Legislative Prohibitions on wearing a Headscarf: Are they justified?

  • Fatima Osman University Of Cape Town
Keywords: KEYWORDS, headscarf ban, Muslim, Islam, women, oppression, terrorism, religious symbol, freedom of religion, secularism, coercion, equality, religious extremism.

Abstract

A headscarf, a simple piece of cloth that covers the head, is a controversial garment that carries various connotations and meanings. While it may be accepted as just another item of clothing when worn by non-Muslim women, it is often the subject of much controversy when worn by Muslim women. In recent years the headscarf has been described as a symbol of Islam's oppression of women and simultaneously of terrorism. As the debate regarding the acceptability of the headscarf in the modern world continues, an increasing number of states have legislated to ban the wearing of the headscarf.

 

This article critically examines the reasons underlying these bans and argues that these prohibitions are not justified. It does this by first analysing the place of the headscarf in Islam, its religious basis and its significance to Muslim women. It argues that the headscarf is more than just a mere religious symbol and that Muslim women wear the headscarf as a matter of religious obligation. The headscarf is considered to be an important religious practice protected by the right to freedom of religion.

 

Thereafter the article examines legislative bans on the headscarf in France, Turkey and Switzerland in order to identify the most popular justifications advanced by states and courts for banning the headscarf. It critically evaluates the justifications for protecting secularism, preventing coercion, promoting equality and curbing religious extremism, and disputes that the reasons put forward by states and accepted by courts justify banning the headscarf. It thereafter explores how South African courts would respond to a headscarf ban and argues that schools and employers should accommodate the headscarf. While Muslim women may not have an absolute right to wear the headscarf, there has thus far been no justifiable reason for banning the headscarf.

    ScienceOpen_Log0343239.png

References

Bibliography

Literature

ad-Darsh Muslim Women's Dress

ad-Darsh SM Muslim Women's Dress Hijāb or Niqāb (Islamic Book Trust Kuala Lumpur 1997)

Ahmad Encyclopaedia of Islamic Jurisprudence

Ahmad YAH Encyclopaedia of Islamic Jurisprudence Concerning Muslim Women Vol 3 (Dar-us-salam Maktaba 2009)

Ali Meaning of the Holy Qur'an

Ali AY The Meaning of the Holy Qur'an (Amana Books Beltsville 1996)

Barbibay 2010 CJICL

Barbibay Y "Citizenship Privilege or the Right to Religious Freedom: The Blackmailing of France's Islamic Women" 2010 CJICL 159-205

Belelieu 2006 CJEL

Belelieu CD "The Headscarf as a Symbolic Enemy of the European Court of Human Rights Jurisprudence: Viewing Islam through an European Legal Prism in Light of the Sahin Judgment" 2006 CJEL 573-623

Beller 2003-2004 TILJ

Beller ET "The Headscarf Affair: The Conseild'Ètat on the Role of Religion and Culture in French Society" 2003-2004 TILJ 581-624

Bienkowski 2010 RJLR

Bienkowski S "Has France Taken Assimilation Too Far? Muslim Beliefs, French National Values, and the June 27, 2008 Conseil D'Ètat Decision on Mme M" 2010 RJLR 437-458

Bleiberg 2005-2006 Cornell L Rev

Bleiberg BD "Note Unveiling the Real Issue: Evaluating the European Court of Human Rights' Decision to Enforce the Turkish Headscarf Ban in Leyla Sahin v Turkey" 2005-2006 Cornell L Rev 129-170

Boustead 2007 J Transnat'l L & Pol'y

Boustead K "The French Headscarf Law Before the European Court of Human Rights" 2007 J Transnat'l L & Pol'y 167-196

Bowen Why the French Don't Like Headscarves

Bowen JR Why the French Don't Like Headscarves: Islam, the State, and Public Space (Princeton University Press Princeton 2007)

