December 22, 2010

A growing number of European countries have passed or are contemplating restrictions on religious dress in public places. The impetus for these restrictions is the debate in Europe about the wearing of Muslim veils. The debate reflects tensions in increasingly pluralist societies struggling with integration, national identity and security.

While many of the proposed and adopted measures are purportedly neutral-banning all religious dress or symbols or face coverings on paper -the public and political debate has focused on the different veils worn by Muslim women: the hijab, or headscarf, which covers the hair; the niqab, which covers the face and neck, leaving the eyes visible; and the burqa, a full-face and body covering. 

There are no complete and reliable figures on how many women in these countries wear full-face veils, but it is clear that they constitute a very small minority.  Estimates in France range from 700 to 2000 women, about 150-200 in Denmark, while in Belgium the figure may be around 300-400.

In France, civil servants, including teachers, are prohibited by law from displaying religious symbols, and students may not attend public schools if they display any kind of "ostentatious" religious symbol, including the headscarf, the Sikh turban, and the Jewish headcovering (kippah). Authorities have said that this ban would also apply to ‘large' Christian crosses but the ban has not been applied to ‘normal' sized crucifixes worn around the neck.  In Germany, eight out of sixteen Länder (states) have passed laws prohibiting teachers in public schools from wearing visible religious clothing and symbols, with parliamentary debates and explanatory documents making it clear that the Muslim headscarf was the principal target. Two of these Länder impose the same restriction more widely on some or all other civil servants.

In September 2010 the French parliament adopted a law prohibiting the concealment of one's face in public, with the declared intention to prevent the wearing of Muslim veils that cover the face in public places.  The law, which was approved by the French Constitutional Council in October 2010, makes it a crime to coerce women to wear such veils, punishable by a year in prison and a 30,000 Euro fine.  Once the law enters into full effect, in the spring of 2011, women who violate the law will be subject to a fine of up to 150 Euros ($209) and/or compelled to attend a "citizenship" course.

A law containing similar restrictions was approved by the lower chamber of the Belgian parliament in April, and remains pending approval by the Senate. The Spanish senate adopted a nonbinding resolution in June 2010 calling on Spain to outlaw in public places clothing or accessories that completely cover the face, saying that a majority in Spain considers the full Muslim veil "discriminatory, harmful, and contrary to the dignity of women and real and effective equality between men and women." The Spanish government has said it would include a ban in a future reform of Spain's law on religious freedom.  A plan to ban veils was included in the October 2010 coalition government agreement in the Netherlands. Comparable nationwide measures have also been proposed in a variety of other countries, including Italy, the United Kingdom and Denmark, while a number of municipalities in Belgium, Spain, and Italy already have, or are considering implementing, local bans in place.

The debate raises challenging questions about the interplay between different sets of fundamental rights, in particular rights associated with freedom of religion and the rights of women.  It also poses questions about the appropriate role of the state in matters of religion and traditional practices, including how, when and where the state can legitimately restrict the wearing of religious dress and the display of religious symbols. 

Q: What does international human rights law say about religious dress and symbols?

Q: What do international human rights bodies say?

Q: What is Human Rights Watch's position on state interference in religious dress and symbols?

Q: What about countries where women are forced to wear the headscarf, niqab or burqa?

Q: When governments ban or mandate religious dress, aren't they simply reflecting the social consensus in their country?

Q: But isn't the veil a symbol of women's subjugation?

Q: What about girls who are forced by their families to wear the veil?

Q: Shouldn't the burqa and niqab be banned for security reasons?

Q: Isn't banning of religious dress and symbols in public places an appropriate way to preserve secularism?

What does international human rights law say about religious dress and symbols?

Human rights law guarantees the right to freedom of religion, including the right to manifest one's religious beliefs through worship, observance, practice and teaching in private and in public.  Human rights law requires states to guarantee the right to a private life, which includes the right to autonomy, for example the freedom to choose what to wear, in private and in public. States must ensure the right to equality or non-discrimination, particularly that there should be no discrimination on the grounds of religion or sex. And finally, states are bound to protect the rights of religious minorities within their borders.

The United Nations Human Rights Committee has clarified that the concept of worship includes the display of symbols, and that observance and practice can include the wearing of distinctive clothing or head coverings. 

Like the vast majority of rights, neither religious freedom nor the right to autonomy is an absolute right under human rights law.  Governments can limit these rights, but only when they can demonstrate convincingly that restrictions are necessary to protect public safety, public order, health, or morals, or the fundamental rights and freedoms of others. This is a high threshold for a government to justify. 

