Authored By: Harley Summers
Introduction
In the last two decades, the European Court of Human Rights (‘the Court’) has dealt with numerous challenges concerning how Contracting States enforce their duty of neutrality, balancing the principle of secularism against religious pluralism. Revealed throughout its jurisprudence is, as this article asserts, a hijabophobic rhetoric. This term, popularised by Hamzeh, denotes a gendered Islamophobia levelled at Muslim women for the visibility of their hijab (or other veil)[1], and in particular encapsulates a paradoxical prejudice wherein wearers of the hijab are both ‘threats to liberal values’ and victims of oppression.[2] Across contexts – including employment, education, and in public life – the Court has justified the regulation of Muslim women’s bodies within the state’s margin of appreciation, having pursued legitimate aims such as national security, and proportionately considered the rights of others in a secular society. This article argues the current reading of these principles under Article 9 of the Convention is too generous to states and misconstrues ‘living together’ as assimilation rather than acceptance. It is imperative therefore the Court revises its application of the principles under Article 9 of the European Convention on Human Rights, and affords states a finer margin of appreciation to prevent onerous standards and fairer protections for the religious rights of Muslim women.
To that end, Section II sets out the existing legal framework, namely Article 9 of the Convention and its qualifications. Section III analyses the developing caselaw to realise how these legal principles operate in practice. Section IV examines the implications of these leading cases. Section V sums the need to redress the prejudicial narratives in ECtHR jurisprudence henceforward.
Legal Framework
Article 9 of the European Convention on Human Rights[3] (‘ECHR’) enshrines the right to freedom of thought, conscience, and religion across Contracting states on a qualified basis. In particular, it is the manifestation of a religious belief which can be restricted if ‘prescribed by law’, in pursuance of a legitimate aim such as ‘public safety’, ‘the protection of public order, health or morals’; and if it is ‘necessary in a democratic society’. Any restriction must also be proportionate to the particular aim on which the restriction is justified. What complicates this is the margin of appreciation the Court affords states in balancing Convention rights against competing interests – this doctrine of judicial self-restraint means state authorities are best placed to decide what restrictions are justified, and as such there exists uncertainty between states as to the most proportionate approach. This creates opportunity for onerous and prejudicial responses to Muslim women expressing their religious obligation to wear veils and other modest regalia.
Whilst there are some circumstances where the removal of religious clothing is prescribed by law[4] and in the interests of public safety,[5] many of the qualifications used in regard to Article 9 ECHR are quite fragile. France has been known to extract the values of democracy in many of its human rights battles, developing an altogether new principle known as le vivre ensemble or ‘living together’.[6] Prima facie, this principle recycles the understanding that members of a democratic society, with all its diversity, share the same living space, and pluralism therefore must be expected. However, France have applied a rigid formula of ‘living together’ which has fractioned against their constitutional principle of laïcité or secularism, meaning the separation of civil and religious society.[7] For Muslim women, this means the legitimate stripping of their veils from the public view[8], in addition to the workplace[9] and education.[10] The Court accepted this principle underpins the values of the Convention[11], but as Kapur puts it, this ‘privileges the concept of “living together” over the right to manifest religion [reflecting an] assimilationist impulse’.[12] This article furthers this argument, asserting a different perspective of the democratic values of the Convention plausible: one which tolerates pluralism in a secular society more harmoniously than the Court currently accepts, and does not disproportionately disadvantage the religious expression of Muslim women.
In addition to upholding democratic values, Article 9 ECHR obliges states to adhere to the principle of neutrality and impartiality, as it falls beyond their scope to ‘assess the legitimacy of religious beliefs of the ways in which those beliefs are expressed’.[13] Despite these principles, much of the caselaw concerning the application Article 9 ECHR to the factual circumstances involving Muslim women is sceptical of the message sent by the hijab as a religious symbol. A paradox unfolds where women’s freedom of choice is brought under inspection, and the visible marker of Islam is cast as powerful or even indoctrinating. This article adopts a critical lens of the Court’s rationale in these cases, essentially arguing the principle of neutrality is breached wherein their reasoning is not neutral at all. Moreover, there is a trend emerging from the caselaw in favour of a hard secularism which can sometimes give way to Christocentricism.
