Credit: Unsplash by Hasan Almasi
One of the fundamental complexities of the veil is summarised by Amina Wadud as such: “The hijab of coercion and the hijab of choice look the same. The hijab of oppression and hijab of liberation look the same".[1] Wadud points to the fact that Islamic culture is globally shared, making the concept of a single common categorisation of the veil almost impossible. But some lawmakers are yet to understand this critical nuance, as demonstrated by the infamous S.A.S v France (2014) case. By classifying all veiled women as victims, the case denied veiled women their varied subjectivities. The ultimate effect of this legal decision was the collapsing of the complexity of the veil; and, more worryingly, its reduction to a symbol of Islamic oppression.[2]
Veiling is a practice that has existed since ancient times, not only within Islam but also within Christianity and Judaism. It is a sartorial language that communicates social and cultural messages. The style changes depending on the religion, country, community or individual taste. The style of the Islamic veil, for example, can range from the hijab, abaya, jilbab, niqab, khimar, chador or burqa. For many, veiling is a deeply personal symbol of identity. Each woman who chooses to veil does so for different reasons; so, what the veil means to the individual, and their experience of wearing it, will be totally unique.
And yet, despite this complexity, the veil is all too often reduced, ridiculed and attacked. Worse still, it is defined as a dangerous and nefarious force. This article will explore how certain preconceived notions and prejudices shape the language around the veil within the law in particular. Often under the guise of feminism and human rights, the veiled woman is painted as a victim in legal judgements. She is to be “grateful for western liberal legality that seeks to free her from the victimizing – sexual, physical and mental – violence of her religion, her culture and her men”.[3] The S.A.S. v France case provides a particularly powerful microcosm for the sort of prejudices that are seeping into legal judgements.
S.A.S. v France
The landmark S.A.S. v France case concerned the 2010 French ban on full-face coverings in public. The applicant asserted that a full ban constituted a breach of her human rights under Articles 3, 8, 9, 10 and 11 of the European Convention on Human Rights (ECHR). She argued that she veiled voluntarily and that it made her “feel at inner peace with herself”.[4] She had no objection to showing her face for identity or security checks but she felt that, outside of this context, a full ban was inappropriate. In response, the French government made two arguments to justify the ban: first, the notion of “vivre ensemble” (“living together”); and second, the protection of others’ rights and freedoms.
The European Court of Human Rights (ECtHR) ultimately sided with the French government, writing that the French notion of “vivre ensemble” took precedence over the protection of others' rights and freedoms. They thus legalised what, by then, had come to be known as “the burqa ban”.[5] The dissenting opinions of Judges Nussberger and Jäderblom raised some interesting shortcomings that will be expanded on in this article - mentioning that the blanket ban on full-face coverings is a disproportionate measure and unnecessary in a democratic society.[6] They concluded that the blanket ban on full-face veils was not justified by the concerns put forward by the government.
The Shortcomings of S.A.S.
The S.A.S. judgement presents many causes for concern. The ECtHR’s justification did not accept the restriction on the applicant’s freedom of religion based on the ‘usual’ grounds of public safety and gender equality.[7] However, it willingly accepted the restriction based on “vivre ensemble” under the ‘protection of the rights and freedoms of others’ despite this not being a listed or legitimate exception within the ECHR.
The ECtHR recognised that the face plays an important role in social interaction, particularly within the society in question, where open interpersonal relationships would come into question if such a practice evolves in public spaces.[8] However, the court failed to provide evidence or to further analyse that the face plays a significant role in human interaction or that concealing the face would “break social ties”.[9] Instead, the court focused on assessing French law based on its impact on individual rights and the principles of pluralism, tolerance, and broadmindedness.
