Fordham International Law Journal

Volume 35, Issue 4 2017 Article 2

Protecting the Space to be Unveiled: Why

France’s Full Veil Ban Does Not Violate the
European Convention on Human Rights
Bridgette Dunlap∗

∗
Fordham University School of Law

Copyright 2017
c by the authors. Fordham International Law Journal is produced by The Berke-
ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
 NOTES

PROTECTING THE SPACE TO BE UNVEILED: WHY

FRANCE'S FULL VEIL BAN DOES NOT VIOLATE
THE EUROPEAN CONVENTION ON HUMAN
RIGHTS

Bridgette Dunlap*

INTRODUCTION 969
I. THE VEIL AND THE EUROPEAN CONVENTION ON
HUMAN RIGHTS 973
A. Implicated Rights Under the Convention 974
1. Reasons Women Veil and Their Corresponding
Rights 975
2. The Prohibition Against Discrimination 979
B. Other Interested Parties: Interest Balancing in 5ahin v.
Turkev 980
1. Legitimate Aims of the State: Public Order and the
Rights and Freedoms of Others 981
2. Proportionality 984
3. Judge Tulkens' Dissent 986
II. THE CONFLICT IN THE FRENCH CONTEXT 987
A. A Context Unfamiliar to Outside Observers 987
B. The Headscarf and Niqab in France 992
1. The French Ban on Religious Symbols 993
2. The Niqab Ban 1001
a. Allegations of Islamophobia and the Intra-
Muslim Debate 1002
b. Regulating the Public Space 1004
C. Balancing the Interests at Stake 1008

Bridgette Dunlap, J.D. Candidate, 2012, Crowley Scholar in International Human

Rights, Fordham University School of Law; B.F.A., 2001, New York University. The Author
thanks Professors Tracy E. Higgins and Eric Talbot Jensen, the kordham InternationalLau;
ournial,and her family and friends.
2012] PROTECTVG THE SPACE TO BE t VVEILED

1. Weighing the Rights of Women Forced or Pressured

to Veil 1008
2. Unintended Harms to Women Forced to Veil 1011
3. Considering the Protections of Secularism 1016
III. SECULARISM AND GENDER EQUALITY: MEANS OF
PROTECTING THE PUBLIC ORDER AND THE
RIGHTS OF OTHERS 1018
A. Secularism and Gender Equality: Vital Protections of
the Human Rights of Women 1018
B. An Invasive Regulation of an Extreme Practice 1021
C. Why the International Misunderstanding of the Ban
Matters 1023
D. Paternalism or the Reasonable Imposition of a Duty on
Women? 1024
CONCLUSION 1025

VITRODUCTION
"No one shall, in anjpublic space, wear clothing
designed to conceal the fice. '
In 2010, the French Senate and National Assembly approved a
statute that, though facially neutral, was intended to ban full face veils
worn by Muslim women in France, specifically the burqa and niqab.
The French public largely supported the law, known as the niqab ban,
but global commentators allege that the statute constitutes an
impermissible violation of personal freedom, and is racist,

1. Loi 2010-1192 du II octobre 2010 interdisant la dissimulation du visage dans 1'espace

public [Law 2010-1192 of Oct. 11. 2010 Prohibiting the Concealment of the Face in Public],
JOURNAL OFFICIEL DE LA REPUBLIQUE FRANQAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE],
Oct. 12, 2010, p. 18344 ("Nul ne peut, dans Fespace public, porter une tenue destinde a
dissimuler son visage."); Conseil constitutionnel [CC] [Constitutional Court] decision No.
2010-613DC, Oct. 7, 2010, J.O. 18345 (Fr.).
2. Law 2010-1192 of Oct. 11, 2010, art. 1 (Fr.) (prohibiting the concealing of one's face
in public without mention of religious attire): see Malcolm D. Evans, From Cartoons to
Crucifixes: Current Controversies Concerning the keedom ofReligion and the keedom of
Expression Before the European Court of fluinan Rights, 26 J.L. & RELIGION 345, 364-65
(placing the French bill among proposed European laws that are "couched in other language"
but constructively ban the burqa); see also Steven Erlanger, ParliamentMoves France Closer
to a Ban on Facial Veils, N.Y. TIMis, July 14, 2010, at A6 (describing French legislators'
plans to ban full facial veils). The bu'qa covers a woman's entire face; the niqab covers all but
a woman 's eyes. Id.
970 FORDHAAMINTER.4TIOAAL LAW JOtiP-V4L [Vol. 35:968
3
paternalistic, and ultimately the product of political opportunism.
Despite this criticism, France's Constitutional Council upheld the law
in an October 7. 2010 ruling.' Although the law went into effect on
April 11,2011, officials levied no fines for violations until six months
after its enactment.' Since then, women in France who wear full face
veils in public have been subject to a fine or mandatory citizenship
classes. 6 Opponents of the ban contend that it violates the European
Convention on Human Rights ("Convention"), and the first two
women fined in a French court for wearing full veils intend to
challenge the law in the European Court of Human Rights
("ECIHR"). 7
Suspicion of efforts to control what women can and cannot wear
may be well-founded, especially in light of ongoing efforts to control
women's bodies and punish deviance from societal norms.' The

3. See, e.g., Editorial, The Taliban Would Applaud, N.Y. 'TIMES,Jan. 27, 2010, at A26
(describing the law as a violation of individual liberties and motivated by electoral politics);
Tony Cross, kance's Burka Bill Background to a Bitter Debate, RF ENG. (June 23, 2010),
http://www.english.rfi.fr/lfrance/20100526-sarkozy-and-burla (reporting that fifty-seven
percent of the French population supports the bill and describing the view that the ban is
motivated by Islamophobia and political opportunism); David Hirschman, Is France'sBurqa
Ban Racist?, BiG THINK (July 14, 2010, 2:56 PM), http:i/bigthink.com/ideas/20914 (noting
that Joan Wallach Scott, author of The Politics of the Veil, stated that the ban is a form of
racism); Yasmine Ryan, French Court Approves eil Ban, AL JAZEERA (Oct. 8, 2010, 1:42
PM), http://english.aljazeera.net/newse'uropei2010/10/2010108113056514496.html
(questioning whether the ban is racist and quoting a jurist who believes it "would signal a
terrible paternalistic evolution"). Although the law often isreferred to inthe English-speaking
media as the "burqa ban," few women wear the burqa in France. The law will primarily affect
women who wear the niqab. See Erlanger, supra note 2. at A6.
4. CC decision No. 2010-613DC, Oct. 7,2010 (Fr.).
5. See Stephen Erlanger FrenchLegislation Takes Effect Banning Full-Face Coverings,
N.Y. TIiMEis, Apr. 12, 2011, at A4 (reporting that the ban went into effect on April 11, 2011);
see also Angelique Chrisafis, Niqab TIomen Fined by French Court, GUARDIAN (U.K.), Sept.
22, 2011, at 29 (documenting that the first cowrt-imposed fines were levied in September
2011); France Imnposes First Niqab Fines, BBC NEWS (Sept. 22, 2011, 12:32 PM),
http://ww .bbc.co.uknews/ ,orld-europe-15013383 (noting the first fines).
6. See Maia de la Baume, Enforcing Ied Ban, the French Have Stopped 46 Violators,
N.Y.TIMEs, May 11,2011. at A8 (explaining that a violation of the veil law is punishable by a
fine or citizenship classes); Erlanger, supra note 2, atA6 (discussing the penalties).
7. See Chrisafis, supra note 5. at 29 (describing the intentions of the first two women
wvho received cowl-ordered fines to appeal the decision to the European Cowt of Human
Rights ("ECtHR") and discussing their lawyer's belief that the veil law contravenes European
human rights legislation): see, e.g., French Court ihnposes First Burqa Ban' Fines,
MSNBC.COM (Sept. 22, 2011, 12:12 PM), http://news.mobile.msn.om/en-us/
articles.aspx?aid=44626717&aifd=I (quoting one of the women regarding her plans to appeal
the decision).
8. See Karima Beimoune, Secularism and Huian Rights: A Contextual Analysis of
Headscarves, Religious Expression, and Women's Equality Under International Lai, 45
2012] PROTECTVG THE SPACE TO BE tN VEILED

regulation of veiling, however, may be justified in some

circumstances given the implications of the practice for women who
do not wish to veil.9 This Note contends that the niqab ban does not
violate the Convention, as France has legitimate state interests in
maintaining the public order and protecting the rights and freedoms of
others that justify limitations on veiling. In Europe, fundamentalist
groups increasingly seek to enforce norms contrary to secularism and
gender equality.1O Given the specific circumstances in France, the
interests of women who wish to veil are outweighed by the interests
of women who lack a meaningful choice due to community pressure,
family coercion, or threats of violence, as well as those of women

COLUM. J. TRANSNAT'L L. 367, 392 (2007) (citing POLITICS OF WOMEN'S BODIES:

SEXUALITY, APPEARANCE, AND BEHAVIOR (Rose Weitz ed., 1998)) (acknowledging that
regulating womens clothing may feel viscerally wrong because controlling women's bodies
has been crucial in maintaining women's subordination). Professor Bennoune is a scholar of
religious extremism and women's human rights, especially in Muslim contexts. Karina
Bennoune, RUTGERS.EDU, Feb. 22, 2011 http: inews.tutgers.edu/medrel/newairk-201 l/karima-
beimoune-name-20110107 (last visited May 16, 2012); see also Catharine A. MacKnon,
Reflections on Sex Equalit, Under Law, 100 YALE L.J. 1281, 1312 (1991) (analyzing the
disadvantage that results from women being "systematically denied meaningfiul control over
the reproductive uses of their bodies through sex").
9. Cf Karima Bennoune, The Law of the Republic Versus the "Law of the Brothers:" A
Sto v of kance's Law Banning Religious Symbols in Public Schools, in HUMAN RIGHTS
ADVOCACY STORIES 155, 175 (Deena R. Hurwitz et al.eds., 2009) (describing the
stigmatization of Muslim girls who choose not to veil); Adrien Katherine Wing & Monica
Nigh Smith, Critical Race Feminism Lifts the Veil?: Muslim RIofmen, France, and the
HeadscarfBan, 39 U.C. DAVIS L.REV. 743, 761 (2006) (explaining that some girls may veil
to avoid being labeled a "slut"). The term "veil' is used throughout this Note to include face-
covering ull veils, like the burqa and niqab, as well as garments that do not cover the face,
such as the hijab. The hijab "covers the hair, neck and shoulders, and often the outer rim of the
face." Bennoune, supra, at 159 1.12. Joan Wallach Scott has cautioned against conflating the
terms. See generally Joan W. Scott, Symptomatic Politics: The Banning oJ Jslamic Head
Scarves inFrench PublicSchools, 23 FRENCH POL. CULTURE & SOC'Y 106 (2005). However,
following Professor Bennoune's approach, the general term "veiling" will be used when the
garments raise similar issues. Distinctions between the full face veil and headscarf will be
made when relevant.
10. See Bennoune, supra note 9, at 173-74 (quoting a commentator wvho believes the law
of the Islamic Brotherhood has prevailed inrecent years); see also Wing & Smith, supra note
9, at 769-70 (describing the view that fundamentalists who wish to implement a strict
interpretation of the Qur'an are imposing a headscarf requirement to assert control over
European Muslims at a time when they are under attack from far right groups); cf Claire
Berlinski, Ban the Burqa, NAT'L REV., Aug. 16, 2010, at 38, 39 (explaining that girls have
begun to veil to escape violence in housing projects, wvhere the number of rapes has risen
fifteen to twentV percent every year since 1999).
972 FORDHA4MIATERN 4TIONAL LA WJOt R\A4L [Vol. 35:968

who do not veil." While France is arguably restricting protected

rights to religion, conscience, and expression, it does so in order to
foster freedom overall. 2
Because opponents of the ban have primarily described it as one
that violates a woman's right to dress as she desires, this Note
characterizes women opposed to the ban who wear the niqab as
making a fully autonomous choice to veil. 13 In fact, whether a
woman, who may have internalized oppressive societal or religious
norms, can realistically enjoy such freedom is a complicated and
much debated issue. 4 In weighing the competing interests of women,

