The narrow line between gender equality and human rights regarding the use of the headscarf. An analysis of French and Turkish cases.

The question of the headscarf has reached particular importance in the last decades — from the 1980s on — all over Europe. Especially because it seems to have assumed a significance which goes beyond the individual or personal choice, limited to the private instance of each woman — Muslim woman — to the public and therefore easily politicized sphere of relevance. Moreover, not only is the issue politicized, but it creates a lot of ruptures in many societies both with the Muslim majority of the population and non-Muslim countries. The issues are also a very discussed one at a theoretical level, and this contributes both to a lot of ideas, but also a pretty amount of confusion. In this essay, I have no claims in sorting out such confusion, but I will try to give an idea of how different argumentations can be found in the literature on the issue, and I will try to get to some conclusions which reflect my perception of the question.

As briefly mentioned, the question of headscarf involves both Muslim populations of both Muslim countries and non-Muslim countries. For this reason, I chose to make an analysis of two different countries — France and Turkey — which have two different profiles but at the same time share a similar situation concerning the discussion on veiling. In order to make the discussion clearer, I will start with the two cases of France and Turkey, examining how the question of the headscarf has evolved and what brought to the recent bans on veiling for Muslim women. In doing this I will try to explain what the veil means in both countries in the light of ‘French laicité’ and ‘Turkish secularism’.

The essay will be divided into two main sections, each of these with subsections. In the first one, as said, I will analyze the French and the Turkish cases; for what French is concerned, my analysis will start from the 2004 ban on veiling for Muslim girls in the public schools, explaining the reasons for such ban and the general view of the French government and population, Muslim and laic, on the law. Then I will change over Turkish case, analyzing the evolution of the perception of the headscarf, having a brief historical look from the founding of the Republic till nowadays.

In the second section of the essay, I will try to explain the theoretical questions which are behind the ban of the headscarf and the opposition to such ban. In other words, it will be an inductive essay, starting from the empirical case to get to the theoretical questions; especially since the argument is of a huge extent, it will be necessary to circumscribe the theory to the most relevant matters.

Finally, I will draw some conclusions, summarizing the common elements and underlining the differences between the two cases and offering my personal opinion on the discourse.

France and Turkey: so different, so similar

French Laicité

Every entity, including nation-states and governments, has a story. One cannot truly understand the political or legal status quo of a state without first examining the preceding narrative that led to it. Studying such processes provides scholars, policymakers and critics of all persuasions with a more panoramic view of adopted laws and political philosophies. Contemporary governmental institutions, legal traditions and even overarching societal consciousnesses are products of historical social and political processes, and these fluid narratives are gradually moulded and remoulded by cultural and ideological struggles for political hegemony. This dynamic notionally explains the turbulent yet revolutionary processes that produced the French model of secularism, the so-called “laïcité”. French secularism was a rigid political philosophy that precluded the public assertion of religion, thereby entangling government with a defined comprehensive doctrine. French secularism furnishes its citizens with this freedom of choice, but at the same time, it confines such freedom to the private sphere. Thus, to be French means be part of ‘laïcité’, and ‘laïcité’ is perhaps the most salient feature of French identity today. Consequently, newcomers are expected to leave their distinct practices and values at the border and accept ‘laïcité’ if they would like to become part of French society.

The origins of ‘laïcité’ as a political framework in which secularism was inserted can be traced in 1905 when the first law which separated officially state and religion was put in force. Recently, the 2004 law evidenced a stronger commitment to this philosophy, and so was not triggered by recent sociopolitical happenings, but evidenced a return to the essence of strict secularism.

One of the most important environments in which a state can exercise its power of creation of citizens respectful of its principles is the educational realm. In particular, the compulsory years at school are in France very important to this scope. Schools, particularly in France, are an extension of the public arm of the state. The precepts of political liberalism would not justify the headscarf ban in public schools because it is a formal injection of secularism into a public sphere where students are obliged to attend.

