2 Secularism and Human Rights

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Karima Bennoune, Secularism and Human Rights: A Contextual Analysis of Headscarves,
Religious Expression, and Women's Equality under International Law, 45 Colum. J.
Transnat'l L. 367 (2007).
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Bennoune, K. (2007). Secularism and human rights: contextual analysis of headscarves,
religious expression, and women's equality under international law. Columbia Journal
of Transnational Law, 45(2), 367-426.
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Bennoune, K. (2007). Secularism and human rights: contextual analysis of headscarves,
religious expression, and women's equality under international law. Colum. J.
Transnat'l L., 45(2), 367-426.
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Karima Bennoune, "Secularism and Human Rights: A Contextual Analysis of Headscarves,
Religious Expression, and Women's Equality under International Law," Columbia Journal
of Transnational Law 45, no. 2 (2007): 367-426
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Karima Bennoune, "Secularism and Human Rights: A Contextual Analysis of Headscarves,
Religious Expression, and Women's Equality under International Law" (2007) 45:2 Colum
J Transnat'l L 367.
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Bennoune, Karima. "Secularism and Human Rights: A Contextual Analysis of Headscarves,
Religious Expression, and Women's Equality under International Law." Columbia Journal
of Transnational Law, vol. 45, no. 2, 2007, p. 367-426. HeinOnline.
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Karima Bennoune, 'Secularism and Human Rights: A Contextual Analysis of Headscarves,
Religious Expression, and Women's Equality under International Law' (2007) 45 Colum J
Transnat'l L 367
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Articles
Secularism and Human Rights:

A Contextual Analysis of Headscarves,
Religious Expression, and Women's Equality
Under International Law
KARIMA BENNOUNE*
This Article advocates an innovative contextual ap-

proach to assessing the internationallegality of bans
in public schools on "modest" garments claimed to be
required by religious beliefs for Muslim women. Too
often this has been consideredsolely a question of re-
ligious freedom. This paper advocates the re-
insertion of gender equality into the heart of the de-
bate. To obtain results most conducive to reconciling
the human right to religiousfreedom and the human
right to gender equality, it examines restrictions on
headscarves and veils in a novel matrix offactors, in-
cluding pressures on individual women to wear or not
wear such gear, the impact on other female students,
fundamentalist organizing targeting education,
Islamophobia, and the multiple meanings of veiling.
Applying the contextual approach, this Article argues
* Associate Professor, Rutgers School of Law-Newark. I would like to thank

Elizabeth Espert and James McGhee for excellent research assistance. Further, I would like
to acknowledge the thoughtful comments of Gita Sahgal, Professors Bernie Bell, Sherry
Colb, Claire Dickerson, Stephanie Farrior, Tanya Hernandez, Charles Jones, John
Leubsdorf, Saul Mendlovitz, Twila Perry, Jim Pope, Sabrina Safrin, Calvin Sharpe, and
Mark Weiner, and all of those who took part in the Rutgers Law School Faculty Colloquium.
I am also indebted to participants in the symposium on Constitutional Reconstruction in
Turkey, Iran, Iraq, and Afghanistan, held at the International Institute for the Sociology of
Law in April 2005, who considered the earliest draft. This Article was supported by funding
from the Dean's Research Fund at Rutgers School of Law-Newark. Remaining
shortcomings are solely my responsibility.
This Article is humbly dedicated to the memory of Dr. Mahfoud Bennoune.
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:367
that the European Court of Human Rights ruled cor-

rectly in $ahin v. Turkey when it upheld Istanbul Uni-
versity's ban on headscarves in context. The Article
rebuts the sharp criticism of this decision from some
human rights groups and asserts that secularism is vi-
talfor the implementation of women 's human rights.
1. PROLOGUE: ON NOT-BEING-VEILED ..................................... 369

II. INTRODUCTION: COVERING AND UNCOVERING INTER-
NATIONAL LAW ....................................................................... 370
A. Secularism and Women's Human Rights ...................... 372
III. A WOMAN'S RIGHT VERSUS WOMEN'S RIGHTS: THE 3AHIN
CA SE ....................................................................................... 3 7 7
A . The Facts in Context ...................................................... 377
B. The Reasoning of the European Court of Human
Rights ............................................................................. 3 80
IV. THE EUROPEAN COURT OF HUMAN RIGHTS VERSUS
HUMAN RIGHTS WATCH: "A CERTAIN LACK OF EMPATHY"
OR A CERTAIN LACK OF CONTEXT 9 .................. . . . . . . . . . . . . . . . . . . . . . . 384
A. Friends of the Court Dissent: The NGO Response to
ahin .............................................................................. 3 84
B . The V erdict .................................................................... 386
1. The Meaning of the Meanings of an "Unstable
Signifier". ................................................................. 387
2. Islamophobia ............................................................ 393
C. The Contextual Approach .............................................. 396
V. HUMAN RIGHTS LAW'S PROVISIONS ON FREEDOM OF
RELIGION AND GENDER EQUALITY ......................................... 397
A. Conflicting Prohibitions of Discrimination in Human
Rights Law ..................................................................... 397
B . Freedom of Religion ...................................................... 398
1. General Human Rights Documents .......................... 398
2. The Declaration on Religious Intolerance ................ 400
C . Gender Equality ............................................................. 402
D. Addressing the Conflict ................................................. 403
E. The Rights of Girls ........................................................ 406
VI. THE MEANINGS OF SECULARISM: "MADAM, YOU CANNOT
A RGUE W ITH GOD" ................................................................ 407
VII. APPLICATIONS OF THE CONTEXTUAL APPROACH .................... 410
A. Guidance from Begum v. Headteacher.......................... 410
20071 SECULARISM AND HUMAN RIGHTS
B. The French Law on Religious Symbols ......................... 413

C. 5ahin Revisited: The Meaning of the Headscarf in
the Turkish University, and Beyond .............................. 416
VIII. CAUTIONS AND CONCLUSIONS ................................................ 423
A. A Dialogue with Judge Tulkens ..................................... 423
B. A Final Word: Uncovering the Way Forward .............. 425
IX . EPILO GU E ............................................................................... 426
I. PROLOGUE: ON NOT-BEING-VEILED
As an Arab-American woman of Muslim heritage, I will

never forget the first time I saw a veiled woman.I In 1977, my fam-
ily returned to my father's native Algeria. As a progressive intellec-
tual and veteran of the country's war of independence, he was deter-
mined to place no dress restrictions on me. So, on that hot August
day when he and I set out for Algiers, I put on shorts. As we drove, a
woman walked past us in the dusty heat wearing a haik. The white
silk veil covered everything but her eyes, hands, and feet. A sudden
sense of my own utter nudity overcame me. It was the first time I
remember feeling shame. It was the first time I understood the im-
pact one woman's dress can have on another.
This Article explores consequences of that interconnection for
a human rights analysis of restrictions placed by the state on veils,
headscarves, and other "modest" garments for women, all of which
are claimed to be expression of Muslim religious beliefs. It will fo-
cus on such restrictions in public education, both in majority Muslim
countries and in minority communities in the Diaspora. In doing so,
this paper will make much of the imperative of context. Context re-
veals the complexity, too often ignored, that underlies these issues.
For example, although a sign of women's oppression, the haik had
also been a symbol of Algerian nationalist resistance to French colo-
nialism, particularly in the face of French attempts to cajole its re-
moval. However, in 1977 in socialist Algeria, the woman in the haik
was not in the majority. In that political moment, many women, in-
cluding many practicing Muslims, appeared in short sleeves. Only
1. I begin with a personal story spurred on by Angela Harris who argues that "[i]n
order to energize legal theory, we need to subvert it with narratives and stories, accounts of
the particular, the different, and the hitherto silenced." Angela Harris, Race and
Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 615 (1990). 1 recognize that
women barred from wearing headscarves also have stories of discomfort to tell. See, e.g.,
Adrien Katherine Wing & Monica Nigh Smith, Critical Race Feminism Lifts the Veil?
Muslim Women, France,and the HeadscarfBan, 39 U.C. DAVIS L. REv. 743 (2006).
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [45:367
the later introduction of religious fundamentalism into Algerian poli-

tics brought the coverings discussed in this paper, the hijab (a head-
scarf) and thejilbab (a dark cloak), to the country.
II. INTRODUCTION: COVERING AND UNCOVERING

INTERNATIONAL LAW
Discussion in this Article revolves around two recent cases

regarding bans in public schools on "modest" garments claimed by
some to be required by religious beliefs for Muslim women and
girls.2 In the first, Leyla ,ahin v. Turkey,3 the European Court of
Human Rights (ECtHR) ruled that Istanbul University's ban on head-
scarves did not violate freedom of religion. Freedom of belief is ab-
solute in human rights law, while expression of belief is subject to
limitation. Such limits must be prescribed by law and necessary to
achieve a legitimate aim, such as to protect the rights of others. The
Court found that Turkey's goal of preserving secularism 4 as a way of
protecting women's right to equality met this test. In a context where
2. The debate over banning headscarves spawned a vast literature in many languages.
In English, for law review articles and notes, see for example, Elisa Beller, The Headscarf
Affair: The Conseil d'Etat on the Role of Religion and Culture in French Society, 39 TEX.
INT'L L.J. 581 (2004); Benjamin Bleiberg, Note, Unveiling the Real Issue: Evaluating the
European Court of Human Rights' Decision to Enforce the Turkish HeadscarfBan in Leyla
$ahin v. Turkey, 91 CORNELL L. REv. 129 (2005). For English-language journalistic
accounts, see Lori Montgomery, Turkey Cracks Down on Muslims' Head-Scarf Ban in
Schools Becomes Emotional Issue, DETROIT FREE PRESS, Aug. 27, 1998, at 5A; Caroline
Wyatt, Headscarf Row Hides Deeper Issues, BBC NEWS, Dec. 11, 2003,
http://news.bbc.co.uk/l/hi/world/europe/3311485.stm. See also DOMINIC MCGOLDRICK,
HUMAN RIGHTS AND RELIGION: THE ISLAMIC HEADSCARF DEBATE IN EUROPE (2006).
While this Article focuses primarily on the approach of human rights organizations
rather than academicians, numerous scholarly considerations of the subject are available.
See, e.g., Caitlin Killian, The Other Side of the Veil: North African Women in France
Respond to the Headscarf Affair, 17 GENDER & Soc'Y 567 (2003) (arguing that North
African women in France have reacted in diverse ways to the ban on religious symbols in
public schools, with their reactions dependent on age and education); Ghada Hashem
Talhami, European, Muslim and Female, 11 MIDDLE EAST POL'Y (No. 2) 152, 167 (2004)
(positing that bans on veiling in Europe "fail to protect the rights of Muslim women to
education and religious freedom"); Alain Garay et al., The Permissible Scope of Legal
Limitations on the Freedom of Religion or Belief in France, 19 EMORY INT'L L. REv. 785
(2005) (suggesting that the French law is likely to "lead to complicated legal disputes"); and
Cindy Skach, Leyla $ahin v. Turkey: "Teacher Headscarf' Case, 100 AM. J. INT'L L. 186
(2006) (concluding that the principles articulated in the Sahin case will have global impact in
countries seeking models of secularism that can limit social conflict).
3. $ahin v. Turk., App. No. 44774/98 (Eur. Ct. H.R. Fourth Section June 29, 2004)
[hereinafter 5ahin, Fourth Section]. The judgment was affirmed by the Grand Chamber in
Sahin v. Turk., App. No. 44774/98 (Eur. Ct. H.R. Nov. 10, 2005), available at
http://www.echr.coe.int/echr [hereinafter ;ahin, Grand Chamber].
4. The text below provides a definition of secularism. See infra notes 205-222 and
accompanying text.
20071 SECULARISMAND HUMAN RIGHTS
fundamentalist groups were targeting women's dress in higher educa-

tion as part of a project to undo secularism, the Court considered the
ban to be necessary. Some human rights groups sharply criticized the
ruling as failing to defend women's rights to manifest their religion.
In the second case, Begum v. Headteacher,5 decided in March
2006, the British House of Lords ruled that prohibiting a young girl
from wearing the jilbab in a British high school with a Muslim ma-
jority was not a violation of human rights. This, the Lords reasoned,
was in part because of the need to protect the rights of other Muslim
girls at the school who feared being coerced to wear thejilbab.6
In assessing the meanings of such garments, the importance
of secularism for women's human rights, and international law norms
on religious freedom and gender equality, 7 this Article argues for a
contextual approach to such restrictions. A central dilemma is how
to reconcile charges of paternalism made against such bans and
charges of coercion made to support them, a conundrum which can
only be addressed in context. To obtain results most conducive to
harmonizing the right to religious freedom and the right to substan-
tive gender equality, the restrictions are examined in a matrix of fac-
tors, including pressures on an individual woman to wear or not wear
such gear, fundamentalist organizing targeting both education and
secularism, the rights of other women students, and related issues like
Islamophobia. Applying the contextual approach, the Article argues
that the European Court's judgment in 5ahin was correct, as was that
of the House of Lords in Begum. However, the jury is still out in a
third case, that of the French law banning religious symbols in public
schools which, though valid on its face, raises possible concerns
about religious and ethnic discrimination in context. Above all, this
Article advocates the re-insertion of women's human rights into the
heart of this debate in the human rights world, which so far has
largely focused on freedom of religion.
Ultimately, the Article confronts tensions between simultane-
ous commitments to transnational cosmopolitanism and civic repub-
licanism. What do we do when secularism is a prerequisite to
women's human rights in certain contexts, yet its defense requires
5. Begum v. Headteacher and Governors of Denbigh High School [2006] 2 All E.R.
487 (H.L.) (appeal taken from Eng.).
6. Id.
7. For analysis of the pros and cons of using the terminology of gender (which
emphasizes the social constructions of sex) or of sex (which emphasizes biological
distinctions), see Dianne Otto, "Gender Comment": Why Does the U.N. Committee on
Economic, Social and Cultural Rights Need a General Comment on Women?, 14 CAN. J.
WOMEN & L. 1, 32 (2002). These terms are used interchangeably in this Article for stylistic
reasons.
limitations which might be uncomfortable in an international human

rights framework, even if allowed by human rights law? The first
step toward an answer is to proceed with great caution, bearing in
mind the specifics of the particular context and the actual result our
approach is likely to produce both for women seeking to dress in cer-
tain ways and for their peers.
A. Secularism and Women's Human Rights
David Kennedy wrote in global terms in the 1990s of what he

termed "the secular establishment," suggesting, as do many, that
secularism has become so entrenched it no longer requires articula-
tion or defense. 8 In a world where the President of the most powerful
country on earth tells supporters God wants him to be President, 9 and
where religious fundamentalisms of all sorts flourish to the detriment
of women's human rights, this is undoubtedly an overstatement. The
recent controversy in which cartoons of the Prophet Mohammed
sparked worldwide protest further illustrates the contemporary global
10
power of religious claims.
A great deal of the establishment to which Kennedy refers
has, at least outside some of Western Europe, seemingly returned to
the religious.II Given, as Hilary Charlesworth has described it, "the
fundamental inequality between women and men on which the major
religious traditions operate,"' 12 this reality entails profound conse-
8. David Kennedy, Losing Faith in the Secular: Law, Religion, and the Culture of
InternationalGovernance, in RELIGION AND INTERNATIONAL LAW 309, 310 (Mark W. Janis
& Carolyn Evans eds., 2004). This assumption is shared by others. For example, Human
Rights Watch has labeled the human rights movement "secular," though the organization
itself does not champion secularism. See generally Jean-Paul Marthoz & Joseph Saunders,
Religion and the Human Rights Movement, in HUMAN RIGHTS WATCH, WORLD REPORT
2005, at 40, availableat http://hrw.org/wr2k5/wr2005.pdf.
9. As recounted by Dr. Richard Land of the Southern Baptist Convention. Meet the
Press: Faith in America (NBC television broadcast Mar. 27, 2005), available at
http://www.msnbc.msn.com/id/7284978.
10. See, e.g., Press Release, U.N. Comm'n on Human Rights, Human Rights Experts
Call for Tolerance and Dialogue in Wake of Controversy Over Representations of Prophet
Muhammad (Feb. 8, 2006), available at http://www.unhchr.ch/huricane/
huricane.nsf/view0l/EC806806182D5F 16C 125710F0059C630?opendocument.
11. See, e.g., RENOUVEAUX RELIGIEUX EN ASIE (Catherine C16mentin-Ohja ed., 1997);
OLIVIER Roy, L'ISLAM MONDIALISE (2002); JEAN-PIERRE DOZON, LA CAUSE DES PROPHETES:
POLITIQUE ET RELIGION EN AFRIQUE CONTEMPORAINE (1995); CHETAN BHATT, LIBERATION
AND PURITY: RACE, NEW RELIGIOUS MOVEMENTS AND THE ETHICS OF POSTMODERNITY
(1997); KEVIN P. PHILLIPS, AMERICAN THEOCRACY: THE PERIL AND POLITICS OF RADICAL
RELIGION, OIL, AND BORROWED MONEY IN THE 21 ST CENTURY (2006).
12. Hilary Charlesworth, The Challenges of Human Rights Law for Religious
Traditions, in RELIGION AND INTERNATIONAL LAW 401, 409 (Mark W. Janis & Carolyn
Evans eds., 2004).
2007] SECULARISM AND HUMAN RIGHTS
quences for the human rights of women, including with regard to