Caselaw Analysis
A closer look at the Court’s jurisprudence reveals the rationale behind its disagreeable decisions and affirms this article’s proposition that the Court has justified hijabophobia. Regardless of factual variations in the caselaw, the Court reiterates the same cautionary stance towards such a visual marker of religion, synonymising Muslim women’s clothing as a threat to the Convention’s values of democracy and secularism. In Dahlab v Switzerland (2001),[14] a Muslim schoolteacher was prohibited from wearing a headscarf in the classroom as it ‘might have some kind of proselytising effect’.[15] While the Court noted it was ‘difficult to assess the impact that a powerful external symbol [i.e. headscarves] may have on … very young children’, they quickly accepted it would without evidence. Rather, it was inferred that wearing a headscarf might proselytise because young children are ‘impressionable’.[16] Compared with Lautsi v Italy (2011),[17] where the Court held a crucifix displayed in the classroom was ‘an essentially passive symbol … particularly having regard to the principle of neutrality’, this article posits the Court’s rationale is entirely inconsistent.[18] In Lautsi, the Court distinguished this religious symbol from ‘didactic speech or participation in religious activities’ which could reasonably have an influence on schoolchildren,[19] yet despite the schoolteacher in Dahlab refraining from these aforementioned behaviours, the Court drew a different conclusion. This disparity in judicial reasoning highlights the differential treatment between religions in secular society, where Muslim women are victim to a double-standard.
The Court in Dahlab go on to share their understanding of Muslim women’s religious obligation to wear modest clothing ‘which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality’.[20] This makes it ‘difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils’.[21] Here, the Court justify the prohibition of Islamic headscarves on the principles of gender equality, which are of course central to the Convention and to democratic values. Ironically, this perspective falls short of truly understanding gender equality as allowing women the choice to wear, or not wear, modest religious clothing. To assume Muslim women wear a headscarf out of social pressure, particularly subservience to their male counterparts, is an ignorant and misleading generalisation that perpetuates misogynistic connotations itself. This concept is briefly acknowledged in S.A.S v France (2015),[22] wherein the Court noted a state cannot ‘invoke gender equality to ban a practice that is defended by women’ though in the same breath creates an escape clause if such choice were only illusionary and women still needed protection from external coercion.[23] Construing the measure taken against the schoolteacher as pursuant to ‘the legitimate aim of ensuring the neutrality of the State primary-education system’[24] is both onerously applied and not neutral at all – it refashions neutrality into assimilation. The Court’s attempt to role reverse by considering ‘such a measure could also be applied to a man who … wore clothing that clearly identified him as a member of a different faith’[25] only affirms that religions with visible markers are incompatible with their reading of secularism.
Turning to Leyla Şahin v Turkey (2005), the Court highlighted the wide margin of appreciation given to states is of special importance in allowing national authorities to decide how they uphold the principle of secularism in their democratic societies.[26] The facts in Leyla dealt with a Muslim student who was denied admission to enrol or undertake examinations due to her headscarf. Here, the Court emphasised ‘this notion of secularism’, one which this article argues is partial and prejudicial, is ‘consistent with the values underpinning the Convention’, namely the respect for others’ human rights and the democratic system.[27] Later in the judgment, the Court delineates the context of the university as an educational institution ‘where the values of pluralism, respect for rights of others and, in particular, equality before the law of men and women are being taught and applied in practice’; invoking these principles in the same breath as outrightly denying a student the ability to be at all plural.[28] Rather it is implied pluralism is equal to assimilation: where everyone looks the same and religious identities are invisible – this article disagrees that this notion of secularism is compatible with pluralism and tolerance. Wearing a headscarf is framed as ‘contrary’ to the ‘secular nature’ of the institution which, in the Court’s opinion, state authorities should understandable be allowed to ‘preserve’.[29] The language used presents Islamic dress as a protest which is dismantling or erasing secularism, however, diversity is not an attack on this principle. This article postulates the possibility to be both secular and pluralist, and this current understanding of the principle of secularism is conversely eroding the religious freedoms of Muslim women by denying them equal respect and tolerance. Extracting the sentiments from Eweida v The United Kingdom (2013),[30] where the Court ruled Ms Eweida’s discreet cross did not detract from her professional appearance, there is a logical inconsistency here. In fact, the Court digressed further that other – less discreet – items of religious clothing ‘such as turbans and hijabs’ had no evidential impact on the company’s image.[31] On the one hand, an institutions’ secularism and pluralistic values are undermined by the hijab, but another corporation’s image is not. The Court even commented that the importance of Article 9 ECHR balances the fact ‘a healthy democratic society needs to tolerate and sustain pluralism and diversity’ and the ‘value to an individual who has made religion a central tenet of [their] life to be able to communicate that belief to others’.[32] Here, the hijab is portrayed as a communication of faith instead of a proselytising symbol which contradicts secularist principles. Of course, the difference in approaches is credited to states’ margin of appreciation – and this article does not intend to diminish its pertinence – but there is a clear imbalance of the Court’s protection of non-Muslim religious symbols that is not afforded to Muslim women, and so a more uniform approach is required to prevent onerous decisions.
