Burkini: where liberté, égalité, fraternité don't apply?

Afsaneh Rigot

02 Sep 2016

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There was an international sigh of relief as the French Conseil d'Etat suspended the controversial burkini banin Villeneuve-Loubet. However, due to the scope of the ruling which legally only applies to Villeneuve-Loubet it has had limited effect on most other towns who are still upholding the ban. 

There has been minimal international pressure from states on the French government to respond, despite calls from the UN High Commissioner for Human Rights for authorities in all the other French towns to take note of the Conseil dEtat ruling.

The ban, in the context of a toxic national dialogue, indicates that France is sacrificing expression rights of a minority for the supposed comfort of the majority, setting a worrying precedent for the right to freedom of expression and freedom of religion or belief for all people in Europe. 

And this is not the first time.

THE BAN

In the last 2 weeks, 15 French towns issued bans on full-body suits worn predominately by Muslim women on beaches- nicknamed the burkini- citing public order concerns following recent terrorist attacks in France. 

Although none of the bans explicitly mentioned the burkini, the target of the ban had clearly been the dress of Muslim women, confirmed by Cannes’s Mayor David Lisnard, and not other religious symbols or dress. The ordinance in Cannes linked beach attire with public safety and recent terror attacks: [b]eachwear which ostentatiously displays religious affiliation, when France and places of worship are currently the target of terrorist attacks, is liable to create risks of disrupting public order. 

The conflation of threats to national security and Islamic dress was echoed by Thierry Migoule, head of municipal services for the town, who explained: We are not talking about banning the wearing of religious symbols on the beach ... but ostentatious clothing which refers to an allegiance to terrorist movements which are at war with us. How these affiliations between beachwear worn by Muslim women in France, public security and militant terrorist groups were made is baffling. These militant groups, for the most part, do not allow leisure activities for women which would require such a costume. We should note that recent national security threats in France have been made by men, not on a beach, and never by anyone in a burkini. 

Muslims who openly display their religious affiliations are labelled potential terrorists or provocateurs of acts of terror. The ban acts as a form of collective punishment for Muslims who openly express their religious beliefs and have no connection to acts of terrorism. It must be made clear that there is no connection between the wearing of religious dress and affinity to or support for acts of violence (yet alone incitement of violence).

The issue is now more urgent than ever: despite suspension of the burkini decree in Villeneuve-Loubet, Mayors elsewhere remain defiant vowing to maintain bans. There have even been calls for a nationwide ban, through constitutional change.

Be discreet: its for your own good

Since the ban was signed on 28 July in Cannes, the French national dialogue became one of intensified intimidation, division, xenophobia, and racism. Some have attempted to conceal these undertones with arguments of womens rights, or need for the invisibility of Muslim identity for their own good (and for everyone elses benefit): from comments by French politician Jean-Pierre Chevènement suggesting that French Muslims must remain discreet(social media took up the challenge of interpreting this phrase) to Laurence Rossignol, Minister for Womens Rights who supported the ban which prohibits, targets and fines Muslim women for their clothing, based on argument that the Burkini, like the Burka, looks to hide women's bodies in order to better control them.The hypocrisy of the position seems to be lost on many. The dialogue continued with Lisnard: If a woman goes swimming in a burkini, that could draw a crowd and disrupt public order […] It is precisely to protect these women that I took this decision.” 

A disturbing clue to what such ‘protection’ entails came in the form of images  of a Muslim woman being confronted by armed French police on a beach: she was subsequently forced to remove some of her clothing and fined for not wearing an outfit respecting good morals and secularism. Similar stories have been reported on other beaches.

The stark reality that women were being policed, intimidated and humiliated for their choice of clothing and identity shocked an international public: protests, campaigns, videos and international solidarity was echoed throughout Europe. 

