Islamic Attire: Religious Symbol or an Obstacle to Women’s Rights?
Strathclyde University, Glasgow. Master in Human Rights Law.
Abstract: This article examines and discusses issues arising from bans of Islamic attires of women in public areas, schools and universities in High Contracting Parties of the European Convention of Human Rights (ECHR). This article revolves around the argument that the Islamic outfit is a symbol of oppression on women’s rights or a symbol of religion and faith. With the aim to comprehend and analyse the Western perspective on the prohibition of veils in contrast with the Islamic one and the reasons behind the issue, I set the theoretical background of this issue through the discussion of these ban-measures across some European states (i.e. France, Belgium etc.). The analysis of Articles of the ECHR relevant to the issue and particularly Articles 9(Freedom of religion) and 2 of Protocol 1 (right to education) , the citation of the related case law and my personal experience, help me answer whether the right of a Muslim woman to be educated, work as a teacher, believe and manifest her religious views is being deprived by her decision to follow the Islamic dress-code or by prohibition-laws passed by European states and approved by the European court of Human rights (ECtHR). Through the study of the relevant case law, I realise that even the legislation itself has difficulties stipulating the idea of religion within the frame of the Islamic world. From one point of view, everyone is free to choose and manifest without discrimination his/her religious views. On the other hand, someone’s religious ideas should also respect other individuals’ religious beliefs. For many people in the Western World, the idea of the Islamic veil is related to the violation of women’s rights and gives the image that these women are oppressed. However, through my personal experience on the issue and the study of the relevant academic sources, I can tell that many of these women decide to follow the Islamic dress code on their own. Their choice to defend their religious views and their way of life should be recognised and be appreciated by the European countries and the ECtHR and not be violated. It is obvious that prohibition-laws do not benefit their rights but instead have as a consequence the violation of important human rights such as the right to education, teaching, expression, religion and non-discrimination.
Keywords: Islamic attire, Human Rights, Women Rights, ECHR, ECtHR, Education, religion
Ισλαμική Ενδυμασία: Θρησκευτικό Σύμβολο ή Εμπόδιο στα Γυναικεία Δικαιωμάτα;
Απόσπασμα: Το άρθρο εξετάζει και συζητάει τα θέματα που προκύπτουν απο απαγορεύσεις Ισλαμικών ενδυμάτων σε γυναικες που βρίσκονται σε δημόσιους χώρους, σχολεία και πανεπιστήμια από Υψηλά Συμβαλλόμενα Μέλη της Ευρωπαικης Σύμβασης Δικαιωμάτων Ανθρώπου (ΕΣΔΑ). Το άρθρο περιστρέφεται γύρω από τον ισχυρισμό εάν το Ισλαμικό ντύσιμο είναι σύμβολο καταπίεσης των γυναικείων δικαιώματα ή σύμβολο θρησκείας και πίστης. Με σκοπό να κατανοήσουμε και να αναλασύσουμε τη Δυτική άποψη στο θέμα της απαγόρευσης των πέπλων σε συγκριση με την Ισλαμική και τους λόγους πίσω από το θέμα, θέτω το θεωρητικό επίπεδο του θέματος μέσω της συζήτησης των μέτρων απαγόρευσης που έχουν θέσει κάποια Ευρωπαικά κράτη (π.