UK/Europe/Southeast Asia editor Rachel Mazzarella chronicles the history of the French burkini ban and its potential efficacy. She weighs the policy options of the European Court of Human Rights and how it may attempt to integrate concepts of public safety, religious freedom, and personal beliefs in a country where recent terrorist attacks may be stressing traditional beliefs in secularism and integration.
Unless you’ve been hiding under a rock, you have probably read about the recent ban on the so-called “burkini” in the French Riviera in recent weeks. This reaction came quick on the heels of the worst terrorist attack in the region’s history on July 14, in which a Tunisian immigrant claiming allegiance to Daesh mowed down 86 people who were watching the Bastille Day fireworks demonstration on the promenade in Nice. Since the Charlie Hebdo attacks in January 2015, and the other attacks that took place in Paris in November and in Normandy earlier this year, France has been locked in a perpetual state of alert. Tensions have run high, and paranoia has run rampant. There certainly is cause for alarm, with reason to question the existing safeguards in place, but are these new methods justified? And if justified, are they even effective?
France and Germany have the largest Muslim populations in Western Europe with 4.7 million and 4.8 million people, respectively, although France has a greater per capita proportion with about 7.5% of the overall population. Of these, roughly 3 million are foreign-born and hail from former French colonies, such as Algeria, Morocco and Tunisia. Many among those have also spent their formative years in France. Although the vast majority of France’s Muslim population co-exists peacefully alongside other religious groups and secularists, the high-profile nature of the recent attacks has drawn considerable attention to France’s integration policies (or lack thereof).
The wave of municipal burkini bans began shortly after the July 14 attacks with the mayor of Cannes, David Lisnard, leading the vanguard. Women caught wearing restrictive swimwear on the beach are given a choice between removing their garments or being subjected to a €38 fine. In explaining the motivation behind the law, head of municipal services for Cannes Thierry Migoul referred to the burkini as a “symbol of Islamist extremism” that demonstrates “an allegiance to terrorist movements which are at war with us.” Migoul compared the ban on the burkini to other clothing-based restrictions that served the public interest, such as the recent municipal decree against men walking bare-chested. Human rights groups like the Human Rights League (LDH) and the Collective Against Islamophobia in France (CCIF), for their part, argued that the ban violates fundamental liberties under the French Constitution as well as commonly held European norms.
On August 26th, France’s highest administrative court, the Conseil d’État, suspended the ban in a widely anticipated move, ruling that the prohibition on clothing demonstrating an obvious religious affiliation, worn by swimmers on public beaches, “seriously and clearly illegally breached fundamental freedoms.” The Conseil’s decision effectively overturns a ruling by the Nice Tribunal, a lower administrative court, upholding the ban. Although the Conseil was reviewing a similar case brought in nearby Villeneuve-Loubet, its verdict sets a precedent across the nation that would invalidate the bans instituted by 30 French municipalities earlier this summer, including both Nice and Cannes. The Nice Tribunal had previously held that the ban on full-body swimwear for women served a “necessary, appropriate and proportionate” purpose in preventing the spread of Islamic extremism and, in turn, safeguarding its citizenry. However, procedurally the suspension is not automatic, as many mayors have declared that they will continue to enforce their bans until directly challenged in court.
What is a “Burkini”?
The word “burkini” is a portmanteau formed by combining the words “burqa” and “bikini.” Although it comes in many different forms, the uniting element of most burkini variations is that they cover everything but the face, hands and feet. The burkini is typically worn by Muslim women who wear the hijab (headscarf) in their daily lives but find it too constrictive and too limiting when they wish to exercise or swim. In Islam, the principle of ʿawra (privacy, which relates closely to rules for modesty) governs what parts of the body are considered to be intimate for both men and women and, therefore, ought to be covered in the presence of non-family members. The notion of ʿawra varies considerably by the legal opinions within Islam’s multiple legal schools and by individual jurists. While aiming at modesty, the classical Islamic opinions use the notion to advise covering one’s private parts. This can be defined as covering all but the hands, face, and feet or covering just the neck to the shins (for women), covering just the area between the torso and knees (for men), or covering the entire body and sometimes even lowering the voice’s volume. As a result, the matter of what constitutes ʿawra, and the preferred means of exercising the due degree of modesty, remains largely a personal matter for most Muslim women reflecting both their familial upbringing and their individual preferences. Understandably, such choices in clothing have made participating in sports activities difficult for some observant women for whom ‘awra demands full-body coverage. These restrictions are not prohibitive, however. There were two Olympic medalists this year who prefer full body coverage: Ibtihaj Muhammad of U.S. fencing and Kimia Alizadeh Zenoozi of Iranian taekwondo.