The images echoe a long global history of regulating women’s bodies and clothing, especially on beaches. Whats more, these worrying trends also echo Frances fascination with the Islamic dress dating back to its colonial rule in Algeria, where pledges to liberate Algerian women were used to justify brutal  treatment of individuals

The images also demonstrated the arbitrary nature of the ban: the woman forced out of a layer of her clothing was not wearing a burkini, she was wearing a tunic and a headscarf - which many non-Muslims and non-religious beach goers adopt - but only those assumed to be Muslim were punished. More reports have emerged of women being stopped and questioned for simply wearing a headscarf and loose clothing. With no definition of what constitutes  "ostentatiously display(ing) religious affiliation”, it is left to the surveyors of the beaches to decide - in what can be equated to racial profiling - who is seen as a threat to Frances public security. 

What we are witnessing is a ban used to target women who dare to be visibly Muslim. The breadth of this policing, even after the Conseil dEtat ruling, suggests that Frances increasing dedication to creating discreet or even invisible Muslims will continue to intensify, which must not go unchallenged - especially at a time where we are seeing a concerning intensification of fear, division and targeting in French national dialogue.

ISLAMIC DRESS AND THE DEFENCE OF FREEDOMS

The burkini ban has caused many to speak up and protest Frances marginalisation of its minorities, but this should have been a cause  of outrage for years. 

Since 2011 there has been an alarming trend in France, upheld by the European Court of Human Rights (ECtHR), in which Muslims as a minority group have been targeted for open expression of religious beliefs. Time and time again the ECtHR has deferred to governments and gone against the applicant regarding the issue of Islamic clothing.

In 2011, France become the first European country to implement a de-facto ban on the full-face veil in public, a ban upheld by the ECtHR in S.A.S. v. France (2014). Although it was acknowledged that prohibition on clothing concealing the face interfered with both Article 8 (the right to respect for private and family life) and Article 9 (freedom of thought, conscience and religion), the ECtHR found this interference was both necessary and proportionate to the stated aim of preserving the conditions of living together’” in Francea conclusion neither convincing nor consistent with the permissible limitations on these rights under the language of the Convention or the Courts jurisprudence. 

ARTICLE 19 intervened in S.A.S, arguing that the ban violated the freedom of expression and equality rights of the applicant. We argued that the wearing of religious symbols, including the full-face veil, is an expressive act protected by the right to freedom of expression. 

S.A.S demonstrated the broad margin of appreciation afforded to the State by the Court, who should have exercised much higher supervision in this case. Unfortunately with the cases concerning Muslim religious identity heard in the ECtHR, generalisations, fears, and assumptions have taken precedent over legal reasoning and sound evidence. Any restriction on these rights must be supported by robust evidence of their necessity and proportionality to  protect national security or public order. The burkini bans in place failed to demonstrate such necessity, as the Conseil dEtat ruled last Friday. 

These bans signal a step further, going beyond S.A.S, by banning an expressive act of religious identity in public places - a de-facto ban  aimed at one religious group. If unchallenged they could also be adopted for other public spaces or nationwide. This would in effect mean that women in Islamic dress might be prohibited from public spaces, forced to choose between expressing their religious beliefs and defying the law.

Now what?

The discourse around Islamic dress is a quagmire of hypocrisy, protecting freedoms by encroaching them, providing liberty to women by regulating their bodies, creating unity through marginalisation, and maintaining public safety by creating fear.  

It is crucial for the international community, especially in Europe, to make clear that such hypocrisies and targeting of minorities cannot be tolerated. We are living in turbulent times where the force of the far-right in Europe is increasing in intensity against minority groups international solidarity is needed to protect and support those being further and further marginalised, especially when their governments are complicit or even perpetrator.  

The bans can be challenged and lifted individually, and their precedent prevented, but there is also an opportunity for further pressure to be put on France to respect its international obligations regarding free expression and religious freedom. It is especially important to challenge Frances stance now, as there is an increasing right-wing sentiment in Europe, which is being empowered and incentivised by Frances moves on the issue. 

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