Response to the wearing of a headscarf and/or religious clothing in general education institutions
Wearing a headscarf in general education schools is one of the widely discussed issues in ensuring a secular educational system and a stumbling block in state-religious relations in many countries around the world. There are completely different opinions on this issue amongst academics and politicians; some believe that wearing a headscarf is a threat to the secularism of the educational system and the State, while others believe that wearing a headscarf should not interfere with the right to education. There is no legislative regulation of this issue in the Kyrgyz Republic, however, based on the review of regulatory legal acts, we offer an analysis of addressing disputes arising around the wearing of a headscarf in general education schools. In addition, recently, the parents of schoolchildren, without observing or knowing the rules on school uniforms, send their girls to school in religious attire like a hijab or niqab, while the boys come to school in a long dishdasha shirt, which is traditional for Arabs. In such situations, the administration of general education institutions is faced with a difficult dilemma between observing the secular nature of the education system and ensuring the school uniform requirement, on the one hand, and providing the necessary conditions for obtaining compulsory basic general education for this category of children, on the other hand. What should the general educational institutions do in this situation? In this study, we will try to provide a reasoned answer to all readers.
- State-legal guarantees for the implementation of the right to education
- Are students allowed to attend general education institutions wearing a headscarf?
- The rights of students in general education schools and the basic requirements for school uniforms
- Protection mechanisms in cases where headscarves are prohibited in schools
- What should the administration of the educational institution do if a child comes to school in a hijab, niqab or dishdasha?
State-legal guarantees for the implementation of the right to education
State-legal guarantees for the implementation of the right to education
Article 23 Human rights and freedoms shall be inalienable and shall belong to everyone from birth. They shall be recognised as absolute and inalienable and shall be protected by law and by courts against infringements by anyone. Human rights and freedoms are among the highest values of the Kyrgyz Republic. They have a direct effect and determine the meaning and content of the activities of all state bodies, local self-government bodies and their officials.
Thus, all actions and decisions of state bodies and institutions must comply with the above norms and principles. The right to education shall be one of the fundamental natural human rights, enshrined in Article 46, which states that everyone shall have the right to education and be entitled to receive pre-school, basic general, secondary general and primary vocational education free of charge in state educational institutions.
Further, Article 3 establishes that citizens shall have the right to education regardless of gender, nationality, language, social and property status, health limitations, type and nature of occupation, religion, political and religious beliefs, place of residence and other circumstances. Since the wearing of a headscarf is the result of religious beliefs, accordingly, no one shall have the function of restricting students’ rights and access to education.
Are students allowed to attend general education institutions wearing a headscarf?
Many analysts believe that the wearing of a headscarf threatens the preservation of the principle of secularism of the state, and that this may affect the nature of education in state and municipal educational institutions, established in Article 4. However, Article 1 defines the education system as a set of interacting successive educational programmes and state educational standards of different levels and areas of focus, and does not include such regulations as school uniforms or any other paraphernalia. Wearing a headscarf is an outward expression of religious identity, and the fulfilment of the requirements of religious beliefs and should in no way be perceived as the dissemination of any religious or other beliefs that violate the principles of religious neutrality of the educational system.
The students’ “right to education” should not be subject to restrictions arising from the confrontation between administrative bodies and institutions and the parents of students. Each party of the confrontation puts its values and principles above the education of students. Some categories of parents pursue the values of defining their children’s religion and establishing religious idioms. The educational institution, on the other hand, pursues the principles of secularism. Therefore, to ensure a dispute-free education for such students, the state needs to find a middle ground in determining the maximum permissible presence of a religious component in the educational sphere, without infringing on the religious feeling of believers and at the same time ensure the principle of secularism in educational institutions.
Guided by the above constitutional principles and our conclusions, argued on the basis of the legislation of the Kyrgyz Republic, we can assume that wearing a headscarf in compliance with the school uniform requirements established in the relevant regulations shall not become a barrier to education and any prohibitive measures taken by the management of educational institutions can be assessed as an obstacle to the implementation of citizens’ rights to education.
The rights of students in general education schools and the basic requirements for school uniforms
The main basis for the provision of educational services by state, municipal and private educational institutions is the availability of an appropriate charter of an educational institution, a license for the right to conduct educational activities, as well as a certificate of state accreditation. When enrolling their children in a school, parents must familiarise themselves with the internal and local regulations governing the activities of an educational institution.
Parents can familiarize themselves with the rights and obligations of all participants in the educational process in the following regulatory legal acts: the Constitution of the Kyrgyz Republic of May 5, 2020, the Law “On Education” of April 30, 2003 No. 92, the Family Code of the Kyrgyz Republic of August 30, 2003 No. 201, the Code of the Kyrgyz Republic “On Children” of July 10, 2012 No. 100.
Particularly important conditions for the organisation and operation of educational institutions are regulated by local regulations issued by the educational institution on the basis of legislation and by-laws of superior state authorities of the Kyrgyz Republic. Parents are therefore strongly advised to familiarise themselves with the following local regulations, which should be posted on the official website of the educational institution:
- Students’ internal regulations;
- Regulations on the school uniform and appearance of students;
- Regulations governing the mode of operation of an educational institution;
- Regulations on the current monitoring of progress and intermediate certification of students.
