In general, headscarves or face veils are not forbidden in Bosnia and Herzegovina. However, for public employment such as in the judiciary, police and army forces, women are not allowed to wear a headscarf or face veil. Laws of these institutions generally forbid wearing religious symbols at the employment. But we must question who is most affected by these bans. We argue that the latest constitutional jurisprudence of the Bosnian Constitutional Court, which upheld bans on displayed religious symbol effectively only target Muslim women wearing a headscarf.  Bearing in mind that the constitutionality of having a beard in the Armed Forces as a religious manifestation has already been confirmed, to the best of our knowledge, there has been no case before the Court where an applicant of another religion complained about bans on religious symbols. This can be explained by the practical fact that other religious symbols, such as a cross, can be worn under a uniform. Thus, wearing such a symbol does not challenge or disrupt state neutrality. However, a hijab, as a religious symbol, cannot be hidden. Therefore, we argue that upholding state neutrality in religious matters within the Bosnian Army Forces, in order to permit headscarf bans, constitutes intersectional discrimination against Muslim women.

The headscarf dispute began after Emela Mujanović, as a soldier of the Bosnian Army Forces, challenged the headscarf ban at her employment before the Constitutional Court after she exhausted all domestic legal remedies (Case no. AP-1795/21). Mujanović’s main argument was that the religious symbol ban in the Bosnia Army Forces infringes her religious rights, the right to private and family life and her right to non-discrimination as a woman. We will focus on the last argument since it contributes to our thesis of intersectional discrimination of Muslim women in the Bosnian constitutional jurisprudence.  Mujanović argued that as a woman she was not allowed to wear a headscarf at employment, while at the same time men were allowed to have beards as a religious manifestation (para. 71). The Court, in its particular response to this argument, explained that having a beard does not per se constitute an only religious symbol. Having a longer beard, as the Court argued, can also be related to lifestyle, fashion, or any other personal beliefs (para. 71). On the other hand, the Court explained, a headscarf constitutes an exclusively religious symbol (para. 51). Referring to the ECtHR jurisprudence concerning hijab cases, the Court stated that this ban is necessary in a democratic society (para. 64). In other words, it proportionately protects the neutrality of state institutions by prohibiting the wearing of religious symbols, including a hijab (para. 71). Therefore, according to constitutional jurisprudence – beards are allowed, and headscarves are not – in the Bosnian Army Forces. In other words, under the seemingly neutral norm that forbids religious symbols in the Army Forces, the Court concluded that Muslim men can have a beard, while Muslim women cannot wear a headscarf.

Intersectional discrimination entails discrimination on multiple grounds, and in the case of a hijab ban, both religion and gender are implicated. The Court in this case failed to consider that a headscarf is not merely a religious symbol. A headscarf is at the same time a women’s symbol and constitutes an inseparable part of women’s identities. Muslim women’s resistance to taking off their headscarves despite headscarf bans (like in France) that obstruct them from pursuing their careers, like in Mujanović’s case, contributes to this thesis. Moreover, Mujanović’s resistance to take off her headscarf, despite impairing her career in the Army, entails that a headscarf constitutes something more than a religious symbol for her. Muslim women face a lack of career opportunities because, wherever religious symbols are prohibited, their choice to wear a hijab limits their employability. Therefore, the Court failed to consider the broader implications of this judgment, as the hijab (religious) ban infringes not only on the religious rights of Muslim women but also on their entire lives and careers as women. Thus, by neglecting to consider the intersectionality of the hijab ban, the Court allowed the intersectional discrimination of Muslim women in Bosnia and Herzegovina.

Yet research, including the work accomplished by Project Implicit, has increasingly revealed the limits to which an individual is able to be impartial and objective regardless of their profession. This post summarizes research aimed at uncovering the influence of gender within the judiciary of Bosnia and Herzegovina.

In 2013 DCAF, a centre for security, development and the rule of law in Geneva, and the Atlantic Initiative, an NGO promoting Euro-Atlantic integration in Bosnia and Herzegovina (BiH), conducted research looking into the influence of gender within the judiciary of BiH. The views and opinions of approximately 161 judges, prosecutors, attorneys, and court associates were captured through an anonymous online questionnaire and in-person interviews. The research revealed the influence of gender, whether real or perceived, in both the social and professional relationships of court professionals, and on judicial practice and decision-making.

Questionnaire and interview data identified a number of ways in which gender-related attitudes or behaviors can impact the atmosphere of the judiciary and collegial relationships among and between members of the judiciary. For example, the online questionnaire found that 24% of respondents had either witnessed or personally experienced a member of the judiciary being called or referred to by a name other than their title or surname (i.e. honey, sweetie, young man, etc.) in the courtroom or courthouse. This data was reinforced by a number of anecdotes shared during interviews. One female attorney recounted being called ‘girl’ in court by a male attorney. Another female, a judge, recalled a male judge turning to her during a judicial panel proceeding and asking, “What did you want to say, beautiful?”

Women represent approximately 60% of all judicial appointments in BiH. Perhaps not surprisingly, gender stereotypes were routinely used to explain this phenomenon. For example, one female judge framed the gender balance of judges in the following way:

There are more women [in judicial positions] because this is a very hard job with a large case load and women are harder working and more responsible than men. Men tend to stay away from the position of judge because this job is no longer very valued and is not properly rewarded. 

In contrast, a number of male interviewees minimized the work and role of judge. One male judge suggested that the reason there are more women in judicial positions is because the job is, in fact, less strenuous than other jobs. A male prosecutor went so far as to link the gendered nature of power relations between women and men to the representation of women in the BiH judiciary. He postulated: 

Maybe because women are subordinate to men at home, that is the reason they apply for the position of judge; in this position they are dominant at work, which compensates for their situation at home.

These responses provide examples of gender stereotyping by both women and men in the judiciary. Women distinguish themselves as better suited for legal positions in relation to their ‘natural’ characteristic of being harder working and more responsible than men – and by contrast suggest that men are not hard working and responsible. Men characterize women as innately less capable (by characterizing the job itself as not difficult) or motivated by a desire for power and domination (in contrast to an interest in the law or justice).

Lynn Hecht Schafran, director of Legal Momentum’s National Judicial Education Program to Promote Equality for Women and Men in the Courts (NJEP) argues that this “stereotypical thinking about the nature and roles of women and men” is one of the most prominent ways in which gender bias influences court operations, procedures, and decision-making. And indeed, the sum of these reflections, from referring to a woman as a girl or ‘beautiful’, to believing that women are in judicial positions because the job is easy (men) or that women are in judicial positions because they are harder working and more responsible (women), actively contributes to an environment in which impartiality, or at the very least, the appearance of impartiality, are difficult to achieve.

A publication entitled “Gender and the Judiciary: Selected findings and recommendations on the implications of gender within the judiciary of Bosnia and Herzegovina” with more findings is available in English and Bosnian. A complete report detailing the research is expected in September 2014 and will be available on the DCAF website.