11.See i/-ia Part IIEA (discussing France's legitimate interest inprotecting the rights of
others given pressure and threats of violence experienced by women who do not adhere to
modesty norms).
12. See iti/ia Part II.D (arguing that balancing all of the interests at stake leads to the
conclusion that the interests of those protected by secularism justify restrictions on the right to
manifest one's religious beliefs).
13. See, e.g.,Martha Nussbaurn, Veiled fu eats?, N.Y. TIMES, July 11, 2010,
http://opinionator.blogs.nytimes.coin,2010/07/11 /veiled-threats/ (characterizing the ban as one
that inhibits liberty and analogizing it to a ban on high heels); Judith Sunderland, How Not to
Liberate Women, GUARDIAN (U.K.), Apr. 24, 2010,
http: //www. guardian.co.uk/commentisfree/ e lief 2 01 0 apr/24/belgium-niq ab-islam-women
(arguing that restrictions on veiling are as much a violation of the rights of women as is
forcing them to wear a veil); The Faliban 4'ou1ul Applaud supra note 3, at A26 (asserting
people must be free to make such decisions without governent imposition): Press Release,
Amnesty Int'l. France Votes to Ban Full-Face Veils (July 13, 2010). available at
http://www .amnesty.org/en/news-and-updatesifranice-votes-ban-full-face-veils-2010-07-13
[hereinafter Amnesty Int'l Press Release] (quoting an advocate asserting that the rights to
freedom of religion and expression entail that all people should be fiee to choose whether to
veil). Even Osama bin Laden seemed to reject the bans on teminist grounds: "If you unjustly
thought that it is your right to preventfree uslin woen from wearing the face veil, is it not
our right to expel your invading men and cut their necks?" Bin Laden in W'arning to France,
AL JAZEERA (Oct. 27, 2010, 7:27 PM), http:,ienglish.aljazeera.net/news/europe/2010/10/
2010102710253569309.htrml (emphasis added).
14. See, e.g., Bemnoune, supra note 9, at 160 (listing internalized misogynist views about
modesty among the many reasons women may wear the veil); Susan Moller Okin, Is
Multiculturalisn Bad for Woen?, in IS MULTICULTURALISM BAD FOR WOMEN? 7, 22
(Joshua Cohen et al. eds., 1999) (examining culturally reinforced and internalized inequality);
see also AYELET SHACHAR, MULTICULTURAL JURISDICTIONS: CULTURAL DIFFERENCES AND
WOMEN'S RIGHTS 17 19 (2001) (exploring tactors that complicate a woman's ability to reject
a cultural or religious group or practice). See generally TMARTHA C. NUSSBAJM, WOMEN AND
HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2000) (discussing divergent views of
the role that preference should play in the formation of political principles, given that
preferences may be formed in response to restricted options); M'arie-Aimbe 1llime-Lucas, The
Prefeiential Symbol for Islainic Identitv: (omen in Muslimi Personal Lawis, in IDENTITY
POLITICS AND WOMEN: CULTUILR.A RE ASSERTIONS AND FEMINISMS IN INTERNATIONAL
PERSPECTIVE 391 (Valentine M. Moghadam ed., 1994) (arguing that when women become a
symbol of Islamic identity, their autonomy is limited by efforts to silence or punish deviance).
2012] PROTECTVG THE SPACE TO BE tN VEILED

however, this Note employs an oversimplified dichotomy between

women who freely choose to veil and those who either do not veil or
veil due to pressure or coercion. Because critics have charged that the
ban treats Muslim women as undifferentiated victims or children
whose decisions are suspect, it is useful to conceive of the woman
whose freedom stands to be limited by the ban 1
as engaged in a
practice she finds to be empowering or fulfilling. 5

Part I of this Note examines rights protected by the Convention,

which may be infringed by the niqab ban, and the leading case from 16
the ECtHR addressing state-imposed restrictions on religious dress.
Part II details the veiling controversy in France. Finally, Part III
analyzes the legality of the niqab ban and argues that it does not
violate the Convention because of France's legitimate interest in
maintaining public order and protecting the rights and freedoms of
others. It further argues that international commentators have largely
misunderstood the law's context and that this misunderstanding
matters because of the detrimental effects it has on efforts of Muslim
reformers and on the approaches of preeminent human rights
organizations.

I. IHE VEIL AiND THE EUROPEAN CONiV ENTION ON HUAIAN

RIGHTS
On May 5, 2011, Najate Nait Ali and Hind Ahmas, set out, fully
veiled, to bring a birthday cake to the mayor of Meaux, France, in
protest of the new niqab ban, which he had supported. 7 On
September 22, 2011, the women received the first court-imposed fines

15. See, e.g., Catherine Warrick, Editorial, Ban the Burqa, Ban the Bonnet ?: Tihy Do Rie
Decry Head-Coveringas a Violation of Women's Rights Only When Muslim Women Do It?,
PITTSBURGH POST-GAZETTE, Nov. 7, 2010, at BI (alleging that the law treats women as
helpless victims and is "breathtakingly paternalistic and demeaning"); Antoine Blua, French
Senate Votes to Ban Full-Face Veils, RADIO FREE EUR./RADIO LIBERTY (Sept. 14. 2010 9:01
AM), http:iiw w.rferl.orgicontentTrenchSenate To Vote On Ban Of Face
Coverin- Veils/2157025.html (quoting M'hammed Henniche of the Union of Muslim
Associations in the Seine-Saint-Denis district north of Paris: "We mustn't treat a woman like a
child."). For an example of women describing their practice of veiling as freely chosen, see
Lorraine All, Behind the Veil, N.Y. TIMES, June 13, 2010, at ST1.
16. $ahin v. Turkey, 2005-XI Eur. Ct. h.R. 173.
17. See, e.g., Chrisafis, supra note 5, at 29 (recounting the story of these women);
France's Burqa Ban: Two Women Finedfor Covering Faces, ABC NEWS, Sept. 25, 2011,
http://abcnews.go.comlnteriiatioiLi/frances-burqa-ban-womeii-fined-covering-faces/
storv id = I 459l682 4.T rbT 37JNKuI (describing the events resulting in the fines).
974 FORDH4MINTE\V4TIONAL LA WJOt R\N4L [Vol. 35:968

under the law."s They plan to appeal the decision to France's Supreme
Court, and, if necessary, to the ECtHR.19 Part I of this Note describes
the legal background for such a challenge. Section A examines the
rights of women who wish to fully veil that are protected by the
Convention and potentially infringed by the law. Section B describes
the jurisprudence of the ECtHR regarding the regulation of religious
dress, focusing on the leading case of ahin v. Tlurkey.

A. ImplicatedRights Under the Convention

Because Muslim women report diverse reasons for wearing the
veil, the niqab ban implicates a number of rights protected by the
Convention. Opponents often characterize the ban as a violation of
religious freedom, but it may be subject to challenges on other
grounds as well. 21 If the ECtHR finds that the niqab ban infringes a
right that is protected but subject to limitation by the Convention, the
court must then determine whether the limitation serves a legitimate
state interest and is proportional to the societal need for the
restriction.2' The ECtHR has twice found that although the veiling
regulations do interfere with the right to manifest one's religion, the
regulations served the legitimate state interest of protecting the public
order and rights of others by maintaining secularism and gender
22
equality .

18. See, e.g., Chrisafis, supra note 5, at 29 (reporting on the fines); kance's Burqa Ban:
Two Women Finedfor CoveringFaces, supra note 17 (detailing the first fines).
19. See, e.g., Chrisafis, supra note 5, at 29 (reporting the women's plans to appeal the
fines); krance's Burqa Ban: Two Women FinedjbrCovering Faces, supra note 17 (describing
the women's plans to challenge the law in the ECtHR).
20. See, e.g., 5ahin, 2005-XI Eur. Ct. H.R. 3, 29, 70, 163 (documenting Leyla Sahin's
allegations that a ban on headscaires at her university not only violated her religious freedom
but also infringed upon her right to respect for private life, right to freedom of expression, right
to freedom from discrimination, and right to education).
21. See Bennoune, supra note 8, at 370 71 (explaining the test used in the jurisprudence
of the ECtHR); see also, e.g., ahin, 2005-X1 Eur. Ct. H.R. IT 99, 121-22 (holding that the
state had a legitimate interest in protecting the public order and the rights of others, and that
the ban is proportional to this legitimate state interest); Dogru v. France, 49 Eur. 1-.R. Rep.
179, 'j 60, 74-77 (2009) (reaching the same conclusion as the 5ahin court).
22. See 5ahin, 2005-X1 Eur. Ct. H.R. ' 106-08. 122-23 (upholding a prohibition of
headscarxes in Turkish universities and highlighting the state's need to advance a democratic
society that promotes pluralism, tolerance, and broadmindedness); Dogru, 49 Eur. H.R. Rep.
11 62-64. 76-77 (finding that the expulsion of a girl wlho regularly refused to remove her
headscarf in gym class did not violate her rights under the Convention tor the Protection of
Human Rights and Fundamental Freedoms ("Convention"), and noting the state's role as the
"netural and impartial organiser of the exercise of various religions" and the protector of the
public order); cf NICHOLAS D. KRISTOF & SHERYL WuDUNN, HALF THE SKY: TURNING
2012] PROTECTVG THE SPACE TO BE tN VEILED

1. Reasons Women Veil and Their Corresponding Rights

One reason why a woman may veil is a belief that the modesty
extolled in the Qur'an requires her to cover her hair or face in the
presence of men. 23 Although many Muslim religious leaders and
scholars agree that the niqab is not required by Islam, a significant
number of Muslims worldwide ascribe the full face veil to Qur'anic
dictates. 2 ' Because the state is ill-suited to evaluate the theological
soundness of a religious practice, some suggest that the niqab should
be treated as a religiously compelled practice for some Muslims in
evaluating veiling restrictions. 25 A ban on covering one's face
potentially infringes a woman's right to manifest her religion under
the Convention. 26 Article 9 of the Convention provides:

OPPRESSION INTO OPPORTUNITY FOR WOMEN WORLDWIDE, at xix xxi (2009) (discussing the
fact that gender equality correlates to, and probably promotes, stability and prosperity).
23. See, e.g., TRICA DANIELLE KEATON, MUSLIM GIRLS AND THE OTHER FRANCE:
RACE, IDENTITY POLITICS, & SOCIAL EXCLUSION 187 (2006) ("Personally, I want to wear the
veil because I'm Muslim and the Koran requires women to dress this wa."); OPEN Soc'Y
FOUNDS., UNVEILING THE TRUTH: WHY 32 WOMEN WEAR THE FULL-FACE VEIL IN FRANCE
44 (201 1). available at http://www.soros.org/initiatives/home/ aticles publications"
publications/unveilig-the-truth-20110411 /a-unveiling-the-truth-20100510.pdf (reporting that
of the twenty-seven women asked whether they believed the full face veil w as, from an Islamic
perspective, compulsory, ten replied in the affirmative); Opinion. WhJ 'in Proud to WJear the
Burqa, CNN (Feb. 4, 2010, 12:07 PM), http:/edition.cnn.com/2010/OPINION/02/04/
france.burqa.bani ("I wear the burqa for the simple reason that I am a Muslim and the Koran
says that I must wear the full veil in order to be modest. I am proud of my Muslim faith and
my modesty. I am proud to follow God's law.").
24. See Berlinski, supra note 10, at 39 (stating that many Muslims view the veil as
required despite the views of Islamic scholars to the contrary): see also Steven Erlanger, For a
French Inain, Islam's True Enemy is Radicalisn, N.Y. TIMEWS, Feb. 13, 2010, at A6 (profiling
an Imam who sees the face-veil as "a symbol of inequality with no justification in Islam or the
Koran").
25. See Dogru, 49 Eur. H.R. Rep. j162 (explaining that the state's duty of neutrality and
impartiality is incompatible with any authority to assess the legitimacy of religious beliefs);
Regina v. Governors of Denbigh High School, [2005] EWCA (Civ.) 199, JI 48-49, [2005 2
All ER. 396 (Eng.). available at http://www.bailii.org/ew/cases/EWCA/Civ/2005/199.html
(finding that although the claimant held a minority view amount South Asian Muslims that the
jilbab was required, her sincere belief in the requirement was what mattered because the state
generally lacks discretion to determine the legitimacy of a religious belief or expression under
the Convention); see also Berlinski, supra note 10, at 39 (characterizing assertions that the
niqab is not a religious obligation as well-founded but irrelevant given that millions of
Muslims wordlwide believe it to be required); Wing & Smith, supra note 9, at 759 (explaining
that many Muslims consider the headscarfto be required by the Qur'an).
26. See Evans, supra note 2, at 36546 (questioning whether proposed European bans on
religious wear will survive scrutiny at the ECtHR); see also Cl'isafis, supra note 5, at 29
(describing potential plans to challenge the law at the ECtHR).
976 FORDHAMINTEK'4TIOAAL LATVWJOtI \VAL [Vol. 35:968