The governments attempting to ban the wearing of full-face veils have not demonstrated that the wearing of veils poses such a significant threat under any of the permitted grounds of restrictions, to the extent that would justify outright bans. In addition, under international law any restriction on religious freedom must be nondiscriminatory and proportionate. While proposed and existing bans are crafted in neutral terms-prohibiting concealment of the face in public-the declared aim and logic behind these bans is to counter the wearing of full-face veils, and these bans are likely to have a disproportionate impact on Muslim women.  In other words, these bans are discriminatory in practice.   

Whereas some of the purported reasons for the bans on veils - the need to ascertain a person's identity, the need to protect women from oppression - may be legitimate aims, the response of a complete and public ban, including the punishment of the women who wear the veil, is disproportionate. Less restrictive measures are possible to meet these aims and some of these are discussed below.

Human Rights Watch is aware of arguments that full-face and body covering veils do not constitute a religious practice sanctioned or prescribed by Islam but is instead a cultural practice with roots in geographically limited areas.  It is not our role to enter into a theological debate.  The crucial point is that it is not up to the state to define or interpret the meaning of religious symbols; what is decisive is that the individual considers it to be a manifestation of his or her religious belief. The right to freedom of religion and belief protects religious minorities but also dissenters within religious majorities and atheists.  Under international human rights law, the state should neither deny nor impose particular religious beliefs or particular manifestations of religious beliefs.

What do international human rights bodies say?

International human rights bodies have criticized restrictions on headscarves and veils.  The Council of Europe Commissioner for Human Rights Thomas Hammarberg called general bans on the burqa and niqab "an ill-advised invasion of individual privacy," stressing also the importance of the right to freely manifest one's religion and the right to non-discrimination. The secretary general of the Council of Europe and its Parliamentary Assembly also oppose such bans. The UN Committee on the Rights of the Child expressed its concern that the ban on religious symbols in schools may neglect the basic principle of the best interests of the child and the right to education, and called on France to ensure that no child was excluded or marginalized from the school system as a result of its laws.

The European Court of Human Rights gives governments considerable latitude when assessing whether restrictions on religious dress for public servants and in public buildings are compatible with human rights law. In a series of cases, the Court has upheld restrictions on students and teachers wearing headscarves and turbans in schools and universities.  It has also upheld a newly-imposed requirement in France that a Sikh remove his turban for his driver's license photograph.  (The Court has yet to hear any cases involving restrictions on the Jewish kippah under the French law.)

Human Rights Watch disagrees with the Court's interpretation in these cases.  Human Rights Watch believes the Court failed to give proper weight to the need for states to have strong justifications for these restrictions, the impact these restrictions have on the lives of the people concerned (including Sikh men and boys in France), and the discriminatory impact of bans that predominantly affect women and girls wearing headscarves. In many of these cases the Court has ruled without requiring the government to produce a justification for its restrictions.

It is also notable that in a February 2010 case against Turkey, the European Court of Human Rights ruled that general restrictions on religious dress in public areas applied against members of a minority group violated their right to freedom of religion. That suggests it would find a general public ban on face-covering veils to be incompatible with human rights law.

What is Human Rights Watch's position on state interference in religious dress and symbols?

Human Rights Watch takes no position on whether the wearing of the headscarf or face covering veils is desirable. We oppose both policies of forced veiling and blanket bans on the wearing of religious dress.  Insofar as religious freedom is involved, we defend this right  in the same spirit we defend freedom of expression - we uphold the right to express opinions which some deem contrary to the principles of human dignity, tolerance and respect, and which may deeply offend, because of the fundamental importance of freedom of religion and expression in democratic societies.

 We also oppose laws prohibiting civil servants, including teachers, from wearing religious symbols at work, unless it has been shown that those symbols have a direct impact on their ability to perform their jobs.  Authorities can prohibit teachers in public schools from actively proselytizing their religion to their students, but schools can address this on an individual basis through internal disciplinary procedures. Allowing individual employees of the state to manifest their beliefs by wearing a religious symbol does not constitute endorsement by the state nor does it undermine state neutrality or the ability of the state employee to uphold that duty.  On the contrary, it demonstrates respect for religious diversity. 

It may be reasonable for the state to prohibit the wearing of full-face veils in certain jobs, when concealment of the face is shown to interfere with essential occupational requirements.  For example, it may be legitimate to require civil servants in contact with the public and teachers in public schools to show their faces at all times. But such restrictions should be tailored to where showing one's face is an essential requirement of the job. And such restrictions could not be legitimately applied to the wearing of religious symbols that do not cover the face such as a headscarf, kippah, crucifix or turban.

What about countries where women are forced to wear the headscarf, niqab or burqa?

