Abstract
Excerpted From: PM Feider, Social Shaping in the Classroom: Regulations of Islamic Headscarves in the Schools of Germany, Turkey, and India, 42 Wisconsin International Law Journal 581 (Summer, 2025) (363 Footnotes) (Full Document)
In 2023, the global population of Muslims grew past two billion members. Around the world, states and societies have pushed visions of what women ought--and ought not--to wear. From 1997 until 2008, the Turkish military pressured its government to prohibit women wearing headscarves from attending universities. In Germany, the state has an obligation “to project a neutral image,” an obligation which the government claims “opposes the right to religious freedom,” thereby permitting bans on religious attire for public sector workers. Further, in many circumstances, private German employers may maintain their “neutral image” by prohibiting employees from wearing headscarves. Legal disputes over whether the state of Karnataka, India, may enforce school uniforms which prohibit headscarves led the state's High Court to hold that “wearing of hijab” is not an essential practice of Islam, declaring that individuals forgoing hijab would not be considered sinners.
The terms “hijab” and “headscarf” are not identical, but they are often used interchangeably and imprecisely. Hijab, literally meaning “curtain” or “partition,” refers to a broad range of sharia (divine) rules on modest attire and conduct and applies to both men and women. This Comment will focus on a particular form of hijab: wearing a headscarf to cover one's hair.
Many proponents of bans that limit women's ability to wear headscarves claim state intervention is necessary to promote certain values. These values usually include the preservation of secularism, the liberation of women, or the assimilation of minority groups. State regulation of headscarf-wearing undermines these efforts by mobilizing religious fundamentalists, diminishing the opportunities and agency of Muslim women, and hardening social divides.
This Comment contextualizes and evaluates the various legal frameworks used to regulate wearing headscarves in educational settings in Germany, Turkey, and India. First, this Comment identifies three values at play in the discussion of these regulations: secularism, religious expression, and feminism. Next, it will briefly describe the historical backgrounds that inform each of these states' approaches to this issue. After providing this necessary context, it will analyze the relevant legal structures in India, Germany, and Turkey which regulate--or have regulated--wearing headscarves. After comparing these approaches, this Comment will conclude by identifying the deficiencies in purported justifications for headscarf regulations.
I recognize and acknowledge that I am not directly affected by the regulations I will analyze in this Comment. My background is that of a white, Catholic American who grew up male. I did not grow up in a predominantly Muslim community and needed to undertake additional efforts to learn about the social, religious, and gender dynamics of these different communities. I hope that my efforts here will serve to meaningfully advance the ongoing discussion of whether and how states may regulate wearing headscarves.
[. . .]
The ideals of gender liberation, equality, and secularism are not inherently opposed to religious expression. Despite this, the governments of Germany, which holds dearly a principle of state neutrality; Turkey, which has recognized two different interpretations of secularism; and India, which is considering three different frameworks, each viewed wearing headscarves as a dangerous activity worthy of regulation. Though the exact regulations varied between each country, they operated on similar justifications.
Some declare that headscarves radiate an undesirable influence. In Germany and Turkey, proponents justified headscarf restrictions partly by arguing that wearing headscarves is more than a personal choice. It broadcasts to everyone who can see the headscarf: “Wearing a headscarf is okay.” Teachers wearing headscarves amplify this broadcast through their position as an authority figure. The existence of this amplified broadcast supports headscarf restrictions only where regulators already disagree with the statement, believing that headscarves ought not to be worn. As such, this proposition cannot, on its own, justify headscarf regulations.
Some stress that headscarves shatter the illusion of homogeneity. In Germany and India, proponents justified headscarf restrictions partly by arguing that wearing headscarves disrupts social order. When a Muslim woman or girl wears a headscarf, she is visibly Muslim. These proponents argue that by advertising one's Muslim-ness, a student causes the bullying and spite directed at her by other students and that a Muslim teacher is to blame when community members are incensed that a Muslim woman is allowed to teach children. This proposition supports headscarf regulation only where regulators believe (1) people have a duty to dress “normally” in public and (2) “normal” does not--and should not--include wearing headscarves. Neither premise is self-evident.
Some fear that headscarves undermine secularity and state neutrality. Regulators in each country assessed in this Comment argued that allowing individuals to choose whether to wear headscarves or not violates religious equality. Building off of the previous argument, proponents of regulations argue that religious beliefs cannot justify behavior which deviates from “normal.” In this framework, accommodations of religious practices do not promote equal access to education and opportunities; rather, they violate the equal enforcement of facially neutral rules--even where those rules disproportionately harm specific religious groups.
Arguments supporting headscarf regulations rest on deeper assumptions that headscarves are inherently harmful. Many proponents of these regulations argue that wearing a headscarf is inherently oppressive. It is true that many women wear headscarves because of coercion--state or private. This is oppression; it robs women of their agency to decide how to present themselves. It is also true that many women wear headscarves because they choose to. Regulations on headscarves also are oppression; they force women to choose between their education or career and their ability to decide how to present themselves. This choice is hardly free.
Headscarf related oppression is contextual. Where a state or society mandates headscarves, choosing to not wear a headscarf can be liberating. Where a state or society restricts headscarves, choosing to wear a headscarf can be just as liberating. The headscarf is not so simple as to mean one thing in every time and place.
After grappling with arguments and assumptions purportedly justifying headscarf regulations, each country assessed in this Comment has entertained arguments in favor of lifting them. In the last decade, both Germany and Turkey made impressive strides in this regard; however, their methods were markedly different. Germany's constitutional courts recognized that the country's freedoms of faith and profession of belief include a teacher's choice to wear a headscarf. Through official statements and parliamentary by-laws, Turkey lifted its extensive headscarf bans in spite of then-existing constitutional rules to the contrary and a history of military influence--some instances stronger than others--intended to maintain the bans.
India now faces a similar issue: whether to allow students to wear headscarves in state-run schools where mandated uniforms do not include headscarves. India, and other secular states, should avoid the temptation to maintain and legitimize an illusion of homogeneity. If the Indian Supreme Court looks to the examples of Germany and Turkey, it will find that secularism does not require banishing religion to the inner life of the citizen. Instead, secularism can be a powerful force for pluralism, ensuring that dominant groups cannot regulate minority groups--or at least their conspicuous identifiers--out of existence.
J.D. Candidate 2025, University of Wisconsin Law School.