1. Everyone has the right to freedom of thought. conscience and

religion; this right includes freedom to change his religion or
belief and freedom, either alone or in community with others and
in public or private, to manifest his religion or belief in worship,
teaching. practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject
only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public safety,
for the protection of public order, health or morals,
27
or for the
protection of the rights and freedoms of others.
Other women may not believe wearing the full veil is mandatory
but consider it an element of a more pious way of life that deepens
their commitment to their faith. 8 Whether a practice is optional might
have some relevance to how burdensome a restriction is to believers,
but the Convention does not distinguish between mandatory and
optional religious manifestations. 29 The ECtHR has interpreted the
right to manifest one's religion to include acts of devotion "motivated
or inspired" by religious belief without requiring a showing that a
practice is religiously compelled.3
Women may also choose to veil in order to maintain ties with a
particular culture.31 Some commentators assert that veiling is a
cultural rather than a religious tradition, implying that it is less
deserving of protection than a religious practice.2 The Convention

27. Convention for the Protection of Human Rights and Fundamental Freedoms art. 9,
Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention].
28. See, e.g., Ali, supra note 15, at STI ("[A]Ithough the Muslim faith does not require
women to cover their faces, all believe the niqab gave them a bit of extra credit in the eyes of
God. 'The more clothes you wear. the closer you are to God.' Ms. Muhammad said."): OPEN
SOC'Y FOUNDS., supra note 23, at 83 ("In fact there are several paths to be nearer to
God.... [S]piritually 1 yearned for something stronger in fact. But I didn't consider it as an
obligation. For me it was something extra, it was good.").
29. European Convention, supra note 27, art. 9.
30. See Dogru, 49 Eur. H.R. Rep. 47 (quoting Sahin v. Turkey, 2005-XI Eur. Ct. H.R.
173. j178). Both cases accept the claimant's belief that the practice was mandatory without
determining the theological soundness of that belief.
31. See Wing & Smith, supra note 9, at 764-65 (describing veiling as a sign of positive
affirmation of an Islamic identity); see also Bennoune, supra note 9. at 160 (listing expressing
pride in their heritage among the reasons women wear the veil in France).
32. See, e.g., Nicole Atwill, France: Highlights of Parliamentarj Report on the Wearing
of the Full I eil (BURQA), LAw LIBR. CONGRESS, http://www.loc.gov/lawhelp/france-
veil.php#tl I (last updated Mar. 21, 2012) (quoting Mr. Mohammed Tantawi, the Grand
Sheikh of Al-Azhar University in Egypt, who instructed a pupil at a secondary school in Cairo
to remove her niqab and stated that "the niqab is a tradition, it has no connection with
religion "); see also David Barrett, British Schools Where Girls Must fIear the Islamic Veil,
2012] PROTECTVG THE SPACE TO BE tNVEILED

does not explicitly protect a right to manifest one's culture. 3 Unlike

the International Covenant on Civil and Political Rights, the
Convention does not contain provisions relating to self-determination
or the rights of minority groups. 4 The Convention does, however,
protect manifestations of "religion or beliefs" "either alone or in
community with others," as well as freedom of expression, respect for
private and family life, and other rights that have been read to protect
cultural traditions.>
Other women report that they wear the veil as a statement
against imperialism or oppression by the majority. 36 Iranian and

TELEGRAPH (London) (Oct. 2, 2010, 9:00 PM), http: //ww.telegraph.co.ulkeducation/

educationnews/80388201British-schools-where-girls-inust-wear-the-Islamic-veil.html (quoting
Imam Dr. Taj Hargey as saying, "t]he wearing of the burka or niqab is a tribal custom and
these garments are not even mentioned in the Koran"); Khalid Hasan, Ladies as Hooded
Bandits, KHALID HASAN ONLINE (Oct. 20, 2006, 1:42 PM), http:// wv.khalidhasan.net,2006/
10/20/ladies-as-hooded-bandits (accusing Muslim women "who confuse tribal customs with
divine commandments" of harming other Muslims).
33. See European Convention, supra note 27. But cf COUNCIL OF EUROPE/EUROPEAN
COURT OF H4u\TAN RIGHTS, CLTLTLRAL RIGHTS IN THE CASE-LAW OF THE EUTROPEAN COLURT
OF HUMAN RIGHTS 4 (2011),available at http:w/wvN-vN.echr.coe.int/NR/rdonlyres/T8123ACC-
5A5A-4802-86BE-8CDA93FE58DF/ORAPPORT RECHERCHE Droits culturels EN.pdf
(explaining that although the Convention does not explicitly protect the right to culture, the
ECtHR has gradually recognized substantive rights that can be classified as "cultural rights"
under the auspices of other rights under the Convention).
34. Compare European Convention, supra note 27 (failing to include protections for
self-determination and the rights of minority groups), with International Covenant on Civil and
Political Rights arts. 1. 27. Dec. 16, 1966, 999 U.N.T.S. 171 (guaranteeing rights to self-
determination and the right of minorities "toenjoy their own culture, to profess and practise
their own religion, or to use their own language"). E.g. France is a signatory to the
International Covenant on Civil and Political Rights, but this Note's analysis is limited to the
jurisprudence of the ECtHR, where the ban is expected to be challenged. Status of Treaties:
International Covenant on Civil and Political Rights, U.N. TREATY COLLECTION,
http:/treaties.un.org/pages/ViewDetails.aspx?src TREATY&mtdsg no IV-
4&chaptel-4&lang en (last visited Apr. 9, 2012) see also Chrisafis, supra note 5, at 29
(reporting that a woman who has been fined plans to challenge the permissibility of the ban
under the Convention only).
35. European Convention, supra note 27, arts. 8-11; see COUNCIL OF
EUROPE/TUROPEAN COURT OF HTUMAN RIGHTS, supra note 33, at 4 (listing the Convention's
provisions that were found to protect rights to culture).
36. See Special Rapporteur on Violence Against Women, Its Causes and Consequences,
Cultwal Practices in the kFamilv that Are Violent Toiards Women, Comm'n on 1Iuman
Rights, JJ5, U.N. Doc. EiCN.4/2002/83 (Jan. 31, 2002) (by Radhika Coomaraswamy)
(reporting that some women do not mind wearing the veil because they see it as subversive
against imperialism, and stating that the cultural markers that groups use to stand together
against oppression often entail limiting the rights of women); see also Beimoune, supra note 8,
at 369 (describing the haik, a veil worn in Algeria, as a symbol of women's oppression that
was, atone time, also a symbol of nationalist resistance to French colonialism).
978 FORDHAAMINTER.4TIONAL LAW JOtI \VA4L [Vol. 35:968

Saudi-style veils have become increasingly common among women

of North African origin in France, leading commentators to assert that
the practice is not primarily cultural or religious, but political 3 7 A
woman who alters her style of religious dress to one associated with a
culture different from her own may in some cases be exercising her
Article 9 right to "change [her] religion or beliefs. 3 8 In other cases,
her decision to veil may be an expression of solidarity with the
broader Muslim population, an assertion of her status as an outsider, a
rejection of her parents' liberalism or assimilation, or a way to assert
her political beliefs).9 As Professor Ayelet Shachar has noted, various
female Muslim writers who defend the practice of veiling accept this
interpretation of veiling as a political rather than religious expression,
particularly in societies with a non-Muslim majority.4 Although
political ideologies have not received the same deference as religious
claims, these reasons implicate the right to freedom of expression
protected by Article 10 of the Convention.41
Commentators have been critical of the idea that a "right to veil"
exists. 4 2 Even stipulating there is no right as such, the Convention

37. See, e.g., Bennoune, supra note 9,at157 ("Telling the often overlooked 'other' side
of the story demonstrates that the policy debate about headscarves in school is not just a
question of identity, but of political choices with political consequences."); id.at164 (quoting
former Mufti of Marseille, Soheib Bencheikh as saying "[w]e are not talking about any veil.
We are talking about an Iranian-style or Saudi-style garment sometimes even worn with
gloves. This isthe avant-garde of a creeping ideology"); Bennoune, supra note 8, at 379
(quoting a female Turkish human rights attorney: "[T]he turban or headscarf is not just a dress
but a sign of political conviction.").
38. European Convention, supra note 27, art. 9(l).
39. See Benmoune, supra note 9, at 176 (describing veiling as a form of rebellion against
one's parents): see also Ali, supra note 15, at ST1 (telling the story of an American woman
who began wearing the niqab in response to post-9i1 I anti-Muslim sentiment); Wing & Smith,
supra note 9. at 765 (highlighting the choice to veil as a way to discover and affirm one's
identity during adolescence).
40. See Ayelet Shachar, Religion, State, and the Problemn qf Gender: New fodes o'f
Citizenship and Governance in Diverse Societies, 50 McGILL L.J. 49, 80 (2005) (discussing
veiling as political expression).
41. See Karima Bennoune, Remnbering the Other's Others: Theorizing the Approach
ofInternationalLaw to lluslim Fundamnentalisn, 41 COLUM. HUm.RTS. L. REV. 635, 646-47
(2010) (citing RELIGION, HLT,\AN RIGHTS AND INTERNATIONAL LAW: A CRITICAL
EXAMINATION OF ISLAMIC STATE PRACTICES (Javaid Rehman & Susan C. Breau eds., 2007))
(describing religious claims under Article 9 as receiving greater deference than Article 10
claims).
42. See Bennoune, supra note 9,at 167 ("As [Marieme -ITlie Lucas] and others view it,
the demand for 'the right to veil' is part of a broader fundamentalist agenda ....");
see also id.
at 181 (criticizing human rights lawyers who have defended the "right to veil" inschool, such
as when a father sought to have his twelve-year-old daughter wear a full face veil). See
2012] PROTECTVG THE SPACE TO BE tN VEILED

specifically protects multiple rights implicated by the diverse reasons

women veil discussed above.43 For the law to withstand scrutiny, the
state must demonstrate that the limitation of these personal freedoms
is justified by a state interest outlined in the Convention and that the
measures enacted are proportional to the societal need.44

2. The Prohibition Against Discrimination

While the specific reasons women choose to wear the niqab
vary, ultimately all veil because they identify as Muslims. 4 A law
aimed directly at prohibiting a practice exclusive to adherents of
Islam is potentially a violation of the Convention's prohibition of
discrimination based on religion or membership in a national
minority .46 The "niqab ban" does not literally ban the niqab; it is
applicable to a person of any religion, group, or sex who covers his or
her face in public. 47 The intent behind the law, however, is widely
known and openly admitted: to ban the niqab. 4 Unlike the provisions
discussed above. the prohibition against denying rights based on
religion is absolute: it does not contain language concerning the
state's interest.49 It follows that if opponents are able to demonstrate
that the law is a consequence of Islamaphobia meant to target and

generally Mary Ann Case, Feminist Fundamentalism as an Individual and Constitutionai

Commitment, 19 AM. U. J. GENDER SOC. POLY & L. 549 (2011) (challenging proponents of
"the right to veil").
43. See supra Part IA.1 (regarding the reasons women veil and their corresponding
rights).
44. See, e.g., Dogru v. France, 49 Eur. H.R. Rep. 179, 1 60. 74-77 (2009) (holding that
the refusal to allow a girl to wear her headscarf in gym class met this test); $ahin v. Turkey,
2005-XI Eur. Ct. H.R. 173, 'j 99. 121-22 (finding that a ban in Turkey met this test).
45. See supra Part I.A.1 (surveying the range of reasons that women give for veiling).
46. See European Convention, supra note 27, art. 14; see, e.g., 5ahin, 2005-XI Eur. Ct.
H.R. ' 165 (addressing the applicant's claim that a headscarf ban violated her rights under
Article 14).
47. See Conseil constitutionnel [CC] [Constitutional Court] decision No. 2010-613DC,
Oct. 7, 2010, J.0. 18345, JJ2 (Fr). The law provides exemptions for "medical or professional
grounds," "sporting practices, festivities, or artistic or traditional events." 1d; see also Evans,
supra note 2, at 365 (placing the ban among those using neutral terms).
48. See Cross, supra note 3 ("There is really no doubt that the targets of the bill are the
burka and the niqab. .. "); see also Erlanger, supra note 2, at A6 (characterizing the law as
aimed at the burqa and niqab).
49. See European Convention, supra note 27, art. 14; see also Evans, supra note 2. at
366 ("Whether [the ECtHR] would be so forgiving of bans transparently intended to stigmatize
and penalize individuals who wish to adhere to their religious traditions remains to be seen.").
980 FORDHAAMINTER.4TIOAAL LAW JOtI \VA4L [Vol. 35:968

stigmatize Muslims under the false pretense of promoting

50
women's
rights, as has been alleged, it must be struck down.