their choice of dress.
These consequences are magnified by the rise of religious
fundamentalisms. Debate rages about the appropriate terminology to
describe such phenomena. Here the term "fundamentalisms" refers
to "political movements of the extreme right, which, in a context of
globalization.., manipulate religion... in order to achieve their po-
litical aims." 13 One advantage of the language of fundamentalisms is
that it speaks across religious boundaries about movements within
many traditions. In a recent report to the General Assembly on vio-
lence against women, then-U.N. Secretary-General Kofi Annan ar-
gued that "[t]he politicization of culture in the form of religious 'fun-
damentalisms' in diverse.., religious contexts has become a serious
challenge to efforts to secure women's human rights." 14 In fact, ex-
perts have argued that such movements represent one of the two ma-
jor obstacles to the advance
15
of women's human rights at the dawn of
the twenty-first century.
In such an environment, the struggle to keep religion and law
13. M. A. Hd1ie-Lucas, What is Your Tribe? Women's Struggles and the Construction
of Muslimness, in 23/24 DOSSIER, WOMEN LIVING UNDER MUSLIM LAWS (2001), available at
http://www.wluml.org/english/pubsfulltxt.shtml?cmd%5B87%5D=i-87-2789. This Article
uses the terms "fundamentalisms" and "religious extremism" interchangeably for stylistic
reasons.
14. The Secretary General, In-Depth Study on All Forms of Violence Against Women,
81 (July 6, 2006), in U.N. Doc. A/61/122/Add.1, available at http://daccessdds.un.org/
doc/UNDOC/GEN/N06/419/74/PDF/NO641974.pdfOpenElement.
15. HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF
INTERNATIONAL LAW: A FEMINIST ANALYSIS 249 (2000). Much of the literature on
fundamentalism comes from the field of women's human rights. See, e.g., REFUSING HOLY
ORDERS: WOMEN AND FUNDAMENTALISM IN BRITAIN (Gita Sahgal & Nira Yuval-Davis eds.,
2000), available at http://www.wluml.org/english/pubs/pdf/misc/refusing-holy-orders-
eng.pdf; FUNDAMENTALISM & GENDER (John Stratton Hawley ed., 1994).
"Fundamentalism" is the term used, inter alia, by some of the international women's human
rights movements, but it is rejected by others and is not a legal term of art.
While some object to employing the term "fundamentalist" in the Muslim context,
many opponents of such movements in the Muslim world have preferred this label. It is
seen as more accurate than "Islamist" which is argued to be both derogatory of Islam and to
privilege "Islamist" claims of authenticity. See Karima Bennoune, "A Disease
Masqueradingas a Cure": Women and Fundamentalism in Algeria, An Interview with
Mahfoud Bennoune, in NOTHING SACRED: WOMEN RESPOND TO RELIGIOUS
FUNDAMENTALISM AND TERROR 75, 76 (Betsy Reed ed., 2002). Some who use the term
"fundamentalist" do so even while critiquing how the word has been used pejoratively by
some others to talk only about Muslims. See, e.g., Amrita Basu, Hindu Women's Activism in
India and the Questions It Raises, in APPROPRIATING GENDER: WOMEN'S ACTIVISM AND
POLITICIZED RELIGION INSOUTH ASIA 167 (Patricia Jeffery & Amrita Basu eds., 1998).
"Religious intolerance" is a term used in international human rights law, though
with a range of connotations. It means both extreme forms of religious practice with
negative consequences for the human rights of others, as well as discrimination on grounds
of faith. As a legal term of art, it is used below in the discussion of international standards.
See infra notes 164-177 and accompanying text.
separate is one of the most crucial human rights struggles of our time,
especially for women. 16 Keeping religious doctrine out of law re-
quires secularism, which must be recognized as a human rights value
itself.17 Ultimately, this project may require some limitation of reli-
gious expression in the service of protecting women's rights, in ac-
cordance with international human rights norms.
The views of secularists in many cultures, 18 especially those
in the Muslim world 19 who are so often overlooked despite their
championing of women's rights, inform these simple, yet increas-
ingly neglected, assertions. This Article is most centrally influenced
by the opinion of the Algerian anthropologist Mahfoud Bennoune
who said,
Because of my own experience with the fundamental-
ists, I believe the separation of church and state repre-
sents major progress in human history .... [It] is the
only way you can promote tolerance, coexistence and
democracy within a state. I am more convinced 20
than
ever now that secularism is the only way out.
Such voices are found in many scholarly fields. However,
with increasing capitulation to relativism 21 in response to critiques of
universality theory, fair and unfair, 22 and in the current polarized
global environment, similar voices in human rights law theorizing
grow timid. The emphasis on freedom of religion has overshadowed
16. See, e.g., REFUSING HOLY ORDERS: WOMEN AND FUNDAMENTALISM IN BRITAIN,
supra note 15 at 201; Chetan Bhatt, Speech to Amnesty Intemational-U.K.: Women's
Human Rights and Religious Absolutism (May 10, 2006); infra notes 210-222 and
accompanying text.
17. See, e.g., loanna Kuquradi, Secularization and Human Rights, in CULTURAL
TRADITIONS AND THE IDEA OF SECULARIZATION 65 (Bhuvan Chandel & loanna Ku uradi
eds., 1998). See also Sadik J. Al-Azm, Address on the Occasion of the 2004 Dr. Leopold-
Lucas Award: Islam and Secular Humanism (2005). On the meanings and value of
secularism, see discussion, infra at notes 205-222 and accompanying text.
18. See, e.g., Kuquradi, supra note 17; Amartya Sen, Secularism and Its Discontents,
in SECULARISM AND ITS CRITICS 297 (Rajeev Bhargava ed., 1998).
19. For a sample of such views, see the copious Arabic-language literature reviewed in
Ghassan Abdullah, New Secularism in the Arab World, http://www.ibn-rushd.org/
forum/Secularism.htm (last visited Dec. 8, 2006), and SOHEIB BENCHEIKH, MARIANNE ET LE
PROPHETE: L'ISLAM DANS LA FRANCE LAIQUE (1998). The latter is especially interesting as
its author was trained at Al Azhar and served as Grand Mufti of Marseille.
20. Bennoune, supranote 15, at 87-88.
21. See, e.g., Kimberly Younce Schooley, Cultural Sovereignty, Islam and Human
Rights-Towarda CommunitarianRevision, 25 CUMB. L. REv. 651 (1994).
22. See, e.g., Bilahari Kausikan, Asia's Different Standard, 92 FOREIGN POL'Y 24
(1993); Makau wa Mutua, The Ideology of Human Rights, 36 VA. J. INT'L L. 589 (1996).
There has been a rejoinder to such critiques in writings such as Shashi Tharoor, Are Human
Rights Universal?, WORLD POL'Y J., Winter 1999-2000, at 1; Thomas M. Franck, Is
PersonalFreedom a Western Value?, 91 AM. J. INT'L L. 593 (1997).
2007] SECULARISMAND HUMAN RIGHTS
the importance
23
of freedom from religion, particularly in legal schol-
arship.
This Article seeks to redress that imbalance by focusing on
permissible limitations on what is claimed to be religious expression
in dress in the service of promoting women's substantive human
rights. Such restrictions are permissible if they are in accordance
with international human rights standards. The test for whether or
not the requirements of human rights law are met by particular limits
needs to be approached in a context-specific way, interpreting the
manifestation of religion in light of the particular circumstances and
socially constructed meaning(s) of the expression and its impact on
sex equality, another fundamental human right.
Roger Clark has rightly suggested that some may understand
expression to be "crucial to the continued existence of religious
groups" and that public manifestations of religion represent "highly
visible targets" for the expression of the religious intolerance of oth-
ers. 24 However, he does recognize that such manifestation of belief
may "on occasion interfere with other functions in society."25 This
view is echoed by Bahia Tahzib-Lie, who reiterates Clark's view that
"manifestation of belief ... impacts directly on society at large, so
that limiting such manifestations may be a legitimate goal of overall
social policy." 26 Some limitations are justified, but necessitate care-
ful, contextual scrutiny.
Furthermore, though interrelated, freedom of religion and
freedom to manifest religion are distinct concepts and are handled
differently by human rights law. Analyses that focus instead on an
absolutist approach to freedom of religion in which belief and ex-
pression are conflated, and which are de-contextualized, are unhelp-
ful at best and ignore the human rights imperatives associated with
secularism, especially for women.
While religious freedom is a basic human right, substantive
equality, including on the grounds of sex, is every bit as fundamental
a human right,2 7 and yet the latter has been downplayed relative to
23. Diverse authors have produced a voluminous literature on freedom of religion.

See, e.g., BAHIYYH G. TAHZIB, FREEDOM OF RELIGION OR BELIEF: ENSURING EFFECTIVE
INTERNATIONAL LEGAL PROTECTION (1996); Roger S. Clark, The United Nations and
Religious Freedom, 11 N.Y.U. J. INT'L L. & POL. 197 (1978).
24. Clark, supra note 23, at 211.
25. Id.
26. Bahia Tahzib-Lie, Women's Equal Right to Freedom of Religion or Belief, in
RELIGIOUS FUNDAMENTALISMS AND THE HUMAN RIGHTS OF WOMEN 117, 121 (Courtney W.
Howland ed., 1999) (quoting Clark, supra note 23, at 215).
27. The right to non-discrimination, including on the basis of either gender or religion,
is the only human right explicitly mentioned in the UN Charter. Even when derogating from
the former. Furthermore, in applying freedom of religion, both those

who believe and those who choose not to believe, as well as those
who seek to manifest belief and those who do not wish to be coerced
to do so, must be taken into
28
consideration. This is only possible in a
framework of secularism.
Despite the focus here on headscarves worn by Muslim
women, the broader discussion about equality, religious freedom, and
fundamentalisms should not be centered on Islam alone. David Ken-
nedy has rightly suggested that Islam is currently the trope for relig-
ion. 9 This use of Islam leads to absurd and distorted discussions
These queries are also live for Indian Hindus,3 1 Israeli Jews,32
American Christians, 33 and those who share societies with them, as
well as for many others around the world. Some forms of many other
religious traditions have also placed modesty restrictions on women,
whether Hindu purdah or the long skirts and head coverings worn by
some Orthodox Jewish women.
With these concerns in mind, this Article will consider secu-
larism and human rights as follows. Part One parses the $ahin case.
An overview of NGO critiques of the case follows. Subsequently,
human rights in a time of crisis, states may not discriminate on these bases. International
Covenant on Civil and Political Rights art. 4, Dec. 16, 1966, S. TREATY Doc. No. 95-20, 999
U.N.T.S. 171 [hereinafter ICCPR].
28. See HENRI PENA-RUIz, HISTOIRE DE LA LAICITE: GENESE D'UN IDEAL (2005).
29. Kennedy, supranote 8, at 309.
30. See, for example, David Brooks' characterization of the cartoon controversy as a
debate between "you," "Islamists . . . young men who were well educated in the West, but
who have retreated in disgust from the inconclusiveness and chaos of our conversation," and
"us," meaning "we in the West .... " "Our mind-set is progressive and rational," he argues.
"Your mind-set is pre-Enlightenment and mythological." David Brooks, Drafting Hitler,
N.Y. TIMES, Feb. 9, 2006, at A27. This is a remarkable assertion in a country like the United
States, where research into an H.I.V. vaccine is reportedly opposed by the Christian right
because it might lead to sexual promiscuity. See Michael Specter, PoliticalScience: The
Bush Administration's War on the Laboratory, NEW YORKER, Mar. 13, 2006, at 58.
Furthermore, in the Brooks worldview, those in the "East," who disagree with Muslim
fundamentalists, and those in the West who represent other fundamentalisms disappear.
Contrast this with the paradigm described by dissident Muslim intellectuals, including
Salman Rushdie, for understanding the cartoon controversy: "[i]t is not a clash of
civilizations nor an antagonism between West and East that we are witnessing, but a global
struggle that confronts democrats and theocrats." Writers Issue CartoonRow Warning, BBC
NEWS, Mar. 1, 2006, availableat http://news.bbc.co.uk/l/hi/world/europe/4763520.stm.
31. See, e.g., Ratna Kapur, The Two Faces of Secularismand Women's Rights in India,
in RELIGIOUS FUNDAMENTALISMS AND THE HUMAN RIGHTS OF WOMEN, supra note 26, at 143.
32. See, e.g., Alice Shalvi, "Renew Our Days as of Old": Religious Fundamentalism
and Social Change in the Modern Jewish State, in THE FREEDOM TO Do GOD'S WILL:
RELIGIOUS FUNDAMENTALISM AND SOCIAL CHANGE 75 (Gerrie Ter Haar & James Busuttil
eds., 2003).
33. See, e.g., KENT GREENAWALT, DOES GOD BELONG IN PUBLIC SCHOOLS? (2005);
Barbara Ehrenreich, Christian Wahhabists, in NOTHING SACRED: WOMEN RESPOND TO
RELIGIOUS FUNDAMENTALISM AND TERROR, supra note 15, at 255.
2007] SECULA RISM AND HUMAN RIGHTS
the Article weighs the conflict in international law between the hu-
man right to equality and that to religious freedom, setting out the
contextual approach as a way forward through this morass. A discus-
sion of secularism as a human rights concept bolsters this methodol-
ogy. Along the way, the Article will delve into the human rights
meanings of the headscarf and other "modest" dress worn by some
Muslim women and into the implications of Islamophobia for this
discussion in the contemporary moment. In this matrix, it will then
provide illustrative applications of the contextual approach to Begum,
the French law on religious symbols, and 5ahin, and offer a model
for analyzing other cases which may arise in the future.
III. A WOMAN'S RIGHT VERSUS WOMEN'S RIGHTS: THE AHIN

CASE
A. The Facts in Context
In June 2004, the ECtHR engaged with limitations on head-

scarves when its Fourth Section ruled in Leyla 5ahin v. Turkey. The
applicant was a thirty-one year-old medical student whom the court
described as coming "from a traditional family of practicing Muslims ' 34
[who] considers it her religious duty to wear the Islamic headscarf.
Ms. $ahin argued that Istanbul University's implementation of its
1998 circular prohibiting the wearing of the headscarf or beards in
class violated her rights under the European Convention on Human
34. 5ahin, Fourth Section, supra note 3, T 10.

35. According to the ECtHR, the circular reads, in part, as follows:
By virtue of the Constitution, the law and regulations, and in accordance with
the case-law of the Supreme Administrative Court and the European
Commission of Human Rights and the resolutions adopted by the University
administrative boards, students whose 'heads are covered' (wearing the Islamic
headscarf) and students (including overseas students) with beards must not be
admitted to lectures, courses or tutorials. Consequently, the name and number
of any student with a beard or wearing the Islamic headscarf must not be added
to the lists of registered students ....
.ahin, Fourth Section, supra note 3, 12 (citing Vice-Chancellor of Istanbul University,
Circular Regulating Students' Admission to the University Campus, Feb. 23, 1998). Human
Rights Watch has particularly criticized this circular as emanating from military pressure on
the university via the state-controlled Higher Education Council. The organization situates
the ban in the broader context of limits on academic freedom in Turkey. Memorandum to
the Turkish Government on Human Rights Watch 's Concerns with Regard to Academic
Freedom in Higher Education, and Access to Higher Educationfor Women who Wear the
Headscarf26-29 (Human Rights Watch Briefing Paper 37-38, June 29, 2004), available at
http://hrw.org/backgrounder/eca/turkey/2004/headscarfmemo.pdf (hereinafter Memoran-
dum to the Turkish Government]. Others see the military as an important, though repressive,
defender of secularism against fundamentalist political parties. See, e.g., David Holley,
Turkish SecularistsSee Red over Islamists'Rise, L.A. TIMES, Aug. 6, 2002, at 5.
COLUMBIA JOURNAL OF TRANSNATIONAL LA W [45:367
Rights.36 Among others,37 she invoked her right to manifest her re-
ligion under Article 9.38
Following issuance of the circular, Ms. $ahin was denied ac- 39
cess to medical exams and courses while wearing a headscarf.
Subsequently, she participated in an "unauthorized assembly" against
the rules on dress and was suspended. 40 Ultimately, she benefited
from an amnesty; however, she had already enrolled at Vienna Uni-
versity where she completed her education. 4 1 Citing a long line of
precedents, the ECtHR noted that "Article 9 does not protect every
act motivated or inspired by a religion or belief and does not in all
cases guarantee the right to behave in the public sphere in a way
which is dictated by a belief."42 While the Court conceded that the
rules at stake amounted to "an interference with the applicant's right
to manifest her religion," 43 under the circumstances they were
deemed lawful. This resulted from the Court's acceptance that such
measures "primarily pursued the 44
legitimate aims of protecting the
rights and freedoms of others."
In its pleadings, the Turkish government claimed that "secu-
larism was a preliminary requisite for a liberal, pluralist democ-
racy," 45 submitting that "protection of the secular state" was a sine
qua non for the realization of human rights in the Turkish context.46
In light of the notorious human rights record of successive Turkish
governments with regard to certain civil and political rights,47 includ-
36. European Convention on Human Rights, Nov. 4, 1950, 213 U.N.T.S. 221
[hereinafter European Convention].
37. $ahin, Fourth Section, supra note 3, 14.
38. Article 9(1) sets out that:
Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
This right is subject to a limitations clause in para. 9(2):
Freedom to manifest one's religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society
in the interests of public safety, for the protection of public order, health or
morals, or for the protection of the rights and freedoms of others.
European Convention, supra note 36, art. 9. For universal human rights law's approach to
the protection of religious freedom, see infra text at notes 145-177.
39. .$ahin,Fourth Section, supra note 3, 13.
40. Id. 19-20.
41. Id. 25.
42. Id. 66.
43. Id 71.
44. Id. 84.
45. Id. 91.
46. Id.
47. See, e.g., AMNESTY INT'L, Turkey, in ANNUAL REPORT 2005, available at
http://web.amnesty.org/report2005/tur-summary-eng. This may be part of the explanation
for the unwillingness of some human rights NGOs to lend any credence to the Turkish
ing freedom of expression, 48 its invocation of human rights must be

taken with a grain of salt. Yet, this does not undercut the merit of the
argument itself. Furthermore, compared to some of its neighbors,
Turkey has made important advances in the sphere of women's hu- 49
man rights, though its record there, too, is subject to some criticism.
The growing fundamentalist movements in the region are a
vital part of the matrix within which to consider this issue in the
Turkish context.50 The Turkish government referred to the headscarf
as "a sign that was regularly appropriated by religious fundamentalist
movements for political ends and constituted a threat to the rights of
women." 51 As $enal Sarihan, a Turkish woman and human rights
lawyer, has argued, "[t]he tirbanor headscarf is not just a dress but a
sign of political conviction. This really is a 'near and present dan-
ger."' 52 She takes this even further, in a neighborhood comparison
that is both controversial and commonly made: "[t]his is a political
movement that intends to destroy the whole republic, and to change it
into another Iran." 53 Another Turkish academic told Human Rights
Watch:
I always had students who wore the headscarf, but it
was not a problem then. Universities always ap-
proached this issue and students who wore the head-
scarf in a spirit of moderation. But... these demands
are going to escalate. They start by wanting to wear
the headscarf, and then it will be the54
qareaf, and then
people will ask where we are going.
government's claims here.

48. See especially Amnesty Int'l, Turkey: Article 301-How the Law on "'Denigrating
Turkishness " Is an Insult to Free Expression, Mar. 1, 2006, available at
http://web.amnesty.org/library/index/engeur440032006.
49. See, e.g., Dicle Kogacioglu, The Tradition Effect: Framing Honor Crimes in
Turkey, 15 DIFFERENCES 118 (2004). Human Rights Watch suggests that one reason some
Turkish women oppose lifting the ban on the headscarf is the poor track record of the
Turkish state in preventing violence and discrimination against women. Memorandum to the
Turkish Government, supra note 35, at 4.
50. On the rise in regional fundamentalism and its impact on women's human rights,
see HAIDEH MOGHISSI, FEMINISM AND ISLAMIC FUNDAMENTALISM: THE LIMITS OF
POSTMODERN ANALYSIS (1999). On similar phenomena in Turkey, see Douglas Frantz,
Turkey: Well Along Road to Secularism, Fears Detour to Islamism, N.Y. TIMES, Jan. 8,
2002, at A8.
51. ahin, Fourth Section, supranote 3, 93.
52. Memorandum to the Turkish Government, supra note 35, at 38. This paper
contains one of the few serious explanations by a major human rights NGO of secularist
arguments. It does not, however, adequately respond to them or reflect them in the
Memorandum's final conclusions.
53. Id.
54. Id.at 40 (quoting interview by Human Rights Watch, in Istanbul, Turkey (Nov. 23,
2000)) (footnote omitted). According to Human Rights Watch, the qar~afis a "sheet ...
The fears of advocates of the ban have been exacerbated by violence

directed against those who oppose veiling on campus. Human Rights
Watch details, for example, how a mail bomb killed the academic
Bahriye Uqok after her public pronouncements on this topic. Ugur
Mumcu, a journalist who wrote that U9ok's murder resulted from her
opposition to the headscarf on campus, died in a car bombing just
over two years later. 55 The Human Rights Watch memorandum also
mentions the stabbing5
of a professor while he debated this topic with
students on campus.
In addressing permissible limitations on religion in such a
context, the Turkish government made a larger, methodological point
about the need to circumscribe religious doctrine for human rights
ends. It argued that implementing some provisions of the Sharia re-
quired action incompatible with human rights law, including the 57
European Convention, namely "torture as punishment for crime"
and an unacceptable status for women. 58 In fact, the Turkish gov-
ernment had already broken with Islamic Law in other areas, as ex-
emplified by its 2002 reform of Turkish family law. 59 Of course, this
argument can be taken too far. Every religion, particularly in certain
interpretations, makes some demands incompatible with human
rights law. This cannot be an authorization for governments to pro-
hibit other aspects of religious practice that do not violate human
rights. Still, the point that some limits on religion may be necessary
to safeguard basic human rights resonates in Turkish reality.
B. The Reasoning of the European Court of Human Rights
The ECtHR's assessment supported the vision of the Turkish

authorities. It recognized that in democratic societies, public displays
of religion might have to be circumscribed to "ensure that everyone's
beliefs are respected." 60 In past cases, the Court had allowed restric-
tions on religious symbols, including the veil, in order to protect the
allowing little more than the eyes to be seen." Id. at 40 n.100.

