Guiding Principles Regarding Student Rights to Wear or Display Religious Symbols
Board of Experts of the International Religious Liberty
Association
Sigüenza, Spain
November 15, 2005
Introduction
Several highly controversial state actions and court decisions have challenged the right of students to wear religious clothing and symbols at state schools.
Meeting in response, the Board of Experts of the International Religious Liberty Association (IRLA) gathered in Klingenthal, France, from 17 to 22 June 2004, and in Siguenza, Spain, 12 to 16 November 2005, to analyze the complex issues involved. While an even broader range of issues was discussed, this Statement of Guiding Principles will focus on the human rights considerations for issues regarding the wearing or displaying religious symbols by students in state educational institutions, with a special emphasis on the issue of the Islamic headscarf.
To the extent that states consider policies with regard to the wearing of such attire, there are two critical points that should be made.
First, students presumptively have the right to wear religious attire and symbols as a manifestation of religious belief, and as a fundamental right guaranteed by international human rights norms; and
Second, a state may limit this right under certain narrow conditions that are specified under international law, but only after making a factual showing that objectively supports the rationale for limiting this guaranteed right under the applicable international standards. Mere assertions of opinion or references to state policies (however important) do not suffice.
Background
- An issue that has become increasingly prominent in the first years
of the twenty-first century is the question whether students attending
state schools have the right to wear religious clothing and religious
symbols. This issue is part of a much broader set of questions regarding
the place of religious symbols in public life.
- Religious symbols are an important part of human life and they appear
in a wide variety of settings. They are most obviously present in religious
buildings and in religious services, and in such settings they should
generate few, if any, difficulties from a human rights perspective. Governments
should broadly tolerate such expressions. Religious symbols may sometimes
appear in governmental or state settings. In many countries religious
imagery is closely associated with prominent national symbols (such as
crosses or crescents on national flags) as well as religious declarations
in constitutions and laws. In some states religious imagery may appear
in or on governmental buildings or property (such as crosses or Ten Commandments).
While the question of the appropriateness of state adoption of religious
messages raises concerns about the fairness of such messages to citizens
who do not adhere to the messages, international law has not arrived at
any consensus on how such issues should be resolved.
- Legal problems should not arise when people wear religious symbols
and garb inside their homes and at religious services. States should protect
such forms of religious expression. The issue becomes somewhat more complex,
from a legal perspective, when religious symbols emerge in more public
contexts. Though such expression in religious attire should be respected,
there are circumstances that may arise when such religious expression
might interfere with genuine issues of public order, health and safety.
Important issues, that go beyond the scope of this document, might include
the permissibility of wearing religious attire in identification photographs
(such as drivers' licenses and passports), when the religious attire might
interfere with the ability properly to identify the wearer, but reasonable
accommodations should be encouraged. There are also issues where the wearing
of religious symbols might interfere with legitimate safety concerns,
such as the wearing of a Sikh turban that might interfere with the ability
to wear a safety helmet. Where such safety concerns affect only the individual
desiring to wear the religious symbol, the individual's balancing of safety
and religious concerns should be respected.
- Because of the breadth and complexity of the general issues regarding
religious symbols in public life, and because of the prominence in recent
public debate of issues involving the wearing or displaying of public
symbols, the IRLA Board of Experts has decided to focus in this Statement
on the latter issues. Moreover, although the issue pertains to a variety
of clothing and symbols, including the Sikh kirpan and turban, the Jewish
yarmulke, and the Christian cross, the most salient issue has become the
Muslim headscarf.
- Perhaps most famously, the Grand Chamber of the European Court of
Human Rights issued a decision regarding university students in Turkey
and the French parliament enacted a law in 2004 banning primary and secondary
students from wearing "conspicuous" ("ostensible")
religious attire at state schools. This law was widely understood as prohibiting
Muslim school girls from wearing headscarves (frequently called the hijab).
On the other hand, the UN Human Rights Committee in the Submission of
Hudoybergonova (Communication 931/2000) has held that a ban on wearing
the Islamic headscarf in a university in Uzbekistan violated the claimant's
religious freedom rights.
- Because of the salience of the European Court of Human Rights' controversial
Sahin decision, which upholds the Turkish ban on wearing Islamic headscarves
in public universities, it is important to note that in light of the unique
context of the Court's decision, the holding does not necessarily apply
outside Turkey. Turkish officials have long argued that because Turkey
is a predominantly Muslim country and because it is particularly susceptible
to the political influences over the general population of certain Islamist
trends, it has needed to take additional precautions to protect its universities
from the influences of such forms of Islam on university students. The
Sahin decision did not identify any other European country with such unique
circumstances and there are no other European countries with such a background.