B. Other InterestedParties.Interest Balancing in $ahin v. Turkey

Prominent human rights organizations, American leaders, and
pundits in the English-speaking media have framed the legality of the
ban as a question of the rights of the individual as against the state. 51
Some proponents of prior regulations of religious dress, however,
have argued that this approach ignores the reality of extralegal
restrictions on the freedom of women in French neighborhoods where
fundamentalist ideas have taken hold, and silences the perspectives of
Muslim reformers working to protect the freedom and safety of
women.i 2 The ruling of the ECtHR in 5ahin v. Turkey demonstrates
that the interests of a wider group of rights-bearers whom
53
the state
also is obligated to protect must be considered as well.
In 1998, during Leyla $ahin's fifth year of medical school,
Istanbul University instituted penalties for students who violated a
1982 circular that banned beards or headscarves in class. 54 $ahin,
however, considered it her religious duty to wear a headscarf and
continued to do so.55 As a result, University officials denied $ahin
admission to her lectures and exams, and ultimately suspended her. 6
$ahin unsuccessfully challenged her suspension in the Istanbul
Administrative Court. 7 She appealed to the Supreme Administrative

50. See European Convention, supra note 27, art. 14;see also Evans, supra note 2,at
366 (questioning vhether the ban will survive review at the ECtI-R).
51. See supra note 14 and accompanying text (listing examples of commentators framing
the question as one of individual rights).
52. See Beimoune, supra note 41, at 696-97 (arguing that international lawyers have
avoided discussion of Muslim fundamentalism disempowering antifundamentalists of Muslim
heritage). See generial/v Bennoune, supra note 9 (surveying the view of Muslims who advocate
for reform and arguing that too little attention has been paid to the problem of fundamentalism
in France).
53. See $ahin v.Turkey, 2005-XI Eur. Ct. HR. 173, 165 (finding that the protection of
the rights and fieedoms of others are a legitimate governnent aim).
54. See id. ' 16 (describing the 1998 circular, which barred students in headscarves fiom

classrooms); id. 37 (detailing the 1982 circular instituting the original rule banning
headscarves and beards).
55. See id jj 14 ("She comes from a traditional family of practising Muslims and
considers it her religious duty to wear the Islamic headscarf').
56. See id. ' 21-28 (recounting the disciplinary actions taken against Sahin).
57. See id. ' 19 ("In a judgment of March 19, 1999, the Istanbul Administrative Court
dismissed the application ..... ).
2012] PROTECTVG THE SPACE TO BE tN VEILED

Court, but a subsequent law released students from dress code related
penalties. making her appeal moot. 8
$ahin sought relief from the ECtHR, alleging that the headscarf
ban infringed her right to manifest her religion under Article 9 of the
Convention." 9 After the fourth section chamber of the ECtHR held
that $ahin's rights under the Convention had not been violated, she
appealed to the Grand Chamber.6" The ECtHR agreed with the fourth
section that the rule against headscarves and beards interfered with
$ahin's Article 9 right to manifest her religion.6 1 The 5ahin court then
addressed whether the limitation of her rights was justified by a
legitimate state objective outlined in the Convention and, if so,
62
whether the means employed were proportionate to that objective.
Subsection I examines the ahin court's analysis of Turkey's claim
that it had legitimate state interests in protecting the public order and
the rights of others justifying the headscarf rule. Subsection 2
describes the Sahin court's consideration of whether the rule was
proportionate to the societal need it sought to address. Subsection 3
discusses Judge Frangoise Tulkens' dissent from the majority opinion
in ,5ahin.

1. Legitimate Aims of the State: Public Order and the Rights and
Freedoms of Others
Under the Convention, protecting the public order and the rights
of others are legitimate aims of the state that justify some restrictions
on the right to manifest one's religion.63 In determining whether the
headscarf rule in Turkey served these aims, the Sahin court noted that,
because reasonable opinions may differ as to questions of separation
of church and state, domestic decisionmaking bodies deserve special

58. See id. JI 25-26 (explaining that Law No. 4584 enacted in June 2000 "provided for
students to be given an amnesty in respect of penalties imposed for disciplinary offences").
59. See id J170. ,ahin also alleged violations of her rights under Articles 8 (respect for
private and family life), 10 (fieedom of expression), and 14 (prohibition of discrimination),
and Article 2 of Protocol No. I (education). See iM 125, 163.
60. See $ahin v. Turkey, App. No. 44774/98, 111 (Eur. Ct. H.R. Fourth Section June
29, 2004). ajfd by 5ahin, 2005-XI Eur. Ct. H.R. 173): 5ahin, 2005-X1 Eur. Ct. H.R.. 178.
61. See 5cahin, 2005-XI Eur. Ct. H.R. 78.
62. See id. 1 110, 117.
63. See European Convention, supra note 27, art. 9 ("Freedom to manifest one's religion
or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in
a democratic society in the interests of public safety, for the protection of public order, health
or morals, or for the protection of the rights and fi'eedoms of others."), ahin, 2005-X1 Eur. Ct.
H.R. T 70 (quoting Article 9 of the Convention).
982 FORDHA4MIATERA 4TIOAAL LA WJOti-\RA4L [Vol. 35:968

deference. 64 Furthermore, the court found that "the meaning or impact

of the public expression of a religious belief will differ according to
' 65
time and context.
Accordingly, in making its decision, the ECtHR considered not
only Turkey's domestic jurisprudence but also the country's history
and legal context.66 Laik, or secularism, is a fundamental principle
enshrined in the second article of the Turkish Constitution. 7 It states:
"The Republic of Turkey is a democratic, secular and social State
governed by the rule of law ....,,6'The phenomenon of students
wearing headscarves in school was fairly new at the time that the
1982 circular banned the practice. 69 The headscarf was a subject of
much debate in the overwhelmingly Muslim country between those
who saw it as a duty or expression linked to religious identity and
those who considered it a symbol of political Islam that threatened
principles of secularism.
Turkey first regulated religious dress in higher education in 1925
in a law requiring public employees to wear modern dress and
forbidding face veils. 71 In 1982. Turkey banned headscarves from
educational institutions.7 2 This ban was upheld in 1984 by the
Supreme Administrative Court on the grounds that the headscarf was
"in the process of becoming a symbol of a vision that is contrary to
the freedoms of women and the fundamental principles of the
Republic.* 73 A 1988 law allowing headscarves back into educational
institutions was struck down in 1989 by Turkey's Constitutional
Court, which found that it violated the constitutional guarantees of

64. See 5ahin, 2005-XI Eur. Ct. 1-.R. 109.

65. Id.
66. See id. 30-40 (considering the law's context).
67. TORKIYE CUMHURIYETI ANAYASASI [CONSTITUTION] Nov. 7, 1982, art. 2. (Turk.).
An English translation is available at http://www.anayasa.gen.trl1982Constitution-1995-1.pdf:
see 5ahin, 2005-XI Eur. Ct. H.R. 30 ("The Turkish Republic was founded on the principle
that the State should be secular.").
68. TuRKI -E CLuMIIULRIYETI ANAYASASI [CONSTITUTION] Nov.7. 1982, aut. 2. (lurk.).
69. See ahi,, 2005-XI Eur. Ct. H.R. 35 (explaining that the headscarf phenomenon
began in the 1980s).
70. See id.
71. See Law No. 671 of Nov. 25, 1925, Resmi Gazete [R.G.] No. 230 (Nov. 28, 1925)
(Turk.) (Hat Law of 1925) (restricting the use of religious headgear of citizens, without
permission from the government). An English description of the Hat Law of 1925 is available
at http: iiv-w.lkiltr.gov.trEN/belge/2-15009/1925.html.
72. See $ahin v.Turkey, 2005-XI Eur. Ct. H.R. 173. J137.
73. Id. J137 (quoting the December 13, 1984 judgment of the Supreme Administrative
Court).
2012] PROTECTVG THE SPACE TO BE tN VEILED

secularism, equality before the law, and freedom of religion, as well

as the implicit principle of gender equality.74 The Constitutional Court
noted that a symbol presented or perceived as religiously compelled
75
has an impact on those wishing not to wear it.
The 5ahin court explained that the freedom of religion enshrined
in the Convention includes the "freedom to hold or not to hold
religious beliefs and to practise or not to practise a religion." 76 Not
every act inspired by religious belief is protected. and, in a pluralistic
society, restrictions may be necessary in order to reconcile competing 77
interests and to ensure that everyones beliefs are respected equally.
The ECtHR cited its earlier decision in Dahlab v. Switzerland, in
which it upheld a prohibition of headscarves worn by public school
teachers in class because the hijab, or headscarf, was "imposed on
women by a religious precept that was hard to reconcile with the
principle of gender equality," and might have a proselytizing effect on
children. 78 The ECtHR also cited Karaduman v. Turkey, in which it
upheld measures taken to prevent fundamentalist groups in Turkey
from exerting pressure on non-Muslim or nonpracticing university
students to veil, indicating that institutions of higher education may
also regulate religious expression in order to promote public order and
the rights of others even though university students are ostensibly less
vulnerable to proselytizing than children in grade schools.7 9

74. Anayasa Mahkemesi [Constitutional Court], Mar. 7, 1989, Esas No. 1989/1 [Basis
Number], Karar No. 1989/12 [Decision Number] (TC Resmi Gazete [Official Gazette of
Republic of Turkey], 1989, No.20216, Safya No. 25 [page]) (Turk.).
75. Id.
76. See $ahin v.Turkey, 2005-XI Eur. Ct. 1R. 173,A 104.
77. See id. 106.
78. See id. 111 (citing Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 449). This
assertion has been criticized by commentators who reject that the veil has any fixed meaning.
See, e.g., Nusrat Choudhury, hrom the Stasi Comnrission to the European Court f'JHufman
Rights: L 'Affaire d Foulardand the Challenge of Protectingthe Rights of 1huslin Girls, 16
COLUM. J. GENDER & L. 199. 282-83 (rejecting the assertion that the veil is difficult to
reconcile with gender equality). One verse in the Qur'an instructs both sexes to dress
modestly. See Qur 'an7:26. Others instruct men to see that their women are covered or instruct
only women to "lower their gaze and guard their modesty.' See id.at 24:31, 33:59. Whether
the precept is "laid down in the Qur'an" isdisputed, but the practice is difficult to reconcile
with gender equality for a number of reasons. See generally Beimoune, supra note 8
(characterizing the veil as problematic for women's human rights).
79. See 5ahin, 2005-XI Eur. Ct. H.R. 'I II (citing Karaduman v. Turkey, App. No.
16278/90. 74 Eur. Comm'ii HR.Dec. & Rep. 93 (1993)); see also id. J 10 (Tulkens, J.,
dissenting) ("She is a young adult woman and a university student, and might reasonably be
expected to ha-ve a heightened capacity to resist pressure.").
984 FORDH4MINTE\V4TIONAL LA WJOti-\A4L [Vol. 35:968