The court acknowledged that the ban only affected a relatively small number of Muslim women in France. It specifically mentioned that imposing a blanket ban “seemed excessive” when comparing the population of veiled woman and the general population of France. Yet, the ECtHR accepted the restriction.[10] Instead of the court stating the compelling reasons why the ban is problematic, it ought to have followed through with conclusions. This implied that individualisation and democracy were under threat from face covering where practices unaccepted by the majority are not permitted – worse still, such distinctions will be actively ‘eradicated’, ‘erased’ and ‘extinguished’.[11] Ultimately, the court ruled that living together in harmony depended upon Muslim women making a sacrifice.[12]
Another shortcoming, perhaps the most important one of the S.A.S. judgement relates to the fundamental role of the ECtHR. As a supra-national human rights organisation, the ECtHR is required to be a neutral arbiter between state power and the rights of individuals.[13] It could be argued that the court failed to perform its duty to safeguard the rights of individuals, such as veiled women, from undue interference.[14] The legalisation of the blanket ban via the courts promotes normalcy for the government's intervention in people's private lives. This might be interpreted as an ‘extension of state surveillance and disciplinary tactics’ against people who oppose modernism.[15] This not only inhibits interrogation of the State’s intentions for the restrictions placed whereby evidence is contradictory, or no evidence is presented, but also reinforces the State’s control over Muslim women’s bodies.
Consequences of the ban
One of the immediate consequences of the S.A.S. judgement was that it set a precedent for other States to follow suit on the prohibition. This was evident in Belcacemi and Oussar v Belgium (2017), which concerned Belgium’s full-face veil ban introduced on 1 June 2011. Following the precedent set in S.A.S., the ECtHR determined that the veil ban in public places was reasonable under the principle of “vivre ensemble”.[16] They delegated authority to Belgium to act as it saw fit. However, Judge Spano dissented from this, expressing that the Islamic full-face veil in public spaces disproportionately interferes with the applicant’s right to freedom of thought, belief and religion and that such interference does not meet a pressing social need. [17]
The ECtHR had another chance to carefully examine “vivre ensemble” failing to do so in S.A.S. Instead, the court overlooked the ban’s impact on Muslim women by allocating Belgium a wide margin of appreciation. The court’s repetition of “vivre ensemble” creates an environment that only allows religious expressions that are compatible with what the majority thinks. As a result, any protection provided by Article 9 may have to be forfeited under “vivre ensemble”. France and Belgium’s blanket ban as well as the ECtHR’s support in applying wider discretion, pave the way for other European states to press ahead with similar bans. This poses a concern about the overall treatment of Muslims and of their apparent invisibility in Europe.
Another arguable outcome of the S.A.S. judgement is that it risked creating even more hostility towards the veiled woman, further pushing her to the outskirts of the conversation. Islamophobia has risen dramatically in France since the 2015 terror attacks in Paris, and the judiciary’s portrayal of the veiled woman as a symbol of terror has arguably contributed to an atmosphere in which hate crimes against her are becoming more common. Edmunds asserts, since the French veil ban, women who continued to wear the niqab were often met with verbal abuse, physical assault and were spat on by members of society.[18] This practice has seen a rise throughout Europe and in North America with a global increase of Islamophobia disproportionately targeted towards Muslim women.[19] The court rulings are a cause for concern since they determine the future of Muslim women. Arguably, the judgements have created an environment where Muslim women are publicly humiliated, dehumanised and are victims of gender-based violence where armed police officers have forced them to remove their veil.[20]
Mattias Kumm emphasises that in European society, Muslim women are subjugated unless they conform to visual representations of ‘untainted European identities’.[21] The S.A.S. judgement perpetuated this “conformity requirement” by denying the individual autonomy of the applicant. The applicant in particular “experienced no familial influences in her choice to wear a veil”.[22] Thus, the court’s acceptance towards the blanket ban not only appeared impractical, but arguably limited her right to self-expression and religious freedom.
Veiling has been described as bringing ‘physical comfort.” It reflects “the preservation of modesty, a desire to communicate a message about self whether or not connected with religion, ethnic or geographic identity or origin, a sense of empowerment and so on”.[23] Ultimately, the court’s decision cast doubt on Muslim women’s self-confidence, self-respect and self-esteem.
Costello and Ahmed underline that Muslim women's ability to actualize themselves as citizens is hampered, requiring them to choose between being unveiled as "complete" citizens or positioning themselves as "other", in which they strive to express those components of their identity that find form in choice to veil.[24]
Edmunds further asserts that clothing has a long way to distinguish “alien” from “citizen” where the first is cast out from the law and the second reinforces the “order of things”.[25] For example, in relation to a country offering citizenship. It is expected that each individual must abide by the rules and duties to play their part in a democratic society.[26] Arguably, the blanket ban promotes the veiled woman as a ‘bad’ citizen for disobeying the law in choosing to veil. Thus, Muslim women seem unable to rely on the ECHR as a living instrument in order to enforce their human rights to religious freedom.
