This chapter seeks to present a critical analysis focusing on the European Court of Human Rights’ (ECtHR) case law on religious symbols, specifically exploring the treatment of headscarves compared to other religious signs or expressions. The central question revolves around how Muslim women’s voices are either considered or silenced within the ECtHR’s case law. The Court has been criticised for not considering the arguments of female Muslim applicants regarding the headscarf, and solely relying on governments’ arguments that are often unfounded or ideologically influenced. In Europe, restrictions on religious symbols primarily impact Muslim women, evident from the significant number of cases they bring forward, the vast majority of which are unsuccessful. By not receiving adequate protection of their religious rights, Muslim women who seek to wear the headscarf are increasingly being excluded from many areas of social life such as employment and education, inadvertently limiting their participation. This chapter sheds light on the aspects the ECtHR overlooks, but are crucial for a proper balancing test, namely the lived reality of Muslim women that are impacted by religious dress prohibitions. Various empirical studies have illustrated that there are socio-economical and psychological effects related to religious dress prohibitions, and that the impact of such prohibitions goes beyond the freedom to manifest one’s religion. In this light, considering the applicant’s lived reality, allows to safeguard fundamental rights and freedoms in a more holistic manner.

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The European Court of Human Rights and the Regulation of the Headscarf: Shifting Narratives

  • Naoual El Yattouti,
  • Benjamin Nurkić

摘要

This chapter seeks to present a critical analysis focusing on the European Court of Human Rights’ (ECtHR) case law on religious symbols, specifically exploring the treatment of headscarves compared to other religious signs or expressions. The central question revolves around how Muslim women’s voices are either considered or silenced within the ECtHR’s case law. The Court has been criticised for not considering the arguments of female Muslim applicants regarding the headscarf, and solely relying on governments’ arguments that are often unfounded or ideologically influenced. In Europe, restrictions on religious symbols primarily impact Muslim women, evident from the significant number of cases they bring forward, the vast majority of which are unsuccessful. By not receiving adequate protection of their religious rights, Muslim women who seek to wear the headscarf are increasingly being excluded from many areas of social life such as employment and education, inadvertently limiting their participation. This chapter sheds light on the aspects the ECtHR overlooks, but are crucial for a proper balancing test, namely the lived reality of Muslim women that are impacted by religious dress prohibitions. Various empirical studies have illustrated that there are socio-economical and psychological effects related to religious dress prohibitions, and that the impact of such prohibitions goes beyond the freedom to manifest one’s religion. In this light, considering the applicant’s lived reality, allows to safeguard fundamental rights and freedoms in a more holistic manner.