Human Rights Watch is opposed to policies of forced wearing of veils or other religious clothes, such as those in Aceh (Indonesia), Saudi Arabia, Iran, parts of Somalia, Gaza, the Russian republic of Chechnya, and Afghanistan under the Taliban, as a violation of women's rights to personal autonomy, as well as their freedom of religion, conscience and belief. We recognize and have documented that practices and policies justified on religious grounds sometimes have a negative impact on women's rights, and that women and girls are subjected to violence and oppression in the name of religion. 

When governments ban or mandate religious dress, aren't they simply reflecting the social consensus in their country?

Human Rights Watch rejects the argument that state-imposed rules on veiling in parts of the Muslim world and bans on religious dress in Europe are simply reflections of societal norms in those countries.  Human rights principles protect all individuals and give special protection to members of minorities, often against laws that reflect oppressive societal norms. Furthermore many of the laws, both those in Europe attempting to ban certain religious clothing and those in other parts of the world requiring it, are relatively new.

 Nor do we find compelling related arguments that policies of forced veiling are expressions of a shared societal concept of decency analogous to laws prohibiting public nudity. It is important to note that decency laws prohibiting public nudity are virtually universal, are not associated with and do not lead to other limitations on rights, and are not the subject of significant dissent.  In contrast, forced veiling -and in particular forced wearing of the niqab and the burqa-are associated with serious human rights violations. Moreover, the purpose, meaning and nature of veils vary widely among communities and nations, and are hotly contested issues within Muslim communities. 

At the same time, restrictions on wearing the veil in public life are as much a violation of the rights of women as is the forced wearing of the veil.  Muslim women, like all women, should have the right to dress as they choose, and to make decisions about their lives and how to express their faith, identity and morals.

But isn't the veil a symbol of women's subjugation?

One of the principal arguments used in favor of bans is that they help liberate women who are coerced into veiling.  For many, full veiling is a powerful symbol of the oppression and subjugation of Muslim women. The burqa has associations with the Taliban, who systematically violated the fundamental rights and freedoms of Afghan women, leaving them with the lowest life expectancy in the region and some of the highest rates of maternal death. 

Coercing women to wear the veil is one of an alarmingly vast array of gender-specific abuses committed against women of all religions, traditions, and societies around the world. States have an obligation to eradicate violence and discrimination against women in public and in private, including through an appropriate use of criminal law to punish those responsible. 

But generalizations about women's oppression do a disservice to one of the basic tenets of gender equality: the right to self-determination and autonomy, the right to make decisions about her life without interference from the state or others. There are undoubtedly women who are forced to wear the veil or feel tremendous pressure to do so against their own convictions. There are also European Muslim women who have spoken out to say that veiling was their own decision, citing motivations such as an expression of their faith and a desire to assert their identity. It is important to acknowledge that veiling can be a choice, in the same way that other convictions or conduct that have been shaped by societal, family or religious influences are experienced by the individual as an expression of their personality.

The right to autonomy, a core principle of women's rights, is understood to be a part of the right to a private life guaranteed under international human rights law.  The right to autonomy encompasses the right to make decisions freely in accordance with one's values, beliefs, personal circumstances and needs.  Exercise of this right presupposes freedom from coercion as well as freedom from illegitimate restrictions.  It also includes the right to adopt a lifestyle which others in society disapprove of, or deem harmful to the person who pursues it.

At a practical level, it is hard to see how proscriptive laws targeting women serve the cause of women's equality.  Local laws and the nationwide French ban enacted in October 2010 provide for a variety of sanctions on women who violate the terms of the ban, including fines, good "citizenship" courses and community social work. The ban pending final approval in the Belgian Senate envisions up to seven days in prison. 

Our research has found that the ban on teachers wearing headscarves in parts of Germany led observant Muslim women to abandon their chosen career, resulting in a loss of independence, social standing and financial wellbeing, although there are no reliable figures on how many women are affected. For women who are coerced by family members into wearing a headscarf, blocking access to these professions will not protect them from oppression. Moreover, this type of state regulation appears to aggravate discrimination against women who wear the headscarf in the private employment sector.  Far from empowering them, the bans may lead to a deterioration in their social position.

Even in the case of face-covering veils, the arguments are not convincing. For those women who are compelled to cover themselves, a ban on full-face covering veils in all public spaces may mean they trade what critics call an "ambulatory prison" for one made of brick and mortar: their homes, as their male relatives may refuse to allow them out of the house without their veils. Strong social censure within Muslim communities against the wearing of full-face veils, and against forced veiling generally, will likely do more to empower women than laws and fines. State coercion and punishing the victims will not uproot oppression. What is needed is education, access to support and economic possibilities as well as effective means to seek justice against those who are oppressing them. 