Costello and Ahmed note, the judgement ‘conversely promotes inequality as some women may be barred from entering public life, education, employment and so on’.[27] As a result, Muslim women are limited in choice and thus are forced to remain indoors segregating them from partaking in mainstream society. The court concurrently rejects women’s voices while expressing a wish for their voices to be heard implying that veiling is only acceptable within frameworks of coercive constraint.[28]
Is representation the key to the answer?
Muslim women’s autonomy is continuously debated. But in this quest to supposedly uphold women’s agency, western culture fails to recognise that the veil may also be empowering. Whether it be in politics, media or public debates, there is either a “complete absence of voices of women wearing the face veil” or a “complete lack of knowledge” on the issue.[29] This not only excludes Muslim women; it also denies them the chance to effect change.
It is entirely up to the individual to determine what the veil means to them. Society as a whole, and the courts in particular, need to recognise that veiling is an indicator of identity for many women. Muslim women, like all individuals, should have the autonomy to shape their own identities and social networks in a way that respects their personal dignity. If democratic states truly believe in free choice as the bedrock of liberty, then why do we restrict this right from Muslim women?
Endnotes
[1] Amina Wadud, qtd. in Róisín Áine Costello and Sahar Ahmed, “Citizenship, Identity, and Veiling: Interrogating the Limits of Article 8 of the European Convention on Human Rights in Cases Involving the Religious Dress of Muslim Women,” Journal of Law and Religion 38, no.1 (2023): 81-107, https://doi.org/10.1017/jlr.2022.58, 93-94.
[2] Irene Zempi, “Veiled Muslim women’s views on law banning the wearing of the niqab (face veil) in public,” Ethnic and Racial Studies 42, no.15 (2019): 2585-2602, https://doi.org/10.1080/01419870.2019.1588985, 7.
[3]Sonya Fernandez, “The crusade over the bodies of women”, Patterns of Prejudice 43, no. 3-4 (2009): 269-286, https://doi.org/10.1080/00313220903109185, 276.
[4]S.A.S. v France, App.No 43835/11 (ECtHR, 1 July 2014), para 43.
[5]Lucy Vickers, “S.A.S. v France: The French Burqa Ban and Religious Freedom”, E-International Relations, September 10, 2014.
[6]S.A.S., [dissenting opinion of Judges Nussberger and Jäderblom, para 2.
[7]Stephanie Berry, “SAS v France: Does Anything Remain of the Right to Manifest Religion?”, EJIL: Talk!, July 2, 2014.
[8]S.A.S., para 122.
[9] Aneira J. Edmunds, “Precarious bodies: The securitization of the ‘veiled’ woman in European human rights”, The British Journal of Sociology 72, no. 2 (2020): 315 -327, https://doi.org/10.1111/1468-4446.12806, 319.
[10] S.A.S., Para 145.
[11] Mohammad Mazher Idriss, “Criminalisation of the Burqa in the UK,” Sage Journals 80, no. 2 (2016): 1-14, https://doi.org/10.1177/0022018316638983, 11.
[12] Edmunds, 319.
[13] Edmunds, 321.
[14] S.A.S., [dissenting opinion of Judges Nussberger and Jäderblom], para 20.
[15] Edmunds, 320.
[16] Belcacemi and Oussar v Belgium, App.No 37798/13 (ECtHR, 11 July 2017), para 75.
[17] Ibid., para 28.
[18] Zempi, 9.
[19] Edmunds, 320.
[20] Ibid., 322.
[21] Costello and Ahmed, 91.
[22] S.A.S., para 43.
[23] Costello and Ahmed, 92.
[24] Costello and Ahmed, 107.
[25] Edmunds, 322.
[26] Costello and Ahmed, 107
[27] Idriss, 7.
[28] Fernandez, 273.
[29] Zempi, 6.
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