The ECtHR took special notice of the context of the regulations

at issue in .5ahin.When enacting the ban, the Turkish government was
reacting to increasing fundamentalism that threatened the secular
public order and the rights of women." In its decision, the ECtHR
acknowledged the presence of extremist political movements seeking
to impose their religious precepts on Turkish society ." A state party
to the Convention has the right to take a stance against such political
movements, based on its historical experience. 2
Thus, the ECtHR demonstrated that a state seeking to fulfill its
obligations under the Convention has responsibilities to all of its
citizens, not only those wishing to manifest their religion.13 The
Convention explicitly states that this right, like nearly all the rights it
protects, is subject to limitation.84 The reasonableness of such a
limitation is not an abstract question but turns on the specific situation
considered within the country's historical, legal, and political
contexts.8 In the case of Turkey, the court found that a nation
founded on principles of secularism and equality was justified in
addressing the fundamentalist threat of veiling to its citizens* freedom
fiom religion."6

2. Proportionality
A state-imposed restriction on an individualfs religious
expression must not only have a legitimate aim but must also be
"proportional" and "necessary in a democratic society.' ' Because
freedom of thought, conscience, and religion are foundations of a
democratic society, the ECtHR found that protecting the right to hold
or not hold religious beliefs was also necessary."8 The 5ahin court

80. See id. 115.

81. See id.
82. See i. Turkey's historical experience includes the founding of a secular state and,
more recently, growing fundamentalism. See id. 1 30. 115.
83. See id.JJ159 (discussing the university's attempts to avoid turning away students in
headscaires while protecting the rights of others), see also Bennoune,supra note 8, at 397 98
(outlining the conflicting rights that states are obligated to protect).
84. See European Convention, supra note 27, art. 9.
85. See ahin, 2005-XI Eur. Ct. HR. 109 II (noting that "the meaning or impact of
the public expression of a religious belief will differ according to time and context" and
affirming that contracting states are entitled to take steps against extremist political elements in
light of their historical experience).
86. See id. 104-15.
87. See id. 104-06, 117.
88. See id.T 104.
2012] PROTECTVG THE SPACE TO BE tN VEILED

directly addressed whether "there was a reasonable relationship of

proportionality between the means employed and the legitimate
objectives pursued by the interference"' with the rights at stake only
briefly,89 Granting a significant "margin of appreciation" to the state,
the ECtHR deferred to the university's judgments, citing a school's
greater ability to evaluate local needs than an international court. 90
The ECtHR noted that the headscarf was not the only religious attire
banned by the university and that students remained otherwise free to
perform their religious duties.9 The court emphasized that these
regulations were developed and implemented over several years in
which the issue was debated in the teaching professions and by
society at large.> Further, the university officials also engaged the
students in dialogue ensuring that they understood the purpose of the
regulations and would not be barred from attending their classes. 93
Despite the court's review of these considerations, commentators
have criticized the lack of attention to the proportionality analysis. 94
The question of proportionality, however, imbues the earlier
discussion as to whether the regulation was justified in principle. In
establishing Turkey s interests in protecting public order and
women's rights, the 5ahin court engaged in a detailed analysis of the
specific context of the regulations."

89. See id. JT 117-21; see also Benmoune, supra note 8. at 382 ("As to proportionality,
as some of its critics have noted, the Court did not engage at this level inan explicit, thorough
application of the principle." (citation omitted)) Evans, supra note 2. at 353 (asserting the
"paucity of reasoning regarding the proportionality issue is a point of weakness in the case"
and referring to this issue as "one of the most sparsely reasoned sections of the judgment").
90. See 5ahin, 2005-XI Er. Ct. H.R.JJ121.
91. See id.ll8.
92. See id. 120.
93. See id.
94. See, e.g., Bennoune, supra note 8. at 382 (acknowledging, as critics have noted, the
lack of an explicit and thorough application of the principle of proportionality inthe 5ahin
case): Evans, supra note 2, at 353 (criticizing the proportionality analysis).
95. See Benmoune, supra note 8, at 382 (stating that the court's "painstaking explication
of the Turkish context reflects upon" the question of proportionality); supra Part LB.
(discussing the ECtHR's detailed analysis of the Turkish context justifying measures to
address the societal need).
96. See $ahin v.Turkey, App.No. 44774/98, 1[111 (Eur. Ct. H.R. Fourth Section Jure
29, 2004), affd by 5ahin, 2005-XI Eur. Ct. H.R. 173); see also Bennoune, supra note 8, at 382
(noting the ECtHR's consideration of the legal and social context of the disputed Turkish
restrictions).
986 FORDHAAMINTER.4TIOAAL LAW JOtI \VA4L [VoI. 35:968

3. Judge Tulkens' Dissent

Judge Franqoise Tulkens dissented from the opinion in yahin for
reasons shared by a number of prominent human rights
organizations. 97 She argued the majority had granted too wide a
margin of appreciation to the state in service of abstract ideas of
secularism and equality without identifying a "pressing social need.""8
Judge Tulkens gave significant weight to the assertions of Leila $ahin
that she had no intention of challenging the principle of secularism,
proselytizing, or pressuring other students, and that she wore the
headscarf of her own free will.99 Judge Tulkens concluded her dissent
by placing the controversy in the context of hostility against Muslims
identified in that year's activity report of the European Commission
Against Racism and Intolerance."' Judge Tulkens and sympathetic
nongovernmental organizations have been criticized, however, for
their projection of anti-Muslim attitudes in non-Muslim majority
countries onto a Muslim country. 1 ' 1 Some commentators have argued
that conflating anti-Muslim sentiment with legitimate questioning and
regulation of Islamic practices silences important intra-Muslim
1 2
debate.

97. See 5ahin, 2005-XI Eur. Ct. H.R. J O-111 to 0-1120 (Tulkens, J.,dissenting)
(arguing the Court's decision amounted to paternalism and highlighting the prevalence of anti-
Muslim sentiment): see also HUMAN RIGHTS WATCH, MEMORANDUM TO THE 'TURKISH
GOVERNNIENT ON HUMAN RIGHTS WATCH'S CONCERNS WITH REGARD To ACADEMIC
FREEDOM IN HIGHER EDUCATION, AND ACCESS TO HIGHER EDUCATION FOR WOMEN WHO
WEAR THE HEADSCARF 4 (2004), available at http://ww-.hi-.org/legacybackgronder/eca/
tm'key/2004ibeadscarf memo.pdf ("Headscarves do not pose a threat to public safety, health,
order, or morals, and they do not impinge on the rights of others. They are not inherently
dangerous or disruptive of order, and do not undermine the educational function.").
98. See 5ahin, 2005-XI Eur. Ct. H.R.JI 0-114 to 0-115 (Tulkens, J., dissenting).
99. See id. 0- 117 to O-1112 (Tukens, J., dissenting).
100. See id.' 0-1120 (Tukens, J., dissenting) (citing EUR. COMM N AGAINST RACISM &
INTOLERANCE, COUNCIL OF EuR., CRI (2005) 36, ANNUAL REPORT ON ECRI's ACTIVITIES
COVERING THE PERIOD FROM I JANUARY To 31 DECEMBER 2004 (2005), which documented
hostility towards Muslims in Europe).
101. See, e.g.,Bennoune, supra note 8, at 424 (quoting Seyla Benhabib, Reclaiming
Universalism: Negotiating Republican SelfDetermination and Cosmopolitan Norms, in 25
THE TANNER LECTURES ON HUMAN VALUES 111, 157 n.26 (2005)) ("This projection of the
legitimate non-Muslim context concern with Islamophobia onto internal debates in Muslim
countries and communities also surfaces inthe views of the Court's NGO critics and should be
avoided.").
102. See, e.g.,id.at 395 (citing CHETAN BHATT, LIBERATION AND PURITY: RACE, NEW
RELIGIOUS MOVEMENTS AND THE ETHICS OF POSTMODERNITY, at xx (1997)) ("As Chetan
Bhatt has noted in the context of the United Kingdom, 6generally... black and multiracial
feminism has been virtually alone in creating an activist political challenge to
fundamentalism.' To be anti-racist also means to support this challenge and to do so is not
2012] PROTECTVG THE SPACE TO BE tN VEILED

II. THE COVFLJCTJ-V THE FREVCH CONTEXT

Given the weight that the ECtHR placed on the domestic context
in 5ahin, Part II outlines the history of the debate over veiling in
France. Section A explains that both the facts on the ground and
France's legal obligations may be unfamiliar to international
observers, especially those with an American conception of rights.
Section B provides the background and debate surrounding the niqab
ban and the earlier French law restricting religious symbols in school.
Section C examines arguments for and against the niqab ban based on
how the ban w ill affect those who do not wi sh to veil.

A. A Context Unfnamiliar to Outside Observers

In a June 4, 2009 speech at Cairo University, US President
Barack Obama extolled freedom of religion in America: "[F]reedom
in America is indivisible from the freedom to practice one's
religion.... That's why the United States Government has gone to
court to protect the right of women and girls to wear the hijab and to
punish those who would deny it." 103 As critics pointed out, women's
rights were addressed only briefly in the president's speech to "the
Muslim world. 10 4 Noticeably absent is any mention of Muslim

Islamophobic. In the era of the war against terrorism, many read solely the inter-cultural
aspects of the debate, not the intra-cultural. This is a mistake." (citations omitted)); Madhavi
Sunder, Piercingthe Veil, 112 YALE L.J. 1399 (2003) ("[L]aw, rather than facilitating human
rights and modernity, is buttressing the power of traditionalists against change ... to protect
and preserve cultural stasis and hierarchy against the challenges to cultural and religious
authority emerging on the ground.").
103. Presidential Remarks in Cairo, 1 PUB. PAPERS 760, 762 (June 4. 2009).
104. See Katha Pollitt, fuslim Women's Rights, Continued, NATION, July 13, 2009, at
10 (describing the section on women's rights in the speech as rather minimal"); see also
Karima Bennoune, Obama in Cairo: The Religionizing of Poltics, EUR. SOLIDAIRE SANS
FRONTIERES, June 4, 2009, http://wv-w.europe-solidaire.org/spip.php?article13989 ("[T]he
President made no mention whatsoever of the pressure, coercion and even violence sometimes
employed within some Muslim populations and families to get women and girls to wear-and
believe they are required to wear the hijab and other 'modest' gear."). Critics have suggested
there is no such thing as "the Muslim world" and that the term treats diverse groups as
monolithic. See, e.g., Bennoune, supra (rejecting the conception of "the Muslim world");
Christopher Hitchens, t4 hen the Extreme Becomes the Norm: t4 hat Connects Obama's
Pronouncementson Head Scarves and the Argument over Released GuantanamoDetainees?,
SLATE (June 8, 2009. 12:26 PM). http://www.slate.coinid!2220000/ ("Any person with the
smallest pretense to cultural literacy knows that there is no such place or thing as 'the Muslim
world,' or, rather, that it consists of many places and many things. (It is precisely the aim of
the jihadists to bring it all under one rulership preparatory to making Islam the world's only
religion.)").
988 FORDHAMINTEK 4TIOAAL LATVWJOtiP-V4L [Vol. 35:968

women's struggles under theocratic governments or those fighting for

the right not to veil around the world. 10 5 The United States' struggles
with Islamic fundamentalism have for the most part consisted of
attacks from outside rather than illiberal ideas taking hold in alienated
immigrant groups; the US Muslim population is generally more
affluent, educated, and religiously moderate than that of Europe.10 6 In
Europe, on the other hand, states* failures to integrate immigrant
groups have led to poverty and unrest conducive to the spread of
fundamentalism.107
A student wearing a headscarf at an American university might
have little or no proselytizing effect.08 It does not create a division