χ Γαλλία, Βελγιο κτλ). Η ανάλυση των σχετικών άρθρων της ΕΣΔΑ και συγκεκριμένα του Άρθρου 9 (Ελευθερία στη Θρησκεία), Άρθρου 2 του Πρωτόκολου 1(Δικαίωμα στην Εκπαίδευση), η παράθεση των σχετικών νομολογιών καθώς και η προσωπική μου εμπειρία, με βοηθησαν να απαντήσω εάν το δικαίωμα μίας Μουσουλμάνας γυναίκας στο να μορφώνεται, να εργάζεται, να πιστεύει και να εκδηλώνει τις θρησκευτικές της πεποιθήσεις στερείται από την αποφάση της να ακολουθήσει τον Ισλαμικό κώδικα ντυσίματος ή από τους νόμους- απαγόρευσης (κατά του Ισλαμικού πέπλου) που περνούν τα Ευρωπαικά κράτη και γίνονται αποδεκτόι με τις αποφάσεις του Ευρωπαϊκού Δικαστηρίου Ανθρωπίνων Δικαιωμάτων (ΕΔΑΔ). Μέσα από τη μελέτης της σχετικής νομολογίας, συνειδητοποιώ ότι μέχρι και η νομοθεσία απο μόνη της έχει δυσκολίες στο να καθορίσει την ιδέα της θρησκείας μέσα στο πλαίσιο του Ισλαμικού κόσμου. Από τη μία άποψη, ο καθένας είναι ελεύθερος να επιλέγει και να εκδηλώνει τις θρησκευτικές του πεποιθήσεις. Από την άλλη, οι θρησκευτικές πεποιθήσεις κάποιου θα πρέπει να σέβονται τα ιδεώδη άλλων ιδιωτών. Για ένα μεγάλο μέρος ανθρώπων του δυτικού κόσμου, η ιδέα του Ισλαμικού πέπλου σχετίζεται με τη παραβίαση των γυναικείων δικαιωμάτων και δίνει την εικόνα ότι αυτές οι γυναίκες είναι καταπιεσμένες. Παρόλα αυτά, με βάση τη προσωπική μου εμπειρία πάνω στο θέμα και τη μελέτη των σχετικών ακαδημαικών πηγών , είμαι σε θέση να ισχυριστώ ότι δεν είναι λίγες οι γυναικές που αποφασίζουν με δική τους βούληση να ακολουθήσουν τον Ισλαμικό κώδικα ενδυμασίας. Η επιλογή τους να υπερασπιστούν τις θρησκευτικές τους πεποιθήσεις και τον τρόπο ζωής τους θα έπρεπε να αναγνωρίζεται, να εκτιμάται και όχι να παραβιάζεται από τα Ευρωπαικά κράτη και το ΕΔΑΔ. Είναι φανερό ότι νόμοι-απαγόρευσης δεν ευεργετούν τα δικαιώματα τους εν αντιθέση έχουν ως αποτέλεσμα τη καταπάτηση σημαντικών ανθρωπίνων δικαιωμάτων όπως το δικαίωμα στην εκπαίδευση,διδασκαλία, εκφρασης, θρησκείας και κατά των διακρίσεων.
Λέξεις-κλειδιά: Ισλαμική ενδυμασία, Ανθρώπινα Δικαιώματα, Γυναικεία Δικαιώματα, ΕΣΔΑ, ΕΔΑΔ, εκπαίδευση, θρησκεία
Religious attires are types of clothing that people wear in order to distinguish their rank or status within the frame of a religious community. In a lot of cases, religious dress codes and particularly Islamic attires have been intensively criticised and even banned across Europe. In many occasions ban-measures against Islamic outfits were accompanied by important violations on women’s rights. Important human rights such as the Right to education (Article 2 Protocol 1 ECHR), the Freedom of thought, conscience and religion (Article 9, ECHR), the Prohibition of discrimination (Article 14 ECHR) etc. are systematically taken away from women that choose to wear their Islamic outfits. Following from this point, this article examines and discusses the issues arising from bans of forms of Islamic attires in relation to the Articles of ECHR.
Islamic Veil: Symbol of Oppression or Sign of Will?
In many countries where religion is a crucial part of the society, people express their faith through their clothing, ornaments or body decoration. Clothing is not only a way of expression but is also a symbol for every religious community. In history, religious instruments as priests, monks, priestesses, shamans, nuns and others should follow a specific dress code. The world of Islam gives great importance to the outfit and attaches a special symbolism to it. The sartorial code in Islamic societies became the symbol of a particular culture which serves the religious beliefs of their people. So, Muslim women, through their outfit, constitute the conveyor and the bearer of the Islamic communities. The Islamic outfits Khimar (headscarf), hijab (a “veil” that covers the hair and the shoulders), chador (a black wide semi-circular piece of fabric, which covers the entire female body), burqa (the cloth in which the whole body is covered and eyes covered by a translucent or mesh fabric), niqab (is similar to burqa, but it has a slit in front of the eyes, which are visible) are closely connected with the position of women in Islamic societies (Ssenyonjo, 2007, p.657).