55. Id.at 40.
56. Id. at40-41.
57. On such punishments, see Karima Bennoune, "A Practice Which Debases
Everyone Involved": CorporalPunishment UnderInternationalLaw, in 20 ANS CONSACRES
A LA REALISATION D'UNE IDEE 203 (1997).
58. $ahin,Fourth Section, supra note 3, 94.
59. See Seval Yildirim, Aftermath of a Revolution: A Case Study of Turkish Family
Law, 17 PACE INT'L L. REV. 347, 370 (2005) ("Today, outside of the former Soviet republics
of Central Asia and the Balkans, Turkey is the only majority Muslim country where family
law is not based on the Sharia.").
60. $ahin,Fourth Section, supra note 3, 97.
rights of others, as well as public order and safety. 6 1 For example, in

Dahlab v. Switzerland, upholding a Swiss decision prohibiting public
school teachers from wearing the hijab62 in class, the Court argued
that the hiab was "imposed on women by a precept laid down in the
Koran that was hard to reconcile with the principle of gender equal-
ity."' 63 Thus, for the Court, combating gender discrimination was an
acceptable reason for the Turkish ban. Particularly given that Turkey
is ninety-nine percent Muslim, removing the concern of certain types
of discrimination, these measures taken to 64
combat fundamentalist co-
ercion of students were seen as justified.
The Court's understanding here is shaped by the margin of
appreciation approach, according to which a government's claim of
necessity for limiting particular rights receives special deference
from the European Court, where such a limitation is permitted by the
Convention. 65 In ;ahin, the Court asserted that the relationship of re-
ligion and state is particularly suited to determination at the national
level. 66 Though the deference of the margin of appreciation method-
61. Id. 98.

62. The hyab is the Arabic language term used to refer to the headscarf worn by some
Muslim women which covers head, hair and neck. Joan Scott has argued that it is not the
same as a "veil" though the difference between these terms is often elided. Joan Scott,
Symptomatic Politics: The Banning of Islamic Head Scarves in French Public Schools, 23
FRENCH POL., CULTURE & SOC'Y 106, 108 (2005). The two terms appear interchangeably
here, though the author recognizes that the implicated garments are distinct, the level of
covering involved lying along a continuum. Below, this Article defines each particular form
of covering discussed. However, this range of "modest" clothes raises many similar issues.
63. $ahin, Fourth Section, supra note 3, 98. See Dahlab v. Switz., 2001-V Eur. Ct.
H.R. 447. Note that to assume, as the Court did here, that the Koran imposes the veil is to
give in to a particular, contested interpretation. See FATIMA MERNISSI, THE VEIL AND THE
MALE ELITE 85-101, 191-92 (1991).
64. $ahin, Fourth Section, supra note 3, 99. On Turkish demographics, see DORLING
KINDERSLEY WORLD ATLAS 217 (Andrew Heritage ed., 4th ed. 2005).
65. $ahin, Fourth Section, supra note 3, 100. The origins of the margin of
appreciation doctrine in the jurisprudence of the European Court of Human Rights lie in the
Court's approach to derogation of rights in emergencies. See Michael R. Hutchinson, The
Margin of Appreciation Doctrine in the European Court of Human Rights, 48 INT'L. &
COMp. L.Q. 638, 640 (1999).
66. $ahin, Fourth Section, supra note 3, 101. Hence, the court has used the margin
of appreciation doctrine in a wide range of religious freedom cases, including Dahlab v.
Switz., 2001-V Eur. Ct. H.R. 447; Refah Partisi v. Turk., 2003-II Eur. Ct. H.R. 267 (holding
government's actions dissolving a religious political party that enjoyed electoral success
were proportional to the "pressing social need" created by Refah Partisi's threat to
secularism); Ch'are Shalom Ve Tsedek v. Fr., 2000-VIl Eur. Ct. H.R. 231 (holding the
French government did not violate the Article 9 rights of an ultra-Orthodox group when it
permitted only the Jewish Consistorial Association of Paris, a group representing the
majority of French Jews, to control access to slaughterhouses operating in accordance with a
mainstream interpretation of Judaism); and Wingrove v. U.K., 1996-V Eur. Ct. H.R. 1937
(holding that restricting offensive religious media, here the applicant's video called Visions
of Ecstasy representing Christian figures in sexual situations, to protect the feelings of
adherents to a religion was within the margin of appreciation).
ology is shown here, to write 5ahin off on those grounds alone

misses the point. 67 In its holding, the Court considered the legal and
social context of the disputed Turkish restrictions, and made signifi-
cant substantive comments, accepting that, at least in certain con- 68
texts, secularism is a prerequisite to the enjoyment of human rights.
Despite according a margin of appreciation, since it acknowl-
edged the government's action as "interfering" with $ahin's enjoy-
ment of her full rights under the Convention, the Court considered
two questions in weighing the permissibility of this interference: 1)
Were the reasons given "relevant and sufficient"? 2) Were the meas-
ures taken proportionate to the goals? 69 As to the first, the Court
found that Turkey interfered in the expression of religion in defense
of secularism and gender equality. It accepted these goals for the 71
70
ban, which "reinforce and complement each other," in context.
The Fourth Section noted approvingly that the Turkish Constitutional
Court had held secularism to be "the guarantor of democratic 72
val-
ues," which "protected the individual from external pressure."
As to proportionality, as some of its critics have noted,73 the
Court did not engage at this level in an explicit, thorough application
of the principle. This is both regrettable and a logical consequence of
the margin of appreciation. Nevertheless, its painstaking explication
of the Turkish context reflects upon this question. In particular, the
Court's discussion of the parameters of the ban which notes that de-
vout Muslim students can perform the bulk of their ordinary religious
duties despite the constraints seems directed at this objective. 74 The
Court also stressed that the ban applied equally to the headscarf for
67. However, Eyal Benvenisti's critique of the margin of appreciation may be of

relevance when considering similar limits in other contexts, like France. He sees it as
inappropriate when minority rights are at stake because they are less likely to be vindicated
by national governments. In his view, such cases ought to receive "strict scrutiny," akin to
that applicable under the U.S. Constitution. He also sees the margin of appreciation as a
block to the application of truly universal standards. Eyal Benvenisti, Margin of
Appreciation, Consensus and Universal Standards, 31 N.Y.U. J. INT'L L. & POL. 843, 844-
52 (1999).
68. $ahin,Fourth Section, supra note 3, 103-06.
69. Id. T 103.
70. Id. T 104.
71. Id.11 110, 114.
72. Id. T 105.
73. Tore Lindholm, The Strasbourg Court Dealing with Turkey and the Human Right
to Freedom of Religion or Belief" A CriticalAssessment in the Light of Recent Case Law
(Leyla Sahin (sic) v. Turkey, 29 June 2004) 10-13, (paper presented to Strasbourg
Conference International Protection of Women's Rights: The Islamic Headscarf
Controversy, 2005), available at http://www.strasbourgconference.org/papers/Lindholm%
20Strasbourg.pdf. For a related critique of the Court's application of the concept of
"necessity," see Carolyn Evans, The 'Islamic Scarf' in the European Court ofHuman Rights,
7 MELBOURNE J. INT'L L. 52, 56-57 (2006).
74. Fahin, Fourth Section, supra note 3, 111.
women and to beards for men that are meant to manifest religious be-
lief.75 Furthermore, the Court lauded the universities for not in-
stantly barring access to students so garbed, but rather engaging them
in dialogue.76 Ultimately, on these bases, both the Fourth 77
Section
and Grand Chamber deemed the restrictions proportionate.
By way of denouement, the Fourth Section declared that
"[t]his notion of secularism appears to the Court to be consistent with
the values underpinning the Convention and it accepts that upholding
that principle ... [is] necessary for the protection of the democratic
system in Turkey." 78 This was, in part, due to the centrality of gen-
der equality to the Convention framework. 79 Additionally, the Court
accepted the Turkish government's restrictions in view of the fact of
extremist political movements in Turkey and their manipulation of
the restricted symbols. 80 It also expressed concern about the impact
of the symbol on others. If more and more students veil, this calls
into question the style of dress and religiosity of other women stu-
dents, potentially placing great pressure on them. 81 Hence, in con-
text, the Court found no violation of Ms. $ahin's rights. In its 2005
reply to the referral of the case following the 2004 Fourth Section
ruling, the Grand Chamber reaffirmed this judgment.82
75. Id. 43-45, 111.

76. Id. 113.
77. See id. 114 and $ahin, Grand Chamber, supra note 3, 122.
79. For example, see the non-discrimination provision in European Convention, supra
note 36, art. 14.
80. ;ahin, Fourth Section, supra note 3, 109. See also Niyazi Oktem, Religion in
Turkey, 2002 BYU L. REv. 371, 395-400 (2002).
81. This issue has also been raised by some feminists of Muslim origin. For example,
Paris-based Senegalese sociologist Fatou Sow asks: "If girls are allowed to wear hijab, what
does this imply for other young girls (Muslim) who don't wear it? Eventually the trend
could be that they would all feel obliged to wear it because of its political significance. That
would be undemocratic." Women Living Under Muslim Laws, France: Issues Related to
the Headscarf Ban, Apr. 20, 2004, http://www.wluml.org/english/newsfulltxt.shtml?cmd
%5B 157%5D-x-157-44910.
82. 5ahin, Grand Chamber, supra note 3, 123. The Grand Chamber judgment
sparked one important dissent which will be discussed below, infra notes 298-304 and
corresponding text.
COLUMBIA JOURNAL OF TRANSNA TIONAL LA W [45:367
IV. THE EUROPEAN COURT OF HUMAN RIGHTS VERSUS HUMAN

RIGHTS WATCH: "A CERTAIN LACK OF EMPATHY" OR A
CERTAIN LACK OF CONTEXT?
A. Friendsof the Court Dissent: The NGO Response to Sahin
Following the release of the original Fourth Section opinion,

the highly-respected U.S.-based NGO Human Rights Watch (HRW)
castigated the ECtHR in an opinion piece entitled "A Certain Lack of
Empathy," 83 suggesting such a "lack of empathy" represents the atti-
tude of the ECtHR in general to "the believer." 84 Its Turkey expert
labeled the ECtHR view "disappointing," and alluded to veiled
women feeling "rather badly let down by the human rights machin-
ery." 85 This Op-Ed averred that the $ahin judgment tends toward a
ban on veiling anywhere and did not mention that coercion may be
involved either in the choice of women to veil, or the impact of their
choice on others.
Despite the fraught political context of Turkish university
campuses, the NGO framed veiling in its response as entirely reli-
gious expression, and omitted any discussion of its political implica-
tions. Notwithstanding the fact that Turkey is a predominantly Mus-
lim country, the group came close to accusing the Court of
Islamophobia in accepting its government's policy. 86 More trou-
bling, it broadly disparaged the Court's approach by saying, "[t]he
ECtHR judgment draws the conclusion that this abstract principle of
secularism must take priority over the rights, future and welfare of an
individual .... -87 This suggests that secularism does not have a con-
crete impact on individual human rights but represents merely an ex-
cuse. The HRW opinion piece built on an earlier memorandum to
the Turkish Government calling for the ban to be lifted. 88 Its basic
tenets were later reiterated in the organization's 2005 World Re-
89
port.
Other groups also weighed in on the decision. 90 The Interna-
83. Jonathan Sugden, A Certain Lack of Empathy, HUMAN RIGHTS WATCH, July 1,
2004, http://www.hrw.org/english/docs/2004/07/01/turkey8985.htm.
84. Id. (quoting CLARE OVEY & ROBIN WHITE, JACOBS AND WHITE, THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 316 (4th ed. 2006)).
85. Sugden, supra note 83, 1.
86. Id.
87. Id. 9.
88. Memorandum to the Turkish Government, supra note 35.
89. Marthoz & Saunders, supra note 8, at 58-63.
90. See also Otmar Oehring, Turkey: Is There Religious Freedom in Turkey?, FORUM
18 NEWS, Oct. 12, 2005, http://www.forum18.org/Archive.php?articleid=670 (criticizing
tional Helsinki Federation for Human Rights concluded that the rul-
ing in ;ahin was "widely criticized by human rights lawyers and oth-
ers, who found that the Court did not identify any compelling evi-
dence to show that the restrictive university regulations served to
protect the values they were said to protect." 9 1 It also appeared taken
aback that the Court saw the headscarf as "an expression of religious
fundamentalism." 92 On the other hand, notably, Amnesty Interna-
tional has so far not opined on this case. 93 The issue of dress restric-
tions is reportedly under discussion in the organization, but a policy
has not yet been adopted.
Who was right? Did the ECtHR, in accepting limitations on
religious expression on public university campuses, fulfill its human
rights mission or fail it? Did it protect the rights of Turkish women
students to be free from religio-political extremist coercion about
dressing and hence their right to equality? Alternatively, did it turn a
blind eye to an official policy forcing "traditional" women to come to
school feeling as Western women might feel if required to go to
campus topless? Was the Turkish government in fact, "compro-
mis[ing] women's private choices in a way that reduces their enjoy-
ment of... life by disrespecting their dignity?" 94
On the other hand, in their pointed critiques of the ECtHR,
were HRW and other critical human rights groups vindicating a more
just approach, or using an absolute, de-contextualized notion of reli-
gious freedom, ultimately harmful to women's substantive human
rights or to the protection of those rights from religious extremism?
While the ECtHR, in deference to the Turkish Constitution sanctified
secularism and received it as necessary for human rights, HRW over-
looked Turkey's constitution and dismissed secularism as an irrele-
vant and vague notion to which governments were sacrificing indi-
Turkish ban as "disturbing" and as one which "de jure bars devout Muslim women from
universities," without mentioning any coercion of women to cover). Though it was
published in 2004 and does not reference 5ahin, note also the complex analysis of veiling
bans in Diaspora contexts by the Minority Rights Group in FAREDA BANDA & CHRISTINE
CHINKIN, MINORITY RIGHTS GROUP INTERNATIONAL: GENDER, MINORITIES AND INDIGENOUS
PEOPLES 19-20 (2004).
91. INT'L HELSINKI FED'N FOR HUMAN RIGHTS, INTOLERANCE AND DISCRIMINATION
AGAINST MUSLIMS IN THE EU: DEVELOPMENTS SINCE SEPTEMBER 11, at 158 (2005),
available at http://www.ihf-hr.org/viewbinary/viewdocument.php?download= 1&doc-id
=6237.
92. Id.
93. The author has drawn this conclusion from the lack of any documents on this
matter on the organization's website. See Amnesty International, http://www.amnesty.org
(last visited Dec. 8, 2006).
94. Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and
Gender, 1991 DUKE L.J. 365, 386 n.65 (1991) (examining U.S. case law concerning African-
American women's ability to wear braided hairstyles in the workplace).
vidual rights, much like they are seen to do invoking national secu-
rity. How could two organizations, the ECtHR and HRW, so often
on the same side, 95 have such diametrically opposed views? Whose
view of the issue is more in line with international human rights law
and more likely to promote a gender-sensitive and meaningful ap-
proach to human rights even beyond the law?
B. The Verdict
Although judicial reasoning and human rights advocacy tend

toward simple prescriptions, any truly satisfactory approach to this
issue must be able to embrace a series of dualities. These include the
simultaneous importance of freedom of religion and gender equality,
the interrelationship and yet crucial distinction between freedom of
conscience and expression of that conscience, concern for the rights
of women seeking to express themselves by wearing headscarves and
for those of other women in the same context, coercion and agency,
the religious meanings of the veil and its political meanings, discom-
fort with veiling and discomfort with restrictions on veils. Only by
weighing all of these factors and contradictions in context can one
begin to discover an adequate response to this problem.
Ultimately, swimming against the tide of the opposing human
rights lawyers to which the Helsinki Federation alluded, this Article
favors the $ahin opinion over those of its opponents. Hopefully this
critique of the NGO positions described above will be understood as
a substantive disagreement with respected colleagues whose body of
work makes important contributions. However, the limitation exer-
cise carried out by the Turkish government and the ECtHR on these
specific facts is clearly acceptable under international and European
human rights law. Even to the extent that for some women, the
choice to wear a headscarf is their own, and is for them an expression
of religious belief, this limitation on that choice is necessary in con-
text to protect the rights of others.
This assessment speaks only to the context of public educa-
tional institutions, which shape the identities of future generations
and forge the public consensus about gender roles and equality. Ms.
$ahin was free to wear the clothing of her choice to and from the
University, and anywhere else outside that context where she chose
to do so. However, in public education, allowing such symbols risks
95. See, e.g., Human Rights Watch, Freedom of Expression and Movement,
http://www.hrw.org/about/projects/womrep/General-229.htm (last visited Dec. 8, 2006)
(praising the Court's decision favoring access to abortion information).
20071 SECULARISM AND HUMAN RIGHTS
seeming to ratify them. This is how the Turkish Constitutional Court

read permitting the veil in state-run higher education. 96 The French 97
government also expressed this worry when preparing its 2004 law.
Similar concern has factored in analogous U.S. judgments. This
view arguably takes Justice O'Connor's approach to the Lemon test
in U.S. constitutional law, 98 as expressed in her concurrence in Lynch
v. Donnelly, to its logical conclusion.9 9 She reasons that the govern-
ment violates the Establishment Clause if its action has the effect of
communicating an endorsement of religion, regardless of its inten-
tion. In O'Connor's view, such effective endorsement can "send[] a
message to non-adherents that they are outsiders, not full members of
the political community .... "I This assertion resonates in a public
school with numerous female Muslim students where those who wish
to are allowed to wear restrictive clothing because they allege it is re-
quired by religion for Muslim women. Non-wearers of such garb
risk becoming outsiders, seen as not fully or equally Muslim; or, to
paraphrase Justice O'Connor, as not full members of the religious
community.
The Turkish government's argument about the nature of Ms.
;ahin's medical studies is also compelling. A "conservative religious
approach would undoubtedly be incompatible with hygiene require-
ments." 10 1 This raises significant questions. Should any garments be
permissible in surgery or in the face of infectious patients? Surely no
human rights advocates would dispute clothing restrictions where the
goal is protecting health. 10 2 Does the protection of gender equality
justify similar limits?
One of the major obstacles to a clear rule on headscarves is
the spirited debate over the exact meaning of such garments. Thus,
we now turn to an effort to discern these significations.
1. The Meaning of the Meanings of an "Unstable Signifier"
Any thick analysis of this problem must account for the con-
textual connotations of the headscarf. Some, including Judge
96. 5ahin, Fourth Section, supra note 3, 36.