105. See Pollitt, supra note 104, at 10 ("What about Saudi or Iranian women, who are
forced by law to cover?"): see also Beinoune, supra note 104 ("This is remarkably one-sided
as the President made no mention whatsoever of the pressure, coercion and even violence
sometimes employed within some Muslim populations and families to get women and girls to
wear-and believe they are required to wear-the hijab and other 'modest' gear."); Hitchens,
supra note 104 ("But to the w omen who are compelled to dress according to the requirements
of others, Obama had nothing to say at all, as if the only 'right' at stake were the right to obey
an instruction that is, in fact-if it matters-not found in the Quran.').
106. See Bennoune, supra note 104 (suggesting that President Obama's speech
demonstrated a willingness to ignore human rights violations stemming fiom growing Islamic
fundamentalism in order to neutralize the threat of outside terrorism faced by the United
States) see also PEW RESEARCH CTR., MUSLIM AMERICANS: NO SIGNS OF GROWTH IN
ALIENATION OR SUPPORT FOR EXTREMISM 1, 6-7, 37, 54 (2011) (reporting the results of a
2011 nationwide survey of Muslim Americans and finding that most Muslims living in the
United States were middle class and mainstream, largely assimilated, happy with their lives
and moderate with respect to global issues, especially in comparison with minority Muslim
publics surveyed in several European countries by the Pew Global Attitudes Project); Bruce
Bawer, Tolerating Intolerance: The Challenge of FundamentalistIslam in R-estern Europe, 69
PARTISAN REV. 338, 338 (2002) ("Muslims in America tend to be more affluent, more
assimilated, and more religiously moderate than their co-religionists in Europe.").
107. See Bennoune, supra note 9, at 170 ("[Marie-Aimee] -ITlie Lucas and others blame
the failures of the French state for the success of fundamentalist movements in France. 'Like in
Algeria, when the French state refuses to provide services, the fundamentalists rush in, and
they also provide their ideology. When the state is not doing its job, it leaves space to these
fascist organizations."'); Contemporary Issues Panel Discussion on Lai'cite in France, 49 J.
CATH. LEGAL STUD. 53, 74 (2010) (locating poverty. unemployment, and unequal educational
opportunities at the root of the disaffection of young Muslims and growing Islamic
fundamentalism): see also Ayelet Shachar, supra note 40, at 85 ("The problem of Muslim
social exclusion in France has manifested in various ways, including a disturbing correlation of
Muslim ethnic or religious affiliation with low socio-economic status, high unemployment,
and lack of political representation at the national level.").
108. See Bennoune, supra note 8. at 389-90 (describing the situation of students at
Rutgers University School of Law, where there are tew Muslim students, a tiny urumber who
where the headscarf, and little interest in the law school from outside Muslim fundamentalist
groups). see also Berlinsld, supra note 10, at 39-40 (highlighting contextual differences
regarding veiling).
2012] PROTECTJIVG THE SPACE TO BE tN VEILED

between good Muslims and bad, leading to strife and threats to the
"bad" women. 10 9 The assertion of her religion, culture, or politics
might be empowering in a setting where there is little risk that she or
women around her are being coerced. 110
Looking at the issue of veiling in the abstract through an
American lens, it may not be understood that those who President
Obama suggested should be punished for denying the "right of
women and girls to wear the hijab" may themselves be Muslim
women reacting to specific circumstances in their countries.11 1
Among those seeking to regulate veiling in any particular
controversy, there may be individuals who have fled repressive
regimes that mandate veiling, or lived in communities where an
unveiled woman is subject to harassment or violent attack.1 12 There
may, however, be individuals who are racist, xenophobic, or
misinformed as well. l l 3 The motives and actions of those supporting a

109. See Bennoune, supra note 8,at 390 91 (explaining that headscarxing at Rutgers
might have no impact on the rights of other students, but that the context could shift should
more students begin to cover or experience pressure fiom campaigners for "modest dress");
see also Wing & Smith, supra note 9, at 770 71 (listing the division created among Muslim
women as a reason some Muslim women support banning the headscarf in French schools).
110. See Bennoune, supra note 8. at 424 (agreeing that in some contexts some women
who cover feel independent and empowered); see also Peter G. Danchin, Is/am in the Secular
Noinos of the European Court of Hluana Rights, 32 MICH. J. INT1 L. 663, 725 (2011)
(including expressions of autonomy and self-realization among the reasons why women and
girls veil). This isnot to say that Muslim women in the US do not experience pressure to
cover, only that it is not currently comparable to that which is common in other countries. See,
e.g., Lauren Gilbert, Citizenship, Civic Virtue, and immigrant Integration: The Enduring
Powier fConmunitv Based Norms, 27 YALE L. & POC Y REV. 335, 383 84 (2009) (describing
the "oppression of women by women" in a Somali community in Maine, specifically a woman
in Bantu attire being chased down the street by Somali women in hijab).
11. See HfUMAN RIGHTS WATCH, supra note 97, at 37 38 (considering the position of
Senal Sarihan, a lawyer and president of Turkey's Republican Women's Association wvho
described the headscarf as a "near and present danger" and argued that an end to the ban would
pose a serious threat to Turkish women's hard-won freedoms). See generally Bennoune, supra
note 9 (surveying the experiences and opinions of commentators of Muslim heritage in
France).
112. See Bennoune, supra note 9, at 166-67 ("[E]specially those who come from
countries that have seen the rise of fundamentalism (Algeria, Iran, etc.) recognize the danger.
Such immigrants and refugees warn that-.. ifthe fundamentalists are victorious in schools.,
this problem will only spread.")- see also Wing & Smith, supra note 9, at 767, 767 n.154
(quoting a supporter of the French school ban wlho had fled Algeria and who noted that in
some French villages, "girls and young women are intimidated by Muslim men who oblige
them to wear the scarf").
113. See Bennoune, supra note 9. at 178 (acknowledging racist and xenophobic
discourses on headscarves, fundamentalisl, terrorism, and women's rights that have
proliferated since 9/11); see also Guy 1-aarscher, Secularism, the Vei/ and "Reasonable
990 FORDHAAMINTER.4TIONAL LAW JOtiP-V4L [Vol. 35:968

regulation of religious attire should be evaluated against the

regulation's specific factual and historical backdrop in order to weigh
1 14
the competing interests at stake.
A further difference is that the United States embraces religious
pluralism rather than secularism, perhaps because it lacks the history
of religious wars endured by Europe.' 1 5 Elsewhere in the world,
however, limitations on religious expression to maintain secularism
are seen as protecting religious freedom."' Furthermore, freedom of
expression is a significantly more expansive right in the United States
than in most other countries.' In Europe, the right is balanced
against the interests of those affected, allowing for laws banning hate
speech and offensive symbols, strict defamation laws, and robust
privacy protections for the subjects of speech."'

Interlocutors": 4-hy France Is Not That Wrong, 28 PENN ST. INTL L. REv. 367, 368 (2010)
(recognizing the range of motivations behind the headscarf ban and that there are both
"democrats and racists against the veil"); The Taliban Wiould Applaud, supra note 3. at A26
(referencing the ease of fanning anti-Muslim prejudice and, in France's case, using the
headscarf ban to deflect public anger over high unemployment).
114. See Sahin v. Turkey, 2005-X1 Er. Ct. H.R. 173, ' 98-99 (finding a legitimate
interest in protecting the rights of others based on the specific circumstances); see also
Beimoune supra note 8. at 396 (proposing a contextual approach to restrictions on religious
attire that takes into account the range of interests at stake in a particular situation).
115. See Ryan Brown, In Defense ofthe Burqa Ban, SALON (July 12, 2010, 9:01 AM),
http://www.salon.com/2010/07/12 )es to the burqa ban/ (quoting Mona Eltahawy' s
explanation of the difference between the American and European approaches to religious
freedom); Danchin, supra note 110, at 735 (stating that the modern-day European state
emerged following massive religious conflict): see also KEATON, supra note 23, at 177
(describing secularism in France as descending from its history of religious wars): Wing &
Smith, supra note 9, at 755 ("The theory is that to be French is to be part of a proverbial
melting pot, rather than an American style salad bowl of religious and other identities.").
116. See Sahin, 2005-XI Eur. Ct. H.R. j139 ("[S]ecularism was an essential condition for
democracy and acted as a guarantor of freedom of religion and of equality before the law.");
see also Bennoune, supra note 8, at 423 ("[T]he human rights impact of secularism in
protecting individuals from religious coercion is much more important than its function as an
abstract state value.").
117. See Jeremy Waldron, Dignity And Defarnation: The I isibilij of Hate, 123 H-ARV.
L. REV. 1596, 1598 (2010) (describing the constitutional acceptability of hate speech laws in
the United States as more or less an impossibility in stark contrast to "laws we find in Europe
and in the other advanced democracies of the world"); see also Elisabeth Zoller. Foreword;
Freedom of Expression: "PreciousRight" in Europe, "Sacred Right" in the United States?,
84 IND. L.J. 803, 807 08 (2009) ("In the United States, this freedom passes for an
absolute .... In Europe, however .... [t]he decisive point is that the exercise of this freedom
involves 'duties and responsibilities,' as stated in the text of the European Convention (Article
10, section 2), and so it is a relative freedom.").
118. See, e.g., Von Hannover v. Germany, 2004-VI Eur. Ct. H.R. 41. 176-77
(balancing the freedom of the press against the rights to dignity and privacy of the applicant);
see also Robert A. Kahn, Flemmning Rose, the Danish Cartoon Controversy, and the Neu
2012] PROTECTVG THE SPACE TO BE tNVEILED

Furthermore, the United States generally does not recognize an

affirmative duty to protect its citizens from rights violations by
private actors.1 19 The US Constitution has primarily been interpreted
to protect only individual rights as against the state. 120 This is not the
standard under international law, which recognizes affirmative state
duties to protect against violations by nonstate actors. 2 1 The
obligations of state parties to international human rights treaties have
been interpreted as the obligations to respect, protect, and fufill
human rights. 122 The obligation to respect is an immediate obligation
that governments refrain from taking actions that violate human

European Freedom of Speech, 40 CAL. W. INT'L L.J. 253. 255 11.8 (2010) (noting the German
ban on the swastika and the Nazi salute and explaining that the concerns that led to the ban
"also found expression in international treaties that either allowed or required member states to
enact bans on hate speech"); Sebnen Arsu, Turkey Lashes Out over French Bill About
Genocide, N.Y. TIMES, Dec. 23, 2011 , atA9 (reporting that the lower house of the French
Parliament approved legislation criminalizing denial that the Turkish Army committed
genocide against Armenians in the early twentieth century).
119. See DeShaney v.Winnebago Cnty. Dep't of Soc. Servs. 489 U.S. 189, 195 (1989)
(holding that a state's failure to protect an individual against violence by a private actor is not
a violation of due process); see also Lenahan (Gonzales) et al.v. United States, Merits, Inter-
Am. Ct. 1.R. No. 80/11, ' 55 (July 21, 2011) available at http:/iww.oas.org/eniiachr/
decisions/2011/USPU12626EN.doc (describing the US government's position that no
provision of the American Declaration "imposes on the United States an affirmative duty, such
as the exercise of due diligence, to prevent the commission of individual crimes by private
parties").
120. See DeShaney, 489 U.S. at 195 ("[N]othing in the language of the Due Process
Clause itself requires the State to protect the life, liberty, and property of itscitizens against
invasion by private actors."); see also G. Kristian Miccio, The Death of the Fourteenth
Atnendment Castle Rock and ItsProgeny, 17 WM.& MJVARY J.WOMEN & L. 277, 288 (2011)
("What drove the majority in DeShanev was Justice Rehnquist's belief that the Constitution is
primarily a negative rights document that rules out positive rights claims ....Consequently,
there is no affirmative duty to protect unless the danger or harm is created by the State .... ").
121. See Velisquez-Rodriguez v. Honduras, Judgment, Inter-Am. Ct H.R. (ser. C) No.
7. 1 172, 182 (July 29, 1988) (finding a state obligation of due diligence to prevent rights
violations by private actors); see also Lenahan, Inter-Am. Ct. H.R. No. 80/11 I T 160-63
(holding the United States in violation of the American Declaration due to itssystemic failure
to protect against domestic violence).
122. See, e.g, Comm. on Econ., Soc., and Cultural Rights, 22d Sess., Apr. 25-May 12,
2000, Substantive Issues Arising in the Implementation of the International Covenant on
Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest
Attainable Standard of Health (article 12 of the International Covenant on Economic, Social
and Cultural Rights), U.N. Doc. E/C.12/2000/4 (Aug. I, 2000) (setting out the state
obligations to respect, protect, and fulfill jt]he right to health, like all human rights");
InternationalHumain Rights Law, UNITED NATIONS HLUMAN RIGHTS: OFFICE OF THE HIGH
COMMISSIONER FOR HflUMAN RIGHTS, http:/iw-w.ohchr.orgien/professionalinterestl'Pages/
InternationalLaw.aspx (last visited Jan. 25, 2012) ("By becoming parties to international
treaties, States assume obligations and duties under international law to respect, to protect and
to fillfil human rights.").
992 FORDHA4MIATERA 4TIONAL LA WJOti-\A4L [Vol. 35:968

rights. 23 The obligation to protect requires that governments protect

individuals from rights abuses at the hands of nonstate actors.124 The
obligation to fufill is a positive obligation to "adopt appropriate
legislative, administrative, budgetary, judicial, promotional and other
125
measures" towards the full enjoyment of human rights.
Not only has the United States rejected interpretations of treaties
as imposing affirmative duties, it is not a signatory to some major 126
human rights treaties that explicitly impose such obligations.
France, on the other hand, is a state party to the Convention on the
Elimination of All Forms of Discrimination Against Women, which
requires that states "take all appropriate measures to eliminate
discrimination against women by any person, organization or
enterprise."' 127 Even more expansively, state parties must take
measures:
To modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the idea
of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women .... 12
Thus, France cannot focus on the rights of women who choose to veil
to the exclusion of those affected if veiling is a practice harmful to
12 9
gender equality.

