Islamic scarf controversy in France

History

The controversy over the Islamic scarf (hijab) was sparked on 18 September 1989, when three female students were suspended for refusing to remove their scarves in class at Gabriel Havez Middle School in Creil. In November 1989, the Conseil d'État ruled that the scarf's quasi religious expression was compatible with the laïcité of public schools. That December, minister of education Lionel Jospin issued a statement declaring that educators had the responsibility of accepting or refusing the wearing of the scarf in classes on a case-by-case basis.

In January 1990, three girls were suspended from Louis Pasteur Middle School in Noyon, a city in Picardy. The parents of one of the girls previously suspended from Gabriel Havez filed a defamation suit against its principal. Following these events, teachers at a middle school in Nantua held a general strike in protest against the scarf in school. A second government statement reiterated the need to respect the principle of secularity in public schools.

In September 1994, a new memorandum, the "François Bayrou memo" was issued, delineating the difference between "discreet" religious symbols able to be brought into classrooms, and "ostentatious" religious symbols (including the hijab), which were to be forbidden in public establishments. In October of that year, students at Saint-Exupéry High School in Mantes-la-Jolie organized a demonstration of protest in favor of the right to wear the veil in classrooms. In November, 24 veiled students were suspended from the same high school as well as from Faidherbe High in Lille.

Between 1994 and 2003, around 100 female students were suspended or expelled from middle and high schools for wearing the scarf in class. In nearly half of these cases, their exclusions were annulled by the French courts.

Political positions

The most debated point is whether or not students have the right to wear the scarf in classes in public establishments such as primary and secondary schools, as well as universities. Meanwhile, the controversy has contributed to discussions of the principle of secularism, which is the foundation of the 1905 law of separation of church and state in France. The two principal positions that have emerged are:

This debate has thus contributed in blurring the limits between the left and right on the traditional spectrum in France, and has revealed divergences on new political levels, especially between "republicans" (proponents of intervention by the secular Republic) and "liberals" (in an older sense of the French term referring to those who support the liberties of the individual).

Muslim tradition

The tradition of the headscarf itself has been in existence since before the advent of Islam, and depictions of Mary, mother of Jesus, show her wearing a hair covering. It is not explicitly commanded in the Qur'an yet some consider it a part of tradition.

The importance assigned to head covering varies, from that of colorful head scarves that do not conceal much hair in sub-Saharan Africa, to head scarves that cover the hair and neck to the extent that it should cover all hair, as worn in much of the world, to cloths that cover parts of the face (Yemen), and in Saudi Arabia, the entire body, must be covered by the veil (burqa), as is the case in some areas of Pakistan.

In most Muslim societies, this obligation is not enforced by law. In Egypt and Turkey, for example, wearing the scarf is controversially forbidden in certain professional contexts. In reality, un-veiled Muslim women are a common sight in cities such as Istanbul, Karachi, Islamabad, Rabat, and in Jakarta, Indonesia (the largest Muslim country in the world). However, the obligation is legally enforced in certain countries such as Iran, and those who violate such laws are legally culpable for their dress. Most societies in the Muslim world take a more relaxed approach to the scarf where girls and women can be seen wearing hair coverings of all levels or none at all.

Motivations of French Muslims who wear the scarf

The wearing of the scarf or hijab in France, and in the main countries of origin of French Muslims (Algeria, Tunisia, Morocco, Turkey), is a relatively recent phenomenon that is at its core a general movement toward the traditional values of communities in and from these countries. Movements of this kind are not limited to the Muslim world, and can be observed in many different cultures, including those of the West.

This phenomenon has been coined "the new veiling" by A.E. MacLeod. This model does not always materialize perfectly or uniformly according to orthodox tradition; the veils of French Muslim women tend to be less austere in their use of color and material.

Other perhaps more specifically France-centered arguments were voiced at the time of this controversy in order to justify students' wearing of the scarf in public schools:

There also exists a notable minority of French non-Muslims who have expressed support for the right to wear the veil in public schools.

Feminist arguments

According to some feminist groups, as well as some human rights advocacy groups, wearing the scarf can symbolize a woman's submission to men. It is feared that permitting the veil in schools risks opening the door to other practices that exist in the Muslim world.

It is often speculated that forbidding the hijab would limit freedom. Rather, the argument put forward by some feminists is that the hijab is not a free choice, but a result of social pressures (i.e., if a law does not forbid the practice of wearing the hijab, social pressure may render it obligatory).

These arguments are shared by some Islamic feminists. Thus, Fadela Amara, the former president of the organisation Ni Putes Ni Soumises, stated that: "The veil is the visible symbol of the subjugation of women, and therefore has no place in the mixed, secular spaces of France's public school system." Another francophone Muslim influential for his work on public welfare, Hedi Mhenni, shares the view of these Islamic feminists and similarly expressed support for Tunisia's ban on the veil in public workplaces in those terms: "If today we accept the headscarf, tomorrow we'll accept that women's rights to work and vote and receive an education be banned and they'll be seen as just a tool for reproduction and housework."