97. See, e.g., COMMISSION DE REFLEXION SUR L'APPLICATION DU PRINcIPE DE LAYCITt
DANS LA RtPUBLIQUE, RAPPORT AU PRtSIDENT DE LA RIPUBLIQUE 56-60 (Dec. 11, 2003),
available at http://lesrapports.ladocumentationfrancaise.fr/BRP/034000725/0000.pdf.
98. See Lemon v. Kurtzman, 403 U.S. 602 (1971).
99. Lynch v. Donnelly, 465 U.S. 668, 687-94 (1984) (O'Connor, J., concurring).
100. Id. at 688.
102. HRW explicitly accepts this justification for limits. Memorandum to the Turkish
Government,supra note 35, at 24.
Tulkens in the lone dissent in 5ahin, have stressed that headscarves

and veils have multiple meanings, 10 3 seeing this as dispositive of the
issue and militating against bans. The assertion of multiple mean- 10 4
ings, that the headscarf holds a "position as an unstable signifier,"
is undoubtedly correct. However, the overall meaning of this multi-
plicity of meanings should be complexified, a process begun below.
Some veils and headscarves represent a freely-chosen per-
sonal conviction that such "modesty"°5 is required by the teachings
of the Muslim religion. This is a choice of a particular interpretation
of the faith, and one which is highly contested. The choice may be
shaped by local custom or habit. In any case, for an individual
wearer it may have nothing to do with fundamentalism. Ms. Sahin
claimed precisely this, and her assertion was not questioned by either
the Turkish government or the ECtHR.
Should such claims end an equality analysis? This type of a
personal determination may be shaped on the anvil of gender subor-
dination by male supremacist clergy, community, and family mem-
bers, male and female. Can such a choice be a free one? Or does
even asking such a question amount to the "paternalism" for which
Judge Tulkens chastised the ECtHR in her Grand Chamber dis-
sent? 10 6 One must respect the agency of adults. However, allega-
tions that, in many contexts, "modesty" restrictions are imposed on
women, directly or indirectly, either by family members or as a result
of discriminatory attitudes, render a careful contextual0 7analysis of
claims in this vein essential, particularly for young girls.1
103. $ahin, Grand Chamber, supra note 3, at 11 (dissenting opinion of Judge

Tulkens); see also Scott, supra note 62, at 116; Nacira Gudnif-Souilamas, Ni putes, ni
soumises ou tris pute, tr~s voile? Les invitables contradictions d'un fiminisme sous
influence, in CE SEXE QUI NOUS DtPASSE 53, 64-65 (Valerie Battaglia ed., 2003).
104. Scott, supra note 62, at 117.
105. Central projects of both conservative religious movements and religious
fundamentalisms include control of the female body and female sexuality, often coded as
"modesty." In some Muslim cultures, and others, modesty is linked to notions of honor,
especially the honor of the male members of a woman's family. These men's honor may be
seen to be threatened by "their" women violating dress codes and failing to cover. Such a
threat to honor may in turn have terrible consequences for the women in question. See Puma
Sen, 'Crimes of Honour', Value and Meaning, in 'HONOUR': CRIMES, PARADIGMS, AND
VIOLENCE AGAINST WOMEN 42, 47-48 (Lynn Welchman & Sara Hossain eds., 2005).
According to the United Nations, some 5000 women die in honor killings every year, most
of them in the Middle East, and many in Turkey. See Dan Bilefsky, How to Avoid Honor
Killing in Turkey? Honor Suicide, N.Y. TIMES, July 16, 2006, at A3. Hence, in such
contexts, even "freely" chosen modesty-based religious expression ought to be interpreted
with caution.
106. See $ahin, Grand Chamber (dissenting opinion of Judge Tulkens), supra note 3,
12.
107. See, e.g., Ghalis Jasser, The Twin Evils of the Veil, 5 Soc. IDENTITIES 31, 35-37
(1999); FADELA AMARA WITH SYLVIA ZAPPI, Ni PUTES NI SOUMISES 77 (2003); Frances
Raday, Culture,Religion and Gender, 1 INT'L J. CONST. L. 663, 708 (2003).
Still other proffered meanings, shaped by context, swirl in the

debate about headscarves, many more than can be enumerated here.
For some living in countries where Muslims are in the minority,
headscarves may reflect minority identification and pride, or criti-
cism of government policies toward the Muslim world. 10 8 Some ap-
pear to adopt such clothing as the best way to rebel against more lib-
eral parents or parents whose religiosity is deemed insufficiently
pure. 10 9 And yet other women may wear headscarves and veils as an
affiliation to an Islamist political project aimed at theocracy, which is
an antithesis to women's
0
human rights as conceived in international
human rights law.' 1
Note that many of these personal beliefs about the imperative
to cover may have implications for other women, especially other
Muslim women, in the same environment who choose, or believe
there is no need, to veil. Either they are seen by some as not identify-
ing with their ethnic or religious group and therefore may be coded as
"assimilated." Or they are seen as not expressing their religious be-
liefs as required by certain interpretations of Islamic dogma and thus
are labled "bad" Muslims by some. Or they may be considered
"loose" or "shameful." In particular environments, this may yield a
range of consequences, including pressure to cover, stigma, or even
threats, violence, and death.111 The ECtHR appeared to have pre-
cisely this problem in mind when it warned of "the impact which
wearing such a symbol, which is presented or perceived as a compul-
sory religious duty, may have on those who choose not to wear it." 112
Of course, all of this is contextual. In Turkey, commentators
have suggested that "[t]he importance of fights over Islamic symbols
cannot be underestimated."1 1 Yet, in some other environments, ei-
ther because there are few other Muslim women or little pressure to
dress in such a manner, the impact on others may be relatively minor.
For example, at Rutgers Law School-Newark where this author
108. Scott, supra note 62, at 117. This has become more complicated in the post-
September 11 environment.
109. See, e.g., Simona Tersigni, La pratique du hijab en France: Prescription,
transmission horizontale et dissidence, in LA POLITISATION DU VOILE 37, 39-40 (Frangoise
Lorcerie ed., 2005).
110. See NILOFER GOLE, THE FORBIDDEN MODERN: CIVILIZATION AND VEILING 83-130
(1996).
111. See, e.g., CHAHDORTT DJAVANN, BAS LES VOILES! 30-31 (2003); AMARA, supra
note 107, at 47-48; Karima Bennoune, S.O.S. Algeria: Women's Human Rights Under
Siege, in FAITH AND FREEDOM: WOMEN'S HUMAN RIGHTS IN THE MUSLIM WORLD 184, 187
(Mahnaz Afkhami ed., 1995).
113. K. Gajendra Singh, Ban on Headscarves and Turkey, TURKISH DAILY NEWS, Sept.
21, 2004, at Part Two, available at http://www.turkishdailynews.com.tr/archives.php
?id=37737.
teaches, there are only a negligible number of Muslim students, a tiny

number who wear the headscarf, and little interest in the law school
from area Muslim fundamentalist groups. Here headscarving may
have no impact on the rights of other students. A contextual ap-
proach leads to a different conclusion on the balancing in human
rights law than in ,qahin or Begum. However, were one of the local
fundamentalist groups (which reportedly are very active in New Jer-
sey 1 14) to begin campaigning for "modest" dress in area educational
institutions, or were more women to begin to cover, this contextual
determination could shift. Indeed, one of the benefits of the contex-
tual approach is its ability to respond to changes on the ground.
Any thoughtful analysis must also contend with the range of
positive and negative significations of veils. However, the meaning
of the choice of garment in the head and heart of the wearer is not the
only meaning to consider in the human rights framework. Some of
these garments are now particularly associated, both in the minds 116 of
115 Iranian,
some Muslims and some non-Muslims, with Taliban,
and Saudi117 practices, according to which wearing headscarves or
veils is, or was, required by law and violators subject to punishments,118
including corporal punishments banned under international law.
Similar associations are made with fundamentalist or conservative
social movements seeking to impose or "strongly encourage"
veils. 119 Given these echoes, such coverings come to represent for
many a threat to secularism and to basic notions of gender equality
which secularism makes possible, especially when deployed in the
public school system.
For some secular feminist women, wearing the headscarf or
veils in this political moment means choosing to wear "a sign of male
domination over women's bodies and lives."' 120 As French Muslim
114. See Radhika Marya, Islamic Society's Rules Challenged,TITE DAILY TARGUM, Dec.
6, 2005, at 1.
115. Polly Toynbee, Behind the Burqa, THE GUARDIAN, Sept. 28, 2001, reprinted in
NOTHING SACRED: WOMEN RESPOND TO RELIGIOUS FUNDAMENTALISM AND TERROR, supra
note 15, at 325.
116. See DJAVANN, supra note 111, at 7-8, 30-31 (providing descriptions).
117. See, e.g., European Parliament, Note on Human Rights in Saudi Arabia, § 2.1, Dec.
2004, available at http://www.europarl.europa.eu/meetdocs/2004_2009/documents/fd/
dgul2005Ol1902/dgu12005011902en.pdf.
118. On corporal punishments, including those used to enforce dress codes, see
Bennoune, supra note 57.
119. Note, for example, the exhortation by the Assembly of Muslim Jurists in America
that "its [the hiab's] abandonment is among the major sins that expose the Muslim woman
to The Creator's exasperation and wrath." Communiqud of the Assembly of Muslim Jurists
in America Concerning the Issue of the Islamic Dress Code (Hijab) in France, Jan. 21, 2004,
http://www.islamonline.net/English/in-depth/hijab/2004_01/article_03.shtml.
120. The views of a Turkish feminist cited in LeylS Pervizat, Rights of the Religious
Women in Turkey, in AMNESTY INTERNATIONAL-NORWAY, Apr. 28, 2004,
women's rights activist Fadela Amara has written, "[i]t is a mistake

to see the veil as only a religious issue. We must remember that it is
first of all a tool of oppression, alienation, discrimination, and an in-
strument of men's power over women. It is not an accident that men
do not wear the veil."' 121 The veil is not just or even primarily a reli-
gious symbol, but a highly contested social and political sign. Some
Muslim and Arab women's organizations, and many Muslim and
Arab intellectuals have long campaigned against it in their home
countries. 122 This leads Ghais Jasser angrily to assert that:
If, then, you claim that the veil is simply a manifesta-
tion of cultural particularity, you lack solidarity with
women opposing purdah-of which the head-covering
is but one expression among others-at the cost of
their very lives. You also abandon to their destiny the
young girls courageously confronting daily their own
families and neighbourhoods. 123
Fundamentalist movements seeking to challenge governments
deemed insufficiently religious in the Muslim world have often
sought to encourage or impose this range of garments as a way of in-
dicating support for their project. Conservative movements that lash
back against women's rights invoke these symbols, an effect magni-
fied in education. Moroccan scholar Fatna Aft Sabbah has described
this phenomenon as follows: "So the number of women with secon-
dary and university degrees has been increasing non-stop? They re-
quire her to don the veil to remind her that in high places of knowl-
edge ... she is merely accepted on sufferance."' 24 These garments
thus can become affiliated with these social projects which seek to
limit women's rights and increase the role of religion in the rule of
law. In certain contexts, then, it is not mere paranoia which leads to
restrictions on such coverings.
Most paradoxically, the veil may be all, or many, or some of
these contradictory things at the same time. It is against the complex
weave of this tapestry of meanings that human rights norms must be
applied. Headscarves and other "modest" garments for women in
specific contexts cannot be seen as mere innocent symbols of per-
http://www.amnesty.no/web.nsf/pages/3EBB64E4FBF25236C 1256E840055357F.
121. AMARA, supra note 107, at 79 (author's translation).
122. See Margot Badran, Competing Agenda: Feminists, Islam and the State in
Nineteenth- and Twentieth-Century Egypt, in WOMEN, ISLAM AND THE STATE 201, 223
(Deniz Kandiyoti ed., 1991); Jasser, supra note 107, at 32-37.
123. Jasser, supra note 107, at 37.
124. Id. at 36-37 (citing FATNA AT SABBAH, LA FEMME DANS L'INCONSCIENT
MUSULMAN (1986)).
sonal religious beliefs nor simply as flags of gender discrimination in

the abstract. One criticism of the French law has been that it risks
imbuing the headscarf with only one meaning, and one that is deroga-
tory to women, leading to abusive treatment of veiled women in
broader French society. 125 On the other hand, rejections of restric-
tions sometimes focus only on the positive meanings, dismissing or
overlooking the negative connotations and their consequences.
Hence, this Article's plea for careful, contextual consideration of any
proposed limitations on such symbols, in light of their many mean-
ings. Where that consideration leads to the conclusion that the re-
strictions are necessary in public education to prevent women's sub-
ordination, and are in accordance with international human rights
norms, they are permissible.
Banning the veil or headscarf feels repressive because it con-
cerns a choice about the public presentation of one's body. Given
that efforts to control the female body have been crucial in maintain-
ing women's subordination historically, 126 this may feel viscerally
wrong. Yet women's freedom to make physical choices is not de-
fended across the board on human rights grounds. Ironically, some
mainstream human rights organizations have been reluctant to battle
the imposition of religious garments on women, 127 even by govern-
ments, nor do prominent human rights groups have clear positions
defending nudity. Clearly some limits are deemed acceptable when
religion is taken out of the picture. Given the presence of religion in
this debate, for those who are committed to tolerance, openness sug-
gests itself. Yet being tolerant of intolerance can have paradoxical
results. In some contexts, the decision which one woman makes
about covering her body in particular ways directly affects the
choices other women may have to make about the public presentation
of their persons. Mediating all these realities is an extremely sensi-
tive task.
Here we begin to grapple with tensions between simultaneous
commitments to transnational cosmopolitanism 128 and civic republi-
125. See U.N. Econ. & Soc. Council [ECOSOC], Special Rapporteur on Freedom of
Religion or Belief, Civil and Political Rights, Including the Question of Religious
Intolerance: Mission to France, 67, UN Doc. E/CN.4/2006/5/Add.4 (Mar. 8, 2006)
(preparedby Asma Jahangir).
126. POLITICS OF WOMEN'S BODIES: SEXUALITY, APPEARANCE, AND BEHAVIOR (Rose
Weitz ed., 1998).
127. To be fair to HRW, that organization has done so. See Memorandum to the
Turkish Government, supranote 35, at 23 n.48.
128. Transnational cosmopolitanism looks primarily for guarantees of human rights
through application of transnational norms and international institutions. For further
definitions, see Seyla Benhabib, Reclaiming Universalism: Negotiating Republican Self-
Determination and Cosmopolitan Norms, in 25 THE TANNER LECTURES ON HUMAN VALUES
canism, 129 to borrow a paradigm articulated by Seyla Benhabib. 130

What do we do when secularism is a prerequisite to democracy and
women's human rights in certain contexts, yet its defense may re-
quire limitations which might be uncomfortable in a traditional inter-
national human rights approach? The first step toward an answer is
that we proceed with great caution, bearing in mind the specifics of
the particular context and the actual result our approach is likely to
produce for women seeking to dress in certain ways and for their
peers. Conversely, if we proceed oblivious to context, we may see
human rights used as a strategy to curb women's equality and pro-
mote their further subordination, 131 a result specifically forbidden by
the limitations clauses in human rights law discussed below.132 Still,
one must concede that the potential misuse of such restrictions on
headscarves in a context of increasing anti-Muslim sentiment poses
yet other risks.
2. Islamophobia
Islamophobia embodies grave challenge to human rights, par-

ticularly in the era of the "war against terrorism." 133 The term de-
notes hostility towards Islam and Muslims. 134 It is argued to have
111, 117 (2005).

129. Civic republicanism highlights the idea that human rights only flourish within a
democratic republic. Hence, defense of that republic becomes a key path to realizing human
rights.
130. Benhabib, supra note 128, at 126. Note that, in the same lecture, she comes to a
somewhat different conclusion on headscarf bans than does this Article. Id. at 141-52.
131. The following example illustrates this paradox. Women's rights advocates
campaigned for the creation of the Optional Protocol to the Women's Convention that
allows individual women to complain of gender-based discrimination to the U.N. Committee
on the Elimination of All Forms of Discrimination against Women ("CEDAW
Commmittee"). Turkey is one of the few Muslim countries to have ratified the young
Protocol. A Turkish schoolteacher recently sought to bring a case to the CEDAW
Committee based on her dismissal for wearing the headscarf in violation of school rules, not
exactly the sort of case advocates of the Protocol had in mind. The CEDAW Committee
recently dismissed the case for failure to exhaust domestic remedies. Committee on the
Elimination of Discrimination Against Women, Decision of the Committee on Elimination of
Discrimination Against Women Under the Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination Against Women (Thirty-Fourth Session)
Concerning Communication No. -- 8/2005, CEDAW/C/34/D/8/2005 (Jan. 27, 2006). See
also infra note 231 and accompanying text.
132. See infra notes 191-195 and accompanying text.
133. For thoughtful consideration of this issue and its impact on women's human rights,
see Charlotte Bunch, Women's Human Rights and Security in the Age of Terror, in NOTHING
SACRED: WOMEN RESPOND TO RELIGIOUS FUNDAMENTALISM AND TERROR, supra note 15, at
413-20.
134. See COMMISSION ON BRITISH MUSLIMS AND ISLAMOPHOBIA, ISLAMOPHOBIA: ISSUES,
CHALLENGES AND ACTION 7-8 (2004) [hereinafter ISLAMOPHOBIA], available at
http://www.insted.co.uk/islambook.pdf. See also Combating Defamation of Religions,
been a part of European society since the Eighth Century.' 35 Mani-

festations of Islamophobia include assaults on Muslims, negative
stereotyping, job discrimination, and laws that restrict civil rights that
have a disproportionate effect on Muslims. 136 Hence, this could be a
real area of related concern and may need to be weighed in some
contextual analyses. Some have warned that today veiled women,
because they are so visible, become the signifier for fundamentalism
in ways which put their human rights at risk. An era when some
make the false equation Terrorist = Fundamentalist = Muslim =
Veiled Woman requires anti-racist vigilance. In non-Muslim coun-
tries, some bans that target headscarves might reflect or purvey such
stereotypes.
On the other hand, among the many negative consequences of
Islamophobia, in the words of a Muslim woman scholar, is also "the
silencing of self-criticism and the slide into defending the indefensi-
ble. Muslims decline to be openly critical of fellow Muslims, their
ideas, activities, and rhetoric in mixed company, lest this be seen as
13 7
giving aid and comfort to the extensive forces of condemnation."'
Such silencing has a stultifying effect on debates about the status of
women, an effect magnified by claims made by the U.S. government
to be acting to defend women's rights in uses of force in the Muslim
world. 13 8 This silencing may even extend to human rights advocates
in the West. Some seem to be less willing to decry violations of
women's human rights, in the Muslim world and Muslim communi-
ties, including those that involve pressure to wear "modest" dress,
because of the rise in prejudice against Muslims and Islam. Such
prejudice has indeed been greatly exacerbated in the post-September
11 era. 139 While the underlying motives of such caution may be
laudable, such self-censorship leads to distorted analysis.
Confronted with the bundle of ambivalences associated with
Comm'n on Human Rights Res. 2004/6, 6, 16, U.N. Doc. E/CN.4/RES/2004/6 (Apr. 13,
2004).
135 ISLAMOPHOBIA, supra note 134, at 7. See also EDWARD SAID, ORIENTALISM (1970).
For particular consideration of the impact of Islamophobia and Orientalism on women, see
Laura Nader, Orientalism, Occidentalism and the Control of Women, 11 CULTURAL
DYNAMICS 323 (1989).
136. ISLAMOPHOBIA, supra note 134, at 7-8.
137. Id. at 9.
138. See Karima Bennoune, Making the World Safe for the Dallas Cowboy
Cheerleaders, Address Before the Michigan Journal of International Law Conference:
"Dueling Fates: Should the International Legal Regime Accept a Collective or Individual
Paradigm to Protect Women's Rights ?" (Apr. 6, 2002), in 24 MICH. J. INT'L L. 461, 465
(2002).
139. For outstanding gendered analysis of September 11 and its impact, see Catharine
A. MacKinnon, Women's September 11: Rethinking the InternationalLaw of Conflict, 47
HARv. INT'L L.J. 1, 26 (2006).
headscarves and their bans, some critical and anti-racist voices that
espouse inter-sectionality have sometimes focused solely on the issue
of race or religious discrimination. They often leave out or downplay
the factor of women's subordination as manifested in "modest" dress,
as if they can only concentrate on the rights of one victimized group
and one form of victimization at a time. 1 0 The reality is that there is
strong support from some French anti-racists of Muslim descent for
the French law on religious symbols in the context of rising funda-
mentalism and the pressures such forces place on women and
girls. 14 1 As Chetan Bhatt has noted in the context of the United
Kingdom, "generally . . .black and multiracial feminism has been
virtually alone in creating an activist political challenge to fundamen-
talism." 142 To be anti-racist also means to support this challenge and
to do so is not Islamophobic. In the era of the war against terrorism,
many read solely the inter-cultural aspects of the debate, not the in-
tra-cultural.1 43 This is a mistake.
Furthermore, the accusation of Islamophobia sometimes oc-
cludes a serious policy debate about religion and women's human
rights. 144 Thoughtfully considered, such concern might indeed form
part of the argument about France but makes little sense as part of the
debate about a Muslim country's own laws, such as those in Turkey.
One must avoid projecting this Western concern onto restrictions in
Muslim countries and communities where legitimate internal debate
and political contestation over dress codes continues. Furthermore,
in the context of a substantial Muslim minority in a non-Muslim
country, as in France or the United Kingdom, one must be mindful of
both the problem of racism against Muslims from outside the com-
munity, and the political debates within. Many Muslim women and
men are uncomfortable with "modest" clothing for women and con-
cerned with how to move away from it in non-repressive ways.
140. See, e.g., Wing & Smith, supra note 1.