Boyle 2004 Essex Human Rights Review

Boyle K "Human Rights, Religion and Democracy: The Refah Party Case" 2004 1(1) Essex Human Rights Review 1-16

De Waal, Mestry and Russo 2011 PELJ

De Waal E, Mestry R and Russo CJ "Religious and Cultural Dress at School: A Comparative Perspective" 2011 14(6) PELJ 62-95

Fogel 2006-2007 NYL Sch L Rev

Fogel RS "Headscarves in German Public Schools: Religious Minorities are Welcome in Germany, Unless - God forbid - They are Religious" 2006-2007 NYL Sch L Rev 619-653

Idriss 2005 Legal Studies

Idriss MM "Laïcité and the Banning of the Hijab in France" 2005 Legal Studies 260-295

Langlaude 2006 Int'l and Comp LQ

Langlaude S "Indoctrination, Secularism, Religious Liberty and the ECHR" 2006 Int'l and Comp LQ 929-944

Lenta 2007 SALJ

Lenta P "Muslim Headscarves in the Workplace and Schools" 2007 SALJ 296-319

Lenta 2008 Constitutional Court Review

Lenta P "Cultural and Religious Accommodations to School Uniform Regulations" 2008 Constitutional Court Review 259-293

Lock "Of Crucifixes and Headscarves"

Lock T "Of Crucifixes and Headscarves: Religious Symbols in German Schools" in Hunter-Hennin M (ed) Law, Religious Freedoms and Education in Europe (Ashgate Farnham 2011) 347-369

Madani Hijab

Madani MIM Hijab: The Islamic Commandments of Hijab 2nd ed (translated from the original Urdu and Arabic by M Sadiq) (Madania New York 2010)

McGoldrick Human Rights and Religion

McGoldrick D Human Rights and Religion: The Islamic Headscarf Debate (Hart Oxford 2006)

Mutahhari Islamic Modest Dress

Mutahhari M The Islamic Modest Dress 2nd ed (translated by L Bakhtia) (Abjad Albuquerque 1989)

Nathwani 2007 NQHR

Nathwani N "Islamic Headscarves and Human Rights: A Critical Analysis of the Relevant Case Law of the European Court of Human Rights" 2007 NQHR 221-254

Plesner "European Court on Human Rights"

Plesner IT "The European Court on Human Rights Between Fundamentalist and Liberal Secularism" Unpublished paper delivered at the Norwegian Centre for Human Rights seminar on The Islamic Head Scarf Controversy and the Future of Freedom of Religion or Belief (2005 Strasbourg, France)

Poulter 1997 OJLS

Poulter S "Muslim Headscarves in School: Contrasting Legal Approaches in England and France" 1997 OJLS 43-74

Ssenyonjo 2007 Chinese JIL

Ssenyonjo M "The Islamic Veil and Freedom of Religion, the Rights to Education and Work: A Survey of Recent International and National Cases" 2007 Chinese JIL 653-710

Thomas 2005 Dialectical Anthropology

Thomas NM "On Headscarves and Heterogeneity: Reflection on the French Foulard Affair" 2005 Dialectical Anthropology 373-386

Vakulenko 2007 Social and Legal Studies

Vakulenko A "Islamic Headscarves and the European Convention on Human Rights: An International Perspective" 2007 Social and Legal Studies 183-199

Von Campenhausen 2004 BYU L Rev

Von Campenhausen AF "The German Headscarf Debate" 2004 BYU L Rev 665-700

Weil 2009 Cardozo L Rev

Weil P "Symposium: Constitutionalism and Secularism in an Age of Religious Revival: The Challenge of Global and Local Fundamentalisms Religious Symbols in the Public Space" 2009 Cardozo L Rev 2699-2714

Welch 2007 Denning LJ

Welch T "The Prohibition of the Muslim Headscarf: Contrasting International Approaches in Policy and Law" 2007 Denning LJ 181-217

