Understanding the EU Human Rights Court’s Big Ruling on France’s Headscarf Ban

The 2011 French law banning women from wearing the burqa or niqab in public was upheld by the European Court of Human Rights (ECHR), in a decision released on July 1. The ECHR, established in 1959 through the European Convention on Human Rights, is supposed to rule on cases where EU member states are violating human, civil and political rights laid out in the Convention. Its decisions are final, and no appeal can be made. In this particular case, an anonymous French woman brought her case to the court, arguing that the law violated her rights and freedoms, including freedom of religion, of expression, and her right to privacy.

The law in question, which came into effect in France in 2011, was supported by a huge majority in France’s legislative chambers. In fact, there appears to be a general consensus in France concerning the fact that the burqa and niqab have no place in French society. Opinion poll after opinion poll show that a significant majority of respondents – regardless of their political affiliation – support the ban. The predominant sentiment is that if one wishes to live in and benefit from what France has to offer, one must respect the secularist nation’s societal choices. Many argue that the facial coverings are the outward symbols of a patriarchal, oppressive culture which belittles women and is not compatible with the “liberté, égalité, fraternité” values of French culture.

Interestingly, the law does not prohibit only religious coverings, but bans all full-facial coverings – as such, motorcycle helmets and balaclavas also fall under this law. But the intent and the spirit of the law has been clear since it was first presented by the Sarkozy government back in 2010: the burqa and niqab do not “fit” in French society. While the law only directly affects an estimated 1,500 or so women in France – a very small fraction of the overall Muslim population – it has had a polarizing effect. In a socio-political context where there is constant tension and heated debates over immigration and “French identity”, and a corresponding, steady rise of support for extreme right politics, French Muslims and Muslim immigrants in France feel targeted and stigmatized for their beliefs and their religious and cultural practices.

The ECHR decision was not surprising – the Court is not known to go against the interests of member states. In 2011, a former ECHR judge wrote about the “reluctance [of the court] to find violations in sensitive matters affecting the interests of the respondent States.” Indeed, this particular law – in spite of its majority support – is highly controversial in France. As noted above, it has lead to increased polarization, and is a hot button issue. The ECHR did not recognize the arguments put forward by France that the ban was necessary on security grounds, but decided to uphold the law based on the argument that it was needed for improved social cohesion, in order to preserve the conditions to “live together” (“la préservation des conditions du ‘vivre ensemble’.) In France, it seems, to “live together” means to adopt the social mores dictated by the State. 

Photo credit: Charles Roffey’s Flickr photostream