141. For example, one of France's leading anti-racist non-governmental organizations,
S.O.S. Racisme, now supports the headscarf ban. See Amelia Gentleman, Angry Schoolgirls
Head Back to Class in Muslim Veil Row, THE OBSERVER, Aug. 29, 2004, at 24.
142. BHATT, supra note 11, at xx.
143. Talhami, supra note 2, at 156.
144. See, for example, the critique of such deployment of Islamophobia by Diaspora
Muslim dissidents made in response to the cartoon controversy. "We refuse to renounce our
critical spirit out of fear of being accused of 'Islamophobia,' a wretched concept that
confuses criticism of Islam as a religion and stigmatization of those who believe in it."
Writers Issue Cartoon Row Warning, supra note 30.
C. The Contextual Approach
The litany of concerns enumerated above demonstrates that

the subject of government restrictions on the wearing of veils and
other "modest" garments in public education is too complex to give
rise to an easy bright line rule for compatibility with human rights
norms. While a bright line rule seems more objective and easier to
apply, it produces a formalistic approach blind to reality on the
ground. Instead, this Article advocates a contextual approach which
enables a thick analysis and maximizes the ability to effectively ad-
dress particular challenges to human rights in a specific context.
Under the contextual approach proposed here, human rights
advocates weighing restrictions on "modest" garments for Muslim
women and girls in public schools would look carefully at the mean-
ings and impact of the symbols in context. In doing so, they should
consider the following factors: the impact of the garments on other
women (or girls) in the same environment; coercion of women in the
context, including activities of religious extremist organizations;
gender discrimination; related violence against women in the loca-
tion; the motivation of those imposing the restriction; Islamophobia,
if relevant, or religious discrimination in the context; the alternatives
to restrictions; the possible consequences for human rights both of re-
strictions and a lack thereof; and whether or not there has been con-
sultation with impacted constituencies (both those impacted by re-
strictions and by a lack of restrictions on such garments), and, if so,
what their views are. Though this formula forces consideration of a
multiplicity of issues, this matrix also enables a truly intersectional
approach more likely to produce substantively rights-friendly results
for the most women and girls in the long run.
The first question to ask is whether deployment of the symbol
causes, magnifies, or otherwise constitutes discrimination against
women in that particular locale. If it does not, obviously, restrictions
on the wearing of the symbol are not justifiable on these grounds. If
it does, the second question to ask is whether the specific restrictions
of the symbol are likely to violate freedom of religion, especially on
discriminatory grounds. If the answer is no, and the restrictions are
otherwise in accordance with human rights law (necessary to protect
the rights of others, proportionate, prescribed by law), they should be
deemed acceptable.
If the answer to both questions is yes, i.e., where both dis-
crimination against women and against Muslims is at play, the situa-
tion becomes more difficult to resolve. There the deciding factor
ought to be coercion. The state should not interfere with the right of
adults to dress as they please in public education unless coercive so-

cial movements (in the family or the community) that mandate the
use of the veil or other forms of "modest" dress are active to that end
in the location. In such a situation, the state can interfere to protect
women from coercion, and is actually mandated by human rights law
to do so. For children a lower standard for what constitutes coercion
can apply, given their greater sensitivity to peer pressure and less-
developed agency.
In any case, gender-sensitive and anti-racist education, and
community dialogue must accompany any restrictions. Furthermore,
any constraints on dress must be imposed with religious and, where
relevant, racial and ethnic sensitivity. However, this issue cannot be
seen as involving religious freedom alone. Gender equality remains
at the heart of the matter. Human rights law requires states to act af-
firmatively to end discrimination against women. This prescription
must be remembered, along with what that law says about religious
freedom. These issues are explored in turn below.
V. HUMAN RIGHTS LAW'S PROVISIONS ON FREEDOM OF RELIGION

AND GENDER EQUALITY
A. ConflictingProhibitionsof Discriminationin Human Rights

Law
Prohibitions of discrimination on the grounds of religion and

of sex are both part of the touchstone anti-discrimination rule of hu-
man rights law found, inter alia, in the U.N. Charter 145 and both of
the major covenants on human rights. 146 The prohibition of religious
discrimination does not trump the prohibition on gender discrimina-
tion, which is of equal importance. Note however that the right to
freedom of conscience and religious belief and the right to gender
equality are not susceptible to limitations. The right to express reli-
gious belief is. Therefore, this aspect of the right can indeed be
trumped by gender equality by its very terms. In fact, experts argue
that the Convention on the Elimination of All Forms of Discrimina-
tion against Women ("Women's Convention") 147 requires states to
adapt religious practice to end gender discrimination. 148 Human
145. U.N. Charter art. 55(c).

146. ICCPR, supra note 27, art. 2(1); International Covenant on Economic, Social and
Cultural Rights art. 2(2), Dec. 16, 1966, 993 U.N.T.S. 3.
147. Convention on the Elimination of All Forms of Discrimination Against Women,
Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter Women's Convention].
148. Raday, supra note 107, at 681.
rights theory has mostly failed to harmonize freedom of religion and

the right to sex equality, or to confront the consequences of this fail-
ure.14 In such a vacuum, the contextual approach becomes essential
for handling conflicting rights by suggesting the actual effects of ac-
cepting or denying particular rights claims. Before we discuss how
to reconcile these obligations, let us address the underlying docu-
ments supporting each rights claim.
B. Freedom of Religion
1. General Human Rights Documents

Freedom of thought, conscience and religion is a fundamental
human right. 150 Under universal human rights law, it cannot be sus-
pended even in emergency. 151 It includes the right to be a religious
believer, and the "right not to profess any religion or belief."' 152 Arti-
cle 18(1) of the ICCPR, the approach of which has been character-
ized by Manfred Nowak's authoritative commentary as religious plu-
ralism, 153 proclaims:
Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include free-
dom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in commu-
nity with others and in public or private, to manifest
149. Exceptions to this lacuna are found in Raday, supra note 107, and Donna Sullivan,
Gender Equality and Religious Freedom: Toward a Frameworkfor Conflict Resolution, 24
N.Y.U. J.INT'L L. & P. 795 (1992). Sullivan's suggestion of a complex balancing of gender
equality and religious freedom helpfully reminds readers that freedom of belief does not
operate in a vacuum. She also indicates generally that this balancing must be assessed in
context, a useful starting point. However, her focus is on personal status laws rather than
clothing restrictions. In contrast, this Article elaborates the framework for balancing, by
specifying the range of contextual factors at stake, developing the relevant discussion of
coercion and its impact on balancing, and applying all of this to religious symbols deployed
on the body.
150. For further explanation, see U.N. Human Rights Comm., General Comment No.
22: The Right to Freedom of Thought, Conscience and Religion (Art. 18), 1, U.N. Doe.
CCPR/C/21/Rev. l/Add.4 (July 30, 1993) [hereinafter General Comment No. 22].
151. ICCPR, supra note 27, art. 4(1). Non-derogable rights are not capable of
suspension even in an emergency. In the ICCPR, the enumerated list of such rights includes
freedom of religion (Article 18). Non-derogability does not preclude limiting aspects of this
right, in accordance with Article 18(3). In the European Convention, Article 15, which lists
non-derogable rights, does not specifically mention freedom of religion. See European
Convention, supra note 36, art. 15.
152. General Comment No. 22, supra note 150, 2.
153. MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR
COMMENTARY 311-12 (1993).
his religion or54belief in worship, observance, practice

and teaching. 1
The constitution and laws of any state ratifying the ICCPR
must make this so. 155 Article 18(2) sets out a further prong of the
right relevant to the contextual approach laid out above, namely that
"[n]o one shall be subject to coercion which would impair ' 156
his free-
dom to have or to adopt a religion or belief of his choice."
In both paragraphs, the ICCPR speaks of "a religion of his
choice." "His," as Katarina Tomagevski has written, does not include
"hers.' 57 The language of the ICCPR reflects the timeframe of its
drafting. Today we interpret it in gender-neutral ways. Still, the lan-
guage displays an exclusionary dimension often found in considera-
tions of religious freedom which frequently ignore the lives of
women and the reality of their pervasive subordination, including by
and in religion. 158 This is true until women are prohibited from cov-
ering themselves, when they suddenly take center stage. For exam-
ple, in Amnesty International's 2005 Annual Report, the only criti-
cism of dress codes for women is in the entry on France which notes
the restrictions on religious symbols in schools. Neither Saudi Ara-
bia's nor Iran's provisions which penalize women for failing to
cover, including with internationally
159
unlawful corporal punishments,
are enumerated as concerns.
a. Manifestations of Religion
While the underlying right to freedom of religion in the

ICCPR is unconditional, the Covenant distinguishes this from the
right to manifest one's religion, which is subject to certain limita-
tions. These are found in Article 18(3): "Freedom to manifest one's
154. ICCPR, supra note 27, art. 18(1). According to Nowak, at the time of drafting the
ICCPR, some "Islamic States" objected to specific reference to the fight to change one's
religion. NOWAK, supra note 153, at 312. However, according to the HRC, "the freedom to
'have or to adopt' a religion or belief necessarily . . .includ[es] the fight to replace one's
current religion or belief with another or to adopt atheistic views." General Comment No.
22, supra note 150, 5.
155. ICCPR, supra note 27, art. 2(2). Turkey, France, and the United Kingdom have all
ratified this treaty. Office of the UN High Commissioner for Human Rights, International
Covenant on Civil and Political Rights, New York, 16 December 1996, Ratifications and
Reservations, available at http://www.ohchr.org/english/countries/ratification/4.htm (last
visited Feb. 1, 2007).
156. ICCPR, supra note 27, art. 18(2) (emphasis added).
157. KATARINA TOMASEVSKI, WOMEN AND HUMAN RIGHTS 8 (1993).
158. See Tahzib-Lie, supra note 26, at 117-18.
159. AMNESTY INT'L, France, in ANNUAL REPORT 2005, available at
http://web.amnesty.org/report2005/fra-summary-eng.
religion or beliefs may be subject only to such limitations as are pre-

scribed by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of oth-
ers." 160 Such limitation is needed because, as Nowak has written,
"far-reaching freedom of religion can lead to its misuse ... and thus
to suppression of the freedom of religion of others." 16 1 Hence, the
limitations clause provides a "corrective function" such that "the in-
terplay between ... freedom of religion and its restrictions is what
162
truly determines the actual scope of the individual's right."
For example, the U.N. Human Rights Committee [HRC],
which oversees implementation of the ICCPR, found in the Singh
Bhinder case that Canadian National Railway's insistence that a Sikh
employee sport protective headgear at work, rather than his turban,
was a violation of Article 18(l).163 Yet, simultaneously, the HRC
also determined it permissible in accord with 18(3). Regulations and
laws which impose some limits on religious expression, in accor-
dance with the stipulations of human rights law, are permissible. The
question is whether the rules governing such limitations are followed.
2. The Declaration on Religious Intolerance

The U.N. General Assembly adopted the Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief [the Declaration on Religious Intolerance] in
1981.164 This source warrants serious consideration when interpret-
165 status. 166
ing freedom of religion, notwithstanding its soft-law
Adapting the definition of discrimination used in the treaties on race
and gender, the Declaration offers the following definition:
"[I]ntolerance and discrimination based on religion or
160. ICCPR, supra note 27, art. 18(3).

161. NOWAK, supra note 153, at 310.
162. Id. at 311.
163. U.N. Human Rights Comm., Views of the Human Rights Committee Under Article
5, Paragraph4 of the Optional Protocolto the InternationalCovenant on Civil and Political
Rights (Thirty-Seventh Session) Concerning Communication No. 208/1986, U.N. Doc.
CCPR/C/37/D/208/1986 (Nov. 9, 1989).
164. Ideological and religious conflicts lengthened this drafting process to nearly two
decades. See Donna Sullivan, Advancing the Freedom of Religion or Belief Through the UN
Declarationon the Elimination of Religious Intolerance and Discrimination,82 AM J. INT'L
L. 487, 487-88 (1988).
165. "Soft law" describes a set of standards in the gray zone between non-law and black
letter law. Such standards have been influential in many areas and have led to the
development of treaties. See DINAH SHELTON, COMMITMENT AND COMPLIANCE: THE ROLE
OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM (2000).
166. NOWAK, supra note 153, at 311.
belief' means any distinction, exclusion, restriction or

preference based on religion or belief and having as its
purpose or as its effect nullification or impairment of
the recognition, enjoyment or exercise of human 167
rights
and fundamental freedoms on an equal basis.
Notably, the Declaration's preamble reminds us that "religion
or belief, for anyone who professes168either, is one of the fundamental
elements in his conception of life."'
Still, crucially, the Declaration's preamble insists that use of
religion for ends inconsistent with the U.N. Charter, 169 other relevant
instruments, and the Declaration's own principles is "inadmissi-
ble."' 170 Hence, there are illegitimate uses of religion, and neither the
framework of the Declaration, nor the right to religious freedom, pro-
tects these. This problem resurfaces in the Declaration's last Article,
its Savings Clause: "Nothing in the present Declaration shall be con-
strued as restricting or derogating from any right defined in the Uni-
versal Declaration of Human Rights and the International Covenants
on Human Rights." 17 1 This is significant for women in that gender
equality is protected by all of these referenced texts.
Yet, the word "woman" never appears in the Declaration and,
as in the case of the ICCPR, though with less excuse given the Decla-
ration's later drafting date, exclusive male pronouns are used. Again,
one is entitled to a religion "of his choice," 1 72 which is ironically
how things often play out in real life. The language is gender-
exclusive, despite a Canadian drafting proposal to use both male and
female pronouns or to explain that the male pronouns also refer to
women. 173 The Canadian proposals were only incorporated to the
extent of including preambular language which recalls U.N. Charter
pledges to promote human rights, "without distinction as to race, sex,
167. Declaration on the Elimination of All Forms of Intolerance and of Discrimination

Based on Religion or Belief, G.A. Res. 36/55, art. 2(2), U.N. GAOR, 36th Sess., Supp. No.
51 at 171, U.N. Doc. A/36/684 (Nov. 25, 1981) [hereinafter Declaration on Religious
Intolerance].
168. Id. pmbl. Again, note the gender-exclusive language.
169. As noted above, non-discrimination, including on the bases of sex and religion,
stands as the only human right inscribed in the text of the U.N. Charter. U.N. Charter art.
55(c).
170. Declaration on Religious Intolerance, supra note 167, pmbl.
171. Id. art. 8.
172. Id. art. 1 (emphasis added).
173. See The Secretary-General, Analytical Presentation of the Observations Received
from Governments Concerning the Draft Declarationon the Elimination of All Forms of
Religious Intolerance, delivered to the General Assembly, U.N. Doc. A/9135 (Sept. 19,
1973) [hereinafter Observations of Governments].
COLUMBIA JOURNAL OF TRANSNATIONAL LA W [45:367
language or religion .... "174 At least the inclusion of this language

inserts equality at the very foundation of the Declaration. It also
serves as the only explicit reference to gender.
Though the text indicates that freedom of religion should
promote the ending of colonialism and racism, 175 it makes no similar
note about sexism. 176 Given that the Women's Convention entered
into force not even two months before the Declaration on Religious
Intolerance was adopted, and that the Convention mandated that all
state parties mainstream the prohibition on such discrimination into
their own laws, the omission is striking. 177 This lacuna reflects a
failure in human rights law to bridge the gap between two sometimes
conflicting prohibitions: the ban on discrimination on grounds of re-
ligion and that on discrimination against women.
C. Gender Equality
Gender equality is guaranteed by the most basic tenets of in-

ternational human rights law. An entire treaty, the Women's Con-
vention, is devoted to ending discriminatory treatment of women.
This standard is the international yardstick for measuring states' ef-
forts in the area. Discrimination against women has been defined by
the Women's Convention as:
any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impair-
ing or nullifying the recognition, enjoyment or exer-
cise by women, irrespective of their marital status, on
a basis of equality of men and women, of human
rights and fundamental freedoms in the political, 178
eco-
nomic, social, cultural, civil or any other field.
Discrimination against women is a human rights violation rooted in
deep-seated structural inequality and gender stereotypes that are sur-
174. Declaration on Religious Intolerance, supra note 167, pmbl. On the Canadian
drafting proposals, see Observations of Governments, supra note 173, 21.
175. Declaration on Religious Intolerance, supranote 167, pmbl.
176. The greater emphasis on racial discrimination is partly a product of the origins of
the concept of religious intolerance. It was viewed as intertwined with ethnic and racial
discrimination in the treatment of minorities. Thus, the Declaration was constructed to
protect religious minorities from abuse by majorities, largely ignoring the protection of
dissenters within religious groups. See Angelo Vidal d'Almeida Ribeiro, Implementation of
the Declaration on the EliminationofAll Forms of Intolerance and of DiscriminationBased
on Religion or Belief 67, U.N. Doc. E/CN.4/1987/35 (Dec. 24, 1986).
177. Women's Convention, supra note 147, art. 2.
178. Id. art. 1.
prisingly pervasive, and that appear in some interpretations of reli-

gious doctrine.
Hence, Article 2(e) of the Women's Convention requires
states to "take all appropriate measures to eliminate discrimination
against women by any person, organization or enterprise."' 17 9 States
that ratify the Convention must fight discrimination in education and
even
modify the social and cultural patterns of conduct of
men and women, with a view to achieving the elimi-
nation of prejudices and customary and all other prac-
tices which are based on ... the inferiority or the su-
periority of either of180
the sexes or on stereotyped roles
for men and women.
All three of the states whose laws and policies are most di-
rectly discussed in this paper-France, Turkey and the United King-
dom-are parties to this treaty and have undertaken to implement
these sweeping obligations.
Women's human rights scholarship insists that a sophisticated
methodology be employed in assessing whether or not discrimination
violating these provisions has occurred. 18 1 Rather than a formal test,
women's human rights theorists have posited a test that "defines dis-
crimination as legislation or practices, which maintain or aggravate
the disadvantages of a subjugated group in society."' 182 Rebecca
Cook submits that such an approach "requires judges to look at
women as they function in the real world [i.e., in context] to deter-
mine whether women's abuse or deprivation of power is due to their
place in a sexual or gender hierarchy."1 8 3 Like the contextual analy-
sis recommended in this Article, such an approach is grounded in the
real-life experiences of women and girls.
D. Addressing the Conflict
Despite the plethora of specific standards enumerated above,
179. Id. art. 2(e).

