THE HEADSCARF ISSUE FROM A HUMAN RIGHTS PERSPECTIVE
Bekir Berat Özipek, Asistant Professor
Translated by Jonathan Sugden
(Source: Chapter 1, The Non-coverable Problem of Headscarf (edited book), 2008, AKDER Publications)
Issue/Definition:
Women have adopted headcovering as a form of dress in various styles and for a variety of motivations in western as well as eastern societies from the distant past right up to the present. There are religious and non-religious reasons for headcovering, but this form of dress, with its traditional and religious character, is a sociological fact of Muslim societies. As in all other parts of the world where Muslims live, some Muslim women in Turkey cover their heads. The particular form of head covering, and the proportion of women depends on regional and cultural factors as well as differences of denomination or belief. Women’s use of the headscarf varies according to their level of urbanisation, their level of education, their ideological or aesthetic preferences and their fashion preferences.
The headscarf problem is a human rights problem because women who wear the headscarf are prevented from exercising their fundamental rights and freedoms, and are subjected to discrimination. The attitude and practices of the State are the fundamental source of this problem.
The State bars women who wear the headscarf from receiving education and training at State schools, private schools and universities. It forbids them from working as public servants, bars them from taking up professions such as the legal professions (including private practise as attorney, public duties as being prosecutor or judge) even on an individual and independent basis, and also refuses them access to those services, facilities and premises which are open to other citizens. In implementing this policy, the State is practicing official discrimination against this group of women.
This State’s attitude to women who wear the headscarf, and policies arising from it, have restrict their rights in the individual and social spheres, promotes ill-treatment, discrimination, abuse and hate crimes inflicted society at large and by individuals, and provides impunity for the perpetrators of such offences. The headscarf problem forces its victims to live in a sociopolitical context in which they are subjected to economic and psychological hardship and their status is undermined, all of which constitute serious offences to their human honour. It often means that in terms of relations between the sexes, in their status within the family and in their professional careers, these women are forced to lead a reduced quality and standard of life which reflects neither their own personal preferences nor their personal capacities.
The headscarf issue is a problem which persistently threatens peace and order by raising tension in relations between the individual and the State. It erodes individual rights and is the cause of considerable legal and political contention.
The violation of the universal/natural rights and positive law rights of women who wear the headscarf is integral to the broader problems concerning freedoms in Turkey, and particularly freedom of religion and conscience.
A. The Headscarf Problem in Turkey:
The history of issues concerning dress in Turkey, and in particular, that of prohibitions imposed upon individuals by the State, goes back to the founding of the Republic, and beyond into Ottoman times. However, within that broader history relating to clothing, the story of the headscarf question is relatively new. From the establishment of the Turkish Republic in 1923, the State has held a negative perception of all forms of hijab or covering by women, implementing policies which varied in stringency. But the headscarf as a distinct issue emerged women wearing the headscarf first appeared in universities in Turkey in the 1960s, and the obstructions they encountered.
As women gained visibility in the public sphere of modern Turkey, the proportion of women at university increased. As democracy began to extend through the political regime, women who wore the headscarf also began to enter areas which had been considered reserved for the elite. Alongside other women who did not cover their heads, they began to receive university education, and to enter the professions.
The headscarf is a form of hijab that has always been common in Turkish society, but tended to be regarded by the State as compromising Kemalist ideology’s modernisation through State-imposed “Turkish style” secularisation. Nevertheless, although the state did not look kindly on headcovering, it was not deemed necessary to enact any legal measures to forbid it.
The first formal prohibition of the headscarf was introduced by General Kenan Evren, the leader of the 1980 military coup. The HEC (Higher Education Council, YÖK), which was a product of the military regime and which maintained control of all universities, began to implement the prohibition. Some universities applied the ban fully, others only partially, and in some places individual members of staff were left to decide whether to apply the ban or not.
