by Emily Pecot
Few garments evoke as much controversy as the hijab. Translated from Arabic as partition, curtain, or barrier, sometimes hijab refers to the headscarf worn by Islamic women, and sometimes it refers to the broader concept of practicing modesty by both men and women, according to the Women’s Islamic Initiative in Spirituality & Equality, a global organization dedicated to promoting women’s rights. For this reason, it is often referred to as practicing hijab or wearing hijab.
Head coverings for Muslim women come in different forms. The hijab typically fits snuggly from the forehead around the face and drapes down the neck. Nearly half a million Muslim women and girls regularly wear hijab, according to the Pew Research Center. Typically, young women start wearing hijab in public or around non-family males when puberty begins.
Given the visibility of wearing hijab, 69% of Muslim women have encountered harassment and religious discrimination compared to 57% of Muslim men, according to the Drake Institute of Women’s Policy, a national, nonpartisan organization that provides information to government entities in order to improve inclusion, justice, and security outcomes for women. In the United States, federal and state governments cannot prohibit women from wearing hijab, yet Muslim women continue to face restrictions in athletics, schools, and workplaces.
Why choose a head covering?
Some Muslim women consider wearing hijab obligatory under modesty guidelines outlined in the Qu’ran, the central Islamic religious text. Nadia B. Ahmad, a professor at Barry University’s Dwayne O. Andreas School of Law in Orlando, and Asifa Quraishi, a law professor at the University of Wisconsin-Madison, who both teach courses on Islamic law and constitutional law, say it’s not that simple.
In an op-ed for The Washington Post, they wrote, “Whether a woman’s hair is covered is a bad barometer for how religious she is. Some women wear hijab but don’t pray regularly or fast during Ramadan. Many Muslim women do not cover their hair but regularly pray and fast.”
The professors also point out that wearing hijab is not a pillar of Islam, whose five core tenets are faith, prayer, charity, fasting and pilgrimage to Mecca, which is considered the holy land to Muslims.
Oppression vs. personal choice
Some view wearing hijab as a form of religious and cultural oppression, igniting conflict worldwide. The most recent controversy regarding a woman’s choice to practice hijab has been sparked, in part, by protests in Iran, where women and girls over the age of nine have been required by law to wear hijab since 1981.
In September 2022, Mahsa Amini, a 22-year-old living in Iran’s Kurdistan region, died while in the custody of the Iranian morality police. She was allegedly arrested for improperly wearing her headscarf. Amini’s death, after three days in police custody, sparked protests in 80 Iranian cities after reports that she had been mistreated by law enforcement. Thousands of Iranian women took to the streets, removing their headscarves in protest—some burning them.
A month after Amini’s death, the Iranian Legal Medical Organization released a report saying her death was caused by an underlying heart condition and that she had a heart attack while in custody. Amini’s family disputes that finding. According to Iran Human Rights (IHR), a Norway-based nonprofit that is focused on human rights in Iran, more than 154 people were killed during the protests and hundreds were arrested.
In an op-ed that was posted to the website for the Carnegie Endowment for International Peace, a non-partisan international think tank located in Washington, DC, Sara Bazoobandi, Ph.D, who is considered an expert in Arab and Islamic studies, wrote that all over the world women make the personal choice about wearing hijab.
“In Iran, however, it was transformed into a symbol of oppression and marginalization,” Dr. Bazoobandi wrote. “The current rejection of the hijab by Iranian protestors, therefore, does not necessarily equal a rejection of Islam, or Islamic values. Rather, it represents the anger and frustration of the people—namely women—who have been deprived of their basic freedom of choice for decades.”
In July 2023, the Iranian government announced stricter modesty laws for women. The Hijab and Chastity Bill would, among other things, impose a prison sentence of 5 to 10 years for improper hijab, according to a Time magazine article.
In contrast to what’s happening in Iran, Muslim women in France and India are protesting hijab bans. France has consistently implemented policies that promote “strict secularism.” While the country does not ban wearing hijab in public spaces, in June 2023, France’s highest court upheld a ban imposed by the French Football Federation (FFF) on wearing hijab during games. A group of Muslim female soccer players brought the suit against FFF.
The French court put out a statement saying, “The ban enacted by FFF is suitable and proportionate. Sports federations, in charge of proper functioning of the public service whose management is entrusted to them, may impose on their players an obligation of outfit neutrality during competitions.”
The International Federation of Association Football (FIFA), soccer’s world governing body, instituted a similar ban in 2007; however, it lifted that ban in March 2014. The FFF ban does not affect FIFA’s policy.
