Alice Ollino, Università degli Studi di Milano-Bicocca

In her post on the burkini and the crisis of (international) law, Bérénice Schramm warned us against the limits of mainstream legal narratives that accommodate discrimination against women, and suggested revisiting the foundations of international law in order to attain full equality. The strain of dismantling a system based on hierarchies while at the same time trying “to carve out spaces on the inside” (Diane Otto, 2015, p.136) is particularly tangible within the human rights framework. On the one hand, in their struggle for universality, human rights have reproduced dominant discourses on gender and power relations; on the other, the system is also equipped with instruments that aim at tackling these flaws and pursuing more inclusiveness.

In this post I draw on the events surrounding the burkini to offer some thoughts on the conceptual tension that underlies the international human rights discourse on gender equality. The human rights subject has been engaged as a liberating powerful instrument to advocate for justice for women and there have been increasing calls for women’s rights to be understood as human rights. However, by deriving legitimacy from hegemonic western liberal sources and doctrines, the human rights discourse has also reproduced a normative order that echoes civilising missions by excluding targeted groups and recreating gender and racial divides in the guise of universality.

The political discourse behind the burkini has been build around the matter of security and defence from terrorist attacks but also around the rhetoric of subjugation of women and denial of their human rights. When last summer a number of French cities’ mayors chose to ban the burkini from some French beaches, the decision divided the public opinion on whether this measure was to be regarded as the ultimate islamophobic stance by French authorities or as a necessary, albeit drastic, step toward the protection of secular values and the defence of equality between the two sexes. It was said that, by covering head-to-toe a woman’s body, the burkini inevitably reflects the archaic (Islamic) religious code that sees women as inferior to men and tries to efface them from the public sphere. As a result, wearing the burkini would appear at least hard to reconcile with a woman’s free choice and fight for equality.

The narrative that links the wearing of women’s garments that entrench cultural or religious values with gender oppression has found sustainment also at the international level. For example, in more than one instance the European Court of Human Rights (ECtHR) has suggested that limitations on wearing the Muslim headscarf might be crucial to the promotion of gender equality. When questioned on the prohibition of wearing the Islamic scarf in schools and the full-face veil in public places, the ECtHR argued that it is within the margin of appreciation of each State party the power to regulate the dressing of clothes with religious connotations. Accordingly, the ECtHR asserted that imposing limitations on certain symbols does not constitute a violation of the freedom of religion or the right to privacy.

In 2001 in Dahlab v. Switzerland the ECtHR held that the State measures prohibiting the applicant from wearing a headscarf while teaching were «necessary in a democratic society», and declared the question regarding the violation of Article 9 of the Convention (freedom of thought, conscience and religion) manifestly ill-founded and therefore inadmissible (Dahlab v. Switzerland, pag. 13). In warning against the impact that the wearing of this symbol might have on the freedom of religion of young children, the ECtHR asserted that «it cannot be denied outright that the wearing of a headscarf might have some kind of proselyting effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which […] is hard to square with the principle of gender equality» (Dahlab v. Switzerland, p. 13). The ECtHR went on to stress that «it therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils» (ibid.). Similarly, in 2004 in the case of Leyla Sahin v. Turkey, the applicant, a student enrolled at the Istanbul University, was denied access to a written examination because she was wearing the Islamic scarf. After praising the Turkish constitutional system for its commitment toward gender equality, the Chamber in its judgment contended that «in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith […] imposing limitations on freedom in this sphere may […] be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims» (Leyla Sahin v. Turkey paras. 107-109). The case was referred to the Grand Chamber, which shared these conclusions and found neither a violation of Article 9 nor a violation of the applicant’s right to education (Leyla Sahin v. Turkey, Grand Chamber judgement).

What strikes in these two cases is the fact that the ECtHR was quick to suggest that wearing the Islamic headscarf is incompatible with gender equality. In particular, while in the Dahlab decision the Court adhered to a rather essentialist notion of Islam and failed to flesh out why the veil is an ambiguous symbol of gender equality, in the case of Leyla Sahin the ECtHR drew distinctly on the dichotomy between secularism and women’s rights as opposed to the Islamic faith.