With the gradual return to civilian administration, there was a progressive relaxation in the strictures imposed upon headscarfed students. During Turgut Özal’s tenure as Prime Minister and President, legal efforts were made to remove the prohibitions entirely. Özal attempted to protect headscarfed students in the context of his struggles against the system of laws introduced by the military coup of 12 September 1980, but his proposed measures were vetoed by the coup leader Kenan Evren who had become president. The higher levels of the judiciary also gave judgments which, through their interpretation of the Constitution and the principle of secularism, struck down measures which attempted to protect the rights of headscarfed women. However, in the absence of clear-cut legal provisions prohibiting headscarfed students from studying (that is to say, no legal basis for prohibitive measures), there were positive changes so that headscarfed women in somewhat increased numbers began to receive education and to work in the public sector as the balance changed between the civil authority and those elements within the political and bureaucratic structure. Alongside the democratisation and liberalisation of the Özal years, combined with the dissolution of the military regime and efforts toward civilianization, the number of universities or faculties which chose not to apply the headscarf ban toward the end of the 1980s and the first half of the 1990s exceeded the number of universities actually implementing the prohibition.
Unfortunately, a further military intervention in 1997 and so called “28 February era” which started with this military intervention, brought a renewed and more determined campaign to impose the headscarf ban. The military’s pretext for its interference in politics to target the headscarf alongside a number of other civil liberties, was that it was combating “religious reactionism” (irtica) in general, and the coalition government led by the Welfare (Refah) party in particular. In the course of this process, the military gave briefings to judicial authorities - in clear breach of the constitution - on the “dangers of religious reactionism,” and many public servants whose wives wore the headscarf were penalised in various ways. Proceedings were opened against women who wore the headscarf in educational institutions ranging from private schools which prepared students for the university examinations to private universities, and from clerical training schools (imam-hatip okulları) to colleges offering computer training etc. Arbitrary measures were also taken against a number of private enterprises which employed headscarfed women. The State targeted women in public service professions such as teachers and nurses, as well as women who were practising professions in an independent capacity as, for example, lawyers. Consequently, professionally qualified women were denied the right to practice a profession in the public or the private sector. Organisations such as the Union of Bar Associations were co-opted into the process of extending the violation to include private professions.
After 1997 and the military’s influential “briefings” of high level civil servants, the scope of the ban, previously confined to a limited number of universities and some public institutions, was widened to encompass the broader social sphere. Municipalities were expected to avoid employing women who wore the headscarf. A number of private education and health enterprises which employed headscarfed women were harassed and raided - in an entirely unlawful manner by police. Difficulties were created for any individuals, institutions or organisations attempting to offer employment to such women. Arbitrary practices became common - such as refusal to issue driving licences or healthcare cards to headscarfed women, and there were even cases of hospitals refusing to treat women who wore the headscarf. In most cases these were de facto measures implemented without any written basis, and it was therefore difficult to take any legal steps to combat them.
The consequences of the “28 February Process” in entirely barring headscarfed women from public employment, and almost entirely excluding them from operating as independent professionals in the fields for which they had been trained and achieved proficiency were bitter. Women who had attained such professional status were now employed in low-paid work in difficult conditions in the private sector, in duties completely unrelated to the their area of expertise. Private sector businesses found that they could impose much lower salary terms on headscarfed doctors, teachers, entrepreneurs etc. than on other less qualified personnel, because of their much more limited employment opportunities. Unfortunately, some business conglomerates reputed to be “Islamic” in their commitments were just as opportunistic in their treatment of such women as many other private enterprises.
Headscarfed women were forced to accept work that was generally outside their professional field, and very often at a lower status and at much lower salaries. This is still the case at the time of writing in 2008. The denial of opportunity for women to work in their own professional fields, either in the public or private sector had a considerable impact on the welfare of these women, a lowering of their social status, and a quality of life which was much poorer than they might have enjoyed if the ban were not in place.