For those who cover themselves by choice, a ban forces them to choose between the ability to participate fully in society and the manifestation of their religious faith.

A ban imposed in public buildings and public transportation, as opposed to all public spaces, risks having an equally devastating impact on the ability of veiled women to conduct their lives, making commonplace activities-taking the bus, attending a parent-teacher conference in a public school, filing documents at a municipal office, even getting medical attention in a hospital-impossible while following their religious beliefs.

What about girls who are forced by their families to wear the veil?

There is a tension between the rights of parents to educate their children according to their beliefs and the child's right to personal autonomy (which increases with age).  Under international law, states must respect the responsibilities, rights and duties of parents to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the child's exercise of their basic rights.  Reasonable people can, and often do, disagree vehemently over what is appropriate parental behavior, including everything from spiritual education to dietary regimes. 

States, however, can intervene with parents' choices on behalf of their children only when there is demonstrable actual or potential physical or psychological harm.  Indeed, states must take appropriate legislative, administrative, social and educational measures to protect children where parents are responsible for physical or mental violence, injury or abuse, neglect or negligent treatment, mistreatment or exploitation.  It is important to note that under international law, states must also take all appropriate measures to ensure that children are protected against discrimination or cruel punishment on the basis of the beliefs of their parents or family members. 

As a general rule, it is inappropriate for the state to regulate whether parents can require their children to wear religious dress in conformity with the parents' own convictions, unless this compulsion is associated with psychological or physical mistreatment.   As a child approaches 18 she or he should have increasing autonomy, including in the choice over what she or he wears.

Human Rights Watch takes the view that blanket restrictions on students wearing religious dress and symbols in schools are contrary to international human rights law.  Such restrictions may disproportionately affect religious minorities, stigmatize members of those minorities, and have a negative impact on children's enjoyment of the right to education, often with a disproportionate impact on girls.  Schools may have policies on uniforms but these should accommodate religious requirements, whether the religion is Muslim, Sikh, Jewish, Christian or other.  Case-by-case restrictions may be legitimate when the school administration can demonstrate that specific dress, including full-face veils, interferes with the child's ability to learn or participate fully in the life of the school.  In this case, the paramount duty of protecting the best interest of the child may justify a restriction.

Laws requiring female students to wear the headscarf or veil at school equally violate the obligation of state authorities under international law to respect the rights of parents to raise their children in conformity with their own convictions, the rights of the child to personal autonomy, as well as the duty to avoid coercion in matters relating to religious freedom.

Shouldn't the burqa and niqab be banned for security reasons?

A wholesale ban on the full Muslim veil is a disproportionate response to the legitimate and concrete need in a variety of situations to ascertain someone's identity.  Airport checks, school pick-ups, administrative dealings with state officers and cashing a check are all obvious examples of where a person may need to prove their identity.  Appropriate and sensitive measures can be adopted to satisfy both the individual's right to manifest her religious beliefs and her duty to identify herself.  In all the situations mentioned above, a woman wearing the full veil can be taken aside to show her face to a female guard, teacher, state or bank employee. Forms of religious dress that do not inhibit identification, such as the wearing of the headscarf or the Sikh turban, should not be the subject of restrictions in the name of security. 

Some supporters of general bans cite the overarching need to preserve public order and refer to the existence in some countries of laws prohibiting people from walking around masked except on specific occasions (for example, carnival time).  There is no compelling evidence that wearing the full Muslim veil poses more of a threat to public order than other means of covering the face, including protective masks for health reasons and winter headgear. It is worth noting that existing laws that prohibit the masking of the face in public are in fact rarely enforced except in specific circumstances, such as political demonstrations. Finally, bans on concealing one's face in public are unlikely to deter individual's intent on committing a crime from covering their faces, by any number of means, to escape identification. 

Isn't banning of religious dress and symbols in public places an appropriate way to preserve secularism?

Human rights law requires the state and state authorities to refrain from discriminating on the basis of religious beliefs.  This means the state should be neutral in matters of religion-an important guarantor of religious freedom.  In some European states, state neutrality requires that state institutions refrain from imposing any particular set of religious views, while at the same time allowing for free expression of religious beliefs within society.  But an aggressive secularism that attempts to prevent individual manifestation of religion, such as bans that deny the wearing in public places of a manner of dress linked to a particular religious faith, undermine, rather than protect, this principle. 

There is a clear distinction between institutional display of symbols associated with a particular religion, which could be perceived as an affirmation of a particular religious message, and individual manifestation of private beliefs by employees of public institutions.