Islamic Veiling in Legal Discourse by Vakulenko Anastasia;

Author:Vakulenko, Anastasia;
Language: eng
Format: epub
Tags: General Fiction
Publisher: Taylor & Francis Group
Published: 2012-08-15T00:00:00+00:00

(ibid.: 463. See also ahin 2007: paras 112–123)

In this way, the headscarf is cast as irreconcilable with the uncontested democratic virtue of gender equality and therefore cannot be tolerated. Gender equality is treated in a rather abstract way and is, interestingly, at odds with Dahlab’s own contention, under Article 14 ECHR, that the requirement that she stop wearing the headscarf discriminated against her as a woman. This was dismissed as the ECtHR considered that the measure ‘was not directed against her as a member of the female sex’ and that the law ‘could also be applied to a man who, in similar circumstances, wore clothing that clearly identified him as a member of a different faith’ (which was chosen despite Dahlab’s suggestion of a Muslim man as the appropriate comparator) (Dahlab 2001: 464). Thus, a distinctly ‘formal equality’ comparator-based type of reasoning was applied, which is characteristic of the generally underdeveloped nature of Article 14 jurisprudence.

The strong normativity of the ECtHR’s rhetoric of gender equality is quite in contrast with the notoriously inefficient nature of the ECHR equality/non-discrimination provision, Article 14. The application of Article 14 ECHR depends on the applicability of another, ‘substantive’, article of the ECHR, as it can only be utilised in conjunction with such other substantive right. In most cases where a violation of a substantive provision of the ECHR has been found, the ECtHR considers addressing Article 14 unnecessary. Cases in which application of Article 14 led to a finding of a violation of this non-discrimination provision (in conjunction with another substantive right) are rather rare. Generally, the ECtHR has adopted a ‘formal equality’ type approach to this article, interpreting discrimination as a ‘difference in treatment’, capable of being justified by an ‘objective and reasonable justification’ pursuing a legitimate aim, provided there is a ‘reasonable relationship of proportionality between the means employed and the aim sought to be achieved’ (Belgian Linguistic Case 1968: para 10. On Article 14, see e.g. Arnardóttir 2009).

Similarly to the Dahlab decision, in ahin v. Turkey, which involved a medical student who was prevented from attending lectures and examinations because of wearing a headscarf, the message of the headscarf was interpreted as clearly inimical to the constitutionally embedded principles of secularism and gender equality (paras 112–123). The headscarf was thus understood as a religious item detrimental to gender equality, which suggests that gender and religion operate as abstract and unrelated to each other.1 In respect of gender equality, the ECtHR reproduced its earlier opinion in Dahlab that the headscarf ‘appeared to be imposed on women by a religious precept that was hard to reconcile with the principle of gender equality’ (ahin 2007: para 111), providing no further clarification. Despite the considerable length of the ahin judgment, the ECtHR did not attempt to give the principle of gender equality any specific content, which might have included some elaboration on whom exactly this principle is intended to benefit. As noted in the previous chapter, this can be contrasted with the majority judgment of the German Federal Constitutional Court in Ludin v.

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