There is, as Kapur puts is, almost an ‘unstated religious majoritarianism’ which is facilitated by the current approach to the principle of secularism and ‘living together’.[33] This is most pertinently seen in the case of S.A.S v France (2015).[34] In 2011, France implemented a ban on the concealment of one’s face in public places,[35] which the Court did not find in violation of Article 9 ECHR, inter alia. The French Government put forth a compelling argument, in the Court’s view, that wearing a veil posed a ‘barrier’ against other members of society due to the crucial role of an individual’s face in social interactions.[36] This article contends the importance of seeing Muslim women’s faces is overstated; the same cannot and should not be said about a woman’s hair or other part of her body. The rationale underpinning this argument is largely concerned with abusing the freedom to wear a veil to ‘express a form of contempt against those they encounter or otherwise offend against the dignity of others’, which emulates distasteful connotations about religious head/face coverings being an instrument of crime or public disorder. This intolerant view, and extreme level of regulation over Muslim women’s bodies in the public sphere, has a colonial character as underscored by Brayson.[37] As aforementioned, there are some real circumstances where the removal of religious clothing is justified in the name of national security, but just existing in society is not one of them, and only serves to further fearmonger myths of Islam and the meaning or intention behind wearing the hijab. This can only be understood as oxymoronic to the values of the Convention, fostering hijabophobia, and highlighting the dissonance between the principle of secularism in a democratic, pluralist society and states’ rigorous assimilationist measures.
Critical Evaluation
There is much academic debate which supports the argument forwarded in this article, namely hijabophobia prevails in the Court’s decisions to date and needs to be revised to prevent onerous outcomes for Muslim women. The concept of living together in a secular society, which France labels laïcité, has outgrown its ‘liberal ethos’ as Daly describes it, and become ‘wholly barren and oblivious’ the religious rights of Muslim women.[38] This article agrees it has adopted a ‘disciplinary role for culturally threatening, ‘ostentatious’ religious choices’, overreaching states’ duty of neutrality entirely and misconstruing secularism in a pluralist society.[39] The principle of neutrality, Raza sumises, has been imagined differently from state to state. As such it has been left by the Court in an ‘unsatisfactory state’, and until it is prepared to grapple with it, this principle will continue to be a vehicle of suppression for religious difference.[40] Exacerbated by this is the Court’s neglectful engagement with necessity for imposing restrictions on religious clothing. Without evidence of necessity, such as real potency of social pressure to wear a hijab, the Court’s approach will always be deficient in truly protecting Muslim women. The alternative – plain deference to a state’s margin of appreciation – enables disproportionate outcomes for Muslim women and the potential for other faiths to receive higher favourability as seen previously. To address this, a more principled approach is instrumental to ‘managing religious claims’,[41] otherwise state power goes unchecked, and hijabophobia thrives.
Conclusion
In sum, this article has elucidated an overwhelming theme of hijabophobia in the history of the Court’s jurisprudence concerning Article 9 of the Convention. It has been demonstrated that Muslim women’s bodies are unfairly regulated on the apparent basis of legitimate aims from democratic values to secularism, leading to assimilation. By exploring the caselaw more intimately, this article uncovered existing onerous versions of the principle of secularism, all of which are stricter than necessary in regards to Muslim women’s choice of religious headwear. To appropriately address this issue, the Court should revise its understanding of secularism as compatible with visible pluralism, rather than contrary to the Convention, which would afford more equal protection to Muslim women in society.
