Hijab Bans Undermine Women’s Rights, Not Just Religious Freedom

From Central Asia to Western Europe to East Africa, government officials are restricting women’s personal freedoms. What initially began as a solitary ban on conspicuous religious symbols in France — and widely perceived as an attack on the hijab and Muslims — has spread globally. In response, new and innovative legal responses are necessary.

While prohibitions on Muslim women’s religious attire are typically viewed as infringing on religious freedom, they also implicate international women’s rights.

In 2004, France proposed a law prohibiting headscarves and other conspicuous “religious symbols” showing a student’s faith beliefs in public schools. The measure’s proponents argued that it was necessary to protect the separation of church and state in public education. France implemented the law that same year. Unsurprisingly, this law disproportionately impacts female Muslim students who observe hijab.

To some, and particularly when viewed in isolation, the French law appears to be an insignificant blip on the human rights radar. In the 15 intervening years since its passage, however, similar measures have infected nations in all corners of the world. In 2015, Belgian officials prohibited headscarves at some public schools. In 2016, a high school in Spain demanded a student remove her headscarf; the decision was later overturned. In 2017, Kazakhstan — a Muslim-majority country in Central Asia — similarly prohibited the headscarf in public education. In January 2019, Kenya’s highest court upheld a prohibition on headscarves in schools, permitting each to determine its own dress code. Most recently, in May 2019, Austria approved a dress code prohibiting headscarves in primary education.

Interestingly, the international community typically views such restrictive laws, practices, and policies exclusively through the lens of religious freedom. But, each of these legal developments also detrimentally effects a woman’s right to education. Recall, the right to education is a fundamental human right recognized in a myriad international documents and treaties. Significantly, the right is set forth in the Universal Declaration of Human Rights (UDHR), an international document that enumerates the basic rights and freedoms inherent to all human beings, irrespective of race, ethnicity, nationality, religion, gender, place of residence, or any other status. In addition, particular gendered protections are located in the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the only international agreement that addresses women’s rights in the political, civil, cultural, economic, and social spheres.

To fully realize a woman’s right to education, CEDAW requires it to be available, accessible, acceptable, and adaptable. Accessibility requires a prohibition against discrimination and encompasses both a physical and economic component. Acceptability refers to the quality of the curriculum and instruction while adaptability takes into account that education must be responsive to a society’s needs. Taken together, these principles are intended to prevent discrimination and promote gender equality in education.

Significantly, official restrictions on Muslim women’s dress don’t satisfy these basic requirements. From Belgium to Kazakhstan to Kenya, education is unavailable and inaccessible to students who choose attire that the government disfavors. If they are forced to pursue studies in private institutions with sometimes inferior resources, curricula, and instruction, then education is more likely to be unacceptable.

In certain European contexts, this also demonstrates an inability to adapt to an increasingly multicultural society. Essentially, seemingly neutral laws and policies have a discriminatory effect on female students because of the disproportionate impact on Muslim women who wear a headscarf. Civil society should mount related legal challenges under CEDAW; the offending nations are all state parties.

It is important to note that the United States has adopted a distinct approach from its global counterparts. The case of Nashala Hearn is representative. In 2003, Nashala was an 11-year-old student enrolled in the sixth grade at the Ben Franklin Science Academy in Muskogee, Okla.

On the second anniversary of 9/11, school officials used the dress code to prohibit Nashala’s headscarf. She was suspended twice for refusing to remove her hijab and essentially, denied access to education. Her parents then sued, claiming the policy violated her First Amendment right to free speech and free exercise of religion under the U.S. Constitution. Indeed, both claims reflect Nashala’s gendered choice. Nashala would not have experienced discrimination but for her status as a woman. The school’s actions — at the intersection of religion and gender — undermined Nashala’s fundamental human right to an education.

Several months later, the U.S. Department of Justice (DOJ) intervened in the case on Nashala’s behalf. In its legal filing, the DOJ alleged unconstitutional religious discrimination and insisted, “No student should be forced to choose between following her faith and enjoying the benefits of a public education.”

Shortly thereafter, the parties settled the matter. Nashala returned to school wearing her headscarf.

The case of Nashala Hearn and others like it diverge from the international community’s common understanding of a Muslim woman’s right to education. The public, news, and political discourse treat such cases strictly in terms of religion rather than framing such legal controversies as also implicating women’s rights. Too many overlook the compelling intersection between religion and gender.

In truth, the restrictive measures impacting Muslim women around the world don’t simply threaten religious freedom, they also undermine women’s rights.