Secularism arguments

Certain individuals and associations consider the scarf to be a symbol of belonging to the Muslim community. According to this line of reasoning, women who wear the veil display their religious and community affiliation, which harms the unity and secularism of the French Republic. The position of the French government is that secularism in schools is incompatible with wearing ostentatious religious articles, whatever they be. However, in December 2003, President Chirac extended this policy for all public secondary education establishments, risking fanning the tensions between communities within the multicultural French society. France is home to both the largest Jewish and Muslim minorities in Western Europe.

Educators

A strong majority of French educators opposes the veil in general, and particularly in classes. The arguments put forward are connected to both secularism and feminist arguments, a majority of French educators being women.

General public

The majority of French people, according to a survey conducted in the last four months of 2003, responded that they would be in favor of a law forbidding the veil in schools.

In 2013, 86% of respondents in a poll for i-Télé were in favour of a ban for headscarfs and other religious and political symbols in both public and private institutions for children. The poll was made after the Court of Cassation ruled that a private crèche did not have the right to fire a woman who wore an Islamic headscarf.

Motivations of French people who do not oppose the hijab

According to the same surveys, more than 30% (about 10% of the population of France is Muslim) of the French do not want a law forbidding the veil in schools. Conversely, more than 60% of the French population (about 10% of the population of France is Muslim) want a law forbidding the veil in schools. Many individuals and organizations have been opposed to the idea of a law forbidding the veil since it was first proposed.

The collective "Les Blédardes" sees the controversy over the veil as a manifestation of colonialist sentiments. In 2003, they demand: "Give the veiled girls back their status as students - democracy and the State of justice will come out of this more mature, just as they matured through the rehabilitation of the Dreyfus Affair." Furthermore, some Islamic feminists have expressed offense at double standards implicit in some (non-Muslim) feminist arguments. Thus, when some feminists began defending the headscarf on the grounds of "tradition", Fadela Amara countered: "It's not tradition, it's archaic! French feminists are totally contradictory. When Algerian women fought against wearing the headscarf in Algeria, French feminists supported them. But when it's some young girl in a French suburb school, they don't. They define liberty and equality according to what colour your skin is. It's nothing more than neocolonialism."

A third interpretation of the principle of secularity based on its original formulation recalls that, according to the law, "all are equal to show and express their religious opinions in public as well as in private," and that the French state has the responsibility to guarantee access to free, public education to all Frenchmen.

Another argument is that making it illegal sends a message that hate crimes may be more tolerable.

Vote

In December 2003, President Jacques Chirac decided that a law should explicitly forbid any visible sign of religious affiliation in public schools, in the spirit of secularism. The law, sometimes referred to as "the veil law", was voted in by the French parliament in March 2004. It forbids the wearing of any "ostentatious" religious articles, including the Islamic veil, the Jewish kippa, and large Christian crosses. The law permits discreet signs of faith, such as small crosses, Stars of David, and hands of Fatima.

Education

In many cases, the exact extent of possible application of the law is hard to ascertain, and has led to further complications: for example, is the law applicable to something other than the Islamic veil which covers the hair, such as a bandana, which does not outwardly indicate religious affiliation? Eventually, the case was settled in court (see below).

Would veiled parents be able to enter their children's schools? Former education minister François Fillon has stated that the law does not apply whatsoever to the parents of students. The Mediator of the Republic has agreed with this stance. However, in some cities, such as Montreuil, Seine-Saint-Denis, where integration of large numbers of Muslims is an acute problem, veiled parents are frequently denied entry. In May 2005 the mother of a student was denied permission to run a stand at her son's school festival. After much publicity, the interdiction was lifted. On May 14, 2007, the High authority for the struggle against discrimination and for equality (HALDE) affirmed that veiled parents should be allowed to attend school activities.

While the law forbidding the veil applies to students attending publicly funded primary schools and high schools, it does not refer to universities. Applicable legislation grants them freedom of expression as long as public order is preserved. However, veiled students are sometimes denied attendance.

Other situations

In public hospitals, employees are expected to respect the principle of secularism. In nursing schools, interviews are an official requirement for entry, during which applicants may be asked if they are willing to remove their veil either altogether or for the purpose of wearing a disposable cap, such as those worn in operating rooms.

As far as patients are concerned, the rule is to respect religious preferences.

Jurisprudence

Some court decisions have clarified issues remained open by the law, and its legality. These jurisprudence were issued by the French administrative Supreme Court Conseil d'Etat and by the European Court of Human Rights.