In the Western world, there is a general perspective that the spread of the Islamic attire took place firstly during the period of the Political Strength of Islamic fundamentalism and has political interests like strengthening and highlighting the Islamic identity (Shadid & Van Koningsveld, 2005, pp. 45-46). According to the article of Hera Hasmi (2010) the veil existed before Islam in many societies; a characteristic example is the Christian nun. Based on this, it is natural to question the reason why a large amount of people in the western world consider the “veil” a symbol of oppression when it is worn by Muslim women, but a symbol of religion and faith when it is worn by a nun.
My personal experience as a postgraduate student in the UK, away from my country, significantly helped me with the examination of the issue of the Islamic veil. As a student, I came in contact with several students from different cultural and religious backgrounds than mine; among them an Iranian girl, then a graduate student. It always felt awkward to start a conversation regarding her Islamic outfit because I was not sure if she would be comfortable to discuss it. One day during a conversation the issue of religious attire came up so I decided to ask her. She did not looking uncomfortable answering my question as I feared and she replied to me directly and naturally. She revealed to me that she started wearing her hijab when she was nineteen years old and when I asked her how she reached this decision she said that her family had nothing to do with her choice. Her choice to wear her hijab was entirely her decision and came to it mainly when she moved out of her country to study. As she said, she wanted to integrate into the new society without adopting the Western cultural norms and forgetting her own religious and cultural origins.
It is obvious that the interpretation of a religious symbol as a piece of cloth can have many different approaches and most of the times this depends on someone’s personal cultural norms and religious beliefs. Nevertheless, the concept of religion or beliefs is personal and subjective as everyone has the right to be faithful to his/her own concepts (European Union Agency for Fundamental Rights & Council of Europe, 2010, p.111-112).
Issues arising from bans of Islamic attires in High Contracting Parties of the ECHR
Based on the study of Article 9 of the ECHR, freedom of religion is an individual right that establishes the obligation of member- states to protect the configuration or the manifestation of religious beliefs of individuals. However, many member-states of the Convention have been opposed to and prohibited the religious attires. For instance, in 2009, the president of France, Nicola Sarkozy, claimed his opposition against the use of the burqa. Specifically, he said:
Sign of Enslavement, the burqa is not welcome in the territory of French Republic. We cannot accept in our country women imprisoned behind a mesh, cut off from society deprived of all identity. That is not French Republic’s idea of women’s dignity (Gabizon, 2009).
A year later, specifically on 11 October 2010, the French law No.524/2010 prohibiting religious attires was approved by the French Parliament and came into force on 11 April 2011(Semertzis, 2011). However, this is not the first time that President Sarkozy tried to introduce a law regarding the prohibition of Islamic veils. In 2004, the French government passed a similar law concerning the ban of headscarves in schools and universities with the pretext of avoiding religious discrimination among students (Gandley, 2010). Sarkozy’s argument was that female students are forced by their parents to wear headscarves and had no choice to do otherwise (Gandley, 2010).
Nonetheless, France is not the only member-party of the ECHR that has dealt with the issue of the Islamic outfits during the 21st century. Other member-states of the Convention such as Germany, Belgium, Albania, Italy, Netherlands and Switcherland have also discussed, penalized and prohibited Islamic attires in public areas, schools and even universities. Particularly, in Belgium an analogous prohibition-law entered into force in 2011(Erlanger & Camus, 2012) while similar national ban-laws have been discussed and suggested in other European states (Sunderland, 2012). Although prohibition-measures such as those in the case of France were not only regarding Islamic veils but also included every religious dress or sign that was extremely obvious like Sikh turbans, kippas (Jewish skullcaps) and large Christian crosses (Jones, 2012, p.22), the public debate on the issue across Europe mainly concentrated on the Islamic attires. However, considering the case of France where the Muslim population is approximately five million people makes it easy to understand why prohibition-laws were mainly focused on the religion of Islam (Gandley, 2010). The claims of Sarkozy against Islamic dress code brought to the light more issues behind these prohibition-measures and indicated that Sarkozy imposed this ban in order to serve his political interests. Particularly, critics of the law argued that the government of Sarkozy wanted to attract far-right voters and supported that only a small minority of Muslims in France wear the Islamic headscarf (Murray, 2012).