Although the analysis below will suggest some serious reservations about
the legal reasoning of the European Court's decision, its holding should
not be generalized to countries in Europe whose populations are not predominantly
Muslim and that have not experienced the same social conflicts that have
occurred in Turkey.
- It should also be noted that the majority of the population of Turkey,
as expressed through public opinion polls, in democratic elections, and
in measures passed by its parliament (though subsequently struck down
by the Turkish Constitutional Court), has expressed support for policies
more sensitive to those who desire to wear the headscarf at universities
and in other educational settings and that this democratic objection to
the ban is also supported by many progressive and human rights entities
within Turkey.
- In light of the division of authority among bodies construing major
international human rights instruments, and in light of the fact that
the situation in Turkey is distinguishable from that which obtains in
most other countries, it is important to consider carefully the principles
that should be applied in resolving the rights of students to wear or
display religious symbols.
- With respect to the background of the legislation in France, the following
should be kept in mind. Between 1989 and 2004, the French Conseil d'Etat
determined, in approximately fifty decisions and judgments, that Muslim
school girls had a right to wear headscarves in state schools provided
that they did not display the headscarves in a proselytizing manner and
that they did not disrupt schools. The Conseil d'Etat made these judgments
based upon its interpretation of the French Constitution, international
human rights law, and the French concept of laïcité. In 2004,
several leading French politicians made statements saying that a law should
be enacted to ban headscarves in public schools. Later in the same year,
both the French president and the French parliament appointed commissions
to make recommendations regarding headscarves. Although the two commissions
made several supposedly "factual" assertions, they failed to
provide rigorous evidence to support them. For example, one of their principal
claims was that Muslim schoolgirls who wear headscarves are pressured
to do so by their families and communities. Despite this broad allegation,
neither commission provided any rigorous evidence to support this claim.
Although they were able to identify some anecdotal examples of such pressure,
the commissions conducted no social scientific research to determine whether
this extremely important assertion could in fact be supported by solid
evidence. Moreover, neither commission considered or analyzed the rights
of conscience that would be implicated by a headscarf ban. Following the
issuance of the commission reports, the French parliament, without providing
any further evidence to support the commission claims, enacted a law that
prohibited students from wearing "conspicuous" ("ostensible")
religious attire at state schools.
- The basic facts in the Hudoyberganova decision is that the claimant
was a woman who was excluded from a public university in Uzbekistan because
she wore a headscarf. The Uzbek government in the case failed to demonstrate
any precise justification for the law banning the headscarf, but instead
merely relied on the fact that the claimant had violated the law. Because
the government failed to demonstrate factually that the ban was necessary
under the criteria provided by the limitation clause of article 18(3)
of the ICCPR, the UN Human Rights Committee was compelled to conclude
that a violation of the claimant's religious freedom rights had occurred.
- At a more general level, issues involving religious attire are linked
in the minds of some to deeper threats posed by extreme religious groups
to fundamental structures of democracy and human rights. In this regard,
it is important to remember that the framers of the key international
instruments were acutely aware of such risks, which can be adequately
addressed by applying the provisions of the relevant limitation clauses.
- In light of the foregoing background considerations, these Guiding Principles and Concerns accordingly examine situations involving the wearing or displaying of religious symbols with reference to international and other norms governing freedom of religion or belief in order to identify basic principles that can be used as guidelines for governments, religious leaders, educational authorities, and public policy makers. Relevant norms include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention for the Protection of Fundamental Rights and Freedoms.
General Principles
- Religious freedom is a universal right based on human dignity. Freedom
of religion includes the right "individually and in community with
others and in public or private, to manifest… religion or belief
in worship, observance, practice and teaching."
- Freedom of religion or belief is best fostered in a pluralistic society.
Moreover, it is most effectively protected in governmental systems that
include a clear distinction between the religious and the political authority,
and that assure that each is legally autonomous within its own sphere.
- Only religious communities and individuals have the right to interpret
the meaning and significance of their religious symbols.
- When states employ concepts such as laïcité and secularism,
they should be applied in ways consistent with accepted international
human rights standards and should not be applied in ways that undermine
them.
- The right to manifest belief is a vital part of religious freedom
as defined by the international documents, and this includes the right
to manifest belief by wearing or displaying religious symbols and clothing.
- The limiting of religious freedom rights as practiced and manifested
is subject only to the carefully constrained limitations set forth in
the international instruments. That is, such limitations must be "prescribed
by law and [be] necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others." The burden
of proof in establishing that such limitations are justified must be carried
by the government seeking to impose such limitations, not by the party
whose rights are being limited. Prohibiting the wearing or display of
religious symbols without meeting the government's burden of proving these
limitations constitutes a violation of religious freedom.