The 28 February Memorandum process also led to the penalisation of male public servants whose wives wore the headscarf. A large number of military personnel were expelled from the armed services by judgements of the Supreme Military Council (SMC/YAŞ), and some of these individuals were required to make a choice between their profession and their wife. In most cases, this meant that the men lost their jobs in the military, or continued work under the constant threat of punishment, and there were even cases of family separation and divorce. Many women, under pressure from their spouse as well as from the State, were obliged to forego the exercise of their rights in this matter and to relinquish the headscarf under duress.
The State used various pretexts and arguments to legitimise the headscarf prohibition in the course of press campaigns on the matter. It claimed, for example, that women use the headscarf as a “political symbol” or that they received payment from abroad for wearing the scarf. This in turn gave rise to various forms of hate crimes against headscarfed women committed by individuals or groups who believed such propaganda. Women wearing headscarves were subjected to verbal abuse, discrimination, and on occasions actual physical harassment or assault—especially in more privileged neighbourhoods of cities, or in public institutions or private spaces particularly frequented by upper class individuals.
When the possibility of Turkey’s integration with the EU began to become a realistic proposition, there were hopes that the accession process might spell the end of the restriction of religious and other freedoms that had accompanied post-28 February authoritarianism. From 2002 onward the AKP (Justice and Development) party government enacted a number of important changes which could be counted as democratic reforms, including legislative change to broaden the recognition of civil and political rights. However, this party took no steps whatsoever towards removing discrimination against head scarfed women during its first period of government.
At the time of writing this article, AKP is still in power, and has pledged to put an end to violations against women who wear the headscarf, and would have the support of some other opposition parties in doing so against the opposition of the CHP (Republican People’s Party), the main opposition party. But the government constantly declined to take action, on the grounds that the balance of political power between military and civilian powers in the country makes action impossible.
At the beginning of 2008 the AKP government, in its second term in office, made its first move to free up the wearing of the headscarf in universities, by supporting a proposal by the MHP (National Action Party), the only party which is sufficiently numerically strong to support the AKP government in passing a parliamentary motion to amend the constitution. The two parties did indeed succeed in changing the relevant article of the Constitution relating to access to public services in order to lift the ban in universities. However, the resistance of certain elements within the State apparatus, combined with an intense and effective media campaign claiming that the measure was anti-secular has resulted in the ban being lifted in just a few universities, and continuing unchanged in the rest.
The preparation of a genuinely civilian constitution for the first time, the insertion into this constitution of a measure offering freedom to wear the headscarf in universities, and the appointment of an individual with a more libertarian reputation to the presidency of the Higher Education Council are recent developments which inspire hope. The fact remains, however, that the obstacles to the headscarf have always been de facto rather than legislative in nature, and therefore legislative reform alone is not going to be sufficient. What will bring an end to the official discrimination against headscarfed women Turkey so that such women are granted equal rights with women who do not cover their heads, is real political will to implement these new legal arrangements, and a readiness to stand up to the social, economic and class powers who are resisting change.
B. The Right, and the Violation
What people would wear should entirely be depended on their will. Whether they will dress up in a conservative way or otherwise, whether they will cover their heads or not should not be a concern of public authorities or laws. There is a right to wear the headscarf, just as there is a right not to wear a headscarf. This right arises, irrespective of whether it is actually fenced by safeguards in positive national law, from the notion of sovereign, non-transferable, non-derivable rights in natural/universal law. Law in this sense is a universal value, the philosophical source of human rights, the grounding from which we can evaluate legislation in every country of the world. It is humanity’s highest shared value system. In this context, in speaking of rights relating to the headscarf, we are talking about safeguards to protect that right, and in particular, the freedom to choose one’s dress, including headcovering.
Freedom, in its general sense, may be defined as the freedom to do what one chooses, provided that it does not harm others. The limits to freedom, as defined by the French Declaration of Human and Citizens’ Rights is the boundary imposed by others’ freedoms. Thus, an individual has the right of freedom to dress in accordance with their own preferences. This freedom is the legal basis which entitles that person to wear a headscarf, and also not to wear it, if they so choose.
