The Headscarf Debate: Let Women Decide
Freedom, rights and gender equality being the primary tenets of classic liberalism have been impacted strenuously by changing social and political conditions in recent history. Social conditions in the west that have affected the said tenets of liberalism include multiculturalism, increasing communal interaction and Islamophobia. These effects have been augmented by political conditions like September 2001 terrorist attacks, the July 2005 London bombings and the wars on Iraq and Afghanistan.
A particularly notable consequence of these conditions is the ongoing debate on the Islamic headscarf worn by adult Muslim women in public spaces, especially educational institutions. In countries signatory to the European Convention on Human Rights (ECHR) like Turkey and France, the headscarf has become part of a wider debate on feminism and multiculturalism. In these countries, a strict constitutional separation exists between public and private spheres, and priority is given to secularism. Thus, it is generally not acceptable for individuals' private religious beliefs to be overtly displayed in the public sphere. To women fundamentalists, this immediately conflicts with the right to manifest one's religion or freedom of religious expression (Article 9 of the ECHR), causing problems with exercising personal autonomy (under Article 8 of the ECHR) and identity issues. The bans on headscarf prevent women from exercising their real autonomy in following through with their personal choices.
There is still confusion over the religious justifications for wearing the headscarf. Governments of countries defending the ban on headscarf argue that this is a form of gender equality which allows women to compete with men in public spaces and in educational institutions on purportedly equal terms. There is conflict between various feminist groups over the justification of the headscarf and those supporting the ban. For the former it emphasizes a woman’s bodily integrity and simply a right to choose. The latter counter this with arguments highlighting gender equality and freedom from patriarchal practices. According to human rights professor Jill Marshal, for women in Muslim families in the west following strict traditions, “a critical challenge is reconciling the ability to make meaningful choices” for themselves with the often oppressive, and always gendered, conditions in which they find themselves. Those accepting the headscarf deem it as a matter of religious freedom and opposition to the practice is motivated by the belief that it is a visible symbol of women’s oppression.
For constitutional interpretation, the questions posed to the European Court of Human Rights in Sahin v Turkey included:
a) Whether placing a restriction on wearing the headscarf is an interference with the applicant’s right to manifest her religion under Article 9 of the ECHR?
b) Is it necessary in a democratic society?
c) Does it follow a legitimate aim like protection of rights and freedoms of others and protection of public order? In reaching their answers in the affirmative, the majority stressed the idea of secularism and gender equality.
This was the basis of the ban on the headscarf. The court stated that regulations banning the wearing of headscarves aimed at the peaceful coexistence of students and may, therefore be permitted. The court was mindful of the fact that in this and other cases addressing the headscarf issue, the applicant women made it clear that their decisions to wear headscarves were their own and not a result of family oppression or traditions.
The majority believed that wearing the headscarf in secular institutions was considered contrary to the values of pluralism and equality between men and women. The dissenting judge however, accurately pointed out that sexual equality does not provide a justification for prohibiting a woman from following a freely adopted practice. Furthermore, the analysis in case law (including a Swiss case on the same subject, Dahlab v Switzerland) fails to reconcile a woman’s freedom with gender equality. It does not consider the premise that upholding gender equality that respects differences among people rather than insisting that they are somehow the same is the reasonable form of equality. The starting point involves treating similar people similarly which supports the ideas of consistency in the rule of law-ensuing equal treatment hence enhances justice.
Revisiting the concept of freedom in various possible ways acknowledges the impact that social conditions have on forming identity, and promoting the development of autonomy in each person. This allows for variations in the amount of autonomy individuals feel they have at any given time in their life and retains the idea that some form of agency, reflection and choice is available to people in some form or another. In these situations, it is important for the individual woman concerned to be part of the decision-making process at some level in the civil society.
Meanwhile, if personal autonomy as rooted in Article 8 of the ECHR is the idea that ‘individuals should be free to pursue their own goals according to their own values, beliefs and desires,’ then the individual woman needs to exercise her choices under the existing conditions that shape her ‘values, beliefs and desires.’ Ideally, the individual woman who is part of that process actually enables those conditions to change. Participation is the key word, where everyone has a right to be themselves on any forum. Individual identities with shared characteristics can form overlapping communities and interest groups in civil society in order to be accommodated and celebrated.
The writer is a lawyer focused on teaching law. She is currently enrolled for LLM in human rights of women and children. She has worked with Kashf foundation for women's empowerment and has currently adopted an orphanage in Lahore with a team of women with similar interests.
The views expressed are of the author.