In February 2022, Karnataka, a state in southwest India on the coast of the Arabian Sea, banned wearing headscarves or religious garb in public schools and colleges. Muslim women protested and a group of Muslim students challenged the ban in court.
India’s Constitution contains “the right freely to profess, practice and propagate religion.” However, in March 2022, the highest court in Karnataka upheld the ban, ruling that the headscarf is not an essential religious practice of Islam. In October 2022, a two-judge panel of the India Supreme Court issued a split verdict, with one judge upholding the ban and the other saying that wearing hijab was “ultimately a matter of choice—nothing more and nothing less.” The case is expected to go before a larger bench of the India Supreme Court to provide a definitive ruling.
Protections in the U.S.
A 2021 study published in the Journal of Ethnic & Cultural Diversity in Social Work found Muslim women who wear hijab are 40% less likely to be hired and remain employed than Muslim women who don’t wear hijab. Wearing hijab is protected in the United States by the U.S. Constitution’s First Amendment right to religious expression. In addition, according to the American Civil Liberties Union (ACLU), under Title VII of the 1964 Civil Rights Act employers are prohibited from denying reasonable accommodations to those practicing hijab.
Wearing hijab has been litigated in the courts in several cases. A 2015 U.S. Supreme Court case—EEOC v. Abercombie & Fitch Stores—concerned the retailer’s “Look Policy,” which prohibited employees from wearing head apparel, including hijabs.
In 2008, Samantha Elauf, a 17-year-old Muslim teenager who practiced hijab applied for a job at an Abercrombie & Fitch store in Tulsa, OK, and was denied a position. Elauf sued Abercrombie for discrimination. In June 2015, the U.S. Supreme Court sided with Elauf in an 8-1 decision. The Court’s ruling holds that the company did not offer religious accommodations under Title VII and that Elauf did not have to explicitly request accommodation.
The Court’s majority opinion, written by the late Justice Antonin Scalia, stated that the law was designed to ensure that “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Justice Scalia wrote, “Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather it gives them favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual…because of such individual’s ‘religious observance and practice.’”
A 2004 school-related case, Hearn and United States v. Muskogee Public School District, involved a sixth-grader in an Oklahoma school who was told by school officials that she could no longer wear hijab because of the school’s “no hats policy” outlined in its dress code. The student’s father sued the school district on her behalf. The U.S. Department of Justice (DOJ) intervened in the case, opening an investigation. The DOJ’s investigation found that the dress code policy had not been applied consistently to all students, allowing hats for medical and educational reasons, as well as other secular purposes, violating the Equal Protection Clause of the Fourteenth Amendment, meaning that the rules must be the same for everyone.
Under the DOJ’s guidance, the parties agreed to a six-year consent order where the school district had to allow religious accommodations for not only the sixth-grader in the lawsuit, but any other student in the school district with a valid religious objection to the dress code. In addition, the district had to agree to implement a training program for school staff on the revised dress code and publicize the revisions to students and parents.
“No student should be forced to choose between following her faith and enjoying the benefits of a public education,” then Assistant Attorney General R. Alexander Acosta said in a press statement. “We certainly respect local school systems’ authority to set dress standards, and otherwise regulate their students, but such rules cannot come at the cost of constitutional liberties. Religious discrimination has no place in American schools.”
In 2022, there was an issue at Mystic Valley Regional Charter School in Malden, MA. An eighth-grader was issued an infraction for violating the school’s dress code for wearing hijab. The school’s “Student Uniform Compliance Form” required girls who wear hijab to provide a letter of justification from clergy or risk receiving an infraction. The school eventually backed off the clergy letter requirement, saying the matter was handled poorly.
While multiple court decisions and federal and state laws protect wearing hijab in the U.S., many institutions, like the American Civil Liberties Union, continue to address persistent discrimination.
- According to the article, Iran requires women to wear hijab, while France and India want to ban the practice. Should a government be allowed any say in how its citizens—in these cases women—dress? Why or why not?
- What dress code accommodations should schools grant? Should they only consider religious accommodation or others as well? Explain your answer.
- The article makes the point that wearing hijab is highly visible. What other clothing or attire would be clearly visible signs of a particular religion?
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
nonpartisan— not adhering to any established political group or party.
secularism—the principle of separation of the state from religious institutions.
tenet—principle or theory.
This article originally appeared in the fall 2023 issue of Respect, NJSBF’s diversity & inclusion newsletter.