The freedoms of thought and expression not only recognise the individual’s freedom to hold any thought in their mind, but also to reflect such thoughts externally, through words, writings, art, attitudes, clothes, badges, gestures and other channels of communication.
The freedom of religion and conscience is a right which entitles a person to hold, or not to hold, any religious belief, or to be indifferent to such beliefs, to choose any particular form of a religion or belief, freely to express any religious, non-religious or anti-religious ideas, to proselytise such beliefs, to conduct the services, rituals and ceremonies of such beliefs individually or together with others, and to relinquish such beliefs or groups associated with such beliefs. The individual’s wish to cover their head, like the rights to freedom of thought, freedom of expression and freedom of religion and conscience, is founded on the framework of other human rights such as the right to life in a legal and political order which is consonant with human dignity and equality, the right to freedom from discrimination, the right to education, and the right to work.
Some circles seek to justify the headscarf ban in countries such as Turkey or Tunisia by claiming a sui generis principle of secularism peculiar to the political history and context of those societies or with reference to the ideological circumstances of the particular country in question. Dealing with the first claim: whether one wears a headscarf or not is not one of the grounds which can be adduced to limit an individual’s freedom of expression. It is no more to legitimate to use legal grounds for limitation of human rights to interfere with a woman’s right to cover her head, than it would be to use such grounds to interfere with her right not to cover her head. There is similarly no legal merit in justifications for the headscarf ban on the grounds that it is a breach of a country’s particular official political ideological system.
The prevention of the exercise of this right would be a violation of the right to live in a legal and political order consonant with human dignity, equality, including the freedoms of thought, expression, religion and conscience, as well as a violation of a series of civil and political rights such as the right to education, the right to work, and the right to freedom from discrimination..
C. Notes on Justifications Used for the Ban
Those who prohibit the headscarf or defend its prohibition, seek to justify the measure in various ways. They put forward a number of arguments including that the headscarf is a political symbol, that it is an unacceptable reflection of male hegemony, that women cover their heads under duress, that recognition of the right to wear a headscarf would impose pressure to wear the scarf on other women, that the scarf is a violation of the principle of secularism, and Ataturk’s reforms, and that it is “reactionary/unprogressive.” Since it may be useful to gather together some of these arguments and test whether they have any value from a human rights point of view, some justifications for the ban are evaluated below:
“The headscarf is an ideological symbol. Women use the headscarf not as a genuine expression of their religious feelings, but as an ideological symbol.”
The initial and fundamental error with this approach is its acceptance of a homogeneous category of “women who wear the headscarf,” or “türbanlılar.” This sort of social categorization (that is, lumping individuals into a single social category) is a problematic approach commonly used in respect of people who are seen as `others` whose image suffers from deep prejudice. Collective identities are imagined for a group of people whose individual differences are ignored, and who are evaluated as a single social category, almost as if they are acting in concert on the basis of some secret agenda. But, as with all collective identities, the homogeneous class of “wearers of the headscarf” is a fiction. It would be sociologically absurd to claim that all women who cover their heads do so on the basis of a single motive, cause or effect, and that claim is just as meaningless in terms of human rights.
It would be impossible for the State to identify the motives of millions of women in covering their heads—and the State would have no business to do so anyway. The duty of the State in this matter is limited to protecting the freedoms of the individuals who choose to cover or not to cover their heads. It may well be thought that women generally cover their heads for religious reasons; but there may be many other political, family, cultural, regional, aesthetic, emotional or other reasons for wearing this particular form of dress, and there is no reason for considering this second group of reasons more important than the first. Since it is not possible to determine which woman covers her head for which reason, banning all women from wearing the headscarf in order to punish supposed political motives for wearing would be a breach of human rights and the fundamental principles of law, and would also run counter to the stated aims of the ban. From a human rights point of view, a decision to cover one’s head for religious or political/ideological or any other reason is a personal decision—just like the decision not to cover one’s head—which the State has a duty to respect. The claim that the headscarf is a violation of Ataturkist principles is an argument that does not even bear criticism from a human rights point of view. What is important in the context of human rights is that individuals should not be forced either to cover their heads or to uncover them.