The burkini’s inventor, Lebanese-Australian designer Aheda Zanetti, designed the garment to facilitate Muslim women’s participation in sports, recreation and even lifeguard training after observing the difficulty her niece faced in participating in sport. To her, it symbolized “leisure and happiness and fitness and health.” Rather than serving to distance Muslim women from core Australian values, Zanetti believed that her “modest and suitable for sport” garments in fact serve to further integrate them because they frees the wearers to “blend into [an] Australian lifestyle” that treasures the great outdoors. In this sense, Zanetti considered the burkini to be both a liberating and an integrating force.
The burkini was not Zanetti’s first experiment in making sports attire specifically for Muslim women, but the aim was not to be overtly religious. Zanetti dubbed her first line of athletic wear the “hijood,” combining the words hijab and hood, and admits to only having labelled her later swimwear collection the “burkini” after looking up the meaning of a burqa in the dictionary. The more descriptive moniker “Islamic two-piece bikini” was not deemed marketable enough. Furthermore, from the outset, a significant portion of burkini sales were to members of other religious groups, such as Jews, Hindus, Christians, and Mormons, as well as women who had other reasons for wanting full-body coverage from the sun and from public scrutiny. Unlike the burqa of popular depiction, the burkini does not cover the face.
French Laïcité vs. Religious Symbols
To truly understand the reasoning behind France’s “burkini ban,” one must first consider it in the context of the country’s storied history of secularism and separation of church and state. Prior to the current movement, France had already instituted a number of similar measures restricting obvious displays of religious affiliation. Many of these, though sweeping in their application, have also seemed targeted at France’s considerable Muslim minority.
The legal justification for the current bans, that certain modes of women’s religious dress is a matter of “hygiene and decency,” has rested upon the French principle of laïcité, or secularism, as laid out in the 1905 law on the Separation of Churches and State, and in Article 1 of the French Constitution of 1958. Laïcité is inextricable from the concept of separation of church and state. The principle of French-style secularism pervades French society, afforded a reverence often considered on par with that given to religion and the revolutionary ideals of liberté, égalité, and fraternité. In the words of political scientist Dominique Moïsi, “Laïcité has become the first religion of the Republic, and it requires obedience and belief.”
In 2004, France’s national legislature passed a law prohibiting the display of conspicuous religious emblems in school. Although apparently motivated by a desire to remove Islamic symbols from schools, the measure also had an impact on the open display of yarmulkes, crucifixes, and other religious symbols. Parliament later passed a law in late 2010 that banned “clothing that is designed to conceal the face” in public places, which specifically targeted the niqāb, or the full-face veil. At the time of the ban, it was estimated that fewer than 2,000 women were wearing full-face veils in France. Additionally, there was some evidence to suggest that such a ban would actually serve the opposite purpose of discouraging these same women from leaving their homes for fear of exposing their faces and thus violating their religious beliefs.
After a Muslim woman of Pakistani origin living in France challenged the 2010 law, the European Court of Human Rights subsequently upheld the ban in S.A.S v. France (ECHR 191 (2014)), arguing that its role in fostering social cohesion justified the infringement on one’s right to privacy and freedom of religion. The majority of the Court held that there had been no violation of the European Convention on Human Rights (ECHR) Article 8, the right to respect for private and family life; or of Article 9, the right to respect for freedom of thought, conscience and religion. With respect to Article 14 of the ECHR, prohibition of discrimination, the Court unanimously held that there had been no violation. The Court explained that the need for gender equality and human dignity were outweighed by the state’s valid interest in le vivre ensemble, or “living together.” On this matter, a sovereign nation could enjoy “a wide margin of appreciation,” or a significant decree of deference to its preferred methods.
So what makes the current case any different? In short, the weight of French law appears to favor the Conseil d’État decision to suspend the bans on ḥijāb, despite the so-called “ideological showdown” taking place among the country’s political elites. According to Paul Cassia, a professor of public law at the University of Paris, even if Parliament were to pass a burkini ban, the Constitutional Council would be expected to promptly strike it down on the grounds of infringement of liberty. However, it’s unclear whether the burkini ban would be upheld if appealed again to the ECHR. In the 2014 decision, the ECHR had emphasized that interference with one’s right to religious freedom could permissibly be abridged if it was in the interest of “public safety” and the “protection of the rights and freedoms” of others, which is a plausible interpretation of the municipal decrees.