B. The Headscarfand Niqab in France

The French debate over state intervention in veiling predates the
new niqab ban by at least twenty years.30 Although the 2004 French

123. See Comm. on Econ., Soc. and Cultural Rights, supra note 122, 33.
124. See id
125. See id
126. See, e.g., Convention on the Elimination of All Forms of Discrimination Against
Women art. 2. Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW] (requiring the adoption
of measures to end discrimination and ensure equality for women); International Covenant on
Economic, Social and Cultural Rights art. 2(l), Dec. 16, 1966, 993 U.N.T.S. 3 (requiring
signatories to ensure full realization of human rights).
127. CEDAW, supra note 126, art. 2(e).
128. Id. art. 5(a).
129. See id; see also Bennoune, supra note 9, at 188-89 (referencing France's
obligations to bring about substantive equality under international human rights law and citing
the Convention on the Elimination of All Forms of Discrimination Against Women
("CEDAW")); ef Amnesty Int'l Press Release, supra note 13 (opposing the ban but
acknowledging that "[s]tates do have an obligation to protect women against pressure or
coercion in their homes or communities to wear full face veils").
2012] PROTECTVG THE SPACE TO BE tN VEILED

law banning the "ostentatious" display of religious symbols in schools

was taken as a reflection of growing anti-Muslim sentiment by many
international commentators, it was in fact a way to address a
longstanding problem for students and teachers after less restrictive
attempts had failed. 13 As some commentators have argued, it is
important to recognize that the issues of the headscarf in schools and
the niqab on the street must be understood as part of a complicated
debate among people of Muslim heritage.' 32 Dismissing all veiling
regulations as Islamophobic, they argue, marginalizes the voices of
Muslims fighting for the rights of women threatened by
fundamentalists.' To understand the context and history of France's
niqab ban, Subsection 1 discusses the 2004 ban on religious symbols
in French public schools, addressing the presence of headscarves in
school within the context of the intra-Muslim debate and the specific
circumstances in France. Subsection 2 analyzes the niqab ban, a
highly contested law that further limits public religious expression in
the name of upholding French values.

1. The French Ban on Religious Symbols

The French veiling controversy, known as L 'Affaire diu Foulard,
began in 1989 when three high school girls wore hijabs to school. 1 -4
When they refused to remove them, their principal expelled the girls

130. See Bennoune, supra note 9,at 174 75 (citing a commentator who traces the debate
back to the rise of fundamentalism in Algeria in the 1980s); see also 1-aarscher, supra note
113. at 369-70 (dating the start of the hijab controversy in France to 1989).
131. See Bennoune, supra note 9,at 160 (outlining the problems with the case-by-case
approach); see also 1-aarscher, supra note 113, at 380-81 (arguing that the law was a good-
faith and wise attempt to deal with a difficult problem about which reasonable minds differ).
132. See Bennoune, supra note 8,at394 95 (calling the overemphasis on intercultural
debate at the expense of intracultural concerns a mistake); see also Wing & Smith, supra note
9. at 748-49 (surveying the wide range of views among Muslim women regarding the
headscarf debate).
133. See Bennoune, supra note 41, at 671-72 (cautioning against spurious allegations of
prejudice, which are made to disable valid critique of supposed religious movements that
violate international law or human rights); see also id.at 687 (reporting the frustration of
antifundamentalists of Muslim heritage with Western academics who ignore the significance
of Muslim fundamentalism in debates such as those regarding headscarf regulations); CONMv'N
ON BRITISH MUSLIMS & ISLAMOPHOBIA, ISLAMOPHOBIA: ISSUES, CHALLENGES, AND ACTION
9 (Robin Richardson ed., 2004). availableat http://www.insted.co.ulislambook.pdf (quoting a
Muslim scholar regarding the "silencing of self-criticism and the slide into defending the
indefensible" that results from Islamophobic actions).
134. See Bennoune, supra note 9. at 159; see also 1-aarscher, supra note 113, at 370-71
(recounting the 1989 incident). InFrance, the hijab is referred to as thefoulard islainique.See
Bennoune, supra note 9,at 159.
994 FORDHA4MIATERA 4TIONAL LA WJOt RA4L [Vol. 35:968

on the grounds that headscarves contravened laicit. 35 Laicit, a

"particularly French" principle of secularism, descends from France's
136
fight to free itself from the control of the Catholic Church.
The girls sought to wear a symbol that had come to be associated
with state-imposed religion. 3 Ten years prior, Ayatollah Ruhollah
Khomeini had come to power, forcing the chador on the "modem and
emancipated" women of Iran's cities. 13' As the controversy grew,
France's Minister of Education requested an advisory opinion from
the Council of State. 139 The council held that wearing religious
symbols in school was not necessarily incompatible with laiciti.4 °
Administrators would be justified, however, in regulating or even
banning the veil if certain other elements were present: where the
symbol constituted an act of pressure, provocation, proselytizing, a

135. See Beimoune, supra note 9. at 160 (describing how the principal found the girls'
headscaires to contravene laicite); see also Haarscher, supra note 13. at370-71 (reporting on
the girls' expulsions and discussing the intracountry debate about whether wearing the veil in
public school was compatible with lai'cite).
136. See Bennoune, supra note 9, at 159 (defining lai'cite as a "particularly French"
concept of secularism): see also ConteinporaryIssues Panel Discussion on Laicite in France,
supra note 107, at 53 ("The French Republic rests on a secular ideal .. called laicit6 ....It is
the result of a long historical process, which put an end to the domination of the Catholic
Church.")
137. See Beimoune, supra note 9, at 165. (relaying the view that the veil is a symbol of
militancy); see also Haarscher, supra note 113, at370 ("Imposing the veil was the most blatant
symptom of the ascent of official religion in the Muslim world.").
138. See Haarscher, supra note 113, at 370 (recounting the forced veiling implemented
by Ayatollah Khomeini); see also Susan W. Tiefenbrun, The Seniotics of Women's Human
Rights in Iran, 23 CONN.J. INT'L L. 1,14 (2007) (describing Khomeini's March 8, 1979 order
that Iranian women wear the chador and the resulting demonstrations that day by hundreds of
Iranian fteminists in Tehran and Qom). The demonstration in protest of Khomeimi's order
continued for five days and grew to tens of thousands in Tehran, where aimed attackers from
the newly formed Hezbollah, or Party of God, chanted: "You will cover yourselves or be
beaten," and threw stones, knives, and bullets at female activists. See Tiefeibrun, supra. The
Korniteh, a political police force controlled by Khomeini and other mullahs, also harassed and
detained women. See id; Benhabib, supra note 101, at 142 11.9 ("The chador is essentially
Iranian and refers to the long black robe and headscarf worn in a rectangular manner around
the face.").
139. See Haarscher, supra note 113, at 371 (reporting the request for the Council d'Etat
opinion). The Council d'Etat (Council of State) isFrance's highest administrative court, which
also performs legislative and administrative functions such as providing advisory opinions.
Beimoune, supra note 9. at 159 11.16 (explaining the function of the council from which the
opinion was requested).
140. See Bennoune. supra note 9. at 159 (reporting the council's holding that religious
symbols do not necessarily contravene la ite);see also Haarscher, supra note 113, at 371-72
(recounting the council's holding).
2012] PROTECTVG THE SPACE TO BE tN VEILED

threat to another student's rights, or some other disturbance of public

41
order.1
Schools attempted a case-by-case approach to veiling that
proved unworkable. 2 The controversy grew: it began with three girls
in 1989, but by 1994, 3000 sought to wear headscarves to school.143
The dispute led to expulsions, strikes by both supporters and
opponents of the veil, lengthy administrative proceedings, and a role
for fundamentalist organizations in campaigns for the "right to
veil.,' 1 44 French President Jacques Chirac established the Stasi
Commission to address what some saw as a growing threat to
1al'Citj.145 The Stasi Commission, which met over several months,
included a number of prominent Muslims and "pro-veil"
academics. 146 Those commission members who began the process
opposed to a ban, however, reported that they changed their positions
once they discovered that the headscarf was typically accompanied by
the conditions, such as pressure and proselytism, which the Council of
State had indicated would contravene 1a'citi.147 The Commission

141. See Bennoune, supra note 9, at 159 (recounting the council's decision); see also
Haarscher, supra note 113, at 371-72 (listing the elements that the council found would not be
compatible with laicit
).
142. See Haarscher, sapranote 114, at 373 (explaining teachers and administrators found
the case-by-case approach unmanageable and that. with the increasingly radical pro-veil
movement, it became less possible to separate the elements contravening laicit from veiling),
cf Bennoune, supra note 9, at 160 (reporting that some proponents of the headscarf ban found
it preferable to the "piecemeal approach" because it "resulted in more girls being excluded
from school for wearing headscarves .. than were excluded after [the ban] came into effect").
143. See Bennoune, sapra note 9, at 159-60. (stating that only three girls sought to wear
the veil in 1989, but the number grew to 3000 by 1994); see also Haarscher, supra note 113, at
370-74 (describing how a few girls' wish to veil had started the controversy, increasingly
causing problems for teachers and administrators as the controversy progressed).
144. See Bennoune, supra note 9. at 160 ("When girls faced problems in schools for
wearing headscarves, they were vigorously supported by Muslim fundamentalist organizations
which campaigned for the 'right to veil.'"); see also Haarscher, supra note 113, at 373 (stating
that "the movement in favor of the veil had become increasingly radical").
145. See Bennoune, supra note 9. at 160 (explaining that President Chirac established
the Stasi Commission in order to address what some saw as a growing threat to laicitj and
generally describing the Stasi Commission); Haarscher, supra note 113, at 374 (stating that the
commission, comprised of experts, was requested by President Chirac after school authorities
asked the French Parliament to resolve the controversy).
146. See Bennoune, supra note 9. at 160 (reporting that the commission included
prominent Muslims): Haarscher, supra note 113, at 374 (explaining the makeup of the
commission, which included "pro-veil" academics and headed by Bernard Stasi, a highly
respected French Centrist politician).
147. See Haarscher, supra note 113, at 374 (explaining that commission members who
had been opposed to a ban reported changing their positions upon discovering that the
996 FORDHAMINTER.4TIONAL LATVWJOtUiPV4L [Vol. 35:968

unanimously recommended a law banning religious symbols in

schools.148
In 2004, Parliament enacted Law No. 2004-228, banning large
religious symbols from public schools. 14 Although criticized heavily
abroad, the law's proponents largely consider it a success. 15° During
the law's first year in effect, schools recorded 639 religious symbols,
which was less than fifty percent of the previous year's total. 15 '
Ninety-six students opted to study elsewhere and forty-seven were
15 2
suspended, a decrease from the years under the ad hoc system.
Suspensions also decreased relative to expulsions in preceding years,
and those that occurred generally did so only after negotiation with
parents and students. 153 The debate surrounding the law remains
divisive, but commentators have argued persuasively that it has been
misunderstood abroad because the voices of Muslims supporting it
15 4
have been underrepresented.