On the other hand, it is patently not true that the State punishes those who wear the headscarf for exclusively political reasons, while refraining from interference with those who wear the headscarf for “genuine religious motives,” since the ban is applied categorically across the board without no kind of evaluation of who has covered their heads on the basis of “genuine” motivation. Nobody at any university or government office has ever made any inquiries as to who covered their heads as a consequence of “genuine religious feelings.” Even if it were reasonable to ban “political” headcovering, it would still be clear that the wholesale punishment of other women, that is, those who cover their heads as a result of their “genuine religious feelings” would violate fundamental principles of law, since such collective punishment would be a breach of a principle which applies not only in human rights but in law generally.
“Headcovering is permissible in the private sphere, but since the “public sphere” must be neutral, the prohibition must be applied there.”
This argument can be invalidated from several angles. First of all, the distinction between the private and public spheres has never been defined by the legislature. The public sphere is a political rather than a legal concept, and virtually impossible to concretize in any way that would make sense in legal terms. It could just as easily be stated the public sphere makes best sense as a field in which individuals can express the particulars of their identity, rather than one in which individuals have to expunge all individuality. As such, it is a field which suits extended freedoms rather than prohibitions and restrictions. In Turkey the ban has been implemented in a manner which affects people who are using public services as much as it affects public employees. Headscarfed women are not only denied roles as teachers or academics, but are also barred from benefiting from public services as students. The ban has even been used to prevent mothers from being present at the playing of the national anthem during ceremonies at their children’s schools.
“Since students who wear the headscarf are receiving a public service, the ban should not apply to them, but no public servant should wear the headscarf, since those who deliver services must be impartial.”
The idea of impartiality is being wrongly understood and wrongly applied in Turkey. The principle of impartiality should not mean that a public servant must perform their service wearing an “impartial” costume, but that the public service itself should be delivered in an impartial manner. It is quite possible for a public servant to reflect their religious and philosophical character, and at the same time implement a service in accordance with principles of impartiality. Moreover, it might well be asked why , in view of the very widespread use of the headscarf by women in Turkey, the status of impartiality should only be granted to one particular form of dress (with uncovered head). Those who view services provides by public servants with uncovered head as impartial services wrongly identify impartiality with the single form of dress they feel most comfortable with. They consider garb which conforms to their own manner of living as “normal” and others as “abnormal.” But impartiality should be applied to the State, rather than the individual. An impartial State stands at an equal distance from all individual identities, irrespective of the world view or manner of dress attached to them, not identifying any of them as the “ideal” or the “preferred.”
In this connection, the fundamental problem arising in Turkey is that only thought and practice which the State considers congenial to the official ideology are perceived as “impartial.” The solution here is to ensure that the only criterion which should apply in appointing persons to public service are those which are required by the nature of the post (diploma, special skills, internship etc.), and that those appointed to provide or manage public services should merely carry out their duties as required by the nature of the post, without discrimination between citizens. If the State refuses to employ or appoint a woman simply because her head is covered, or because her head is uncovered, then the State itself has failed in its duty of impartiality..
“The headscarf is not a freedom. It reduces a woman to the status of a secondary citizen, prevents her participation in public life, and imposes a world view upon her that takes her freedom away from her. Consequently, the headscarf ban is in the woman’s own interest.”
The basic error in this argument, commonly aired by non-State groupings which nevertheless support the government ban, is that it confuses freedom (özgürlük) with emancipation (özgürleşme). In other words, it selects a particular concept of liberation of the individual or State, which everyone may define differently according to their own philosophical viewpoint, and sets it in place of legal freedom, which is an objective civil and political right.
