Failing to Face the Gender Challenge – note on the European Court of Human Rights Jurisprudence

The intersection of religion and gender equality in the context of international human rights law has been exceptionally controversial and poignant, touching the very essence of peoples’ personal beliefs and generating intense social and political tensions. Yet, the failure of international law-making institutions to develop substantial legal analysis on this monumental issue is more than a political issue. It is a substantive failure of human rights law to protect women.

Thus far, it can be argued that there is a general rule and agreement in international law by which women’s equality is considered as a higher norm such that freedom of religion and conscience cannot justify discrimination against women. However, even so, there are still several outstanding problems. For instance, it is simply not clear when and how this rule should be applied. What are religious discriminatory practices and how should we identify them? In what circumstances gender equality is really more important than religious freedoms, and under which conditions and exemptions? More generally, how should gender equality be understood in the religious context and what can be a proper balance. Another difficulty is that so far this general rule has been addressed in a binary manner by which gender equality is put against religion while in fact reality brought much complex claims (for instance, by many women who wish to assume their equality within the religious context and within their religious communities). While international law has been useful for obvious and extreme cases (where religion practices aggressively violated women’s rights), it has either avoided the complexity or over simplified the principle of equality in more complicated cases.

The European Court of Human Rights demonstrated these problems in recent case law over the bans on religious garments, much of it surrounding the wearing of veils, headscarves, and other modest garments by Muslim women in public spaces. Very briefly, on one side, proponents of the bans on religious veils have put forward justifications such as preserving state secularism in the public sphere, ensuring state’s religious neutrality, and promoting gender equality (as these garments are often seen as an oppressive practice). On the other side, opponents of the bans have claimed that they violate many aspects of the right to equality and women’s right to manifest their religion, as well as other sets of related rights (such as the right to personal autonomy, the right to privacy, access to public spaces and education, and the right to employment).

In the cases brought before it (most recently in SAS vs France, Dogru, Sahin and Dahlab), the Court dismissed the claims of women who pleaded for the right to manifest their religion and wear headscarves in educational settings or other public places. Generally, the Court ruled that the limitations on religious freedoms were necessary in a democratic society for “… the protection of the rights and freedoms of others” (as prescribed by article 9(2) of the European Convention on Human Rights). In three of the cases, the Court decisions further approved as a legitimate aim the governments’ claim to promote gender equality as these garments were introduced as an oppressive practice towards women and as a threat to democratic values.

However, it is not the results of the rulings that are most concerning. It is the court’s disappointing failure to fully engage in the legal complexity of the debate. In the course of its rulings, the Court avoided confrontation with the competing set of rights, and did not develop any comprehensive legal assessment or methodology on the tension between women’s equality, human rights and religious freedoms, to tackle these conflicts in a systematic manner.

Despite the ongoing public debate and the proliferation of feminist scholars’ critiques on the conflict between religion and women’s rights (to name only few see- Christine Chinkin, Crolyn Evans, Frances Raday, Karima Bennoune), so far the Court has avoided addressing this issue in a substantive or meaningful manner. As articulated by Judge Tulkens in her important dissenting opinion (Sahin):”

“Wearing the headscarf is considered. . . to be synonymous with the alienation of women.  The ban on wearing the headscarf is therefore seen as promoting equality between men and women.  However, what, in fact, is the connection between the ban and sexual equality?  The judgment does not say. . . . What is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to.”      Judge Tulkens of the European Court of Human Rights (Sahin v. Turkey) (emphasis added- C.E.L).

Similarly, in its judgment of July 2014, SAS vs. France, the Court found that a French ban on wearing the full-face veil in public did not violate the European Convention on Human Rights. Regrettably, here too, the Court took an extremely cautious approach and very briefly dismissed claims made in the name of gender equality [see paragraphs 118 and 119]. In a rather vague and short assessment of these claims, the Court stated that “a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant … unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (For an interesting analysis on this ruling see the post by Sital Kalantry from July 9, 2014, and  the comment published by Prof. Frances Raday, the UN Chair of the Expert Group on Discrimination against Women).

So, one important question to ask is why women’s rights and the concept of equality and religion are so difficult to handle and arguably impossible to confront all at once? Indeed, these issues bring complexities, rigorous arguments and deeply contested considerations, but how are these much different from other controversial issues our society faces (like national security matters, abortions, citizenship, etc.)? A unique and interesting answer is found in a relatively recent scholarship, primarily led by Madhavi Sunder [Piercing the Veil, 112 YALE L.J. 1399] who challenges the current construction of religion as law’s “other”, i.e. as an extralegal field, irrational and incontestable. According to Sunder, this construction is preventing any comprehensive judgment and discussion over religious issues in human right law. Thus, human rights law fails to properly handle religion, religious claims and religious aspirations in the public sphere.

Nevertheless, it seems that it is not only that religion is constructed as law’s other, but in the context of women’s rights and religion, the otherness is exacerbated. Legal demands involving religion and women’s rights create a legal field so ‘sensitive’, controversial and different that the international legal system prefers to avoid confrontation with it.

With respect to the ECtHR, such course of rulings is troubling and dangerous, particularly in light of the wide effect of its judgments on national courts, as well as on international human rights tribunals and institutions.  The Court’s role is, at the very least, to understand and unpack religious endeavors, and discuss their implications on women’s human rights and other contested considerations, such as societal contexts, equality and democratic values. For the Court to truly assume its proper role, it must confront all aspects involving these cases and develop a legal methodology, as well as legal tests to unveil the true story of women’s liberties and religion, albeit with due legal sensitivity.

Contact author at cochav.el@gmail.com

For further analysis of the ECtHR’s rulings see – Cochav Elkayam-Levy, Women’s Rights and Religion–The Missing Element in the Jurisprudence of the European Court of Human RIghts, University of Pennsylvania Journal of International Law (2014)

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