Does a ban on wearing the full veil promote women’s equality? An Analysis of the European Court of Human Rights Decision

bikini-vs-burka   The European Court of Human Rights ruled last week that France’s ban on wearing the full veil in public places did not contravene the European Convention on Human Rights.   Although Article 9 of the Convention protects individual religious freedom, the freedom to manifest one’s religion can be limited if it is necessary for “public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”  In S.A.S. v. France, the Court found that the French ban was a permissible restriction on religious freedom because it was undertaken for the “protection of the rights and freedoms of others.”  The Court agreed with France that the full veil undermines the idea of “living together.” In other words, if some women wore a full veil, it would breach the rights of others to live in a space, which made socialization easier. This privileges the view that immigrants should assimilate in society over the notion that a country should embrace diversity. The dissenting opinion pointed out that that concept of “living together” is vague and should not outweigh a person’s religious freedom.

But one of the real issues motivating the ban was dismissed by the Court without much discussion.  Many argue that the hijab is repressive to women and banning it would enhance women’s equality. Others have argued that this position denies agency to individual women who choose to veil. The Court rejected France’s argument that the ban was necessary for women’s equality, because it noted that it was a woman who was challenging the ban.  Indeed, the petitioner argued that it was emancipating for her to wear the veil.

In justifying its decision, the Court relied on a 2005 decision where it found that Turkey’s ban on headscarves in educational institutions did not violate religious freedom, because it was undertaken for the purpose of promoting democracy and secularism.   However,  when considering whether or not the full veil or headscarf is repressive to women, the country context is rarely taken into account by commentators.  In other words, a ban in one country may violate human rights, but it might not in another country. Thus, just because the Court found Turkey’s headscarf ban permissible, it doesn’t automatically follow that France’s ban is also legitimate.        

Amnesty International, Open Society Justice Initiative and a host of other organizations submitted briefs opposing the full veil ban in France.   But if Saudi Arabia (a stark example) bans the hijab (which will never happen), would these groups object? Probably not.  In that country, the hijab is common practice and there is societal pressure for women to wear it.  Whereas in France, some woman have argued that the veil is an assertion of their identity as Muslim and distinguishes them from the majority group.  Additionally, when a state that is Muslim-majority bans the headscarf (like Turkey), there may be different motivations at play than when a state like France (where Muslims are a minority) bans the hijab.  When discussing the question of whether or not the veil ban promotes women’s equality, it is important to take the country context into account.  Even if we assume that the full veil is repressive to women in certain countries, when that practice is imported into another country by immigrants, its significance changes.

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5 thoughts on “Does a ban on wearing the full veil promote women’s equality? An Analysis of the European Court of Human Rights Decision

  1. I would have liked to see more discussion of the fact that the ban directly criminalises women who wear the niqab. There is also a more serious offence of forcing a woman to wear it, but as I understand it that provision has rarely if ever been enforced; the law primarily and specifically targets women.

    The idea of social justice through criminalisation is a questionable one in any circumstances. The idea of emancipating women by criminalising those who resist such emancipation is particularly problematic, and ought really to be the focus of any feminist analysis of this decision.

  2. ” But if Saudi Arabia (a stark example) bans the hijab (which will never happen), would these groups object? Probably not.”

    I don’t understand why you would say probably not. While human rights advocates would celebrate that women are no longer forced to wear the hijab, they can also criticize the government for still not respecting women’s autonomy by not letting them choose to wear one or not. Human rights advocates rarely operate out of a sense of utilitarianism (assuming that banning the hijab will cause a net increase in welfare and thus should be supported) but of principles.

  3. I love this post – if just for the cartoon alone! More substantively, I agree with Bri that this is a challenging issue. I can only share my own reaction when, traveling in Europe, I first came across someone wearing a hijab through which a pair of eyes were just barely visible – I realized I had none of the customary human cues on which I would normally rely and which I consider important to my sense of safety and comfort, particularly in a foreign culture. And I do find it puzzling that there is no requirement for men who share those religious beliefs to be covered to the same extent.

  4. Pingback: Failing to Face the Gender Challenge – note on the European Court of Human Rights Jurisprudence « IntLawGrrls

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