180. Id. art. 5(a).
181. See, e.g., Marsha Freeman, Equality and Rights: Article 3 of the International
Covenant on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/2002/5 (Feb. 5,
2002).
182. Katarina Frostell & Martin Scheinin, Women, in ECONOMIC, SOCIAL AND
CULTURAL RIGHTS: A TEXTBOOK 331, 336 (Asbjorn Eide et al. eds., 2d ed. 2001).
183. Rebecca Cook, State Responsibility for Violations of Women's Human Rights, 7
HARV. HUM. RTS. J.125, 156 (1994).
international human rights law offers minimal guidance on the prac-

ticalities of sorting out conflicts that arise between these rights to sex
equality and freedom of religion. There has been some-mostly
vague-mention of the issue in recent standards. For example, the
Commission on Human Rights in 1998 urged states to "take all nec-
essary action to combat hatred, intolerance and acts of violence, in-
timidation, and coercion motivated by intolerance based on religion
or belief, including practices which violate the human rights of
women and discriminate against women." 184 Moreover, the U.N.
General Assembly, in its 1993 Declaration on the Elimination of Vio-
lence against Women, affirmed that "[s]tates ... should not invoke
any custom, tradition or religious consideration to avoid their obliga-
tions with respect to [the elimination of violence against women]." 85
The Vienna Declaration and Programme of Action, adopted by the
World Conference on Human Rights in 1993, "stresse[d] the impor-
tance of ...the eradication of any conflicts which may arise between
the rights of women and the harmful effects of certain traditional or
186
customary practices, cultural prejudices and religious extremism."
These standards state the problem, an important first step. However,
they offer limited guidance on solutions.
In its 2000 General Comment on gender equality, the HRC
extolled the notion that "Article 18 [of the ICCPR] may not be relied
upon to justify discrimination against women by reference to free-
dom of thought, conscience and religion ... "187 The HRC also re-
minded state parties that when interpreting permissible limitations to
the right to manifest religion they should aim to protect the range of
Covenant rights. 188 In particular, it singled out "the right to equality
and non-discrimination on all grounds specified in Articles 2, 3 and
26. ' ' 189 This concentrates attention on a women's human rights per-
spective in the calculus of permissible limitations.
184. Implementation of the Declaration on the Elimination of All Forms of Intolerance

and of Discrimination or Belief, Comm'n on Human Rights Res. 1998/18, 4(c), U.N. Doc.
E/CN.4/1998/18 (Apr. 9, 1998).
185. U.N. Declaration on the Elimination of Violence Against Women, G.A. Res.
48/104, art. 4, U.N. GAOR, 48th Sess., Supp. No. 49 at 217, U.N. Doc. A/48/49 (Dec. 20,
1993). In this declaration, violence against women means "any act of gender-based violence
that results in, or is likely to result in, physical, sexual or psychological harm or suffering to
women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or in private life." Id. art. I (emphasis added).
186. World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and
ProgrammeofAction, 22, U.N. Doc. A/CONF. 157/23 (July 12, 1993).
187. U.N. Human Rights Comm., General Comment No. 28: Equality of Rights
Between Men and Women (Art. 3), para. 21, U.N. Doc. CCPR/C/21/Rev.1/Add. 10 (Mar. 29,
2000).
189. Id.
While Articles 2 and 26 of the ICCPR both include the same

lists of prohibited grounds for discrimination (including sex and re-
ligion), Article 3 zeroes in solely on gender equality. The fact that
the HRC mentioned it on top of Article 2 focuses particular attention
on this issue. Article 3 mandates that "[t]he States Parties to the pre-
sent Covenant undertake to ensure the equal right of men and women
to the enjoyment of all civil and political rights .. ".."190 The legal
commitment to ensure this right requires the state to take such action
to defend equality from private actors, as well as state actors. In light
of Charlesworth's assertion, cited above, about gender inequality in
so many religions, significant limitation of religious expression may
be required to meet such a high standard. Defense of women's sub-
stantive human rights and the right to equality are, then, legitimate
reasons for fashioning limits on religious expression in certain cir-
cumstances.
Article 5 of the ICCPR, the Prohibition of Misuse Clause,
amplifies this truth. Its first paragraph warns that
Nothing in the present Covenant may be interpreted as
implying for any State, group or person any right to
engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recog-
nized herein or at their limitation to a greater extent
than is provided for in the present Covenant. 19 1
This is to avoid misuse of Covenant-derived freedoms so as to assault
the rights of others, including women. Nowak has explained this
provision as standing against the totalitarian use of rights to "destroy
democratic structures and the human rights of others ensured by these
structures." 192 An example might be using religious expression to
strip the liberty and equality rights of women. This would not be de-
fensible on the grounds of the right to religious freedom. 193 Such an
approach has been described as one of "militant democracy."
While Article 5 can be the object of government misuse in
curtailing the exercise of rights, 194 it also serves as a purposeful
marker of the need to consider the rights of others when interpreting
190. ICCPR, supra note 27, art. 3 (emphasis added).

191. Id. art. 5. The European Convention also includes a prohibition of misuse clause.
See European Convention, supra note 36, art. 17.
192. NOWAK, supranote 153, at 95.
193. ld.at 98.
194. See Wilder Tayler, Notes on the Human Rights Movement and the Issue of
Terrorism, Presented at the International Council on Human Rights Policy: International
Meeting on Human Rights and Political Violence (May 20-22, 2005), 74-75, available at
http://www.ichrp.org/public/workingpapers.php?id_projet=28&lang=AN.
certain rights in context. This is permissible where the framework of

the right in question, such as the right to expression of religious be-
lief, already admits some limitation, or where the right is derogable.
Women's human rights proponents have employed Article 5 to
counter arguments that limitations imposed to stop attacks on
women's 19 5
human rights violate other rights, including freedom of re-
ligion.
E. The Rights of Girls
Human rights law also contains a separate branch on chil-

dren's rights, which complements the rights of persons under eight-
een. 196 This law requires decision-making with regard to children to
focus on the child's best interests. 197 In the educational context, rec-
onciling the diverse interests of different girls, those who wish to
cover, those who are coerced to cover, and those who do not wish to
cover, is complex.
Children are also protected from all forms of discrimination,
including those on grounds of sex and religion. 198 They have a right
to religious freedom, expression of which is subject to the same limi-
tations as that of adults. 199 States must respect the rights of parents
and guardians to "provide direction ... in the exercise of his or her
right . . ..- 200 However, the goals of education, enumerated in the
U.N. Convention on the Rights of the Child, include both "develop-
ment of respect for . . . his or her own cultural identity ... and val-
ues" and "preparation ... for responsible life in a free society, in the
spirit of... equality of sexes ... ."201
Women and girls both may express themselves by wearing
headscarves or other "modest" clothing, or they may both be subject
to coercion to do so. However, girls may be especially subject to
pressure, including peer pressure, in regards to dress, and need extra
protection from religious extremists and coercive family members.
195. See, e.g., INT'L WOMEN'S HUMAN RIGHTS LAW CLINIC, CTR. FOR CONSTITUTIONAL
RIGHTS & INT'L LEAGUE FOR HUMAN RIGHTS, SHADOW REPORT ON ALGERIA (1999),
availableat http://www.ilhr.org/ilhr/reports/shadow/index.html.
196. Under international law, a child is "every human being below the age of eighteen
years unless, under the law applicable to the child, majority is attained earlier." United
Nations Convention on the Rights of the Child art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3.
197. Id. art. 3(1).
198. Id. art. 2(1).
199. Id. art. 14.
200. Id. art. 14(2).
201. Id. art. 29.
This is particularly true for young girls. 20 2 Still, the U.N. Committee
on the Rights of the Child, in its concluding observations on France's
second periodic report in 2004, expressed
concern[] that the new legislation.., on wearing reli-
gious symbols and clothing in public schools may be
counterproductive, by neglecting the principle of the
best interests of the child and the right of the child to
access to education, and not achieve the expected re-
2 03
sults.
While it recognized the importance of secular public schools in
France, the Committee did not address the very real problem of coer-
cion of girls. Nor did it explicitly say that the legislation violated the
Convention.
For both girls and women, secularism is an important tool for
combating discrimination under the guise of religious doctrine. It is
arguably the most useful framework within which to resolve tensions
between the human rights to freedom of religion and to gender equal-
ity. Hence, we now consider its parameters.
VI. THE MEANINGS OF SECULARISM: "MADAM, You CANNOT

2 04
ARGUE WITH GOD"
The literature is rife with definitions of secularism. 20 5 Ety-

mologically, the term is derived from "saeculum," meaning 256 century or
world-age, overlaid with connotations of temporality. Turkish
Philosopher Ionna Kuquradi, building on this meaning, views secu-
larization as expressing, "not necessarily a denial of religion but
rather a kind of temporal change, an adjustment of religious faith to
the experiences and 'exigencies of an age ...."'207 While secular-
202. As exiled Algerian journalist Rachida Ziouche has asked, "do you really believe a
four-year-old is wearing the headscarf by choice?" Viewpoints: Europe and the Headscarf,
BBC NEWS, Feb. 10, 2004, http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.
co.uk/l/hi/world/europe/3459.
203. Comm. on the Rights of the Child, Concluding Observations: France, 25, U.N.
Doc. CRC/C/15/Add.240 (June 30, 2004).
204. Comment made by a "notaire" in Algeria, in the author's presence, to a woman
expressing criticism of the country's religiously based and gender discriminatory inheritance
laws, in May 2005. "Notaire" translates as "notary" though the functions held by such a
person, who is usually a lawyer, are more complex in civil law systems. In this instance, the
notary coordinated the resolution of an estate.
205. In $ahin, neither the Fourth Section nor the Grand Chamber defines this concept.
206. See Fred Dallmayr, Rethinking Secularism (with Raimon Pannikar), 61 REV. POL.
715 (Autumn 1999), available at http://sacred-sovereign.uchicago.edu/fd-secularism.html.
207. Id.at 720 (paraphrasing Kuquradi, supra note 17, at 72-73).
ism is sometimes criticized for being rigid or doctrinaire, 20 8 Abdul-

lahi An-Na'im describes it positively as "a principle of public policy,
applied variously in distinct contexts, for organizing the relationship
between religion and state." 20 9 He understands secularism as a tool
for promoting pluralism.
To put these definitions together, the term secularism here
means emphasis on the temporal over the religious in law and an ac-
companying minimization of the role of religion in the functioning of
the state and legal system. The significance of the temporal for hu- 2 10
man rights is not that it is always morally superior to the religious,
but rather that it is contestable. The temporal allows space for dis-
sent which the "you cannot argue with God" paradigm forecloses.
Hence, it facilitates the dynamic advance of human rights over time,
something particularly important for women. Certain tendencies
within most religions have, at certain times, encouraged discussion,
but fundamentalist and conservative trends seek to shut this process
down.
The definition above suggests that it is entirely possible to be
both a religious person and an advocate of secularism. Though athe-
ists and agnostics are often also proponents of secularism, secularism
is not the same as either atheism or agnosticism.211 Critics often as-
sert that secularism is itself a religion.2 12 If this characterization
were true, it would be reprehensible to limit religious expression for
the purpose of promoting what is simply another religion. Instead,
secularism represents the opposite of religion. It creates spheres de-
void of religion and religious symbols, by, for example, prohibiting
the display of the Ten Commandments in a court room 2 13 or preclud-
ing the teaching of religiously-based theories like "intelligent design"
in a public school science classroom. 2 14 There is no question that
ideology may fill the space vacated by religion, and that this too may
raise a range of human rights problems, as it does in the Turkish con-
208. John Mayer, Secularization and CulturalDiversity, in CULTURAL TRADITIONS AND

THE IDEA OF SECULARIZATION, supra note 17, at 33, 36.
209. Abdullahi Ahmed An-Na'im, The Interdependence of Religion, Secularism, and
Human Rights, 11 COMMON KNOWLEDGE 56, 58 (2005).
210. Note for example, the moral lead offered by the Catholic Church on human rights
issues like the death penalty, and in opposition to armed conflicts like the 2003 invasion of
Iraq. This is in contradistinction to its antipathy to many women's human rights, especially
in the area of reproductive and sexual rights.
211. PENA-RUIZ, supra note 28.
212. This accusation comes from both the Moral Majority and post-modernists. See,
e.g., PAUL KURTZ, IN DEFENSE OF SECULAR HUMANISM 4 (1983) (citing Senator Jesse Helms,
Introduction to HOMER DUNCAN, SECULAR HUMANISM: THE MOST DANGEROUS RELIGION IN
AMERICA (1979)); Kennedy, supranote 8, at 312.
213. See, e.g., McCreary County v. A.C.L.U. of Ky., 545 U.S. 844 (2005).
214. See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005).
2007] SECULA RISM AND HUMAN RIGHTS
text.2 15 Nevertheless, secularism fosters a focus on temporal politics

which, however deeply flawed, are accepted as human created.
Though difficult to change, human constructs are at least open to
human question. Secularism is then an embrace of the fallibility of
our rules.
Kuquradi goes so far as to proclaim that "LaYcit6 is a conditio
sine qua non . . . of the possibility of making determinant human
rights." 2 16 She further develops this into the notion that today, "we
can formulate secularism as a demand for the arrangement and ad-
ministration of public affairs . . . [not] by religious-cultural-
traditional world views and norms, but by human rights and the 2im- 17
plications of human rights in the conditions of the given country."
That said, advancing secularism globally as a bridge to human
rights poses a major challenge today in that it is often seen, ironically
for those living in G.W. Bush's America, as a Western rather than a
universal concept.2 18 We, all too often, overlook secularisms all
around the world, 2 19 including in parts of the Muslim world. How-
ever, one cannot deny this perception of Western orientation on the
part of some, and the colonial baggage it carries. 220 Nevertheless, at
this historical juncture secularism is a sine qua non for women's hu-
man rights in the Muslim World, as the fate of Iraqi women since the
2003 invasion of Iraq underscores. 22 1 Promotion of secularism,
though, must be done with sensitivity, respect for international law,
215. See, e.g., Amnesty Int'l, Turkey: No Security Without Human Rights, Al Index:
EUR 44/084/1996, Oct. 1, 1996, available at http://web.amnesty.org/library/index/
engEUR440841996.
216. Kuquradi, supra note 17, at 75. The French word lacit derives from the Greek
laos, which means "the population undivided," and is related to the English word
"secularism." Lai'cit also yields more overtly republican connotations. PENA-RUIZ, supra
note 28, at 17. The ideal of laicit reconciles diversity and equal rights through equal
republican citizenship under law. At its best, la'cito represents the universality of human
rights; at its worst, the particular imposed as the universal.
217. Kuquradi, supra note 17, at 75-76.
218. For an example of such views, see M. Hakan Yavuz, Cleansing Islam from the
Public Sphere, 54 J. INT'L AFF. 21 (2000) (describing contemporary secularizing projects in
Turkey as "Westernization project[s]"). For challenge to such assertions, see, for example,
Ira M. Lapidus, The Separation of State and Religion in the Development of Early Islamic
Society, 6 INT'L J. MIDDLE EAST STUD. 363, 385 (1975) (arguing there was a "fundamental
differentiation" between state and religion in early Islamic society).
219. See supra notes 18-19.
220. See, e.g., Gu6nif-Souilamas, supra note 103, at 61-65 (discussing colonial
perceptions). These colonial overtones are especially complex in discourse about women's
human rights given that they have been invoked to justify colonial and neo-colonial projects.
See Jessica Rutter, Note, "Saving" Women in Algeria and Afghanistan: (neo) Colonialism,
Liberation and the Veil, 24 ERUDITIO (2004), available at http://www.duke.edu/
web/eruditio/rutter.html.
221. See, e.g., Dilip Hiro, Wrong Mission Accomplished: How Invading Iraq Has Set
Back Democracy in the Middle East, WASH. SPECTATOR, June 1, 2006, at 1.
and by paying heed to its local advocates. Like human rights, it re-
mains an unfinished project, 2 22 but one that must be consistently
fought for, precisely on human rights grounds.
VII. APPLICATIONS OF THE CONTEXTUAL APPROACH
A. Guidancefrom Begum v. Headteacher
With all of this in mind, we turn to practical applications of

the contextual approach. The best opinion in Begum v. Headteacher,
authored by Baroness Hale, took precisely such an approach.
Though in a different context, this case ratifies ahin. It is distinct in
the sense that Shahbina Begum was a child at the relevant time while
Leyla $ahin was an adult, and the clothing restrictions are different in
each case, but the analysis of the Law Lords in Begum nonetheless
confirms ahin's limiting process in principle. Here the school al-
lowed certain headscarves, but disallowed the more restrictive jilbab,
which is 22a3 long dark cloak covering everything but the head, hands
and feet.
Shahbina Begum, a British Muslim schoolgirl of nearly four-
teen, sought to wear the jilbab to Denbigh High School in violation
of its dress code. The highly successful coeducational public school
represents a model multicultural environment. Its student body is
seventy-nine percent Muslim, with students of many other faiths, in-
cluding Sikhs and Hindus making up the rest.2 24 The Headmistress is
also a Muslim woman of Bengali origin. 225 The school's administra-
tion attributes part of its success to its dress code which allows stu-
dents to forge a sense of community, with some room for differ-
ences. 226 Following extensive community consultation, including
with Muslim clerics, the girls' version of the uniform offers several
222. There are thoughtful critiques of secularism and its practice which must be
remembered and learned from. See, e.g., Janet R. Jakobsen & Ann Pellegrini, Introduction
to World Secularisms at the Millennium: DreamingSecularism, Soc. TEXT, Fall 2000, at 1.
223. This exemplifies the secular Turkish fear of escalating claims for "modest"
clothing. Today this is a live issue. Several other European countries now struggle with
whether to allow the burka, which covers even the eyes, in school. See, e.g., Germany Mulls
School Uniforms, Burka Ban, UNITED PRESS INT'L, May 8, 2006, available at
http://www.hrwf.org.
224. Begum v. Headteacher and Governors of Denbigh High School, [2004] EWHC
1389 (Admin), availableat http://www.religionlaw.co.uk/casescivil.htm.
225. Begum v. Headteacher and Governors of Denbigh High School, [2006] 2 All E.R.
487 (H.L.) (appeal taken from Eng.), 5 (opinion of Lord Bingham).
1389 (Admin), 40.
variants. 227 Along with their standard uniform, girls may choose to
wear a skirt, trousers or a shalwar kameeze, a loose fitting South
Asian pants suit which conceals the contours of the body. The dress
code even allows girls to228wear a headscarf with their uniforms, sub-
ject to certain limitations.
Although Shahbina's family did not reside in the district, they
chose to enroll her at Denbigh, which she attended for two years, co-
operating with the dress code. However, in 2002, she appeared on
the first day of school in a jilbab,229 accompanied by her older
brother Shuweb Rahman and a male friend of his, 230 who brandished
human rights as a justification for Shahbina to be allowed to wear the
jilbab.231 The assistant headteacher met with them and said that
Shahbina should go home and change. The assistant described the
demeanor of the brother and his companion as threatening. 232 For
nearly two years, a protracted dispute between the school and the
brother raged. Though in places the opinions suggest that Shahbina's
own conscientiously held view compelled the stricter dress, the opin-
ions also allude to her brother's refusal to allow her to return without
thejilbab.233 She lost nearly two years of school in the meantime.
Ultimately, the older brother brought suit on his sister's be-
half, arguing inter alia, as did Leyla Sahin, that her right to manifest
her religion under the European Convention had been violated by the
school's policy.234 The grounding for this claim in U.K. law was the
Human Rights Act,235 which makes most rights in the European Con-
1389 (Admin), 13.
229. This is described in the opinions as "a long shapeless [black] dress ending at the
ankle and designed to conceal the shape of the wearer's arms and legs." Begum v.
Headteacher and Governors of Denbigh High School, [2006] 2 All E.R. 487 (H.L.) (appeal
taken from Eng.), 79 (opinion of Lord Scott).
230. In view of Shahbina's father's death and her mother's inability to speak English,
Shuweb held a powerful position in the family. See id. 9.
231. Begum v. Headteacher and Governors of Denbigh High School, [2005] EWCA 199
(Civ), available at http://www.hmcourts-service.gov.uk/judgmentsfiles/j3114/sb-v-
denbighhigh school.htm.
1389 (Admin), 15.
233. For example, Lord Bingham notes that "[tihe respondent's brother told [the deputy
headteacher] that he (the brother) was not prepared to let the respondent attend school unless
she was allowed to wear a long skirt." Begum v. Headteacher and Governors of Denbigh
High School, [2006] 2 All E.R. 487 (H.L.) (appeal taken from Eng.), 11 (opinion of Lord
Bingham).
1389 (Admin), 47(iii).
235. Human Rights Act 1998, ch. 42, available at http://www.opsi.gov.uk/acts/
acts I 998/19980042.htm.
vention justiciable in British Courts and requires that those Courts