Wearing items not outwardly indicating religious affiliation

The Conseil d'État affirmed on 5 December 2007 that the ban also apply to clothing elements that demonstrate a religious affiliation only because of the behaviour of the student. Wearing either a Sikh subturban or a bandana were then denied by the supreme court.

Infringement of right to practice a religion and right to education

On 4 December 2008, the European Court of Human Rights (ECHR) affirmed the legality of the ban. Although the cases dated prior to the 2004 law, the Court rationale was consistent with the law: the ECHR held that the national authorities were obliged to take great care to ensure that (...) the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion.

In 2012, UN Human Rights Committee has found a violation of ICCPR in case of expulsion of a Sikh from a school based on the 2004 law.

Controversies over legal prohibition

Throughout the process legislation banning religious head-scarves in France has been met with widely varied reactions.

On 12 of August 2016, the mayor of Cannes in southern France has banned full-body swimsuits known as "burkinis" from the beach because it was considered as symbol of Islamic extremism and might spark scuffles, as France is the target of Islamist attacks.

After the mayor’s decision, the French council of the state has fully endorsed the Burkini ban, so the French police was tasked to force any Muslim woman who appears in public with burkini to remove it.

In France, particularly on Nice beach near to the location of the terrorist lorry attack where 84 people killed on Bastille Day, four armed police officers holding handguns, batons and pepper spray forced a Muslim woman, seems to be sleeping on the beach, to take off her burkini protecting her modesty.

The woman was warned about the new dress code on the beach. In addition, she was fined 38 euro for wearing the swim wear.

Also, four women were fined 38 euros for wearing their burkinis on the beach in Cannes.

On the 25 August 2016, Human Rights League and anti-Islamophobia groups have described the bar as a dangerous and illegal threat on the basic freedoms, particularly freedom of belief and religion.

The UN, Spain, Italy, Germany and Canada have criticized and ruled out France’s ban on burkini because it is a very clear violation of human rights and it doesn’t respect Muslim women’s dignity and modesty.

The burkini bans have triggered a fierce debate about the wearing of the full-body swimsuit, women's rights and the French state's strictly guarded secularism.

After hearing the arguments from Human rights groups and some other countries, the France's highest administrative court set to rule whether to overturn the ban on wearing the full-body burkini swimsuit.

Practical consequences

The veil controversy and its legislative consequences have revealed problems associated with the practice of the Islamic faith insofar as religion in French society and institutions (as opposed to the problems of integration of individuals). Partially fueled by the fear of a "communitarization" or "Islamization" of French society, the controversy has also fed off fears in certain sections of the Muslim community in France of "forced assimilation" and a slippery slope that would seek to ban more and more expressions of the Muslim faith. The controversy has also, however, brought the issue of the place of Islam in French society to the forefront of debate.

The veil controversy has been used opportunely to promote the expression of a French form of Islam, distinct from the Islam in the French Muslims' countries of origin. The presence of Muslim Frenchwomen wearing tricolour veils and shouting, "I am French!" in protests in Paris against the law forbidding the veil is one example thereof. A survey conducted by the French polling organization CSA in January 2004, revealed that more than 90% of French Muslims claim to subscribe to culturally French principles such as the importance of the Republic and equal rights among men and women. The figure falls to 68% for respondents who believe in the separation of church and state. In contrast, a majority (50–60%) of those surveyed responded unfavorably to the law of laïcité, and would prefer to see their wife or daughter free to wear the veil.

In 2004, a year after the law was voted in, one organization opposed to it, called the "Committee of the 15th of March and Liberty," published a report on the law's effects. The report cites the files of 806 students affected by the law. Of the 806 students, 533 have accepted the law and no longer wear their veils in class. The report also gives an assessment of students who have left the French school system because of this issue. Among them, 67 have pursued their studies abroad. Another 73 of those 806 suspended or expelled from schools over the veil have chosen to take government-run CNED correspondence courses in order to finish their studies. The number of those who have chosen to study via other, non-government forms of correspondence schools is unknown.

The opening of the 2005 school year passed largely without incident, and opposition to the law seems to have given way to broader public opinion. However, the actual number of those who no longer attend French junior high and high schools over their veils is unknown.

Banning of full face covering in public

In 2010, a public debate arose and France passed a law that bans the wearing of full-face covering, including but not limited to burqas and niqābs, in public. The law was constitutionally cleared so that it came into force in April 2011. That debate and ban are separate from the above-discussed debate on the hijab in public schools, in that the new law does not pertain to Islamic scarves but rather to the much rarer full-face versions, as well as other full-face coverings (such as masks and balaclavas), and in that the new law applies to all citizens in public spaces regardless of religion or claimed tradition (and regardless of gender).