From a feminist legal perspective, invoking bans on full-face veil or the prohibition of headscarves or clothing that manifest adherence to a particular moral as a ground for the elimination of sex-based discrimination builds on a simplistic notion of gender equality and on the assumption that women – and in particular targeted groups of women – need saving from their men. First of all, these positions fail to take into account intersecting discrimination, which is the form of discrimination that women can experience due to the intersection of sex with other factors, such as race, ethnicity, religion, status or class. As stressed by the Committee on the Elimination of Discrimination against Women, discrimination on the base of sex or gender «may affect women belonging to such groups to a different degree or in a different ways than men» and therefore State parties should «legally recognise and prohibit such intersecting forms of discrimination and their compounded negative impact on the women concerned» (CEDAW Committee, General Comment no. 28, para. 18). Recognising intersectionality is crucial to avoid gender essentialism and the generalisation of women’s experiences that usually privilege white Western women and efface other forms of oppression. When in 2014 the ECtHR was asked to take a position for the first time on blanket bans on full-face veils in public in S.A.S v. France, some third party interveners warned against the effect that a ban on full-face veil could have had on intersectional discrimination and the impairment of fundamental rights of women such as freedom of movement, the right to education and the right to equal protection of the law. The same argument easily applies to the burkini ban: rather than fostering liberation of women, the rhetoric around its adoption fuels stereotyping and stigmatization of minorities, leading to further discrimination.

Secondly, the idea that the wearing of a particular garment is inextricably linked to oppression and subjugation means to uphold and perpetrate the gendered subjectivities of hierarchies and structures of power that are rooted in the human rights framework and that have been fostering gender violations. In elaborating on the genealogy of the female subject, Dianne Otto contends that international human rights law captures three main recurring female subjects: the mother or wife that needs protection in war and peace and operates as an object of international law, the woman that acts on an equal footing with men in the public realm, and finally the victim subject «that is reproduced by colonial narratives of gender, as well as notions of women sexual vulnerability» (Diane Otto, 2002 p. 106). It is this last figure of woman that «affirms the need for the masculine bearer of civilization and saviour from bad, often native men» (Diane Otto, 2002, p. 106). The human rights agenda has nourished the depiction of the third-world colonised woman as the victim of the backwardness of her own society, in opposition to the image of civilized western liberal values that shall promote women’s equality. For example, when looking at the human rights critique of cultural practices that are harmful to women, great emphasis has been placed on female genital circumcision or mutilation as a form of violence against women that affects African women who are powerless, brutalised, constrained by their own traditions defined by men, unable to think clearly, with no choices (for a thorough critique of the human rights policy on FGM see Hernlund and Shell-Duncan). On the contrary, there has been little exploration of the impact of cultural practices in the West that might also affect a woman’s body and well-being, such as cultural norms that prompt women to undergo cosmetic surgery to meet dominant beauty standards or that lead them to develop eating disorders (these issues have been in fact rarely addressed by human rights bodies; references to these practices are discussed by ECOSOC, Commission on Human Rights, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Radhika Coomaraswamy, Cultural Practices in the Family that are Violent Toward Women, para. 96; ICERSC Committee, Concluding Observations: Norway, 23 June 2005, UN Doc. E/C.12/1/A.109, paras. 21 and 41). As the Special Rapporteur on Violence Against Women has stressed, this double standard occurs because in Western countries, «distinct cultural norms that define gender relations are not questioned or even perceived as culture […] but are regarded as questions of market dynamics and free choice» (ECOSOC, Commission on Human Rights, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Yakin Erturk, Intersection Between Culture and Violence Against Women, 2007, UN Doc. A/HRC/4/34, paras. 47-48). In the end, the narrative of the victim subject «reinforces the depiction of women in the Third World as perpetually marginalized and underprivileged […] (and) encourages some feminist in the international arena to propose strategies which are reminiscent of imperial intervention in the lives of the native subject» (Kapur,p. 6).

