The (Law of Europe’s) Burqa Bans in a Nutshell

As a would-be traveler (c’mon vaccine roll out!) I think from time to time about the challenges that, even in a world free of the Coronavirus, could impede cultural exchange and learning. And as a lawyer, and citizen of the EU, among other places, I think about the legal questions arising in the context of intensifying political, cultural and even religious contradictions and frictions.

Which led me to think a bit about Europe’s burqa bans. Not exactly a post pandemic issue, but super interesting nonetheless. Especially if you’re a lawyer. I’m adding footnotes to this post because if you’re reeeallly nerdy (and read French) you might find them quite helpful.

France enacted the first European ‘burqa ban’ in 2010 with a law that made it a criminal offense to cover the face in public.[1] The law reads, in rather unambiguous terms:

“No one may, in public places, wear clothing that is designed to conceal the face.”[2]

Punishment for covering one’s face is a fine of 150 Euros, and/or participation in a citizenship course.[3] The law also criminalized, “any person who forces one or more other persons to conceal their face, by threat, duress, coercion, abuse of authority or of office, on account of their gender, shall be liable to imprisonment for one year and a fine of 30,000 euros.”[4] In addition, “where the offence is committed against a minor, such punishment shall be increased to two years’ imprisonment and a fine of 60,000 euros.”[5]

In principle, the law is intended to have some safeguards — a number of which that have become essential in an age of COVID-19. Exceptions to the law include “if the clothing is prescribed or authorized by primary or secondary legislation, if it is justified for health or occupational reasons, or if it is worn in the context of sports, festivities or artistic or traditional events.”[6] Thus masks for diminishing the likelihood of virus transmission are entirely permissible.

Additionally, courts have interpreted protections for religious worship–even where, notably the original law did not. Most notably, the Conseil Constitutionnel (France’s highest court) found the French veil ban cannot apply in places of worship without violating France’s Declaration of the Rights of Man and the Citizen of 1789.[7]

Now, French courts aren’t the only ones who have spoken on the ban. But before jumping into larger EU issues, it’s worth highlighting that the French ban isn’t the only one. More recently, Switzerland enacted a ‘burqa ban’ in March 2021 by a nationwide referendum vote[8] where a notable 51.2 percent of voters supported the ban on full facial coverings.[9] The referendum’s text, on which Swiss citizens voted, mirrored in many ways that of France’s law, and the question at issue was whether to adopt the following mandate:

“No one may hide their face in public space, nor in places available to the public or in which services are provided that are usually accessible to everyone.”[10]

The law also reads, “No one may compel a person to conceal his face because of his sex.”[11]

Exceptions to the law include justification “by health or safety reasons, for climatic reasons or for local customs.”[12]Also, “the ban is not applicable in places of worship.”[13]

There were some critical differences, however. The Swiss mandate is the product of a referendum, not governmental action. Indeed, both the Swiss government and parliament opposed a nationwide ban, and instead proposed an alternative approach whereby people would only be required to show their faces to the authorities, and even then only if it was necessary for identification, for example at borders.”[14]

Nevertheless, both the French and Swiss laws are generally known as ‘burqa bans,’ but both are written broadly to appear facially non-discriminatory.[15] Although the French law is much more detailed at this point, Swiss officials have two years to write legislation to put the new burqa ban law into effect.[16]

Not surprisingly, EU level institutions have been drawn into the process. Arguably most notable was S.A.S. v. France, a 2014 decision rendered by the European Court of Human Rights (ECHR) brought by plaintiffs challenging the country’s burqa ban on the basis of a violation of religious freedom.[17] (The ECHR is a tribunal of the Council of Europe, established by a treaty unrelated to that which launched the EU but is, as its name implies, the bloc’s most powerful supra national human rights court and its decisions have widespread impact, not just in the EU but also around the world.)[18]

The case was highly anticipated, with many believing given the ECHR’s moorings, would likely nullify the law;[19] but, contrary to these expectations, the ECHR held that the Franch ban did not violate the right to freedom of religion of a Muslim who chose to wear a full-face covering.[20] As a central component of its reasoning, the ECHR concluded that France’s interest in promoting social cohesion and the concept of “living together” in a diverse society was a legitimate State interest and prohibiting full face coverings was necessary to meet that interest.[21] In the wake of the decision, several countries in Europe, encouraged by the unexpected discretion provided in the decision, began discussing whether to create similar laws banning the burqa in public places after this decision took place.[22]

Legally, the story didn’t end there as the question gained international traction. In 2018, the United Nations Human Rights Committee (UN HRC) found that the French burqa ban violates the rights of women who wear full-face veils for religious reasons, a conclusion directly at odds with the ECHR’s 2014 S.A.S. v. France decision.[23] The case was brought after two women were stopped for identity checks while wearing a niqab on the streets of France.[24] Both women were convicted and fined 150 euros under the 2010 French law.[25] The UN HRC concluded that banning the right to wear the niqab violated articles 18 and 26 of the International Covenant on Civil and Political Rights (ICCPR).[26] France’s prohibition on face veils was found to be a restriction on the general right to religion (ICCPR article 18) and the right to nondiscrimination (ICCPR article 26).[27] However, there are few if any means to obligate France, a member of the UN Security Council, to comply with the ruling.