Furthermore, in order to adequately comprehend the issues that came up through prohibition-measures such as the above, it would be interesting to examine two relevant cases of the ECtHR. The first case is the Dahlab v Switzerland (2001). Ms Dahlab, a school teacher of young children, wore her headscarf in class and refused to remove it while she was at school. The ECtHR admitted that according to Article 9 of the ECHR, she was allowed to wear her Islamic headscarf. However, it also claimed that this allowance could be interpreted as a violation of the Article 9 (2) because the Islamic headscarf could be taken as a symbol of extreme manifestation of her religious beliefs with the possible result of creating a proselytizing environment for the young children in the class. In the end, the ECtHR decided that Ms Dahlab was not allowed to wear her headscarf in school.
The other case is the Leyla Şahin v. Turkey (2005) in which the applicant claimed that the University she studied at (she was a medical student), denied her to attend the University’s courses due to her Islamic headscarf. Following from this incident the applicant alleged that Turkey’s prohibition was an intervention to her religious beliefs under Article 9 of the ECHR (Leyla Şahin v. Turkey, 2005).
Based on the above case-study, it is clear that the issues that come up are quite a few. The content of the cases is not only relevant to Articles 9 and 2 Protocol 1 but also questions the violation or not of other articles of the ECHR such as the Prohibition of Discrimination in Article 14, the Freedom of expression in Article 10 and the Right to respect the private and family life in Article 8 of the Convention.
According to Article 9(1) of the ECHR, everyone has the right to manifest his/her beliefs on religious issues without being afraid of other people’s reactions. Furthermore, Article 9(2) of the ECHR declares that limitations to this Article:
are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others (Art.9(2), ECHR)
As Jim Murdoch noticed in his book (2007) Freedom of Thought Conscience and Religion: a Guide to the Implementation of Article 9 of the European Convention on Human Rights, according to the ECHR any kind of prohibition at this point is considered an infringement of individuals’ religious rights. However, he goes on to say that according to the Strasburg Court, there are special cases where a state is allowed to prevent an individual from expressing his/her religious beliefs. Particularly, the state can do so based on fear of extreme actions taken by fundamentalist groups or individuals against people who belong to either the same or different religions (Murdoch, 2007, p.36). Having a careful look at the case law and the above discussion regarding the issue, it is obvious that the prohibition of Islamic attires introduces many other issues such as immigration policy, national identity, and other domestic and political issues. Besides, according to Article 2 of Protocol 1 of the ECHR, the right to education and teaching has to be in consistence with the religious and philosophical views of the person.
Through the study of the above case-law and the examination of the relevant articles, I felt that the Court lost its neutral position regarding the ban of Islamic veils in schools and universities as I consider that ban-measures have little significant effectiveness on the field of human rights and on the equality of genders. In my opinion, the issue of the right of women to wear their Islamic outfits when they are in public places, schools and universities was mainly approached from a Eurocentric and paternalistic perspective. In this context, the headscarf or burqa or niqab is not a free choice of women but is a rule that is imposed on them by their family or community. So the state intervenes in order to release them since they cannot do so by themselves.
Despite the fact that prohibition- measures seem to defend women’s rights and protect other people from being proselytised by them (women that follow the Islamic dress code), in reality they are turned against them. The state automatically banishing them from wearing their Islamic veils at schools and universities sometimes even stigmatizes them within the Islamic society (Wing & Smith, 2005/06, pp.760-761). In addition, they (measures) impel women to decide between their education/work and their religious/cultural norms. Even if this decision in some cases is taken under the pressure of a woman’s familial environment or community, that does not certainly improve, benefit or promote her human rights.
Through the study of the relevant academic sources (Ssenyonjo, 2007, p.655 & Wing & Smith, 2005/06, p.758) and my personal experience that I cited above, I realised that there are numerous cases that women choose to wear Islamic veils of their own free will and not due to oppression. A lot of young Muslim women decide to wear hijab while their mothers do not wear it since they reject the Western model of femininity (Wing & Smith, 2005/06, p.762).Albeit bans of Islamic religious attires by European countries seem to defend the universal values and protect women’s affairs, it is obvious that problems start to appear when the universal values coincide with the western cultural model. Instead of accusing their way of life it would be proper to accept it and reward them for their choice to support their beliefs and cultural norms.
Consequently, I consider that the axis of future arguments and researches on this issue should mostly revolve around the following issues: the political interests and reasons behind the debate regarding the prohibition of Islamic outfits and whether the rights of women that follow the Islamic dress code are violated by the religion of Islam and their families or by the Western idea of “how a free woman should be”.
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