Therefore, public schools do not meet the requirement of voluntary engagement with associations or organizations. Public education is underlined because it is at school that young people get their training in citizenship. Considerate of the vulnerability of the young pupils’ minds, the stress is that public schools should educate them in a tranquil climate, remote from the controversies of the adult world. In order to protect the serene educational atmosphere against ideological controversies, the Stasi Commission proposes a bill that bans all religious symbols from public schools. Schools must facilitate individual’s identification with the universalistic values of the political sphere and social citizenship. To do so they must detach individuals from their primary identities, religious for example. Only then will individuals be able to reclaim their former identities, but with the distance brought by the political identity they have acquired with education. On the other hand, the schools’ mission is also to help individuals find the means to express their own ideologies politically. These two goals are clearly in conflict.

In France, the governmental interest in promoting a unified French national identity clashes head-on with outward displays of religious symbols, such as the headscarf. Laïcité in France strictly enforces secularism among its citizens and thus confines the exercise of religion in the private realm. The French government’s enshrinement of strict secularism functions as a civic religion, that ultimately precludes its capacity to function as a neutral entity. It advances secularism, or laïcité, as a conception of the good, informing its mode of Republican rule. Therefore, it unreasonably undermines competing conceptions of the good advanced by other comprehensive doctrines, most notably Islam, and this has evidently served as the impetus bringing about an intensified mode of secularism today in France. Moreover, Islamophobia has, in fact, strengthened the restrictive bounds of laïcité, empowering advocates of its purest form to push for policies that are wholly intolerant of not only discrete religious practices, but also cultural and even political expression. Therefore, as well as giving birth to a more zealous brand of Islamophobia, as evidenced by the 2004 law, it is apparent that laïcité has also intensified nativist and xenophobic attitudes in France, paving the way for the realization of legislation such as the 2004 law.

Again, the 2004 law would only be justified, from the standpoint of political liberalism, if the rights and liberties of others were not threatened by the wearing of the headscarf. Advocates of the law, as outlined in the Stasi Report, contend that the headscarf promotes division among students, effectively isolates those students who wear it from the remainder of the learning environment, and may potentially be a source of tension and conflict among students. However, the there seems not to be a justification that accords with the exception outlined by political liberalism, namely, that those students who wear the headscarf threaten or infringe the religious liberty of those who do not — Muslim and non-Muslim alike.

Turkish Secularism

The ban on the headscarf at universities — and in other public institutions — has been justified as necessary to protect Turkey’s commitment to secular society and state, as enshrined in the Turkish Constitution. At the collapse of the Ottoman Empire after World War I, victorious states sought to carve up the region. A former Ottoman army officer, Mustafa Kemal Atatürk, resisted the encroachment of the World War I powers. Atatürk envisioned a complete break from the religious character of the Ottoman Empire by creating a secular, democratic Turkey.

Upon creation of the Republic of Turkey, Atatürk attempted to erase the previous influence and connection between the region’s laws and Islam by drafting a new constitution and new statutes. Religious schools came under the control of the government and religious expression was curtailed through the regulation of dress and speech, although the headscarf was not then regulated.

Upon Atatürk’s death in 1946, the single-party system began to deteriorate, and political parties challenging secularism started to amass power. Beginning in 1960, military coups erupted in response to perceived threats to Atatürk’s secular nationalism. In 1980 the military-controlled National Security Council (“NSC”) introduced a new constitution and seized control of the legislative process. The NSC successfully overturned legislative measures that recognized or protected religious practices and expression.

The Constitution supported by the NSC, established in 1982, prohibited any constitutional amendment or law that would contradict the principle of secularism. In addition, the Constitution guaranteed an array of civil and political liberties and, included a non-discrimination statement prohibiting sex discrimination. These constitutional protections were undermined by the government’s ability to limit or to derogate from the enforcement of rights in order to defend principles like secularism.

