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.

Continue reading