- In applying the foregoing limitation provisions, it is vital to bear
in mind that they were carefully drafted to avoid undue restrictions on
freedom of religion or belief. In this regard several considerations should
be noted:
- With respect to the public order limitation it is significant to note that the texts of the applicable limitation clauses in all major international instruments make it clear that they only refer to the prevention of public disturbances. Significantly, they do not justify restricting religious freedom on the basis of alleged interference with general public policies (ordre public).
- With the respect to the rights of third parties, freedom of religion
or belief should be limited only by "the fundamental rights and freedoms
of others" -that is, by a right that is fundamental and outweighs
in significance the right being limited. The mere fact that some other
rights are affected is not sufficient if they do not rise to this level.
- Any state limitation on the manifestation of religious belief must be based on demonstrable facts and not on speculation or presumption.
- Limitations must be "directly related and proportionate to
the specific need on which they are predicated." That is, even when
a limitation based on "public order" or the "rights of
third parties" is raised by the wearing of religious symbols, such
limits can be justified only if they represent pressing or compelling
social needs that cannot be resolved in a less burdensome manner. If there
is another alternative that satisfies legitimate state interests and that
allows a less restriction of the manifestation of the religious right,
the limitation cannot be said to be "necessary," and the alternative
must be permitted.
- Restrictions may not be imposed for discriminatory purposes or
be applied in a discriminatory manner.
- As a general matter, manifestations of religion by individuals or
religious communities that merely offends the sensibilities of individuals,
as opposed to causing concrete harms, do not constitute a ground for limiting
such manifestations.
- The IRLA Board of Experts is fully conscious of the range of circumstances
in which wearing the headscarf may be the reflection of coercion emanating
from family or the individual's social context. However it is also clear
that some sincerely desire to wear the headscarf as a part of their religious
identity. In the light of the state's particular obligations to protect
human rights, coercion by the state in banning headscarves is arguably
even more serious than coercion by private parties. All such manifestations
of coercion are to be deplored. However, it is important to note that
banning the wearing of headscarves will not necessarily prevent familial
or social pressure; indeed it may increase such pressure even leading
to forced withdrawal from public schools. Moreover, even legitimate efforts
to eliminate coercion of those who do not wish to wear the headscarf do
not justify the state in coercing others not to do so.
- As the European Court of Human Rights has repeatedly stressed, the State has a duty to remain neutral and impartial to ensure the preservation of pluralism and the proper functioning of democracy. When an issue such as the headscarf becomes a source of tension, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups at least tolerate each other and respect each others rights.
Recommendations
- By their very nature schools have a specific mission in society: to
provide a setting where academic objectives are achieved and students
have an opportunity to develop their sense of personal identity in a setting
that teaches and exemplifies the value of mutual respect. This implies
that children from different religious and family backgrounds learn to
understand and respect each others' differences while sharing and develop
common values. Those involved in dealing practically with controversies
involving headscarves or other religious symbols should seek solutions
on a case-by-case basis in such a way as to integrate rather than polarize
by encouraging all concerned to act according to principles of tolerance
and mutual respect.
- In the educational setting, international instruments recognize the
importance of protecting both the rights of parents to guide the upbringing
of their children and the rights of children (consistent with their developing
capacities) to freedom of religion and belief, and recognize that an appropriate
balance must be struck in those situations where parental and children's
rights conflict.
- The rights of parents to educate their child according to their convictions
should be respected, and state officials should not simply assume, without
clear evidence, that parental teaching and influence are unduly coercive.
- The right of a young person to make personal decisions concerning
the wearing or display of religious symbols should be affirmed consistent
with "the evolving capacities of the [individual.]"
- Legislation establishing a total ban on the wearing of religious symbols
in public educational settings should be avoided because it tends to be
unnecessarily insensitive to those acting on sincere religious beliefs
and often does more to inflame than reduce social tensions.
- Further study should be encouraged of the specific contexts in which
controversies involving religious symbols in school settings arise with
an eye to identifying best practices for resolving tensions and approaches
that minimize interference with freedom of religion or belief.
- Policy makers in this area should consider consulting with officials, bodies and non-governmental organizations with expertise concerning these issues, such as the Office of the High Commissioner for Human Rights, the UN Special Rapporteur for Freedom of Religion or Belief, the OSCE/ODIRH Advisory Council on Freedom of Religion or Belief, and the International Religious Liberty Association's Board of Experts.
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