TRANSCRIPT: Professor Stéphanie Hennette-Vauchez on the Burkini Judgment 

Daniil Ukhorskiy (0:03) On the 21st of June, the Conseil d’État, France’s highest appellate court for administrative cases, upheld an injunction on a seemingly mundane policy under consideration by the Grenoble Municipal Council. The policy, which applies to all public swimming pools, notably forbade close fitting swimwear longer than the mid-thigh. To the Prefect of Isère, who challenged the policy, the issue was what it allowed — loose fitting swimwear shorter than the mid-thigh, or the burkini, which has been subject to public debate in France since an attempted ban in Nice in 2016. The Conseil d’État agreed with the lower court in the Prefecture of Isère, holding that such policy was an unjustified infringement of the constitutional principles of laïcité, or secularism, and neutrality of government.

Daniil Ukhorskiy (0:47) I’m joined today by Stéphanie Hennette-Vauchez, Professor of Public Law at Paris Nanterre University and Director of the Research Centre on Fundamental Rights. Her work is centred on human rights, gender, freedom of religion, and French public law, the key forces in tension throughout the decision of the Conseil d’État. Stéphanie, thank you so much for joining me today.

Stéphanie Hennette-Vauchez (1:04) I’m happy to be here.

Daniil Ukhorskiy (1:06) What are your key takeaways from the judgement and its reasoning?

Stéphanie Hennette-Vauchez (1:09) Well, I think, first of all, the judgement needs to be read against the context in which the issue arrived before administrative courts. And in fact, it needs to be related to the law of 24 August 2021, which is the law on the Republican principles, or also known as the law against separatism, because the law created a new legal action allowing local representatives of the government, “prefects”, to challenge any decision by any local or municipal authority that they fear might threaten the legal principles of laïcité and neutrality of public services. So, this new burkini affair results from the first application of this new power by the prefect, the Prefect of Isère, which is the region around the city of Grenoble, after the Municipal Council of the city decided to revisit the rule that applied previously in municipal pools in order to allow, as you said, a greater variety of swimwear. And clearly, the rule intended to allow burkini in swimming pools, but it also allowed other forms of previously prohibited or— swimmer of unclear status, such as, for example, monokini. And the prefect decided to challenge the new rule in court, and just a couple of days ago, on 21June, the Supreme Administrative Court did indeed side with the prefect, and considered that the new rule amounted to violation of the principles of laïcité and neutrality of public services.

Daniil Ukhorskiy (2:49) Could you give an overview, and I know this may be a tough ask, but for an audience who’s not as familiar with the French principle of laïcité, and why it’s so important?

Stéphanie Hennette-Vauchez (3:00) Yeah, of course. Laïcité is indeed a constitutional principle that is elevated in Article First of the Constitution — you can’t get more seriously committed than that. So, the French Republic is “laïque”. There is no definition of what it means, and generally speaking we refer the general principle of laïcité to an Act of 1905 that is still in force, that proclaims the separation of the State and the churches. The Law of 1905, in its First Article, proclaims that the Republic must guarantee religious freedom, and Article Two prohibits the State from recognising, subsidising, financing religions. So, Article Two is generally what we consider to be the legal source for the principle of State neutrality in religious matters.

Stéphanie Hennette-Vauchez (3:57) This overall regime or legal understanding of laïcité has been undergoing a lot of changes since the beginning of the 21^st century. Now, the most visible expression of these changes, perhaps, is the 2004 Act that prohibits students from public schools from expressing their religious beliefs while they are at school. And ever since the 2004 law, there’s been a number of other developments subjecting private individuals to obligations of neutrality.

Stéphanie Hennette-Vauchez (4:29) So, I would guess— I would say that, you know, in a nutshell, this is probably the most striking evolution that laïcité has been undergoing. So, from a principle that previously only allowed obligations of religious neutrality for public authorities, it is turning into a principle that justifies an increasing number of obligations of religious neutrality weighing on private individuals.

Daniil Ukhorskiy (4:54) And to some these obligations of religious neutrality could be seen as restrictions on religious freedom. Do you think that the freedom of religion is sufficiently guaranteed in France today? And as a further point, should an approach to freedom of religion take into account the power imbalance and discrimination faced by some religious groups as opposed to others?

Stéphanie Hennette-Vauchez (5:19) I think there is a very valid conversation to be had in— under French law as to whether religious freedom is sufficiently protected. But to be fair, I think it is a conversation to be had in many other legal orders. And in fact, you know, there’s an increasing number of voices that are very critical as to the standards of religious freedom under the European Convention of Human Rights, for example. The one thing on which I would say that French law is indeed very reluctant, or probably underdeveloped, is its ability to incorporate a reflection on the discriminatory aspects of some restrictions on religious freedom that are otherwise legal, even under ECHR standards. And in fact, I find it really interesting that France has been found to be in breach of religious freedom, and in a discriminatory fashion, twice by— recently by the Human Rights Committee, in the burqa ban case and also in a religious neutrality in the workplace case. And what is really interesting is the ways in which these findings by the Human Rights Committee have been met in the French legal landscape. So essentially, they’ve been ignored. And when they haven’t been ignored, they’ve been criticised.

Daniil Ukhorskiy (6:46) Turning to a slightly different aspect of this debate — there are some organisations, including one of the intervening parties in this case, that argues that the veil, burqa, and other forms of face coverings used in Islam is a symbol of the oppression of women. What do you make of this argument?

Stéphanie Hennette-Vauchez (7:04) Well, we have all seen this argument gaining traction in a lot of international and transnational conversations. Now, it is true that France has probably been a very welcoming cradle for this idea to flourish and develop because it is generally considered that a particular controversy in a particular high school in the north of France in 1989 sort of ignited the whole veil conversation. Up to— up until recently, however, this was really an argument that was put forth by a number of intellectuals and, you know, public figures. But there was a lot of pushback from legal actors, and especially from administrative courts. And I would say that here too the 21^st century has been seeing some change. For example, there’s been a number of legal developments in the law pertaining to the acquisition of nationality in which courts have agreed— administrative courts have agreed the argument of the government that women wearing the niqab, for example, are demonstrating their lack of interest and mastery of French Republican principles, including gender equality, and therefore could validly be barred from acquiring French nationality. These recent legal developments are very important, and that’s why it’s such a cause for concern that this first ruling on this first exercise by the local representative of the government of this new form of legal action is concerning.

Daniil Ukhorskiy (8:48) But it’s also impossible to talk about legal developments without taking into account [that] the broader political landscape and electoral politics were shaken up in France —Emmanuel Macron lost his majority, but perhaps more notably, the far right made historic gains in the Assemblée Nationale. What would you hope the future to look like of the national dialogue on these principles?

Stéphanie Hennette-Vauchez (9:09) I would— I would really hope for everyone to agree that there’s been a lot of exaggeration in the redefinitions of laïcité that a number of legal and political actors have been putting forward for the past 15 or 20 years. And my hope would really be for that change to be critically assessed, and for what was truly a Republican tradition, or what was truly in line with a more inclusive (and not perfect, but more inclusive) Republican tradition throughout most of the 20^th century. I think that would be important.

Daniil Ukhorskiy (9:52) Professor Hennette-Vauchez, thank you so much for joining me again.

Stéphanie Hennette-Vauchez (9:55) Absolutely. Thanks so much for the invitation. It’s always great to be with you.