The European Court of Human Rights upholds France’s right to ban the headscarf.
Perhaps no other single article of clothing has generated so much debate in recent years, as the Islamic headscarf. These simple, seemingly innocuous garments have become a symbol of larger debates about the belonging of immigrants and the actively religious in Europe and North America. In public debate, Islamic coverings (including the headscarf, the niqab, and the burqa) have come to signify the treatment of women as less then men and come to stand for the belief that Muslims actively desire to “Islamify” western societies.
Conversely, the uncovered Western woman (and those who protect her right to be uncovered) represents the secularism and gender equality that many interlocutors, including liberal feminists, see as pre-conditions for the expression of individual rights. Ironically, this approach leaves no room for the possibility that Muslim women actively choose to wear some form of covering as their desired expression of religiosity.
Concerns over freedom of expression in the public sphere shaped the recent decision of the European Court of Human Rights to allow France to ban face coverings in all public spaces. Immediately after France passed its 2010 ban, a young woman, known by her initials S.A.S, filed a complaint with the European Court of Human Rights because she believed that the French law violated a number of human rights codified in the European Convention of Human Rights (ECHR). The French state in turn declared to the Court (as it had in shaping the law) that wearing a face covering threatened public safety and the need to communicate face-to-face in the public sphere.
On July 1, the Court decided in France’s favor. Surprisingly, the Court did not choose to focus on the public safety arguments that had informed earlier Court decisions on wearing the headscarf (such as the 2004 decision to deny Leyla Şahin the right to wear her headscarf at a Turkish university). Instead, the Court argued that face-coverings were an obstacle to the requirements of “living together”. The Court recognized that France’s ban on face coverings clearly violated some of the rights enshrined in the European Convention of Human Rights, particularly those pertaining to the freedom to express one’s individual identity and freedom of religious expression. However, the Court argued that the French state should be accorded a “very wide margin of appreciation” in protecting the proper functioning of the public sphere.
The face covering ban decision was only the latest installment in French limits on Muslim women’s participation in the public sphere. Headscarf debates first erupted in France in 1989 when a high school principal sent three headscarf-wearing girls home after they refused to take off their veils. The conflict regarding whether schools could teach the key values of republican citizenship to those not yet exhibiting the outward expression of such citizenship, or whether schools needed to demand that students comport themselves as republican citizens from the moment they walk in the door, was decided in 2004 when a ban on wearing ostentatious religious symbols in primary and secondary schools took effect.
In 2009, French debates turned to the face veil—including the niqab, which covers the hair and face, but leaves the eyes visible and the burqa which covers the hair and face with gauze mesh before the eyes—and by 2010 face coverings were banned. Most recently, France’s highest court affirmed that a daycare, Baby Loup, had the right to fire a daycare worker when she refused to take off her headscarf after returning from her maternity leave. The Attorney General had earlier argued that young children (up to age 3) are “particularly impressionable” and that those attending Baby Loup come from “socially fragile families, which makes them even more receptive to [role] models”.[1] These laws and legal decisions show that French understandings of the requirements for participating in the public sphere increasingly stand in tension with public expressions of religiosity.
International Court decisions like those by the European Court of Human Rights bolster narrow articulations of national belonging. In our book The Headscarf Debates: Conflicts of National Belonging, Gökçe Yurdakul and I define national belonging as the subjective feeling of being at home in one’s country and argue that we can see how the parameters of belonging are contested in public debates on personal practices like wearing a headscarf or face covering. French headscarf and burqa debates largely reaffirmed the centrality of republicanism, laïcité, and gender equality in the French national narrative of belonging. Our analysis shows that the resulting French notion of belonging is highly exclusionary: the 2004 ban on headscarves in schools prevented teenagers, who are citizens-in-the-making, from attending school, while the burqa ban passed in 2010 prohibited niqab-wearing women from entering public space altogether.
Comparing France to three other countries that have seen heated debates about the headscarf, we nonetheless argue that headscarf-wearing women are fully capable of articulating claims to belong within the national narratives of the countries in which they live (though those claims are not always recognized by others). In this recent French case, S.A.S. tried to enact such an expansive notion of belonging when she went to the Court. As her lawyers pointed out, S.A.S. sees herself as a proud French citizen who freely chooses to cover herself. Thus, S.A.S. simultaneously claims French belonging and tries to expand the boundaries of belonging by trying to undermine a strong narrative strand in French public debate, which holds that headscarf-wearing women are by definition incapable of freely choosing to wear a headscarf.
The French state, in contrast, positions itself as the protector of the majority and denied S.A.S’s claim to participation in the public sphere while wearing her face covering. Rather than creating a society in which the small number of women who decide to wear a face veil can enact their human rights, the French state argued that it needed to protect the rights of those who would be forced to witness women wearing a face covering. Even though there is clear evidence that we can gauge what people mean without seeing their face (think of talking on the phone or the communicative skills of people who are blind), the Court agreed with France that people should not be forced to expand their definition of who can belong to include those who make us profoundly uncomfortable. In implicitly recognizing a right to be free of the discomfort associated with communicating across difference, the Court denied the rights of face-veil wearing women and bolstered narrow definitions of national belonging.
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Anna C. Korteweg is Associate Professor of Sociology at the University of Toronto. Together with Gökçe Yurdakul, she co-authored The Headscarf Debates: Conflict of National Belonging.
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