"take account of Strasbourg [ECHR] case-law." 2 36 Hence, all actions
by British authorities must be compatible with the European Conven-
tion, unless Acts of Parliament make that impossible. 2 3 7 In the Ad-
ministrative Division the school policy was found to meet that test
and upheld, only to be overturned by the Court of Appeals. How-
ever, making reference to 5'ahin, the House of Lords unanimously
supported the school, finding its policy concordant with human
238
rights.
That Denbigh is a secular school influenced the Law Lords,
even though Britain is not formally a secular country. They made
frequent reference to the concern expressed by many other Muslim
girls at the school that "they do not wish to wear the jilbab and fear
they will be pressured into wearing it. '"239 The girls indeed had rea-
son to fear. A fundamentalist organization held a demonstration at
the school gates seeking to pressure the girls to cover themselves and
may well have been instigating the brother's case. 24 0 Warnings from
educators and parents that allowing a stricter uniform would set up
classifications among Muslim girls at the school swayed the Lords,
as they "endeavour[ed] to apply the Strasbourg jurisprudence in a
reasonable way" in this particular context. 2 4 1 Additionally, the con-
sultative nature of the process that fashioned the restrictions made it
difficult to rationalize undermining the school dress code in the name
of a highly restrictive garment. Gender-sensitive consultation ought
to be a part of designing any rules banning
24
what are claimed to be re-
ligiously motivated "modest" garments.
Baroness Hale of Richmond, the only female member of the
Appellate Committee, authored the superlative opinion, providing an
excellent example of a contextual approach. For her, the restriction
constituted an interference, but was justified under the circumstances
to protect the rights of others. In part she identified with the Tulkens
236. DEP'T FOR CONSTITUTIONAL AFFAIRS, A GUIDE TO THE HUMAN RIGHTS ACT 1998, 7
(2006). See also Human Rights Act 1998, ch. 42, supra note 235, § 2(1)(a).
237. See DEP'T FOR CONSTITUTIONAL AFFAIRS, supra note 236, at 5.
487 (H.L.) (appeal taken from Eng.), 22 (opinion of Lord Bingham); Id. 32 (lauding the
"valuable guidance of the Grand Chamber... in Sahin [sic]").
239. Id. 18.
240. See, e.g., Joan Smith, Our Schools Are No Place for the Jilbab, Or for the
Creationists,INDEPENDENT, Mar. 26, 2006, at 37.
242. HRW rightly calls for consultation on the Turkish rules with the country's
women's movement. However, the call is made for consultation only as part of lifting the
ban, rather than for consultation about whether or not to do so. Memorandum to the Turkish
Government, supranote 35, at 4.
dissent in 3ahin, agreeing that for some adult women wearing the hi-
jab may be a free choice with a range of meanings. 243 However, she
averred that some women, and especially girls, may be imposed upon
to do so. As so many commentators on the subject have failed to
note, she lucidly recognizes that "the more extreme requirements 244 are
imposed as much for political and social as for religious reasons."
In this regard, she dared to utter the word "fundamentalism"
and suggested that for fundamentalist movements, imposing modesty
on women is symbolically important. Quoting women's rights advo-
cates Nira Yuval-Davis and Gita Sahgal, she indicated that "[t]he
'proper' behavior of women is used to signify the difference between
those who belong and those who do not.''245 Furthermore, she ac-
knowledged that religion (not just Islam) often sanctifies gender dis-
crimination. Hence, under the facts of this case she was persuaded
by the thoughtful and proportionate approach of the school. Most of
all, she responded to the views of some of the other Muslim girls at
the same school who worried that they would be coerced into wear-
ing thejilbab. In her view, "[h]ere is the evidence to support the jus-
tification6 which Judge Tulkens found lacking in the Sahin [sic]
24
case."
Begum is a sensible, careful, contextual consideration of lim-
its on religious expression in school in light of its meanings and im-
pact on the human rights of others and questions of agency, particu-
larly appropriate with regard to children. It is in accordance with
international human rights law, limiting religious expression in only a
minimal way and doing so in the face of serious questions about the
freedom of choice of the girl in question and her classmates, in con-
text. Though Shahbina Begum was represented by prominent human
rights lawyer Cherie Booth and by the Children's Legal Centre in Es-
sex at various stages of the litigation, human rights advocates should
support Baroness Hale's approach.
B. The FrenchLaw on Religious Symbols
Since the adoption of the 2004 French law forbidding reli-
487 (H.L.) (appeal taken from Eng.), 94 (opinion of Baroness Hale). See also discussion
of the Tulkens dissent, infra text at notes 298-304 and accompanying text.
487 (H.L.) (appeal taken from Eng.), 95 (opinion of Baroness Hale).
245. Id.
246. Id. 98.
gious symbols in public schools, 247 there has so far been no case
analogous to either 5ahin or Begum, though there have been some re-
ports of complaints regarding the legislation's impact. 248 The
broader effect of the law, including on France's Sikhs, 249 merits con-
sideration but lies beyond the scope of this Article. Here analysis re-
lates only to the law's impact on the headscarf worn by some Muslim
girls in school, given the specific meanings and context of that sym-
bol as discussed above.
On its face, the law appears largely unobjectionable on reli-
gious discrimination grounds. 25 ° It treats "conspicuous" religious
symbols from all faiths precisely the same way and is limited to re-
moving them from the public school context.25 1 In light of the
ECtHR's acceptance of the need to protect secularism as a way to
safeguard human rights in certain contexts in 5ahin, it is useful to
remember that the stated purpose of the French law is precisely to
shore up the related concept of larcit. This principle has been
forged in the historical battle over the role of the Catholic Church in
France which culminated in the 1905 law separating church and
state, 252 a fact often forgotten in de-contextualized human rights cri-
tiques of the current law.
Given fears of rising fundamentalism among some young
men in certain parts of the Muslim community in France, many secu-
lar Muslims have been outspoken champions of the ban as a way to
avoid coercion of young women to wear the headscarf to school. Or-
ganized groups of young men have used attacks and threats in many
working class immigrant communities to impose "modest" dress.
According to reports, "[t]he most horrific ritual is the tournante, gang
rape of teen-age girls who appear loose by wearing miniskirts or go-
ing to the movies . . . . Some banlieue girls have started wearing
head scarves as protection, but many ... are rebelling ....*"253 In
247. Law No. 2004-228 of Mar. 15, 2004, Journal Officiel de la R~publique Frangaise
[J.O.] [Official Gazette of France], Mar. 17, 2004, p. 5190. The English-language media has
translated this law as follows: "in schools, junior high schools and high schools, signs and
dress that conspicuously show the religious affiliation of students are forbidden." French
Lawmakers Overwhelmingly Back Veil Ban, MSNBC, Feb. 10, 2004,
http://www.msnbc.msn.com/id/4231153/print/l/displaymode/1098/.
248. See Jahangir, supra note 125, 61-68.
249. French Law Means Sikhs Cannot Wear Turbans, ASSOCIATED PRESS, May 17,
2004, http://www.religionnewsblog.com/7322/french-law-means-sikhs-cannot-wear-turbans.
250. See Jahangir, supra note 125, 69-72.
251. Law No. 2004-228, supranote 247.
252. See PENA-RUiZ, supra note 28, at 64-65. Law of Dec. 9, 1905, Loi concernant la
s~paration des Eglises et de 'FEtat [Law concerning the separation of church and state], J.O.,
Dec. 11, 1905 (Fr.), available at http://www.assemblee-nationale.fr/histoire/eglise-etat/
sommaire.asp#loi.
253. See French Muslims Fail to Enter Mainstream and Suffer from Poverty,
such a context of violent coercion, the law's limitation on expression,

not belief, in defense of the rights of schoolgirls who do not wish to
cover and in defense of secularism, appears both proportionate and
necessary. Following 5ahin, it seems likely to be acceptable under
European human rights law. Nevertheless, the political threats to
secularism are much graver in Turkey than in France, and the overall
calculus of social pressures on girls to cover is different, so a new
contextual analysis would need to be carefully carried out in the pre-
cise context of specific cases that arise.
The French law has elicited a wide range of reactions. Some
important religious figures like Soheib Bencheikh, former Mufti of
Marseille and an outspoken champion of both secularism and
women's human rights, have come out in favor of the rules. 2 54 Oth-
ers, like prominent beur (French-Algerian) feminist Fadela Amara
have supported the idea of prohibiting religious symbols in public in-
stitutions because, "the veil is the visible symbol of the subjugation
of women" and thus has no place in school. 2 55 Though once having
expressed nervousness about adopting a particular law on the subject
which could inadvertently focus too much attention on the issue and
lead to a backlash, 6 she has since been a defender of the law on the
257
grounds that it "helps fight ...outdated and oppressive practices."
NGOs representing some Muslim women have taken diverse
positions on the French ban which have tended to be more grounded
and nuanced than those of international human rights NGOs. For ex-
ample, the French Muslim women's group Ni Putes, Ni Soumises
[Neither Whores, Nor Submissive] supported the ban since, in prac-
tice, many girls who wear the headscarf in school are forced to do so
by family members, often an older brother.2 5 8 This was a highly con-
textual approach.
In contrast, other Muslims and some others in France have
outspokenly opposed the ban. While the French law does not violate
international human rights law on its face, critics often point to pos-
sible discriminatory motives and enforcement, a legitimate concern.
The HRC has explained that "restrictions [under 18(3)] may not be
Discriminationand Sexism (National Public Radio broadcast Feb. 26, 2003).

254. See Soheib Bencheikh, Mufti from Marseille: About the Life Prospectof Islam in
France, LIBERAL ISLAM NETWORK, Apr. 12, 2004, http://www.islamlib.com/en/page.php
?pages=article&mode=print&id=602.
255. Rose George, An Interview with Fadela Amara, Head of France's Noisiest
Feminist Movement, July 17, 2006, http://www.rosegeorge.com/frameworks/generic/
public users/morearticles.asp?ArticlelD=85.
256. AMARA, supra note 107, at 77-79.
257. Wing & Smith, supra note 1, at 768.
258. See Women Living Under Muslim Laws, supra note 81.
imposed for discriminatory purposes or applied in a discriminatory

manner." 2 59 The law's prohibition of "conspicuous" symbols may be
seen to be particularly targeted at the headscarf worn by Muslims.
This red flag is further raised by anti-Arab, anti-immigrant, and anti-
Muslim sentiments in France and the rise of the National Front party
which champions such views. 2 60 As in India where the otherwise le-
gitimate defense of secularism has sometimes been deployed in anti-
Muslim campaigns by the Hindu right, 26 1 defense of the republic and
larcit can mask a racist agenda. Amara warns, "[t]he issue of the
veil has become for some, a new political argument for stigmatizing
Muslims and the suburbs [slums where many Muslim communities
live in France]. 2 6 2 On the other hand, the restrictions are supported
by large swathes of the French anti-racist movement. In such a con-
text, the law's application and impact on both freedom of religion
and sex equality will have to be studied before a final determination
can be made.
Applying the contextual analysis outlined above, $ahin and
Begum are clear-cut cases where the restrictions in question are ac-
ceptable. The Rutgers hypothetical posed above stands as an easy
case where limits would be impermissible.2 63 The French law
perches in between as a truly hard case. The jury is still out; the is-
sues 5ahin raises, to which we now return, should inform the delib-
erations.
C. $ahin Revisited: The Meaning of the Headscarfin the

Turkish University, andBeyond
As Lord Bingham aptly began his opinion in Begum, "this

case concerns a particular pupil and a particular school in a particular
place at a particular time."264 To weigh such restrictions under hu-
man rights law we must look carefully at the place and time at stake.

260. See, e.g., World: Europe Report Attacks Racism in France, BBC NEWS, June 17,
1998, http://news.bbc.co.uk/1/hi/world/europe/I 14626.stm.
261. See, e.g., Susane Hoeber Rudolph & Lloyd Rudolph, Living with Difference in
India: Legal Pluralism and Legal Universalism in Historical Context, in RELIGION AND
PERSONAL LAW IN SECULAR INDIA 36, 53-56 (Gerald Larson ed., 2001).
262. AMARA, supra note 107, at 78 (author's translation). The attendant politics were
further complicated by the 2005 riots in French suburban ghettos and beyond, and the
government response thereto. For analysis of these events, see Susan Ossman & Susan
Terrio, The French Riots: Questioning Spaces of Surveillance and Sovereignty, 44 INT'L
MIGRATION 5 (2006).
263. See supra notes 113-114 and accompanying text.
In 5ahin, the Turkish government asserted that the impetus for the
circular restricting scarves and beards came from "complaints by
other students of pressure from students from fundamentalist reli-
gious movements." 265 The authorities also pointed to a history of
violence on campus related to such groups. 26 6 Furthermore, Refah
Partisi, an Islamist party, had been appealing for women to wear
headscarves in state schools, while calling for the achievement of an
Islamic state through jihad and war. 267 The former chairman of Re-
fah, Necmettin Erbakan, who at one point served as Turkey's Prime
Minister, had campaigned on the issue, warning that "[university]
chancellors are going to retreat before the headscarf when Refah
comes to power." 268 This occurred at a time when other members of
parliament from his party were decrying the failure to apply Islamic
law and threatening those who opposed such a project.269 A com-
plex, threatening atmosphere where a repressive military holds the
secular line against an Islamist government and where women are
apparently beginning to feel they may be denied 270
some jobs if not
veiled constitutes the backdrop of the $ahin case.
Some Refah Partisi party members went so far as to predict
that "if supporters of auplying sharia came to power they would an-
nihilate non-believers." 1 They raised the specter of violence simi- 272
lar to that perpetrated by Algeria's fundamentalist armed groups.
Given that these Algerian groups had begun gunning down school-
girls who refused to cover their heads, this reference sounded particu-
larly ominous. 273 Human rights advocates often correctly warn of
using the violence of some to ban the non-violent activities of others
who may be supporters of the same movement or to whom some
connection, however remote, is imputed. However, there is no ques-
tion that such allusions affected the pressures other non-veiled Turk-
ish women might feel.

266. Id.
267. Refah Partisi v. Turk., 2003-II Eur. Ct. H.R. 267, 14 (holding that Turkish
government's actions dissolving Islamist political party that enjoyed electoral success were
proportional to the "pressing social need" created by its threat to secularism). The Turkish
government has been critiqued on this score in NOAH FELDMAN, AFTER JIHAD 106-12
(2003).
268. Refah Partisi v. Turk., 2003-II Eur. Ct. H.R. 267, 27.
269. Id.
270. For descriptions of this context, see Holley, supra note 35, and Johnathan Ewing,
Turkish Women Professionals on Rise: Study Sees Strides in Numerous Careers, J. COM.,
Sept. 9, 1996, at 3A.
271. Refah Partisi v. Turk., 2003-II Eur. Ct. H.R. 267, 34.
272. See Karima Bennoune, Algerian Women Confront Fundamentalism, MONTHLY
REv., Sept 1994, at 26, 26-39.
273. See Bennoune, supra note 111; Ni la valise, ni le foulard!, LE NOUVEL
OBSERVATEUR, Jan. 19-25, 1995, at 44.
HRW is correct that individual women choosing to cover

their heads are not to blame for the broader political context. One
must be sympathetic to those whose personal conscientiously held
beliefs lead them to feel they must or should cover their bodies in
ways which are prohibited in certain institutional contexts. Their
right to believe what they choose about the veil as a religious symbol
is absolutely immune from limitation as part of the freedom of belief.
However, the socially-constructed meanings and impact on others of
the symbol they reclaim is indeed implicated by this context. Hence,
their display of it, which is expression, not belief, may be limited in
response to that context in accordance with international human
rights law, to protect the rights of others and in pursuit of other le-
gitimate social goals, whether women's equality as mandated by the
Women's Convention or the secularism which makes it possible.
If we are to take substantive gender equality as seriously as
religious freedom, as prescribed by human rights law itself, in such
contexts limits may be unavoidable. As Frances Raday has written in
a passage cited by Baroness Hale in Begum,
A mandatory policy that rejects veiling in state educa-
tional institutions may provide a crucial opportunity
for girls to choose the feminist freedom of state educa-
tion over the patriarchal dominance of their families..
. . [S]uch a policy may send a clear message that the
benefits of state education are tied to the obligation to
respect4 women's and girls' rights to equality and free-
dom.27
Raday's use of "may" seems to indicate that it depends pre-
cisely on the context of the rules. Furthermore, though she refers in
the first instance only to girls, the observation stands for young adult
women in university also, especially in a political climate like that in
Turkey. Additionally, not only the pressure of the family can be so
challenged, but also the push of community groups, such as funda-
mentalist movements. Mainstream human rights advocates who fo-
cus traditionally on state conduct, rather than on the impact of non-
state actors on human rights, may overlook the human rights impera-
tive to check coercion by such groups. 275 Given this emphasis on the
487 (H.L.) (appeal taken from Eng.), 98 (opinion of Baroness Hale) (citing Raday, supra
note 107, at 709).
275. For criticism of this classical approach, which is in the process of evolving, see
Frances E. Olsen, InternationalLaw: Feminist Critiques of the Public/PrivateDistinction,
in RECONCEIVING REALITY: WOMEN AND INTERNATIONAL LAW 157 (Dorinda G. Dallmeyer
ed., 1993), and Catharine A. MacKinnon, On Torture: A Feminist Perspective on Human
state, the mainstream human rights movement is prone to respond

only to one dress code (the state's restrictions on the headscarf) but
not the other (pressure to cover from family, community and social
movements).
Education represents a targeted site of struggle for religious
fundamentalist movements around the world.276 This is why Ameri-
can science teachers now reportedly shy away from teaching evolu-
tion.277 Human rights advocates cannot be naive about this. Such
vying over education is a key part of the context in which human
rights need to be understood and implemented and must factor into
our interpretations. Some liberal opponents of veiling restrictions
have argued that the concern with religious extremist or conservative
attacks on women would be better served by placing limits on ex-
tremists themselves and their activities rather than on individual
women. However, the two are complementary not alternative. Fur-
thermore, the contextual approach accepts such limits on adult
women's dress in public education precisely when coercion occurs,
in other words, when other efforts to counter fundamentalist or con-
servative assaults prove insufficient.
In his concurrence in Abington Township v. Schempp, justify-
ing restrictions on religious activities in schools, Justice Brennan of-
fers a vision of American public schools as designed for "the training
of American citizens in an atmosphere free of parochial, divisive or
separatist influences of any sort-an atmosphere in which children
may assimilate a heritage common to all American groups and relig-
ions." 278 Those who support restrictions on the veil and headscarves
in certain educational contexts claim just such a construction, to the
disdain of some human rights critics who would be unlikely to chal-
lenge Brennan's vision in the U.S. context.
Still, an obvious downside to bans is, as expressed by Michel
Troper, that "[i]f the wearing of the veil is prohibited, the young
women dismissed from public school will not have any contact with
the values of tolerance and equality that only the school can incul-
cate." 279 This leaves policy-makers with a terrible choice, as it were,
between a woman's right and women's rights. Undoubtedly, they
Rights, in HUMAN RIGHTS INTHE TWENTY-FIRST CENTURY 21 (Kathleen E. Mahoney & Paul
Mahoney eds., 1993).
276. See, e.g., PHILLIPS, supra note 11.
277. Cornelia Dean, Evolution Takes a Back Seat in U.S. Classes, N.Y. TIMES, Feb. 1,
2005, at F1.
278. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 242 (1963) (Brennan, J.,
concurring).
279. Michel Troper, French Secularism, or La'fcit6, 21 CARDOZO L. REv. 1267, 1279
n.17 (2000).
must develop plans to mitigate this possible consequence of bans as a

