Professor Erica Howard, School of Law at MDX, discusses the recent bans on wearing face-veils and headscarves and how this could lead to a further separation of cultures rather than a bringing together.
Bans on face covering veils are proliferating across Europe; France, Belgium, Austria, Bulgaria and Denmark ban the wearing of face-covering clothing in all public spaces, while the Netherlands prohibits this in certain places, such as schools, hospitals, public transport and government buildings. Some other countries have introduced regional or municipal bans. Recently, in a referendum in Switzerland, the majority (although only just: 51.2%) has voted for a ban on face-covering as well.
European bans and laws
In some European countries, the wearing of headscarves is prohibited for employees in public employment (and sometimes beyond). For example, in France, government employees, including teachers in state schools, are prohibited from wearing any religious clothing or symbols, which include Muslim headscarves, at work. A similar ban exists in some states in Germany.
Following a French law in 2004, school pupils in primary and secondary schools are prohibited from wearing ostentatious signs or dress by which they openly manifest a religious affiliation. This means that girls are usually not allowed to wear a Islamic headscarf to school. A law in Austria which banned ‘ideologically or religiously influenced clothing which is associated with the covering of the head’ in primary schools, adopted in 2019, was struck down by the Austrian Constitutional Court because it was aimed at Islamic headscarves (the government had made clear that head coverings worn by Sikh boys or Jewish skull caps were not covered by the law) and violated the right to freedom of religion.
Introducing the Anti-separatism law
On 12 April 2021, the French Upper House voted with an almost two-third majority (208 votes against 109) for the bill to strengthen the principles of the Republic or, as it is referred to, the ‘anti-separatism law’. The bill aims at tackling terrorism. However, the bill also bans the wearing of Islamic headscarves in public for everyone under 18, the wearing of ‘burkinis’ in public pools and the wearing of headscarves for everyone accompanying children on school trips. The adoption in the Upper House does not mean that these bans will indeed become law, but it does show the feelings of the majority in this house against this. The law seems to suggests that minority ways (and particularly, Muslim minority ways) are conducive to terrorism.
The European Court of Human Rights in Strasbourg, in SAS v France, did not find that the French ban on covering the face in public places (often referred to as the ‘burqa ban’, which shows the target is the face-covering veils worn by Muslim women) violated the wearer’s right to freedom of religion because it accepted that the ban was necessary to ensure ‘respect for the minimum set of values of an open and democratic society’.
The French Government had argued that the face plays an important role in human interaction and that the effect of concealing one’s face in public places is to break social ties and to manifest a refusal of the principle of “living together” (le “vivre ensemble”). The Court accepted that the barrier raised against others by a veil concealing the face was perceived by France as breaching the right of others to live in a space of socialisation which makes living together easier.
The principles of civility and sociability were also mentioned In the debates in the Belgian Parliament on the law banning face-covering in all public spaces. It was explained that these principles mean that the visibility of someone’s face forms the basis for – even minimal – communication between members of society and that the identity of an individual is expressed in their face. Therefore, covering the face is a barrier to normal communications in everyday society. After the law in Belgium was adopted, it was also challenged before the European Court of Human Rights, which followed its own judgment in S.A.S. v France and held the ban justified for the same reasons .
COVID-19 and face masks
What this suggests, first of all, is that human interaction is not possible when people cannot see each other’s faces. This can be countered by the fact that much communication in present day society takes place via telephones and texts where people do not see each other’s faces, but communicate without problems. It has also been brought into perspective even more starkly during the global COVID-19 pandemic, which has led to the compulsory wearing of face masks in many countries.
If communication with people wearing face masks is possible, why is it not possible with people wearing a face covering veil? What is the difference? The pandemic has shown the hypocrisy of the argument that the face needs to be uncovered for proper communication in a modern society. People wear face masks in face-to-face encounters and manage to communicate perfectly well. This hypocrisy becomes even clearer when one considers that, in France, where the wearing of face-masks is compulsory, the face-covering veil is still prohibited . So a woman can simultaneously be fined for not wearing a face mask and for wearing a face-covering veil.
Second, not all judges in SAS v France agreed with the majority, and the dissenters pointed out that there is no right to enter into contact with other people, in public places, against their will. If there was, there would have to be a corresponding obligation to do so and this would be a violation of the human right to respect for private life, which includes a right not to communicate or enter into contact with others.
Adding to Islamophobia
In many countries, including in France, adoption of laws against the wearing of face-covering in public places, although all are drafted in neutral language, were often accompanied by Islamophobia and growing feelings against Islam and Muslims (for France for example). Part of this is the fear of people retreating from ‘living together’, of separating from the society in which they live. The wearing of the headscarf or face-veil is seen as a sign of failed integration of migrants, which means that these groups are marginalised, alienated and excluded and this raises fears of groups being radicalised, which in turn might lead to political extremism and terrorist activities. This clearly links with both the aim and the name of the French anti-separatism act.
Another aspect of this fear is that the wearing of these headscarves and face-veils is also seen as a sign of both an unwillingness and an inability to integrate and to take part in society. Headscarves and face-veils set the wearer apart from other people and this leads to the creation of separate communities, thus furthering social and cultural division, which can also lead to radicalisation.
However, this unwillingness and inability to integrate is not borne out by any evidence. Moreover, rather than preventing the retreat from life in society, the legal prohibition on face-covering in public spaces could have the opposite effect in that it stops women, who wear face-veils for religious reasons, from leaving the house at all and from taking part in society. And, a similar argument can be used against bans on the wearing of headscarves by school pupils; this might stop pupils from going to school at all and thus would prevent them from getting an education.
Another effect of the bans on the wearing of headscarves and face-veils is that these bans, because they clearly target Muslims, could lead to a further strengthening of the Muslim identity and an increase in the polarisation between Muslims and others in society. This in turn could exacerbate social divisions and actually achieve the opposite of ‘living together’ or ‘anti-separatism’ by increasing segregation, radicalisation and terrorism.
Majority over the minority
All this indicates that the ‘living together’ or the recognition of ‘the minimum requirements of life in society’ argument can also, and more convincingly, be used against banning the wearing of headscarves and face-veils. Moreover, if this argument is taken to its full conclusion, it could mean that any minority practice which makes the majority population uncomfortable could be banned.
This could be as Brems suggests, clearing Roma people from the streets because the majority of people in a country do not like to socially interact with Roma; or, accepting prohibitions on ‘homosexual propaganda’ as a choice of Russian society because this makes many Russians uncomfortable.
Ultimately, this would mean that the majority could dictate what the minority can or cannot wear; in case of the French anti-separatism act this would mean that Muslim women in France cannot wear headscarves or burkinis because the majority does not like to see this.
 Case of Dakir v. Belgium and Affair Belcacemi et Oussar c. Belgique
 The Washington Post: “France mandates masks to control the coronavirus. Burqas remain banned” and Article19: “Coronavirus: Rules illustrate “bad law” on face coverings”