All of the above internal regulations are developed on the basis of legislation and by-laws of the Cabinet of Ministers of the Kyrgyz Republic. Based on paragraph 41, students have the right to respect for human dignity and freedom of conscience and information, and freedom to express their views and beliefs. However, on the other hand, students are obliged to meet the requirements of the general education organisation to comply with the rules of internal regulations, including those related to school uniform.
In order to form and implement the state educational policy and to eliminate signs of social, property and other differences between students, the Government of the Kyrgyz Republic adopted the Regulations “On the introduction of unified requirements for school uniforms in general education organisations of the Kyrgyz Republic”. Paragraph 3.2 of the Regulations elaborates on the basic requirements for the school uniform of girls, depending on seasonal and weather conditions, the style and colour of the school uniform must be consistent with the classic style, in a single colour scheme, with a mix of no more than three colours. The colour of the school uniform shall be chosen from calm and not defiant bright tones.
The main requirement of these regulations is that the school uniform in general education institutions shall be classic in nature and no sportswear and shoes, jeans, beachwear, home clothes and shoes shall be permitted. Thus, the provisions of these regulations do not explicitly prohibit the wearing of a headscarf in schools. At the same time, it is important to note that the administration of an educational institution in its internal regulations cannot put an end to the issue of wearing a headscarf in schools, since local regulations of educational institutions cannot go beyond the scope of legislation and by-laws adopted by superior executive authorities.
In our opinion, the state authorities have deliberately left the issue of wearing a headscarf in schools unregulated, thereby allowing these categories of students to receive education in compliance with the unified requirements for school uniform in general education institutions, yet wearing a headscarf.
Protection mechanisms in cases where headscarves are prohibited in schools
Violations of the rights of students in general education schools relating to wearing a headscarf can take two forms. The first form is when a general education institution, i.e., a school, stipulates in the charter of the school or in the regulations on the school uniform for girls a clause prohibiting the wearing of a headscarf. In the second case, on the basis of this charter, the school administration exerts psychological pressure, threatening to expel girls from the school, etc. According to the Law “On Education of the Kyrgyz Republic”, the technical regulations “On the safety of children’s clothing and footwear”, approved by the Government Decree of October 10, 2012 No. 704 and the Model Regulations approved by the Government of the Kyrgyz Republic of September 12, 2011 No. 541, these two situations on the part of the administration of general education schools shall be illegal.
During the lesson, the teacher shall be responsible for the life, health as well as moral and psychological state of his/her students, while the headmaster of this institution shall be fully responsible for the student during the educational process as well as during the time the students are at school. In the event of moral and psychological harm caused to students during the educational process relating to the wearing of a headscarf, parents can sue the school administration claiming compensation for physical and moral harm. In addition, cases of warning and intimidation of students by expulsion from school for wearing a headscarf can be often identified. However, pursuant to paragraph 49, exclusion of a student who has reached the age of fifteen from a general education organisation is permitted only by decision of the pedagogical council of the general education organisation and with the consent of the commission on children for committing illegal acts and repeated violations of the Charter of the general education organisation as a last resort measure of pedagogical influence.
The Commission on Children, together with parents (legal representatives), within a month shall make a decision on sending the expelled student to another general education institution to continue his/her studies or on his/her employment.
What should the administration of the educational institution do if a child comes to school in a hijab, niqab or dishdasha?
One of the frequently asked questions by teachers of general education institutions and representatives of the social development service of local state administrations is how they should act if schoolgirls come to an educational institution in religious clothing for women like a hijab, niqab or dishdasha. The hijab, niqab, and dishdasha are religious attire for women that must be worn upon reaching the age of majority. While the hijab is a veil that hides the body and / or face, which Muslim women put on when going out, the niqab is a Muslim women’s clothing that completely covers the woman’s body, including the face, except for the eyes and hands. The very concept of “compliance with the school uniform” implies the obligation to wear certain types of clothing established in the above-mentioned regulations. This means a ban not only on the wearing of religious clothing, but also any other clothing that adversely affects the educational environment of the school. For example, a child may not come to school in casual, smart or sportswear, or wearing expensive jewellery, nor may she wear evening, ball or cocktail dresses or miniskirts. The ban on wearing religious clothing in the form of a hijab or niqab means a ban not only on wearing religious paraphernalia, but also other attributes and attire that may disrupt the educational and secular environment of an educational institution.
The harmonisation of school uniforms is aimed at avoiding an excessive variety of school outfits and preventing students from being divided by social, religious, political and other characteristics. The school administration should therefore sensitise parents about the consequences of non-compliance with the school uniform requirements by students. Violation of the school uniform requirement by some students in the form of religious attire in schools may be a cause for violation by others who may come in miniskirts or evening dresses. Therefore, compliance with the requirements of the school uniform established by the state is the golden mean to bring together children of different social statuses, to teach them to observe discipline and general order, and finally to make the student understand that, having put on the uniform, he/she is not going to rest, but to study.
The school administration may, as an alternative solution, suggest to parents and students to comply with the norms of religion of Islam and the requirements of general education institutions to wear a headscarf along with the school uniform. On the other hand, this does not mean that school students can wear religious clothing in the form of khimar, veil, niqab or dishdasha.
Otherwise, the school administration may, with reference to the provisions of paragraph 4, prohibit religious clothing in the form of khimar, veil, niqab or dishdasha in general education institutions, while parents and students must comply with the legal requirements of educational institutions.