The 'Islamic Scarf' in the European Court of Human Rights

By Evans, Carolyn | Melbourne Journal of International Law, May 2006 | Go to article overview

The 'Islamic Scarf' in the European Court of Human Rights


Evans, Carolyn, Melbourne Journal of International Law


[The wearing of religious clothing and symbols has become a source of potent legal and political controversy. This article analyses the way in which the European Court of Human Rights has dealt with claims by two women (one a teacher and one a student) who were denied the right to wear headscarves in their educational institutions. The article analyses the way in which the Court considered but failed to fully engage with three issues raised in those cases: proselytism; gender equality; and intolerance and secularism. It criticises the Court "s reliance on stereotypes and generalisations about Muslim women, and Islam more generally, and explores the way in which two contradictory images of Muslim women inform the Court's decisions.]

CONTENTS

I   Introduction
II  The Relevant Convention Provision
III Factual Background
      A Dahlab v Switzerland
      B Sahin v Turkey
IV Key Elements of Reasoning
      A Proselytising
      B Gender Equality
      C Intolerance and Secularism
V  Islam and the Muslim Woman in the Court's Judgments

I INTRODUCTION

Veils, it seems, are very revealing. As soon as a Muslim woman covers her head there are large numbers of people--from journalists to politicians, academics to talkback radio callers--who know exactly who she is and what she stands for. (1) Despite the fact that women, both Muslim and non-Muslim, have been wearing head coverings of various kinds for many centuries, suddenly headscarves are engaging attention throughout the world. (2) While the media has focused on the changes to the rules for schoolgirls in France, (3) there have been controversies in many countries--from Danish women who were sacked from their jobs as check-out operators, (4) to British schoolgirls who did not find the school's Muslim uniform sufficiently strict, (5) to a Muslim witness in New Zealand whose wearing of a veil over her face when giving evidence in a car theft trial was challenged by the defence, (6) to an Australian soccer player who was told by a referee that she could not take part in a match unless she removed her headscarf. (7)

The political and legal controversies surrounding the wearing of religious clothing, particularly in public institutions such as schools, universities and public service offices, found their way to the European Court of Human Rights ('the Court') in two important decisions. The first, Dahlab v Switzerland, (8) involved a school teacher who was banned from teaching in a primary school because she dressed in traditional, modest clothing including a headscarf. The second case, Sahin v Turkey, (9) involved a university student who was prohibited from study because she wished to wear a headscarf in her lectures and examinations. (10) Sahin is particularly important because it is the first Grand Chamber decision on the issue of religious clothing, but Dahlab is also a highly relevant case, despite being dismissed as inadmissible, because this perfunctory treatment is common for religious freedom cases brought by religious minorities in Europe. Thus Sahin is of more importance in a legal sense, but Dahlab is likely to be more representative and typical of the fate that awaits other applicants in religious freedom cases of this nature.

This article examines both cases and the reasoning that the Court employs in each to determine that the states in question had not breached the applicants' freedom of religion. The decisions of the Court in both cases relied on two contradictory stereotypes of Muslim women as the essential basis for the decisions. While the formal tests adopted by the Court set a very high bar for states that seek to limit the rights of those within their jurisdictions, in practice, the rights of minority religions in many European states have been routinely limited and the Court has not condemned such limitations. The two cases discussed in this article are examples of the way in which the members of the Court find it difficult to move outside the religious paradigms that are most common in Europe (that is, either broadly Christian or secular) and to deal with non-Christian religions in a manner that is respectful and culturally sensitive. …

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