matter of priority. However, though some women and girls may be
taken out (or take themselves out) of school initially in response to
such rules (some being sent to parochial schools), this author's pre-
diction is that over time they will return. 280 The long-term good of
creating a free secular space in school which overtly opposes
women's subordination is worth the, admittedly grave, short-term
loss. As Kimberly Yuracko has explained with regard to public
schools, "The mission of schools is to educate and inculcate children
281
with social values. Schools cannot help but socialize children."
Furthermore, where is the alternative for girls being coerced to wear
such garments by families and communities, if the public school
yields? They do not have religious educational institutions as a fall-
back space to protect their free choice.
Reaching the above verdict means answering Troper's ques-
tion about whether secularism and state neutrality on religion require
"allowing all values to be expressed or propagating neutrality as a
value," 282 by favoring the latter, an assuredly controversial answer.
This answer seems especially challenging to those steeped in the An-
glo-American tradition which is largely in the "refusal to propagate
values" model.283
HRW belies this very bias when it suggested in its early press
statement regarding the then-proposed French law that the organiza-
tion "recognizes the legitimacy of public institutions seeking not to
promote any religion via their conduct or statements, but the French
government has taken this a step further by suggesting that the state
is undermining secularism if it allows students to wear religious
symbols." 284 This is in part a contrast between Anglo-American ap-
proaches and continental European republicanism, the model for the
Turkish state. HRW seems to concede as much when it notes that
"[t]he headscarf issue is . . . a 'wake up call' for a human rights
movement comfortably embedded, especially in continental Europe,
within secularism ... "285 However, the approach taken by the Law
Lords in Begum suggests that some of the analysis is beginning to
cross the legal English Channel. Another disconnect lies in the fact
280. HRW argues that the Turkish ban on headscarves "excludes thousands of women
from higher education each year." Memorandum to the Turkish Government, supra note 35,
at 3.
281. KIMBERLY YURACKO, PERFECTIONISM AND CONTEMPORARY FEMINIST VALUES 6
(2003).
282. Troper, supra note 279, at 1279.
283. Id. at 1283.
284. Human Rights Watch, France: HeadscarfBan Violates Religious Freedom, Feb.
27, 2004, http://hrw.org/english/docs/2004/02/26/france7666.htm.
285. Marthoz & Saunders, supra note 8, at 21 (emphasis added).
that continental European approaches, and indeed international hu-

man rights law itself, allow for some content-based restrictions on
expression, whereas in U.S. law any restriction directed
2 86
at the com-
municative impact of expression is highly suspect.
It is also startling to hear a human rights movement, whose
most visible spokespersons do not actively champion secularism, de-
scribed as embedded in it. In fact, greater support of secularism by
the human rights movement in the current moment, given the
Chinkin and Charlesworth thesis that religious extremism is one 287 of
the two major contemporary threats to women's human rights,
would be welcome. Instead, the mainstream human rights movement
often does not seem fully aware of the grave dangers religious ex-
tremism poses to human rights. For example, this author was ini-
tially drawn to this topic out of frustration with the muted response of
many international human rights NGOs to the rise of religious fun-
damentalism and associated atrocities against women in 1990s Alge-
ria.288
A review of the human rights NGO discourse suggests a
ready confusion of religious belief (which is legitimately subject to
no restrictions) with religious expression (which is subject to restric-
tions). It also demonstrates a de-contextualized analysis that sees the
headscarf as a purely religious, mostly non-coercive symbol largely
devoid of political symbolism or impact on others. Neither of these
is an exact parallel to the headscarf, but it is safe to say that the same
NGOs would not come out in favor of Christian prayer in American
schools (a religious practice), or the right to wear a swastika (once a
religious symbol, now a political one) in a European classroom, be-
cause they understand the potential impact on other students and are
able to appreciate the political meaning in context.
Human rights discourse also frequently centers religious free-
dom in this debate, de-centering sex equality. For example, in ana-
lyzing Turkey's rules, HRW focused mainly on freedom of religion,
ironically only citing the prohibition on discrimination against
women as a criticism of the Turkish government's ban-but not of
the societal gender discrimination it is putatively designed to com-
286. See, e.g., Sionaidh Douglas-Scott, The Hatefulness of Protected Speech: A

Comparison of the American and European Approaches, 7 WM. & MARY BILL RTS. J. 305
(1999); U.N. Human Rights Comm., Views of the Human Rights Committee Under Article 5,
Paragraph4, of the Optional Protocol to the InternationalCovenant on Civil and Political
Rights ConcerningCommunication No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993 (Nov.
8, 1996).
287. CHARLESWORTH & CHINKIN, supra note 15, at 249.
288. See Bennoune, supra note 272, especially text accompanying footnote 2.
bat.289 This fails to heed the now iconic call of Kimberle Crenshaw
for inter-sectionality. 290 She stresses the need to avoid "struggles
[being] categorized as singular issues," the importance of "resist[ing]
efforts to compartmentalize experiences," and ' 291
the need "to recenter
discrimination discourse at the intersection."
Instead, HRW criticized as Dantonesque those who "want to
restrict the civil and political rights . . . of members of religious
groups believed to pose a threat to a rights-respecting political or-
der.",2 92 However, some restrictions exist in human rights law itself,
precisely to ensure the human rights of others. HRW's international
legal analysis of the Turkish rules simply concludes that "head-
scarves... do not impinge on the rights of others." 293 Hence, the or-
ganization posits itself as Voltairian, as do many mainstream human
rights advocates faced with such questions, and as defending "the
right of every man to profess, unmolested, what religion he
chooses." 294 The archaic gender-exclusive language quoted here re-
flects exactly the result produced in certain contexts of coercion
when no limits are made.
HRW concludes that today, "[t]he real challenge is finding
ways to preserve basic rights in efforts to combat terror in order to
strengthen the appeal of liberal, rights-respecting societies." 295 This
is entirely true. The question is whose basic rights one seeks to pre-
serve-merely the individual seeking to veil or also those women
around her. 296 The reason that defending secularism represents an
important task is its impact on the human rights of all these real peo-
ple, not because it is an abstract state interest. If this author has a
289. Memorandum to the Turkish Government, supra note 35, at 33-34.

290. Kimberle Crenshaw, Demarginalizingthe Intersection of Race and Sex: A Black
Feminist Critique of AntidiscriminationDoctrine, Feminist Theory and Antiracist Politics,
1989 U. CHI. LEGAL F. 139, 167 (1989).
291. Id.
292. Marthoz & Saunders, supra note 8, at 57.
293. Memorandum to the Turkish Government, supra note 35, at 4. Elsewhere, in
critiquing the French law, they have argued, "Muslim headscarves... have no effect on the
fundamental rights and freedoms of other students .... " Human Rights Watch, supra note
284.
294. Marthoz & Saunders, supra note 8, at 57.
295. Id.at 58.
296. This Article takes seriously Mar Matsuda's appeals to use multiple consciousness
as method and to make "a deliberate choice to see the world from the standpoint of the
oppressed." Mari Matsuda, When the First Quail Calls: Multiple Consciousness as
Jurisprudential Method, Presented at the Yale Law School Conference on Women of Color
and the Law (Apr. 16, 1988), in 14 WOMEN's RTs. L. REP. 297, 299 (1992). The challenge
here is that there are multiple oppressed constituencies and multiple oppressions making the
choice of with whom to identify complex. The contextual approach is an effort to ground
mediation of these choices, moving away from the abstraction which Matsuda disparages.
See id.
quibble with the ECtHR in ;ahin, it is that the human rights impact
of secularism in protecting individuals from religious coercion is
much more important than its function as an abstract state value. The
Court discusses both aspects, but the margin of appreciation approach
tends to emphasize the state interest. This plays into the hands of
those who would write off secularism as an ephemeral excuse less
important than individual human rights. It could also be misused in
the future to allow limitations for statist reasons rather than human
ones.
VIII. CAUTIONS AND CONCLUSIONS
Notwithstanding the overall conclusion on $ahin here, it is

regrettable that few women are even given voice in the debate.
Seven ECtHR judges ruled in 5ahin in the Fourth Section judgment;
six were men. All of Ms. Sahin's lawyers and advisers at both levels
were male. Oral argument in the Grand Chamber was made only by
male advocates on either side of the issue. The author of HRW's cri-
tique, a distinguished Turkey expert, is male. This is not to disqual-
ify male voices, but to hope rather that women of diverse views are
more empowered in the discussion. It is thoroughly positive that
Leyla Sahin had her days in court (both the Turkish Constitutional
Court and the ECtHR). But, given the particular context, the re-
sponses to her claim were correct.
A. A Dialogue with Judge Tulkens
Despite this determination on the ;ahin case , we must remain

committed to moving away from polarization 297 toward latitudinari-
anism, and respond to thoughtful arguments from other points of
view. 2 9 8 While the underlying ECtHR decision was unanimous, the
Grand Chamber opinion gave rise to one dissent, authored by Judge
Tulkens from Belgium, one of the five female judges on the seven-
teen-judge panel. She thoughtfully expresses some of the most
common human rights-based critiques of the $ahin approach.
For example, she argues that the principle of sexual equality
cannot be used to prohibit a woman from a practice she appears to
297. On the dangers of polarization in the headscarf debate, see Dilek Zaptcioglu,
Turkey, Dividing the Nation (Patrick Lanagan trans.), QANTARA.DE, Dec. 29, 2003,
http://qantara.de/webcom/show-article.php?wc c=549&wcid= 12&wc_p = 1.
298. Note, for example, the counterargument in Natasha Walter, When the Veil Means
Freedom, GUARDIAN, Jan. 20, 2004, at 21.
have freely adopted. "Equality and non-discrimination," she submits,

"are subjective rights which must remain under the control of those
who are entitled to benefit from them." 299 On this basis, she casti-
gates the Court for "paternalism." 300 This is thought-provoking, but
also troubling. Would a person from a racial minority group who had
been raised in a racist environment and had internalized the notion of
her own inferiority be deemed not to be discriminated against by rac-
ist policies? Theorists have clearly identified the problem of the
naturalization of hierarchy and the potential inability to articulate
self-victimization in a caste society. 3° 1 Precisely, those who have
faced the most subordination may be least able to articulate it. Oth-
ers question the appropriateness of such paradigms by pointing to
positive meanings of the headscarf and the fact that some women
who cover in some contexts feel independent and empowered, a fact
not disputed here.
For Judge Tulkens, the Turkish circular is an unlawful viola-
tion of Leila Sahin's right to freedom of religion.30 2 Her conviction
seems entirely grounded in the reports of hostility towards Muslims
in Europe documented by the European Commission against Racism 30 3
and Intolerance (ECRI), with which she concludes her opinion.
However grave and justified ECRI's concerns in the broader Euro-
pean context, it is unclear how they implicate the Turkish circular.
Those rules were issued by a government institution in "Turkey, a
secular, multiparty democracy, the majority of whose population is
Muslim." 30 4 This projection of the legitimate non-Muslim context
concern with Islamophobia onto internal debates in Muslim countries
and communities also surfaces in the views of the Court's NGO crit-
ics and should be avoided. It disappears ongoing struggles over and
conflicting interpretations of such clothing, including whether or not
it is even mandated by religion. Still, in her dissent, Judge Tulkens
299. $ahin, Grand Chamber, supra note 3, 12. This is particularly interesting given
that the victim's subjective judgment that a practice is discriminatory is not dispositive.
300. Id.
301. This problem was acknowledged, for example, in Brown v. Board of Education,
347 U.S. 483, 494 n.1 1 (1954) (citing K.B. Clark, Effect of Prejudice andDiscriminationon
Personality Development, in MID-CENTURY WHITE HOUSE CONFERENCE ON CHILDREN AND
YOUTH (1950)); M. Deutscher & I. Chein, The Psychological Effects of Enforced
Segregation: A Survey of Social Science Opinion, 26 J. PSYCHO. 259 (1948); GUNNAR
MYRDAL, AN AMERICAN DILEMMA (1944). One needs to be careful of pushing this analogy
too far since the material cited largely concerns children whilst Ms. Sahin is an adult. Some
authors have also warned of the danger of charges of "false consciousness" in regards to this
issue. See BANDA & CHINKIN, supra note 90. Still, given that the prohibitions of race and
sex discrimination come together in most of human rights law's bans, it warrants noting that
this methodology, suggested by Judge Tulkens, raises concern in the race area.
302. 5ahin, Grand Chamber, supra note 3, 113.
303. Id. 20.
304. Benhabib, supranote 128, at 157 n.26.
undoubtedly makes points that any supporter of the Sahin jurispru-

dence on women's human rights grounds needs to account for. The
dialogue must continue.
B. A Final Word. Uncovering the Way Forward
Long ago Frantz Fanon warned of the "cult of the veil" that
could form in the face of French colonial opposition to Algerian
women wearing the haik. "The attention devoted to modifying this
aspect ... weave[s] a whole universe of resistances around this par-
ticular element of the culture." 30 5 While this analogy applies more
accurately to the French law than to the Turkish rules, particularly
because Turkey is a majority Muslim country, the removal of coloni-
alism or a post-colonial dynamic does not entirely vitiate the observa-
tion. However, the critics of the French and Turkish approaches have
also failed to convince, precisely because they have failed to offer an
alternative vision of the defense of secularism or even to acknowl-
edge its importance or to recognize in more than a token fashion 30the
6
very real threats to women's human rights from fundamentalisms.
One of the problems in trying to find the best possible ap-
proach to this difficult issue is the lack of a coherent human rights
theory of secularism. 30 7 The ECtHR prepared some of the ground-
work for that in 5'ahin, though this is complicated by the sensitivity
of the issue at stake, and the regional nature of the European Conven-
tion. Further steps in this direction are being taken, as the Canada-
based International Centre for Human Rights and Democratic Devel-
opment held an unprecedented meeting of anti-fundamentalists and
human rights organizations in the summer of 2005, a conversation
which should continue. 30 8 A coherent gender sensitive human rights
305. FRANTZ FANON, STUDIES IN A DYING COLONIALISM 47 (1965).

306. For an example of a simple critique of the French law, which did not consider risks
to secularism or the rights of others potentially implicated by such symbols, especially the
headscarf, see AMNESTY INT'L, supra note 159. This Amnesty report raised legitimate
concerns about the possibility of "disproportionate" enforcement against Muslim girls. For
feminist critique of the inadequate response to fundamentalism from progressive and human
rights circles more generally, see Seyla Benhabib, Unholy Wars, 9 CONSTELLATIONS 34
(2002), and Rosalind Petchesky, Phantom Towers: Feminist Reflections on the Battle
Between Global Capitalism and Fundamentalist Terrorism, in NOTHING SACRED: WOMEN
RESPOND TO RELIGIOUS FUNDAMENTALISM AND TERROR, supra note 15, at 357.
307. See Michael Freeman, The Problem of Secularism in Human Rights Theory, 26
HUM. RTS. Q. 375 (2004). Freeman discusses related issues, but never gender or women's
human rights, a significant omission.
308. See RIGHTS AND DEMOCRACY, FUNDAMENTALISMS AND HUMAN RIGHTS: REPORT OF
THE MEETING (May 12-14, 2005), http://www.dd-rd.ca/site/-PDF/publications/
fundamentalismhr.pdf. The American Society of International Law also hosted its first
ever panel on Human Rights and Fundamentalisms at its 2006 Centennial Meeting. See
theory of secularism could be a valuable tool for negotiating between

freedom of religion and gender equality, especially in today's climate
of religious extremism. In the meantime, use of a careful, contextual
approach to resolving these seemingly intractable conflicts offers the
possibility of uncovering results more conducive to a broad enjoy-
ment of human rights.
IX. EPILOGUE
I end as I began, on a personal note. I confess that I have

struggled with this issue. I reject fundamentalisms' absolutes and
must reflect on my own. In the spirit of Angela Harris, "I invite the
critique and subversion of my own generalizations." 309 Still, I also
reflect on another drive into Algiers with my father during the terri-
ble Algerian civil war of the 1990s. It echoed my first glimpse of a
veiled woman years before, with which I started this Article. The
fundamentalist armed groups on one side of the civil war killed many
women who went out unveiled. I asked my father, who was himself
receiving death threats from such groups for his secular views, if I
should cover my head when I visited him. He insisted that I did not
have to. At that time, when I saw covered women on the street, I no
longer focused on shame. I knew that my bare head, like those of the
thousands of Algerian women who refused to submit, was marked
with a target by my not being veiled. Not-being-veiled is a condition
that can only exist in the presence of veiling. Though not in any way
the responsibility of individual veiled women whose human rights I
also respect, in that context their covering was my uncovering.
Human Rights andFundamentalisms, 100 PROC. AM. SOC. INT'L L. 407-21 (2006).
309. Harris, supra note 1, at 585.

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Secularism and Human Rights:

This Article advocates an innovative contextual ap-

* Associate Professor, Rutgers School of Law-Newark. I would like to thank

that the European Court of Human Rights ruled cor-

1. PROLOGUE: ON NOT-BEING-VEILED ..................................... 369

B. The French Law on Religious Symbols ......................... 413

As an Arab-American woman of Muslim heritage, I will

the later introduction of religious fundamentalism into Algerian poli-

II. INTRODUCTION: COVERING AND UNCOVERING

Discussion in this Article revolves around two recent cases

fundamentalist groups were targeting women's dress in higher educa-

limitations which might be uncomfortable in an international human

A. Secularism and Women's Human Rights

David Kennedy wrote in global terms in the 1990s of what he

quences for the human rights of women, including with regard to

23. Diverse authors have produced a voluminous literature on freedom of religion.

the former. Furthermore, in applying freedom of religion, both those

III. A WOMAN'S RIGHT VERSUS WOMEN'S RIGHTS: THE AHIN

A. The Facts in Context

In June 2004, the ECtHR engaged with limitations on head-

34. 5ahin, Fourth Section, supra note 3, T 10.

ing freedom of expression, 48 its invocation of human rights must be

government's claims here.

The fears of advocates of the ban have been exacerbated by violence

B. The Reasoning of the European Court of Human Rights

The ECtHR's assessment supported the vision of the Turkish

allowing little more than the eyes to be seen." Id. at 40 n.100.

rights of others, as well as public order and safety. 6 1 For example, in

61. Id. 98.

ology is shown here, to write 5ahin off on those grounds alone

67. However, Eyal Benvenisti's critique of the margin of appreciation may be of

75. Id. 43-45, 111.

IV. THE EUROPEAN COURT OF HUMAN RIGHTS VERSUS HUMAN

A. Friendsof the Court Dissent: The NGO Response to Sahin

Following the release of the original Fourth Section opinion,

Although judicial reasoning and human rights advocacy tend

seeming to ratify them. This is how the Turkish Constitutional Court

1. The Meaning of the Meanings of an "Unstable Signifier"

96. 5ahin, Fourth Section, supra note 3, 36.

Tulkens in the lone dissent in 5ahin, have stressed that headscarves

103. $ahin, Grand Chamber, supra note 3, at 11 (dissenting opinion of Judge

Still other proffered meanings, shaped by context, swirl in the

teaches, there are only a negligible number of Muslim students, a tiny

women's rights activist Fadela Amara has written, "[i]t is a mistake

sonal religious beliefs nor simply as flags of gender discrimination in

canism, 129 to borrow a paradigm articulated by Seyla Benhabib. 130

Islamophobia embodies grave challenge to human rights, par-

111, 117 (2005).

been a part of European society since the Eighth Century.' 35 Mani-

140. See, e.g., Wing & Smith, supra note 1.

C. The Contextual Approach