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.
prohibitions on Muslim women’s religious attire are typically viewed as
infringing on religious freedom, they also implicate international women’s
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
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.
news, and political discourse treat such cases strictly in terms of religion
rather than framing such legal controversies as also implicating women’s
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
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.
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 disfavours. 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.
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.
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.
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.
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
thereafter, the parties settled the matter. Nashala returned to school wearing
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.
the restrictive measures impacting Muslim women around the world don’t simply
threaten religious freedom, they also undermine women’s rights.