The rationale for banning the headscarf at universities was to promote secularist values. The 1981 Regulation Concerning the Dress of Students and Staff in Schools prohibited the headscarf, and the Higher Education Council banned headscarves in lecture rooms in 1982. The ban was upheld by the Supreme Administrative Court, not only as a means to protect secularism but also as a measure to promote gender equality. In its judgment, the Supreme Administrative Court stated that “beyond being a mere innocent practice, wearing the headscarf is becoming the symbol of a vision that is contrary to the freedoms of women and the fundamental principles of the Republic.” In a subsequent decision, the Constitutional Court overturned a law that would have granted amnesty to students disciplined for wearing the headscarf while the application of the ban was unclear.

The Kemalist national project, in the name of modernization, interfered in all areas of social life, education, culinary practices, customs and family life. The nationalist vision of a good life for the Turkish national citizenry obviously involved certain exclusionary practices so that a homogenous citizenry could be imagined. The state would be the narrator and the agent to realize these common goals and interests. The constitution of a homogenous citizenry through the parameters of Turkish nationalism also served to legitimize a certain relation between state and society, via which the interference of the state in the everyday lives of the citizens was legitimized.

In the Turkish context, the public sphere was institutionalized and imagined as a site for the implementation of a secular and progressive way of life, however, this constitution also involved the drawing of the parameters of the image of the Turkish state within this national public sphere. From this perspective, rituals, commemorative practices, press releases, and most importantly state protocols and the presidential palace take on a critical significance.

The prohibition was implemented differently in different universities rather than it was implemented in a uniform manner throughout the country. When the coalition government faced military intervention with the decision of the National Security Council on 28 February 1997, Turkey entered a new phase of fundamentalist secularism, having radical effects on the headscarf issue in universities. The prohibition of the headscarf was implemented strictly in universities and even in high schools providing religious education and consequently, tens of thousands of female students left schools, and some went to foreign countries to continue their education.

The February 28th process, which aimed at engineering social life once again, was interrupted at the end of 2002 by the election victory of the Justice and Development Party (AKP) which had a conservative, religious identity. During the AKP rule, the initiators of the February 28 process and their supporters fell into real distress. The local elections in 2004 and the general elections in 2007 witnessed a radical increase in the power of the AKP. The military’s intervention in politics in April 2007 to prevent the election as president of a person whose wife wore the headscarf deepened the division in society and resulted in a record increase in the votes of the AKP in the July 2007 elections.

Human Rights and Gender Equality

After the analysis of the historical processes and developments in Turkey and France concerning the question of the headscarf, it is opportune to give a theoretical framework in which insert these two experiences, especially in the light of the meaning which the ban of headscarves brings with it in the gender perspective. The discourse in this context must be developed in two different directions, which anyway are deeply interrelated. First, a discourse on human rights can be referred to the freedom of choice for everyone to choose his or her religion; second, but not less important, a discourse on gender equality. In the following lines, these themes will be discussed, in order to get to some conclusion, in the light of the two cases analyzed and the theoretical framework offered.

In a democracy, people have rights, often enshrined in human rights law, to make such choices without being dictated to by the state or others. The ability to make such choices and the ideas of freedom necessarily involved, have been contested, particularly by many feminist theorists concerned with the effects of oppressive conditions and adaptive preferences on the choices made by women in a patriarchal society. Human rights law is often interpreted as the guardian of the rights that individuals inherently possess. Thus, it is assumed that individual rights will be protected when people are left alone, but it implies that rights laws are needed to stop states from abusing individuals’ rights.

Human rights law must necessarily involve some sort of balancing exercise with other rights, necessarily involving a separation of the public and private spheres in which conflicts will be inevitable. In the private sphere, the state traditionally has no right to interfere with individual rights; but in the public sphere, the individual must conform to identities of citizenship. In Turkey and France, there is a long history of tension with the wearing of the Islamic headscarf. In those countries, a strict constitutional separation exists between the public and the private spheres, and priority is given to state secularism. Thus, it generally is not acceptable for individuals’ private religious beliefs to be overtly displayed in the public sphere, most notably in state schools or while working in public sector employment.