There are, of course, within the international human rights framework, instances that object to this rhetoric and legal instruments that aim at disrupting and challenging power relations and hierarchies. In the context of the querelle of the burkini, Schramm notes in her post that the UN High Commissioner for Human Rights made a statement quickly after the August events clarifying that «achieving gender equality requires understanding the barriers that prevent women and girls from making free choices, and creating an environment that supports their own-decision making, including but not limited to the choice of dress» (UNOHCR, Press briefing notes on France and Bolivia). The Special Rapporteur on Violence Against Women has pointed that «cultural essentialism, in its orientalist as well as occidentalist variations, are based on several myths that need to be challenged if we are to move forward in the international human rights agenda in general and the elimination of violence against women in particular» (ECOSOC, Commission on Human Rights, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Yakin Erturk, Intersection Between Culture and Violence Against Women, 2007, UN Doc. A/HRC/4/34, para. 70). This process requires both developing strategies to resist oppressive practices in the name of culture, but also promoting human rights while rejecting encroachments grounded in ethnocentric thinking (Intersection Between Culture and Violence Against Women, para. 71). In this regard, the very same ECtHR in 2014 seems to have at least partially grasped at these concepts and revisited its previous gender essentialist notions on the wearing of clothes that covers Muslim women’s bodies. In S.A.S v. France, the ECtHR rejected the French government’s argument that the ban was necessary to protect gender equality, and qualified the veil as «an expression of cultural identity which contributes to the pluralism that is inherent in democracy» (S.A.S v. France, p. 49). However, the ECtHR eventually accepted that limitations on wearing the full-face veils could be justified for the aim of “living together” and found that under certain conditions «the respect for the minimum requirements of life in society […] can be linked to the legitimate aim of the ‘protection of the rights and freedoms of others» (p. 49), dismissing somehow the very notion of cultural diversity and pluralism that should inform society.

If we are to resist essentialist notions of gender equality, we should look at those strands of post-colonial feminists that often critique the oversights of their liberal counterpart. The risk of relying on conceptions of sex, equality and rights grounded in liberalist doctrines is to universalise a particular subset of women’s and gender claims without taking into account how culturally, economically and ethnically determined they are. In extrapolating liberalism to the international human rights field, post-colonial feminism seeks to unveil not just the concept of patriarchy embedded in these structures but also institutionalised forms of cultural domination and racial oppression that are inextricably attached to this model. That does not mean however that notions of individual freedom that lay their foundations in liberal conceptions shall always work against post-colonial feminist legal goals. Moving from a material concept of ordre public, the Conseil d’État in France overturned the burkini ban on August 20 ruling that neither public order nor emotions linked to terrorist acts can be invoked to legitimise the ban. The French judges struck down the ban noting that “l’arrêté contesté a porté une atteinte grave et manifestement illégale aux libertés fondamentales que sont la liberté d’aller et venir, la liberté de conscience et la liberté personnelle”. The reasoning of the Conseil d’Etat was highly informed by the classical “negative rights” liberal viewpoint that emphasises the role of human rights as political commitment to individual liberty. In doing so, its ruling turned to be feminist as it refused to link the wearing of the burkini with problems of decency and prioritised the concept of women’s agency.

Finally, we might also look at the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as a positive legal tool to fight dominant representations of culture that disproportionately affect women. CEDAW is in fact one of the very few legal instruments that specifically require States to address gender stereotyping and to set standards against which to measure acts and omissions of States in upholding stereotypes. Article 5(a) of CEDAW requires States parties to take appropriate measures to «modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women». If read in conjunction with Article 2(f), that requires States parties to «take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women», the prohibition of gender stereotyping covers prejudices, customs and practices that are based on the inferiority of women, but also legislation and regulations that are based on stereotyped roles of men and women. In this regard, gender stereotyping refers not only to the creation of assumptions about the characteristics of certain groups of individuals, but also to the role that these individuals (ought to) perform based on their membership of a particular group. States have therefore the obligation to eliminate practice of wrongful gender stereotyping and to refrain from implementing legal policies and measures that stigmatise non-conforming individuals and perpetuate women’s oppression (CEDAW Committee, R.K.B v. Turkey, 2012, para. 8.8; CEDAW Committee, General Comment no. 28, para. 16). The CEDAW Committee has also expressly recognised that a State is internationally responsible for wrongful gender stereotyping, holding that accountability stems even in cases where stereotypical gender notions are the product of legal procedures and judicial reasoning (CEDAW Committee, Karen Tayag Vertido v. The Philippines, 2008, paras. 8.2-8.8).

Of course enforcing the obligations to eliminate and refrain from gender stereotyping is not an easy task, and this is probably why the CEDAW Committee has yet to spell out States’ obligations to address systemic stereotyping. While significant obstacles still remain, the holistic approach taken by the CEDAW Committee is certainly a crucial step to integrate the human rights framework and avoid reproducing gender hierarchies. This applies also in the context of France and the burkini, where the adoption of a general ban that relies on essentialist notions of Islam and neglects any form of Muslim women’s agency could in fact amount to a form of gender stereotyping contrary to Article 5 of the CEDAW Convention (of which France is a State party).