Outpourings of opposition to the burkini ban have flowed in from human rights groups, international organizations and public figures across the world. Many have emphasized its discriminatory intent and seeming overbreadth, with some even offering to pay all of the fines that are incurred pending final judicial resolution of the issue. However, in France the bans continue to enjoy widespread public and political support, with one poll estimating 64% of the population in favor. Former President Nicholas Sarkozy, along with Front National leader and fellow Presidential candidate Marine le Pen, have pledged to amend the French Constitution to include a nation-wide extension of the 2004 ban to all public places should they win the presidential election in 2017. Even current Prime Minister Manuel Valls, an avowed Socialist, has described the burkini as “a political sign of religious proselytising” and an “enslavement” of women.
Even if the Conseil d’État’s suspension is upheld in France, the effects of the 2016 law could ricochet out across a deeply divided European Union that is facing unprecedented demographic change. Ultra-right groups throughout Europe have debated passing similar laws, with Belgium already having banned the full-face veil in 2011. Some high-level officials in Germany, which has a Muslim population to rival France’s at 4.8 million, have suggested that the question whether to ban the full-face veil is “not a security issue, but an integration issue” and “is necessary for co-existence.” By some accounts, as many as 8 in 10 Germans support banning “burqas” from schools and government institutions. This sentiment is particularly notable given the fact that Germany has been a very visible leader in accepting Syrian refugees and also faces a general election in the coming year.
Safeguarding or Scapegoating?
Despite its popularity, the burkini ban’s efficacy in achieving its stated objective has been called into question. Amnesty International’s Europe director noted that “[t]hese bans do nothing to increase public safety but do a lot to promote public humiliation.” A spokesman for the UN High Commissioner for Human Rights, Rupert Colville, was even more withering in his criticism. “It is frankly a stupid reaction to what we are … facing in terms of terrorist attacks. It does nothing to increase security,” he said. “It does nothing to improve public order. If anything it stimulates friction, and therefore undermines public order and it is having a counterproductive effect.” Instead, we should be targeting the actual perpetrators of violence and tackling the root causes for their behavior.
Terrorism analysts warn that such bans could serve to radicalize segments of the society that are already disenfranchised, and expect the burkini ban to feature prominently in future Daesh (Islamic State) propaganda. As Feiza Ben Mohamed, spokeswoman for the Muslims Federation of the South, says, hardline Muslims already “don’t go to the beach because they refuse to mix with other women in bikinis. It penalises normal Muslims, or just mums taking their kids to the beach.”  This plays into the hands of terrorist groups like Daesh by further proving to vulnerable populations that they are “excluded, stigmatized.” For many, this is as much a women’s rights issue as it is a religious one. Human Rights Watch has stated that a burkini ban would “merely stigmatise practising Muslim women, exclude them from public spaces – and from sharing those spaces with their families and friends – and deprive them of their rights to autonomy, to leisure activities, to wear what they choose, and of course to practising their faith.”
In explaining the reasons behind its suspension of the burkini ban, the Conseil d’État acknowledged the well-established case law dictating that a mayor must “conciliate the fulfillment of his/her mission to maintain peace and good order in the city on the one hand, and due respect to public liberties safeguarded by law on the other hand.” By such a standard, the mayor of Villeneuve-Loubet had failed to proffer any convincing evidence that safeguarding peace and good order on public beaches would have in any way been jeopardized by the wearing of restrictive swimwear. “The wearing of distinctive clothing, other than that usually worn for swimming, can indeed only be interpreted in this context as a straightforward symbol of religiosity.” Therefore, a claim that the ban was intended as a security measure, and not merely an attack on one religion and its beliefs, was totally unsubstantiated.
Philosophical debate aside, the burkini ban and its subsequent suspension now come down, as the law often does, to a matter of enforcement. In the face of open defiance of the Conseil d’État’s decision by the remaining municipalities, the human rights lawyers who successfully litigated the Villeneuve-Loubet’s ban have pledged to confront each and every policy or enforcement attempt individually in court if necessary. It remains to be seen whether the perceived escalation of the terrorist threat in Europe, alongside the increasing challenge of European integration in the wake of the worst refugee crisis since World War II, will herald in a new era of identity politics. What is evident in the wake of the recent burkini debate — with the local bans and the court case against them – is that France in particular and Europe more generally must reconcile its tried and true methods of maintaining public order with a changing reality and, in thus adapting, to avoid losing sight of the democratic and liberal values that have formed the very backbone of its existence.
Rachel Mazzarella is a lawyer based in London who specializes in counterterrorism, national security and conceptions of citizenship. She previously spent 9 years as an Arabic Linguist and Intelligence Analyst for the U.S. Government.
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