The issue of whether individuals’ choices are really free, in the sense of being formed during oppressive conditions or at least under circumstances which are not in those individuals’ real interest, has been a continuing theme in political and legal theory. Indeed, it has been questioned whether conditions exist to enable a choice to be made which can ever be said to be free. Where one stands in such debates can depend on the type of freedom being considered: does being free consist of more than a lack of external obstacles, such as requiring that an individual know what he or she is about and understand his or her action in some coherent sense before he or she can be free? Such literature can present an individual as thinking that he or she knows what he or she prefers and wants to choose, but this may frustrate his or her deeper purposes, plans, and projects.

It has been argued that headscarf bans allow women to compete with men in public spaces and institutions on purportedly equal terms, free from the private patriarchal restrictions of “fundamentalist” fathers, brothers, and husbands. This view of veiling as a patriarchal practice that limits and enslaves women can implicitly be found in the European institution’s judgments, which do not offer adequate analysis. Arguments against wearing the Islamic headscarf, and for upholding bans, often cite the gender inequality purportedly demonstrated by its wearing. Advocates of bans often state that the veil has no justification in the Koran. Further, it is claimed that wearing it encourages the seclusion of women and that the rights of Muslim women will be promoted if they are emancipated from it. The symbolic modesty implied by the Islamic headscarf, purportedly as an adaptive preference in patriarchy, is comparable to “sexy” clothes that some feminists argue are worn by women as an adaptive preference either to please men, because of false consciousness or to cope with the fearful consequences of not pleasing them.

On such reasoning, a choice to wear an Islamic headscarf leaves the gendered power structure of its wearing in place. If instead, freedom involves a consciousness of one’s choice in fair conditions, there may be no option but to disallow it and ban its wearing, at least until the meaning of its wearing is entirely clear. Yet if this dichotomy is reduced, perhaps a way through this dilemma can be found.

Gender equality has been described as one of the key principles underlying the Commission and a goal of the Council of Europe member states. When examining the Islamic headscarf in the Turkish context, however, the ECHR was mindful of the impact that wearing such a symbol may have had on those who choose not to wear it. In the majority’s view, it was understandable that wearing the Islamic headscarf in secular institutions was considered contrary to the values of pluralism and equality between men and women.

At this point in the discussion it is necessary to make a distinction on the term equality: on the one side, there is formal equality, on the other substantive equality. The difference is fundamental to understand the core of the discussion on gender equality.

The starting point usually involves treating similar people similarly, which supports ideas of consistency in the rule of law, ensuring equal treatment enhances justice. Yet even this is a minefield for debate and disagreement. Such a conception is often described as formal equality and is contrasted with substantive equality. The latter is based on a more substantive view of justice, which looks to correcting any existing power imbalances and redistributes resources to increase equality. Yet variants exist even within substantive equality: equality of opportunities, resources, or outcomes. In terms of individual freedom, the jurisprudence does not investigate the reality of women’s experiences. In particular, a woman’s sense of her own identity may need to be reinforced because of the lack of self-esteem and self-confidence resulting from unjust, discriminatory circumstances. Such reinforcement is hardly likely to occur by prohibiting a choice woman make for themselves. People exercising their own choices in an effort to discover what they want to be and do — including what they want to wear — is the starting point and is crucial to their own sense of identity.

