Professor Frances Raday Comments on SAS v France
In the Grand Chamber judgment in the case of S.A.S. v. France, the European Court of Human Rights held, by a majority, that Law no. 2010-1192 of 11 October 2010 which made it illegal for anyone to conceal their face in public places did not violate the European Convention of Human Rights. Further details of the judgment, and comment, may be found in both Professor Vickers’ recent post and Julie Maher’s post.
The Court directed its inquiry to verifying whether the ban was necessary in a democratic society for protecting the rights and freedoms of others. The French Government had listed three values in that connection: respect for gender equality, respect for human dignity and respect for the minimum requirements of life in society (or of “living together”). While dismissing the arguments relating to the first two of those values, the Court accepted that a veil concealing the face in public raised a barrier against others which could undermine the notion of “living together” and therefore could be regarded as necessary for protecting the rights and freedoms of others in a democratic society. The dissenting opinion pointed out that the very general concept of living together does not fall directly under any of the rights and freedoms guaranteed by the Convention and that, moreover, the blanket ban could be interpreted as selective pluralism and restricted tolerance. The dissenting opinion has been widely endorsed by civil society organisations. Indeed ‘unease’ when encountering the ‘other’ can scarcely be considered a good stand-alone ground for restricting a minority’s cultural practices. It is a good ground only where the unease arises from the violation of human rights by the minority practice, and, in the present case, the unease arises from the practice’s depersonalisation of women. The community has a valid interest in negating the message to all women that they are required to be self-effacing in order not to be immodest, and in preventing, as I have called it elsewhere, the shadow effect of gendered modesty.
It is my aim to question the ease with which the aim of securing gender equality and women’s dignity by banning the burqa was unanimously dismissed by members of the Court and indeed, similarly rejected by constitutional instances, in Spain and the Netherlands, and civil society organisations, such as Amnesty International, and the Open Society Initiative. All these have emphasized the intersectional discrimination which a ban on full-face veiling creates for Moslem women who wish to wear the full-face veil and the violation of their constitutional freedom of choice. However, the discriminatory impact of giving license to the full-face veil on women’s autonomy and freedom of choice has not been satisfactorily considered.
Islam – like the other monotheistic religions – although requiring both men and women to be modest, imposes on women the burden of maintaining modesty codes. Modesty in the monotheisms is gendered and is designed to preserve patriarchal control of women’s sexuality, the family and the public space. Full-face covering is regarded as a modesty dictate by some followers of Islam, although it is not expressly required in the Quran. It is at the extreme end of the spectrum of gendered modesty mechanisms and is integrally related to a patriarchal regime which submits women to men’s power. The cost to the wearer is the negation of the opportunity to move freely and interact fully with others in the public space; the health cost of being prevented from receiving full medical care from male doctors; the impossibility of participating in any occupation that requires facial communication; and the restriction of mobility by loss of field of vision. Moslem feminist activists have called this not a form of dress but a canvas prison.
The Court does not doubt that gender equality might rightly justify an interference with the exercise of certain rights and freedoms. In this, the Court echoes the caveat of international human rights instances that freedom of religion and conscience cannot justify discrimination against women. However, the Court takes the view that a State Party cannot invoke gender equality to ban a practice that is defended by women unless it were understood that individuals could be protected on that basis from the exercise of their own fundamental rights. Here the Court has failed to acknowledge that harmful traditional practices such as female genital mutilation and discriminatory religious practices such as polygamy are regarded under international law as violations of women’s human rights which should be prohibited, whether or not there are women who defend them.
Nor is the consent argument empirically persuasive. For every woman in a liberal democracy who chooses the burkah there are other women who are compelled to wear the burkah in the context of family or community patriarchal control. The cases in which girls flee from family homes in immigrant communities in Western liberal democracies, in order to avoid being sent abroad for female genital mutilation or forced marriage, provides evidence of the ongoing force of religious patriarchy. Furthermore, globally, many millions of the women who wear burkahs do not choose to wear them but are forced to wear them in regimes where modesty police will impose corporal punishment for their failure to do so. The choice of a handful of women in democratic countries to wear the burkah is perhaps an ethnic and religious identification symbol but it is also a symbol of identification with women’s oppression. The justified fear of human rights protagonists that criticism of Moslem religious practices in Europe is an instrumentalist weapon of ethnic hatred should be addressed but cannot justify condoning practices harmful to women.
Full-face covering depersonalizes women in social interaction and is harmful for their freedom of expression and freedom of movement and, often, for their access to healthcare. In a democratic society it is necessary to protect the rights and freedoms of women, including by providing effective regulatory frameworks to protect them against harmful practices. The legitimacy of the French Law should have been considered in this context.
Professor Raday writes in her academic capacity, and not in the framework of her work as a mandate holder of the HRC.
For more information on the shadow effect of gendered modesty, please see Frances Raday, Modesty Disrobed – Gendered modesty rules under the monotheistic religions, in Feminism, Law and Religion, Eds Susan J. Stabile, Marie A. Failinger and Elizabeth R. Schiltz, Ashgate Publishing Ltd, 317–283 (2013).