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UBC Theses and Dissertations

"The two sides of the same coin" : a critical study of the freedom of religious expression on the current headscarf controversies Olyaei, Shiva

Abstract

Freedom of religion and religious expression are components of the right to the most basic and fundamental human rights due to every single individual. However these rights are violated in different areas of the world such as France, Turkey and Switzerland at different intensities. One such violation of the freedom of religious expression is found around the Islamic headscarf as a powerful religious symbol worn by Muslim women and its effect in the public secular education systems for a variety of reasons. Two particular cases, those of Dahlab and Sahin are noteworthy because of the implications of the decisions brought down by the ECtHR as well as the dissenting points of view. While the court acknowledged that the appellants may have worn the Islamic headscarf with harmless intentions, the obligation of the state to endorse denominational neutrality may be brought into question. As a result, it will be shown that the identity of women is an often marginalized issue as the courts question the purpose and significance of the Islamic headscarf for Muslim women. The Islamic veil as a mature phenomenon seeks to emerge as a dynamic identity for contemporary Muslim women, actively involved in the societal sphere, as a generation seeking to uphold human rights in order to combat with extremism and fanaticism. Furthermore, the headscarf issue raised a significant number of concerns due to the manner in which the ECtHR approached the debate, that is, from a liberal secularist point of view, especially in regards to the process of evaluation of the cases at hand however, the importance of the matter lies in the sudden switch to a fundamental secularism approach when determining and justifying the judgment handed down. This brings the legitimacy of the ECtHR into question as it appears to take a form of state paternalism, depriving women of the choice to wear it freely. In conclusion, the hypothesis that secular fundamentalism as found in some European countries does not put the human rights principles on the freedom of religious expression in less jeopardy than the religious fundamentalism in some Middle Eastern countries proved to be true.

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