‘the Dutch public’ (which align with the interests of the Foundation of Sinterklaas Parade Amsterdam). This move reaffirms the fact that Black people are in civil society but not of civil society.

It is also not a coincidence that the court dismissed the plaintiffs’ arguments based on Article 1 of the Constitution, which prohibits discrimination on the grounds of religion, faith, political opinion, race, gender or any other grounds. Article 1 of the Constitution states that all persons in the Netherlands shall be treated equally in equal circumstances. The court argued,

In situations like this, where it is argued that a group of people are being negatively stereotyped it should not be excluded, depending on the circumstances, that there is a breach of the prohibition to discriminate. However, in this case, it is the court’s opinion that it has not been proven that the staging of the parade has led to Black people being treated differently. The plaintiffs did not give any evidence to corroborate their assertion that the licensed event in 2013 has led to unequal treatment as defined in Article 1 of the Constitution. The court stated that the fact their feelings had not been taken into account is an insufficient basis for a ground of appeal.

The court stated that despite the fact that the plaintiffs have been hurt by the licensed Sinterklaas parade, the granting of the permit itself does not violate Article 1 of the Constitution—because Zwarte Piet was not mentioned on the application itself. In order to speak of discrimination, as defined in Article 1, one has to be treated unequally—meaning a distinction has to be made ​​based on, for example, race. With merely being hurt, the court stated, there is no question of unequal treatment.

It is true that “the event [the Sinterklaas parade] is open to everyone,” as the Mayor’s defence team argued, and that the Foundation Sinterklaas Parade Amsterdam did not explicitly say that Black folk aren’t allowed to attend the festival. However, the Foundation needn’t have made it explicit given that the event is self-evidently exclusionary/racist: Zwarte Piet is a racist caricature that dehumanizes Black people. So—yes, a racist event is open to everyone.

Despite the fact that the court acknowledged that Zwarte Piet affects Black folks personally—in such a way that it does not affect White folk—it still reasoned from the faulty premise that “that we all inhabit the same zero point in society,” a fundamental assumption on which the Equal Treatment Act is based. Clearly, such an assumption does not hold water, especially in light of the recent findings of the UN working group, which exposed structural racism across the board. Moreover, in spite of “equal circumstances” (neither Black not White folk were barred from attending the Sinterklaas parade), the court still determined that the Parade could negatively affect Black folk, due to the overwhelming presence of Zwarte Piet.

Both Article 1 of the Constitution and the Equal Treatment Act uphold the illusion of racial parity. Both legal texts presuppose that Black folk are already being treated equally and that cases of unequal treatment are merely outliers. However, if racism is systemic and normalized, as the UN working group concluded, then Black folk are always-already treated unequally, violated, subjected to gratuitous violence—and “skewed life chances, limited access to health and education, premature death, incarceration, and impoverishment.” The question of intent is an irrelevant factor when it comes to structural racism. As John H. McClendon III asserts,

“The institutional impact of racism (systemic racism) does not require conscious intentions or aims, but only those institutions and social relations that perpetuate the actual (material) suppression of Black people. This is why much of the legal discussion around affirmative action often gets bogged down when the matter of demonstrating intent is presupposed salient.”

Both the judicial system and legal texts areorganized in such a way as to reinforce the legitimacy and authority of the dominant cultural context. Despite lofty rhetoric about the constructive commitment of the Netherlands to safeguard all human rights (LOL, yeah right), the Equal Treatment Act itself facilitated (and I would argue that it still does) discrimination based on the grounds specified in Article 1 of the Constitution. A clause (which has been annulled this year) in the Equal Treatment Act, the so-called enkele-feitconstructie (“single-fact construction”), legally allowed employers to fire homosexual employees, as long as this single-fact was accompanied by one other fact. For example, a Christian school could not refuse someone based solely on their sexual orientation, however, the school was allowed to refuse someone due to the additional fact that they have sex with someone of the same sex.