The meaning of freedom in the philosophical sense may be different for everyone. For some freedom can only be understood within the context of ownership of the means of production, whereas for some others it may mean to live in accordance with the requirements of a particular religion. For others, it is the liberation from the burden of obligation of any kind. Freedom can mean a great variety of things in this sense, but a state based on the rule of law must be founded not on these “liberation” ideals, but on the basic meaning of freedom in law, which means “the absence of coercion.” Wearing the headscarf (or not wearing the headscarf) may be viewed as bad, wrong or harmful, or may even actually be bad, wrong or harmful. But asserting such opinions and defending its prohibition are two very different matters. The error here is to overlook the fact that nobody can decide for another individual what is good or bad for them. People who believe the headscarf is good or bad should express their ideas on the matter, and do what they can to convince those who think otherwise (through philosophical and political effort).
In short, the problem posed here is the confusion of various philosophical ideas about how an individual can be really free, with the concept of freedom expressed in human rights instruments such as the UDHR and the ECHR. We may all have our own philosophical and political dreams about what “real freedom” is, but this should not prevent us from accepting the fact that others are entitled to use their right to freedom in ways we do not like, providing that they do not violate the rights of other individuals.
“It is legitimate for the State to forbid the headscarf, in order to prevent the establishment of a regime which would enforce headcovering for all women.”
The fear that a group of women in the future may be subjected to oppressive practices is reasonable, but such a fear cannot justify the oppression of a group of women who suffer from this ban today. Women whose heads are uncovered and women whose heads are covered have the same value as human beings, and the freedom of one should not be counted as more precious than the freedom of the other. Setting aside for one moment the moral indefensibility of oppressive policies toward headscarfed women: in simply practical terms, it is difficult to see how such a practice protects women who do not cover their heads from oppressive policies. On the contrary, it would appear rather to legitimize the oppression practiced elsewhere in the world by regimes which happen to have power in their hands now.
There is another problem with this approach from a human rights point of view, and this is the presumption that the State is entitled to take decisions on the exercise of a fundamental personal right. On this matter Turkey and Saudi Arabia seem to agree that it is a matter for the State to decide how women should dress in the “public sphere.” The only difference is that while one coercively uncovers women, the other coercively covers them up. This approach is part of a more general problem around the world, where states see themselves as organs superior to the individual, and accord themselves determining status on individual and social matters, including a wide variety of ethnic, cultural and political questions, as well as the wearing of the headscarf. From this perspective, two prohibitive practices which at first glance appear to be directly opposed to one another are actually identical in terms of their approach to the individual.
Conclusion
The headscarf issue is a chronic and multidimensional human rights problem in Turkey, but emerges, along with a number of other problems, from a single source. The source of this ban, is that the rule of law based on a foundation in human rights has not yet been fully established in Turkey. The existing structure and operation of the Turkish State, its official ideology, and in particular its anti-democratic brand of secularism, throws up human rights problems not just for women who wear the headscarf, but for all sections of society who wish to exercise their freedom of thought and expression. In the area of religion, the source of the regulations and policies that cause suffering to headscarfed women is precisely the same source of regulations and policies which victimize non-Muslims, Alevis and all other persons with religious beliefs that do not have the stamp of official approval. Consequently, a conclusive resolution of the unjust treatment of headscarfed women would be a decisive step in bringing the State into conformity with law in its universal sense.
The concrete measures required to resolve the headscarf question can be summarized as follows: The State must establish the rights of all women, those who wear the headscarf and those who do not, on a basis of justice and equality before the law. This will require an end to official discrimination against headscarfed women. Steps must be taken to ensure that they are able to exercise their civil and political rights in full, with all restrictions on their educational, training and working lives permanently and unconditionally removed. The victims must also be granted restitution and compensation for the damages and losses suffered during the years this prohibition has been inflicted upon them.