US Air Force Allows Hijabs, Turbans, Beards: Hope For Minorities?

Nations have diverging notions of religious freedom under international law, shaped by culture and politics.

In what may be a glimmer of hope to international human rights law, the US Air Force recently updated its dress code to allow hijabs, turbans and neatly kept beards as part of their uniform. This move will enable religiously observant minorities like Sikhs and Muslims to serve in the force, staying true to their faith. In light of this development, this article discusses whether there is a coherent notion amongst states regarding freedom to manifest religion under international legal theory.

Article 2, Article 18 and Article 27 of the Universal Declaration of Human Rights, 1948  grants all individuals the freedom of religion without being discriminated. Article 2, Article 4 and Article 18 of the International Covenant on Civil and Political Rights, 1966 further broadens these provisions, and specifically includes the freedom to manifest religious symbols and attire such as hijabs, turbans and beards. However, this freedom to manifest religion can be curtailed by prescribed law based on subjective terms such as “to protect public safety, order, health or morals or fundamental rights and freedoms of others.”

Since these are vague terms with no agreed-upon definitions, states often design laws in the interest of the majority community, while religious obligations of minority communities are overlooked, as observed in the following cases.

Religious Minorities’ Compromise

In Karnel Singh v. Canada Human Rights Committee, it was decided that the requirement to wear a safety helmet at the workplace by removing the turban is a restriction justified by the ground “to protect public safety” – and the limitation is proportionate and necessary to the object it sought to achieve. Thus, we gather that if the limitation is justified, violation of freedom to manifest religion cannot be claimed.

In Leyla Şahin v. Turkey, Leyla’s right to wear the hijab to medical school was restricted by the institution. The European Court of Human Rights (ECHR) decided that since the limitation imposed by Turkey was to safeguard the secular character of educational institutions, it is both proportionate and necessary. This decision of the ECHR is particularly problematic since, as long as indirect discrimination in the manner faced by Leyla is justified, the inequality of outcome is excused.

For this reason, religious minorities would constantly have to compromise their freedom to manifest religion, as there is always the possibility of the adjudicators finding the restrictions on them proportionate and necessary.

In another case with similar facts, Raihon Hudoyberganova v Uzbekistan, Raihon was prohibited from wearing the hijab inside university premises and the infringement of rights was examined by the United Nations Human Rights Committee (UNHRC). Considering the fact that Uzbekistan could not furnish any justification as to why the restriction on wearing the hijab would be necessary or proportional, the UNHRC decided that Raihon’s freedom to manifest her religion had been violated.

Similarities Between ECHR & UNHRC’s Approach To Religious Freedom

From this discussion emerges the extreme similarity between ECHR and UNHRC regarding limitations on religious manifestations. The ECHR ruled that since Turkey could justify its decision to limit the student’s freedom to wear the hijab, the limitation is valid. Following the same line of reasoning, the UNHRC quashed the limitation by Uzbekistan on students to wear hijab, as the state could not justify its actions. Thus, had Uzbekistan provided a sound justification as to why the limitation was necessary and proportional, such a limitation would have been upheld.

Therefore, both the ECHR and UNHRC employ an identical and problematic approach in this matter – states enjoy the power to limit religious manifestations as long as they furnish a sound justification, rendering this freedom effectively non-existent to people who follow religious obligations sincerely.

According to international law scholars, states limit the manifestation of religious symbols and attire on typically three reasons: to protect public order, to protect fundamental rights and freedoms of others, and to protect women from discrimination (concerns of autonomy and gender equality). However, they emphasise that none of them adequately provide a valid justification for the same.

Thus, it can be inferred that states have diverging notions regarding freedom to manifest religion under international legal theory, shaped by culture and politics –often designed to overlook minorities who have to comply with their religious obligations.

Bearing this in mind, the updated dress code of the US Air Force is certainly a step forward in the accommodation of all faiths, but one needs to take this development with a pinch of salt. After all, President Obama was compelled to declare himself Christian in order to debunk conspiracy theories that he is a Muslim – a tell-tale sign of the religious intolerance deeply-rooted in the United States.

(M. Koshy Mammen is a B.A., LL.B. (Hons.) graduate from Jindal Global Law School, Sonipat. Apart from commercial law, he has a keen interest in international human rights law and refugee law.

Shabna Steephan is a B.B.A., LL.B.(Hons.) graduate from Jindal Global Law School, Sonipat. She intends to pursue her masters with a special focus on Public International Law. She can be reached at [e-mail].

This is an opinion piece and the views expressed are the authors’ own. The Quint neither endorses nor is responsible for them.)