The Substance of Substantive Equality: Gender Equality and Turkey's Headscarf Debate
This Article addresses the gender equality arguments advanced either to support or to oppose Turkey's ban on wearing headscarves. As recently as 2005, Turkey defended a challenge to the ban before the European Court of Human Rights. In Şahin v. Turkey, the Court held that the ban did not offend the petitioner's right to religious freedom under the European Convention on Human Rights ("ECHR"). The majority defended Turkey's interest in secularism, in part by tying secularism to the protection of gender equality. The majority opinion reflected the view that the ban freed women from religious beliefs that signify subordination, and liberated them from the societal pressures to adopt certain patriarchal practices. The dissent in Şahin also invoked gender equality, but reached the opposite conclusion: the prohibition on, or stigmatization of, the choice to wear a headscarf in compliance with one's religious beliefs undermined women's autonomy and denied some women access to higher education.
This Article focuses on how Şahin's majority and dissent employ a substantive account of gender equality with very different outcomes in mind. In brief, substantive equality is a departure from classic or formal equality (or treating likes alike) and from equal treatment (ensuring that laws or policies apply to everyone in the same way). Substantive equality, by contrast, is concerned that laws and customary practices do not diminish women's access to societal goods or perpetuate discrimination. The aim of substantive equality analysis is to use law to remedy past and present disadvantage by examining the context or "lived-experiences" of those to whom equality in result is due. As will be discussed further below, the majority opinion and the dissent of Şahin invoke the right to substantive equality based on conflicting accounts of women's experience of wearing a headscarf. This is problematic in one sense because the majority opinion and dissent offered scant reasoning to support their view. But more fundamentally, the Court's reasoning calls into question the usefulness of substantive equality for understanding the implications of Turkey's headscarf ban.