As you can see, the scope of legislation requires an almost indefinite expansion and fine-tuning in order to protect the ‘rights’ of marginalized populations (women, the disabled, Black folk, non-Black POC, and so on). In this specific context, one could argue that the purpose of legal texts is to universalize and fortify White sociality. The Equal Treatment Act undermines the specificity of the positionality of Black people in service of some ‘objective, universal common good’. The ‘common good’ to which the ‘reasonable’ and ‘progressive’ White folk, like mayor Eberhard van der Laan, aspire serves as a means to coordinate White Autochtoon Dutch interests and protect White Autochtoon Dutch privilege—while positioning Black folk as particular and deviant. Apparently, the very nature of Black folk’s interests are liable to upset ‘the common good’, or how it’s more commonly phrased “[ruin] an innocent children’s festival.”

The ‘common good’ rhetoric, which makes heavy use of degrees of comparison (“We’re trying to make Zwarte Piet less racist” or “Talking about race leads to more polarization”) consolidates White Autochtoon Dutch identity as that which is normal, reasonable, unmarked, not particular, whereas Black folk are classified as unreasonable, irrational, belligerent, subjective. In order for Black folks to become legible in this framework requires a structural adjustment, or as Frank Wilderson argues “borrowed institutionality.” In order to gain some recognition and validation as ‘human beings’, Black folk need to take on and embody the norms of White society.

James Baldwin’s observations are particularly astute. In reference to his friendship with Norman Mailer, Baldwin writes, “The really ghastly thing about trying to convey to a white man the reality of the Negro experience has nothing whatever to do with the fact of color, but has to do with this man’s relationship to his own life. He will face in your life only what he is willing to face in his.” Frank Wilderson’s assertion about Baldwin’s quote is salient here. Wilderson writes, “[Baldwin’s] long Paris nights with Mailer bore fruit only to the extent that Mailer was able to say, ‘Me, too’.”

As such, Black folk and our ‘collective interests’ carry—despite claims to equality—a different weight in the social, cultural, economic, and political calculus of White Autochtoon Dutchness. The Netherlands Institute for Human Rights writes in their report that “Autochtoon Dutch have a positive image of themselves and the Netherlands, and see themselves rather than Allochtonen as victims, and believe they have as [legitimately] ‘Dutch’ more rights.”It is therefore not surprising, as Chandra Frank notes, that culturally sanctioned racism in the public sphere is framed as a violation of the right to respect for private and family life of Black folk and not a violation of the public order, or safety—the ordered, unproblematic space of White sociality.

After the UN working group had published the results of their research, the NOS was quick to say that “the Netherlands isn’t a racist country, though there is racism in the Netherlands.” In all of this, the feelings White Autochtoon Dutch folk, and by extension the reputation of the Netherlands, are centred. At some level, White Autochtoon Dutch folk realize that their position is becoming increasingly untenable. In their report the Netherlands Institute for Human Rights notes that the intense discussions on Zwarte Piet have contributed to the realization that racism exists in the Netherlands. The report states that Ministers and politicians denied, at first, that Zwarte Piet is a racist phenomenon, however, they are increasingly recognizing that the issue is sensitive. The ruling, which came at a very opportune moment, in effect, safeguards Dutch innocence.

The late professor Derrick Bell developed the concept of Interest Convergence—that is, the idea that non-Whites achieve meaningful progress only to the extent that a particular non-White interest converges with an important White interest. , Dylan Rodríguez extends Bell’s concept by arguing that White supremacy “reaches its highest point of social and institutional articulation when it has been ‘liberated’ from the conventions of the apartheid logic and manifests within the normative political and cultural structures of (postracial) democracy, liberal humanism, and (national) progressivism.” A prime example is the fact that White South Africans, the “primary beneficiaries of the apartheid system,” have been getting richer in the two decades of democracy after Apartheid—to be clear, this is despite the fact that they surrendered power to the Black majority.

To me, the debate around Zwarte Piet has never been about winning, it’s been about dismantling, undoing, and unlearning. That’s why I found it hard to see this ruling as a cause for celebration: the ruling did very little (I would even go as far as saying nothing) to dismantle the logics of White supremacy. There’s a reason why the journalists at the UN working group press conference focused on Zwarte Piet instead of the other findings: racism on the labour market, in the educational system, in housing, racial profiling. These facts cannot be reduced, or attributed, to a matter of feeling. At the end of the day, White supremacy is an ongoing systemic system of oppression, in which Blackness is pathologized. Black folk need to realize that it’s counterproductive to critique White supremacy while asking for and/or expecting White supremacy to offer a solution.

 

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