Wing and Smith 2005-2006 UC Davis L Rev

Wing AK and Smith MN "Critical Race Feminism Lifts the Veil? Muslim Women, France and the Headscarf Ban" 2005-2006 UC Davis L Rev 743-785

Zhurnalova Religion in the Public Sphere

Zhurnalova M Religion in the Public Sphere: Public Schools and Religious Symbolism: A Comparative Analysis (PhD thesis Central European University 2007)

Case law

Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC)

Dahlab v Switzerland Application No 42393/98 ECHR (2001)

Department of Correctional Services v POPCRU 2013 4 SA 176 (SCA)

Kokkinakis v Greece App No 14307/88 (1994) 17 EHRR 397

Leyla Sahin v Turkey (Application 44774/98) 45 ILM 436 (2006)

MEC for Education, Kwazulu-Natal v Pillay 2008 1 SA 474 (CC)

Prince v President, Cape Law Society 2002 2 SA 794 (CC)

Refah Partisi (Welfare Party) v Turkey App Nos 41340/98, 41342/98, 41343/98 and 41344/98 2002 35 EHRR 3

Syndicat Northcrest v Amselem [2004] 2 SCR 551, 2004 SCC 47

Thomas v Review Board of the Indiana Employment Security Division 45 US 707

Legislation

Constitution of the Republic of South Africa, 1996

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

International law instruments

CCPR General Comment No 22: Article 18 (Freedom of Thought, Conscience or Religion) CCPR/C/21/Rev1/Add4 (1993)

Internet sources

AFP 2013 http://www.aljazeera.com/news/europe/2013/10/turkey-lifts-decades-old-ban-headscarves-201310814177943704.html

AFP 2013 Turkey Lifts Decades-old Ban on Headscarf http://www.aljazeera.com/news/europe/2013/10/turkey-lifts-decades-old-ban-headscarves-201310814177943704.html accessed 19 November 2013

Anon 2013 http://praguemonitor.com/2013/11/19/repekt-prague-schools-hijab-ban-request-unfortunate

Anon 2013 Repekt: Prague School's Hijab Ban Request Unfortunate http://praguemonitor.com/2013/11/19/repekt-prague-schools-hijab-ban-request-unfortunate accessed 20 November 2013

CNN 2012 http://articles.cnn.com/2012-07-06/worldsport/sport_soccer-headscarf-ban_1_headscarf-asian-football-confederation-muslim?_s=PM:WORLDSPORT

CNN 2012 Muslim Soccer Players Allowed to Wear Headscarves http://articles.cnn.com/2012-07-06/worldsport/sport_soccer-headscarf-ban_1_headscarf-asian-football-confederation-muslim?_s=PM:WORLDSPORT accessed 13 September 2012

Head 2010 http://www.bbc.co.uk/news/world-europe-1180622

Head J 2010 Quiet End to Turkey's College Headscarf Ban http://www.bbc.co.uk/news/world-europe-1180622 accessed 16 January 2012

Human Rights Watch 2004 http://www.hrw.org/sites/default/files/related_material/

headscarf_memo.pdf

Human Rights Watch 2004 Memorandum to the Turkish Government on Human Rights Watch's Concerns with Regard to Academic Freedom in Higher Education, and Access to Higher Education for Women Who Wear the Headscarf http://www.hrw.org/sites/default/files/related_material/headscarf_memo.pdf accessed 16 January 2012

South African Navy date unknown http://www.navy.mil.za/aboutus/uniform/

dressregulations/index.htm

South African Navy date unknown Dress Regulations http://www.navy.mil.za/aboutus/uniform/dressregulations/index.htm accessed 20 November 2013

Published
2017-04-11
How to Cite
Osman, F. (2017). Legislative Prohibitions on wearing a Headscarf: Are they justified?. Potchefstroom Electronic Law Journal, 17(4), 1317-1348. https://doi.org/10.17159/1727-3781/2014/v17i4a2167
Section
Articles