Equality and Freedom of Religion Vibeke Blaker Strand 13 October 2014

1. Equality and Freedom of Religion Vibeke Blaker Strand 13 October 2014

2. There are two main ways in which freedom of religion can challenge equality rights: • The activities that take place inside a religious community can come into conflict with individual’s rights to equal treatment. Who decides inside the communities? Whose voices are being heard? Who can be hired into certain positions? • An individual that adheres to a certain religion may challenge different private or state interests in the public sphere, for instance by wearing religious clothing.

3. Society How much FREEDOM? rel. com. rel. com.

4. Religious community Women Men

5. Society Women from rel. com. Men from rel. om.

6. The European Convention on Human Rights (ECHR) Art 9.Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. (Similar provision in ICCPR Article 18)

7. Leyla Sahin vs. Turkey ECHR sitting as Grand Chamber Prohibition against the wearing of religious clothing in public universities in Turkey – resulted in Leyla Sahin (a fifth year Medicine student) being denied access to the university. Could not finish her studies at Instanbul University. Breach of ECHR Article 9?

8. Prescribed by law? Ok (para. 98) Legitimate aim? Ok – protection of rights and freedoms of others and protection of public order (para. 99) Necessary in a democratic society? (para. 104 ff.)

9. Para. 115: «In addition, like the Constitutional Court ..., the Court considers that, when examining the question of the Islamic headscarf in the Turkish context, it must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. As has already been noted …, the issues at stake include the protection of the ‘rights and freedoms of others’ and the ‘maintenance of public order’ 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, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since, as the Turkish courts stated ..., this religious symbol has taken on political significance in Turkey in recent years. ... The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts …

10. Para. 116: «Having regard to the above background, it is the principle of secularism, as elucidated by the Constitutional Court (see paragraph 39 above), which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn.” Ban considered necessary in a democratic society. Conclusion: No violation of Article 9 (16-1 judges)

11. CEDAW concluding observations Turkey 2010: “16. The Committee reiterates its concern about the absence of information and statistical data on the impact of the ban on the use of headscarves in the areas of education, employment, health and political and public life, such as the number of women excluded from schools and universities. 17. The Committee reiterates its previous concluding observations of 2005 and requests the State party to undertake studies to evaluate the impact of the ban on wearing headscarves in the fields of education, employment, health and political and public life, and to include detailed information regarding the result of the study and measures taken to eliminate any discriminatory consequences of the ban in its next periodic report.”

12. CEDAW concluding observations France 2008: 20. While noting the evaluation by the State party of the implementation of the Act of 15 March 2004 banning the wearing of “signs or dress through which pupils ostensibly indicate which religion they profess in public primary, middle and secondary schools”, the Committee nevertheless remains concerned that the ban should not lead to a denial of the right to education of any girl and their inclusion into all facets of French society. 21. The Committee recommends that the State party continue to monitor closely the implementation of the Act so that there is no negative impact on the education of girls and their inclusion into all facets of French society. The Committee further recommends that the State party provide data in its next report on the educational achievements of migrant and immigrant girls at all levels.

13. CRC concluding comments France 2004 25. … The Committee is also concerned that the new legislation (Law No. 2004-228 of 15 March 2004) on wearing religious symbols and clothing in public schools may be counterproductive, by neglecting the principle of the best interests of the child and the right of the child to access to education, and not achieve the expected results. The Committee welcomes that the provisions of the legislation will be subject to an evaluation one year after its entry into force. 26. The Committee recommends that the State party, when evaluating the effects of the legislation, use the enjoyment of children’s rights, as enshrined in the Convention, as a crucial criteria in the evaluation process and also consider alternative means, including mediation, of ensuring secular character of public schools, while guaranteeing that individual rights are not infringed upon and that children are not excluded or marginalized from the school system and other settings as a result of such legislation.

14. The dress code of schools may be better addressed within the public schools themselves, encouraging participation of children. The Committee further recommends that the State party continue to closely monitor the situation of girls being expelled from schools as a result of the new legislation and ensure they enjoy the right of access to education.

15. Questions: 1. Do the UN committees have an approach when dealing with the headscarf-issue that is different from the approach taken by the ECtHR? 2. How does this surface? Does this imply a different way of balancing non-discrimination/equality with freedom of religion and belief than under the ECHR? 3. How do CEDAW article 5 a) and Article 2 f) come into play when dealing with the issue of balancing non-discrimination/equality with freedom of religion and belief?

16. CEDAW Art 5. States Parties shall take all appropriate measures: a) 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; Art 2. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women, to this end, undertake: f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;