Bibliography
Table of Cases
Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001)
De Wilde v Netherlands App no 9476/19 (ECtHR, 9 November 2021)
Eweida and Others v United Kingdom App nos 43420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013)
Lautsi and Others v Italy App no 30814/06 (ECtHR, 18 March 2011)
Leyla Şahin v Turkey App no 44774/98 (ECtHR, 10 November 2005)
Mann Singh v France App no 24479/07 (ECtHR, 13 November 2008)
Phull v France App no 35753/03 (ECtHR, 11 January 2005)
SAS v France App no 43835/11 (ECtHR, 1 July 2014)
Table of Legislation
Constitution du 4 octobre 1958 (Fr)
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended)
Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public (Fr)
Bibliography
Bakali N, Hijab, Gendered Islamophobia, and the Lived Experiences of Muslim Women (Yaqeen Institute for Islamic Research 2021)
Brayson K, ‘Of Bodies and Burkinis: Institutional Islamophobia, Islamic Dress, and the Colonial Condition’ (2019) 46(1) Journal of Law and Society 55
Daly E, ‘Laïcité, Gender Equality and the Politics of Non-Domination’ (2012) 11(3) European Journal of Political Theory 292
Hamzeh M, Pedagogies of Deveiling: Muslim Girls and the Hijab Discourse (Emerald Publishing Limited 2012)
Kapur R, Gender, Alterity and Human Rights (Edward Elgar Publishing 2018)
Kapur R, ‘Secularism’s Others: The Legal Regulation of Religion and Hierarchy of Citizenship’ [2020] Comparative Constitutional Law Series: Handbook on Constitutions and Religions 41
Raza F, ‘Limitations to the Right to Religious Freedom: Rethinking Key Approaches’ (2020) 9(3) Oxford Journal of Law and Religion 435
[1] Manal Hamzeh, Pedagogies of Deveiling: Muslim Girls and the Hijab Discourse (Emerald Publishing Limited 2012) 9
[2] Naved Bakali, Hijab, Gendered Islamophobia, and the Lived Experiences of Muslim Women (Yaqeen Institute for Islamic Research 2021) 4
[3] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9
[4] Mann Singh v France App no 24479/07 (ECtHR, 13 November 2008)
[5] Phull v France App no 35753/03 (ECtHR, 11 January 2005)
[6] SAS v France App no 43835/11 (ECtHR, 1 July 2014)
[7] Constitution du 4 Octobre 1958, art 1 (Fr)
[8] n6
[9] Dahlab v Switzerland App 42393/98 (ECtHR, 15 February 2001)
[10] Leyla Şahin v Turkey App no 44774/98 (ECtHR, 10 November 2005)
[11] Ibid
[12] Ratna Kapur, ‘Secularism’s Others: The legal regulation of religion and hierarchy of citizenship’ [10 November 2020] Handbook on Constitutions and Religions Comparative Constitutional Law Series 41-48
[13] De Wilde v The Netherlands App 9476/19 (ECtHR, 9 November 2021)
[14] n9
[15] n9, (p. 13)
[16] n9, (p. 6)
[17] Lautsi and Others v Italy App 30814/06 (ECtHR, 18 March 2011)
[18] N17, [72]
[19] Ibid
[20] N9, (p. 13)
[21] Ibid
[22] SAS v France App no 43835/11 (ECtHR, 1 July 2014)
[23] Ibid, [119]
[24] N9, (p.14)
[25] Ibid
[26] n10, [109]
[27] Ibid, [114]
[28] Ibid, [116]
[29] Ibid
[30] Eweida and Others v The United Kingdom App nos. 43420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013)
[31] Ibid, [94]
[32] Ibid
[33] Ratna Kapur, Gender, Alterity and Human Rights (Edward Elgar Publishing 2018) 120-150
[34] N22
[35] Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public
[36] N34
[37] Kimberley Brayson, ‘Of Bodies and Burkinis: Institutional Islamophobia, Islamic Dress, and the Colonial Condition’ [2019] 46(1) Journal of Law and Society 55-82
[38] Eoin Daly, ‘Laïcité, gender equality and the politics of non-domination’ [2012] 11(3) European Journal of Political Theory 292-323
[39] Ibid
[40] Farrah Raza, ‘Limitations to the Right to Religious Freedom: Rethinking Key Approaches’ [2020] 9(3) Oxford Journal of Law and Religion 435-462
[41] Ibid