Banning the headscarf imposes one set of standards at the expense of individual freedom, seemingly in the name of gender equality. The message seems to be as if these women do not know what is good for them and that they should be forced not to wear the veil: a symbol of oppression and of women’s inequality. The point has been made that in countries where the majority of the population is Islamic, and which have headscarf bans, the ban is associated with authoritarian regimes seeking to modernize their societies by removing signs of backwardness. This has included forcefully removing headscarves from women’s heads. In this context, it has been argued that choosing to wear a veil becomes a symbol of dissent. Islamic feminists, who seek justice and equality in the name of Islam, strive to interpret its religious texts in a way that achieves respect, autonomy, and civil liberties. Many see the headscarf as a symbol of opposition to their visions of gender equality, whereby women and men should be accorded equal treatment. Goals of gender equality are to take priority over claims concerning freedom of cultural identity. Culture and equality are thereby presented as opposites, or at least likely to conflict, and if there is a conflict, gender equality should be prioritized. Women who live in free, democratic, multicultural societies should be afforded considerable autonomy and respect in how they ultimately choose to express and define themselves. At the same time, it is important to actively foster improved social conditions through human rights law and other means so that women are empowered to make even more informed choices in the future.

Conclusions

After the analysis of the two case studies, and of the theoretical framework too, some conclusive considerations are necessary, in order to make the picture clearer, and also to give my personal opinion on such a heated theme of discussion.

First of all, some consideration of French and Turkish secularism. The ban of headscarf in both countries has been justified, as just analyzed above, as a way to protect the laic and secular character of the two nation-states, which had struggled in the past to get to a separation between state and religion, and moreover to confine the religious aspects to the private sphere of individuals. In this process, there is, in my opinion, a double paradox. On the one hand, the discussion on the headscarf has actually put in the public sphere a discourse which was supposed to be part of the private sphere. In other words, the politicization of the headscarf has brought the private issue of freedom of choice of one’s own personal religion on the public debate, transforming it into issues belonging to the public sphere itself. This means that in the effort made by state officials to keep the religious freedom in the private freedom of choice of individuals, they are in the very same moment contributing to the inclusion of such personal and individual choice into the public and political arena of discussion. In other words, they are getting to an outcome which is the diametral opposite of what it should be. On the other hand, the second aspect of the paradox in the secular feature of the two states lies in the production, in my opinion, of a kind of state religion based on secularism itself. The strength with which France and Turkey defend their laicism looks very much as a new type of religion, a secular religion. More precisely, in the struggle to combat any kind of explicit form of public expression of religious choice, they are creating a new entity in which citizens are expected to be loyal, in a way which reminds a religious loyalty. In this sense, headscarf, which is a noticeable and explicit expression of a religious belief is seen as “other” compared to the strong state, secular, laic religion of states themselves. I would not define it as an enemy of the state, but surely something to be controlled by the state officials, in order not to lose their power on citizens. Both aspects of such paradox go together into a contradiction, which sees the public sphere fighting against something belonging to the private one, getting it to the public, and to be fought by means of similar beliefs.

Another aspect which in my opinion deserves attention is the feminist discourse, connected to the aspect of individual human rights. Feminist movements have been fighting in different ways and different times to have their rights recognized, and to eliminate the differences in the attribution of rights to men and women; in other words, gender equality has been one of the critical points of feminist discourses. If we look at the headscarf question, and we try to match the feminist discourse with the headscarf question, many different opinions have been expressed. Without going into details, what in my opinion is striking is how women movement keep on separating themselves on the basis of different views on less important issues forgetting the main highest objective of their struggle. If we consider gender equality as a main scope of the feminist struggles, then it seems useless to underline the differences among women. On the one side this could be understood as a different interpretation of personal rights — which often see veiled women as a symbol of non-free women -, but on the other side, if we consider headscarf as a personal choice — as it could be for educated women — then the internal fight seems to be counterproductive.

Of course, the issue is of a huge extent, and it is difficult to analyze all the aspects in detail, but what I believe in is that women should start to think of individual rights in a collective way but in the sense of female collectivity. Struggling for rights can work only if a class or group of convinced and unite people are fighting together; what the future could create is a class of women which fight for their rights as a class, going over the differences.

Bibliography

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