EU jurisprudence continues to afford considerable discretion to states. In most countries, employment and schools are secular arenas for integration and women or girls with hijabs can legally be banned from both.[28] A review of the case law, indicates a legitimization of private workplace bans on headscarves.[29] In both Achbita v. G4S Secure Solutions, and Bougnaoui v. Micropole SA, the European Court of Justice (ECJ) held a workplace blanket ban on wearing any signs of religious or political beliefs did not constitute direct discrimination. After reviewing the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, the ECJ reasoned the neutral nature of the workplace bans did not amount to direct discrimination. Various Swiss and French case law have upheld workplace bans on headscarves and veils with similar reasoning as well.[30]

Still, the question isn’t entirely settled, at least from what I can tell. Article 10 of the EU Charter of Fundamental Rights protects the freedom of thought, conscience and religion.[31] Article 11 guarantees the freedom of expression, including the freedom to hold opinions and to receive and share information and ideas without interference.[32] Article 10 has not been interpreted in any EU cases involving national veil bans. However, like ICCPR article 18 and 26, Article 10 of the EU Charter of Fundamental Rights could be relevant to addressing veil bans in the future.

[1] Loi 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Law 2010–1192 of October 11, 2010 Prohibiting the Concealing of the Face in Public Spaces].

[2] Id.

[3] Texte adopté n° 524 — Projet de loi interdisant la dissimulation du visage dans l’espace public.

[4] Loi 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, Section 1, Article 225–4–10.

[5] Id.

[6] Loi 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, Article 2.

[7] CC, decision n! 2010–613 DC, 7.10.2010, Loi interdisant la dissimultation du visage dans l’espace public.

[8] Arrêté fédéral relatif à l’initiative populaire Oui à l’interdiction de se dissimuler le visage, du 19 juin 2020, [Federal decree relating to the popular initiative “Yes to the banon hiding the face “of June 19, 2020]. See Nick Cumming-Bruce, Swiss voters narrowly approve a ban on face coverings, N.Y. Times (Mar. 7, 2021), https://www.nytimes.com/2021/03/07/world/europe/switzerland-ban-face-coverings.html.

[9] See Cumming-Bruce supra, note 7.

[10] Arrêté fédéral relatif à l’initiative populaire Oui à l’interdiction de se dissimuler le visage, du 19 juin 2020.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] See Sigal Samuel, Banning Muslim Veils Tends to Backfire — Why Do Countries Keep Doing It?, Atlantic (Aug. 3, 2018), https://www.theatlantic.com/international/archive/2018/08/denmark-burqa-veil-ban/566630/.

[16] See Cumming-Bruce supra, note 7.

[17] SAS v. France, 2014-III Eur. Ct. H.R. 341 ¶ 106–07.

[18] Hilal Elver, The French burqa ban, OUPblog (Aug. 17, 2014), https://blog.oup.com/2014/08/european-human-rights-burqa-ban/.

[19] The ECHR was established in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights as to the 47 Member States of the Council of Europe that have ratified the Convention. See The Court in Brief, Euro. Ct. OF Hum. Rts., https://www.echr.coe.int/Documents/Court_in_brief_ENG.pdf (last visited Sept. 8, 2020).

[20] Id.

[21] Id.

[22] Id.

[23] See U.N. Doc. CCPR/C/123/D/2747/2016 (2018); Miriana Hebbadj v. France, 17 July 2018, Human Rights Committee, Communication №2807/2016; Sonia Yaker v. France 17 July 2018, Human Rights Committee, Communication №2747/2016.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Heidi R. Gilchrist, Article: ‘Act Normal or Leave’: When Law and Culture Collide, 26 Colum. J. Eur. L. 54, 59 (2021).

[29] See Case C-157/15, Achbita v. G4S Secure Solutions NV, 2017 EUR-Lex CELEX 62015CJ0157; Case C-188/15, Bougnaoui v. Micropole SA, 2017 EUR-Lex CELEX 62015CJ0189.

[30] See Cour d’appel [CA] [regional court of appeal] Paris, Nov. 27, 2013, S 13/029814 (holding a private nursery had lawfully required one employee to remove her jilhab at work in accordance with workplace rule); Dahlab v Switzerland (42393/98) Section V, ECHR 15 February 2001 (Holding a ban on teacher wearing headscarf did not violate her right to freedom of religion).

[31] EU Charter of Fundamental Rights, Article 10: Freedom of thought, conscience and religion, https://fra.europa.eu/en/eu-charter/article/10-freedom-thought-conscience-and-religion.

[32] EU Charter of Fundamental Rights, Article 11: Freedom of expression and information, https://fra.europa.eu/en/eu-charter/article/11-freedom-expression-and-information.