A top European Court has upheld a French law banning women from wearing veils like the burqa and niqab in public, but its reason for doing so has been met with widespread criticism.
The So-Called “Burqa Ban” and the Court Case that Challenged It
The law in question came into force in 2011 and bans people from covering their faces with items of clothing while in public. This was to meet the supposed government concern that face coverings — of all kinds, they stressed — are intimidating in public, pose a security risk and do not serve to foster a sense of community or cohesion. The ban was immediately controversial and made headlines around the world.
Supporters of the ban point out that the law covers balaclavas and hoods, as well as motorcycle helmets which can no longer be worn unless the person is actually riding a motorcycle at the time. However, many critics pointed out that it is undeniable this is a ban that affects Muslim women who choose to wear some kind of veil.
To that end, an unidentified 24-year-old woman simply known as S.A.S, who chooses to wear both the burqa, which is the full face and body covering with mesh over the eyes for visibility, and the niqab, which leaves only the eyes uncovered, challenged that ban. Together with lawyers based in the UK, she argued before the courts that the law violates several key European human rights laws by stifling her ability to express her faith and by taking away her right to determine what she chooses to wear in public. She also alleged that the ban subjects her to unfair discrimination.
In addition, she told the European Court of Human Rights that she was quite prepared to take off the face covering when circumstances said she must, for instance when it came to using public services like banks and airports, and for the purposes of other identification checks.
The French government attempted to have the case thrown out of court, saying that as the ban doesn’t single out Muslims, the challenge was without merit. It also argued that as not all Muslim women wear the veil, S.A.S.’s discrimination claim was unsafe.
The ECHR Decides France’s Ban on the Veil is Lawful
The Strasbourg-based court ruled this week that the French government couldn’t suitably justify the ban based on public safety, or that it actually protects women’s rights because of the government fear that there might be some women who are coerced into wearing the veil by religious parents or spouses.
Instead, and somewhat mystifying for many legal analysts, the ECHR did agree that the French government’s aim at greater social cohesion by banning the veil was a legitimate goal and that, on that basis, the ban is justifiable and can stand.
“The court was…able to accept that the barrier raised against others by a veil concealing the face was perceived by the respondent state as breaching the right of others to live in a space of socialization which made living together easier,” the court’s judgement said.
This has wider implications than just the French law, too. The Belgium government joined this case as a defense for the French law because Belgium also has a ban on face coverings in public. Certain regions of Switzerland have similarly enacted such bans, and analysts anticipate other areas of Europe will soon consider such bans.
Isabelle Niedlispacher, who represented the Belgian government in this case, is quoted as saying that the bans are about “social communication” and “the right to interact with someone by looking them in the face and about not disappearing under a piece of clothing.” Both governments contend that this ban is about social cohesion and not infringing on religious rights.
Yet, critics of the ECHR’s decision, which cannot be appealed, say that it will cause more social disruption, and not less, and serves to injure those who wish to wear the veil as an expression not just of their faith but their cultural identity.
John Dalhuisen, Europe and Central Asia Programme Director at Amnesty International, is quoted as saying, “This reasoning should be deeply disturbing to all those who value the freedom of expression. In forcing people to ‘live together,’ the ruling will end up forcing a small minority to live apart, as it effectively obliges women to choose between expressing their religious beliefs and being in public.”
Undoubtedly, the precedent this ruling seems to set should bother us. The ECHR has effectively decided that governments have the power to ban clothing they feel are not conducive to good social cohesion, no matter their religious significance or a person’s right to self expression. We’re forced to ask, would a mohawk hairstyle similarly provoke? Afterall, some find the “goth” and “punk” aesthetic intimidating. How about miniskirts? Are they “too distracting” to be allowed out in public, a notion Uganda has already had?
Defenders of the decision say there is no legal precedent set by this ban, that it is a narrow ruling within the confines of the law’s boundaries, but it seems incredibly shortsighted to claim this decision has been properly qualified. At the very least, we can say that the nebulous idea of social cohesion is a very low benchmark for legitimizing the French government enforcing a discriminatory law that does impinge on both religious rights and women’s rights to decide how they dress in public.
As a final note, it was also troubling that the French government’s defense of the ban relied in part on the notion that the law would only affect a few thousand Muslims out of the entire Muslim population in France — quite simply, this is no argument at all. Human rights do not diminish in proportion to the minority’s size: if they did, there’d be little point in enshrining articles of protection. Yet, it is telling of how France is framing the issue of Muslim women being allowed to wear the veil.
There are a number of cases working through the courts, and at least one that will be put before the ECHR in the near future, where Muslim women have been terminated from their jobs for no other reason than wearing the veil, and the fear is that this most recent ruling may only serve to embolden more discrimination against Muslim women.
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