headscarf was typically accompanied by the conditions that the Council of State had indicated
would contravene lacite).
148. See id. One member abstained fiom voting. See id.
149. Loi 2004-228 du 15 mars 2004 encadrant, en application du principe de lach:t, le
port de signes ou de tenues manifestant une appartenance religieuse dans les ecoles, colleges et
lycues publics [Law 2004-228 of Mar. 15, 2004 Concerning, as an Application of the Principle
of the Separation of Church and State, the Wearing of Symbols or Garb Which Show
Religious Affiliation in Public Primary and Secondary Schools], JOURNAL OFFCIEL DE LA
REPUBLIQLTE FRANCMSE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Mar. 17, 2004. p. 5190
("Dans les6coles, lescoII~ges et leslycees publics, le port de signes ou tenues par lesquels les
61ves.").
150. See Bennoune, supra note 9, at 161 (asserting that Law No. 2004-228's proponents
consider it a success and surveying their views); see also Steven G. Gey, Free f4dll, Reigious
Liberty, and a Partial Defense of the French Approach to Religious Expression in Public
Schools, 42 HOus. L. REv. 1. 13 (2005) ("In contrast to the largely hostile response to this law
outside France, within the country a wide range of French citizens, spanning the country's
broad political spectrum, support the new law.'); Tiefenbrun, supra note 138, at 31 ("Despite
the arguments raised against the ban and the fears of its impact on French society, the
implementation of the French ban on wearing a headscarf inpublic schools has been rather
smooth.").
151. See HANIFA CHERIFi, APPLICATIONS DE LA LOI DU 15 MARs 2004 SLR LE PORT
DES SIGNES RELIGIEUX OSTENSIBLES DANS LES ETABLISSEMENTS DENSEIGNEMENT
PUBLICS: RAPPORT A MONSIEUR LE MINISTRE DE C EDUCATION NATIONALE DE
LENSEIGNEMENT SLTPERIELTR DE LA RECHERCHE 34-35 (2005), available at
http:/iIw-w.acb54.com/1MG/pdtl hanifa-cherifi.pdf.
152. See id.at 35 (stating that ninety-six students opted to study elsevhere, while fort) -
seven were suspended, a smaller figure than under the ad hoc system).
153. See Bennoune, supra note 9, at 161 (reporting that negotiations occurred before
suspensions and decreased relative to the number of expulsions in prior years).
154. See Haarscler,supra note 113, at368-69 (recognizing that there are both advocates
and opponents of veiling who "seriously and sincerely defend liberal-democratic values"). See
2012] PROTECTVG THE SPACE TO BE tN VEILED

In 2007, Professor Karima Bennoune interviewed a number of

Muslim supporters of the law.155 Professor Bennoune found that for
many of the experts she interviewed, "the growth and power of
religious extremist movements, both internationally and in France,
and their stance vis-A-vis women's rights imbue the struggle over 1 56
headscarves in schools with a particular political meaning.
Developments in Muslim majority countries significantly affect the
situation in France, where the ideology of the Muslim Brotherhood is
thought to be an increasingly "powerful force."' 15 7 Fundamentalists
who reject women's equality and advocate violence against those who
oppose their agenda have used questions of identity to enlist young
5
Muslims suffering from the failures of integration in France. 8
Commentators have argued that allegations that the law stems
from racism and fear or hatred of Muslims obscure the complicated
experiences and histories of Muslims in France. 5 9 Many Muslim
activists trace the hijab controversy to the rise of fundamentalism in
Algeria.16 ° Among the supporters of regulations on veiling are

generally Bennoune, supra note 9 (arguing that the law has been mischaracterized because the
diversity of opinion among individuals ot Muslim heritage has not been acknowledged).
155. See Bennoune, supra note 9, at 157. Professor Bennoune is an Algerian-American
Professor of Law at Rutgers School of Law. Bennoune, supra note 8. at 367 n.al.
156. Bennoune, supra note 9, at 163; see Wing & Smith, supra note 9, at 769 70
(chronicling the views of Muslim women who oppose the veil on the grounds that it fosters
extremism).
157. See Bennoune, supra note 9, at 162 63 (explaining that to Bennoune's
interviewees, "the single most important factor was the emergence of Islamic fundamentalism
both internationally and in France. In the era of globalization, these stories conceptualize the
debate as one that is inherently transnational. What happens in Algeria, Iran, Lebanon, or other
countries on these issues has tremendous significance in France (citations omitted)): Wing &
Smith, supra note 9. at 769-70 (explaining that while economic and social conditions in
Europe have led many young Muslims to turn to Islam, some followers take it to the point of
extremism). The Muslim Brotherhood is a group founded in Egypt in 1928 that "views its own
radical interpretation of Islam as a comprehensive way of life and political system." See
Bennoune, supra note 9,at163 n.26.
158. See Bennoune, supra note 9. at 163 (1-Hanifa Cherifi has argued that these groups
have chosen to focus on questions of identity that have a powerful resonance with a young
generation suffering from the failures of integration."); see also Wing & Smith, supra note 9,
at 769-70 (citing a Muslim commentator who sees those who wish to impose the requirement
of a headscarf as seeking to assert control over European Muslims).
159. See generally Bennoune, supra note 9 (collecting the views of commentators of
Muslim heritage who believe that too little attention has been paid to the voices of Muslims
opposed to the veil and what they believe it represents); Haarscher, supra note 113 (rejecting
the idea that the headscarfban isprimarily motivated by anti-Muslim sentiment).
160. See Bennoune, supra note 9, at 162-70 (reporting the views of individuals of
Muslim heritage who link the controversy to the rise of fundamentalism in Algeria); see also
Bennoune, supra note 8, at 426 ("The fundamentalist armed groups on one side of the
998 FORDHAAMINTER.4TIONAL LAW JOtI \VA4L [Vol. 35:968

Muslims who have fled countries where women have paid with their
lives for refusing to veil. 1 ' Algerian sociologist and Women Living
Under Muslim Laws founder Marieme Helie-Lucas claims the media
portrayed the school law inaccurately, giving wide coverage to the
few demonstrations by veiled women but little coverage to the more
prevalent demonstrations in favor of the law, which included people
of Muslim heritage. 162 Antifundamentalists have expressed frustration
with groups that justly criticize racism in France but show less
fortitude in condemning Muslim fundamentalism. 11 3 This, some
argue, perpetuates ignorance about fundamentalist groups who "have
played on the lack of knowledge 4of their ideology and strategy,
1
especially in human rights circles.!"

[Algerian civil war of the 1990s] killed many women who went out unveiled."); Ann Luerssen
Crowther, Note, Empty Gestures: De (Jn)significance o' Recent Atte pts to Liberalize
Algerian Family Law, 6 WM. & MARY J. WOMEN & L. 611, 632 33 (2000) ("[W]hen Islamic
extremists threaten, rape, and kill women who do not wear the hijab, their wish to transform
Algerian culture into an Islamist state makes itself plain.").
161. See Bennoune, supra note 9. at 166 (relaying the views of ban proponents from
Algeria): see also Bennoune, supra note 8. at 391 (quoting Ghais Jasser, The Tiwin Evils ofthe
Veil, 5 SOC. IDENTITIES 31, 37 (1999)) ("If, then, you claim that the veil is simply a
manifestation of cultural particularity, you lack solidarity with women opposing purdah-of
wich the head-covering is but one expression among others-at the cost of their very lives.").
162. See Bennoune, supra note 9, at 168 (reporting assertions that pro-veil
demonstrations received greater coverage that anti-veil demonstrations); see also Wing &
Smith, supra note 9, at 766467 (reporting that polling a wider base of women than those who
attended pro-veil demonstrations reveals a majority of Muslim women of North African
background in France supported the ban); France: Issues Related to the HeadscarlBan,
WOMEN LIVING UNDER MJIUSLIM LAW (Apr. 20, 2004). http://www.wluml.org/english/
newsfihlltxt.shtml'cmd%5BI57%5D=x-157-44910 ("A very mediatised minority has
demonstrated around the importance of religion in their way of life and that the stand taken by
the government was running counter to their freedom ofreligion. But this principle of religious
freedom contradicts the one of secularity."). Women Living Under Muslim Laws is a network
of advocates from a range of countries working to protect the rights of women affected by laws
and customs said to derive from Islam. See About WYL UML, WOMEN LIVING UNDER MUSLIM
LAW, http:/iwv-w.wluml.orginode/5408 (last visited Jan. 2, 2012).
163. See Beimoune, supra note 9, at 168 (asserting that antifundamentalists have
expressed frustration with groups that criticize racism in France but do not condemn Muslim
fundamentalism strongly); see also Marieme Hlie-Lucas, A South-North Tranfer of Polihcal
Coinpetence: ff'omen of Migrant 1uslimn Descent in France-An Overview, in WOMEN
LIVING UNDER MUSLIM LAws, DOSSIER 30-3 1: THE STRUGGLE FOR SECLTLARISM IN ELrROPE
AND NORTH AMERICA 43, 45 (Marieme Hflie-Lucas ed., 2011) (alleging that groups in France
that should be women's allies against fundamentalism, such as feminists and human rights
organizations, fail to support women's rights against fundamentalist attacks out of fear of
being labeled "lslamophobic").
164. See Bennoune, supra note 9. at 168 (citing commentators of Muslim heritage whio
believe fundamentalists have taken advantage of this lack of knowledge in human rights
circles); see also Bennoune, supra note 41, at 666-67 ("As Tunisian born sociologist Jeanne
2012] PROTECTVG THE SPACE TO BE tNVEILED

Fundamentalism in France has benefited from failures of the

state. 16 5 The banlieues, outer-city housing areas associated with
working-class, postcolonial populations, are filled with disaffected
youth whose legitimate grievances due to racism and extremely high
unemployment can be exploited.66 Life in the baniieuies has posed
particular challenges for women and girls, where radicalized brothers
and fathers have pushed their sisters and daughters to veil. 67 Other
girls decide to veil in order "to not be treated as prostitutes or 'loose'
in their neighborhoods.""16 Baggy clothing and a headscarf became
necessary for safety. 169 Women choosing not to cover have

Favret-Saada acerbically notes, 'the Islamists are happy to meet Europeans who are so
naYve... and talk only about [religious] discrimination .").
165. See Bennoune, supra note 9. at 170 ("H6lie-Lucas and others blame the failures of
the French state for the success of fundamentalist movements in France."), see also KEATON,
supra note 23, at 185 86 (citing scholars who view economic and social exclusion as the cause
of young Muslims embracing customs that are not necessarily grounded in doctrine); Wing &
Smith, supra note 9. at 769-70 (describing the view of some Muslim women that "high
unemployment rates, discrimination in development opportunities, and overall isolation of
Muslim communities in Europe" are leading young Muslims to turn to Islam. and occasionally
to extremist forms of Islam).
166. See Bennoune, supra note 9, at 170 ("[Hleie-Lucas] and others particularly
highlight the terribly high, disproportionate rate of unemployment in the banhieues, which
creates a fertile ground for fundamentalist recruitment and conditions ripe for the manipulation
of legitimate grievances. While the general rate of unemployment in France is at about ten
percent, it is reported to be at least fifty percent among youth in the banlieues.") see also
Cross, supra note 3 (explaining that many French Muslims are concentrated in working-class
banlieues and come from families that came to France from former colonies). "[Banlieues],
which roughly translates as 'suburbs.' now refers specifically to the 'depressing, outer city
high-rise housing estates wlhicl have become identified with France's working class and
multiethnic postcolonial populations." Bennoune, supra note 9,at165 n.36.
167. See Bennoune, supra note 9. at 173 (6[S]ome adolescent boys and their fathers,
having listened to radical Imams telling them that their women must veil, pushed their sisters
and daughters to do so."); see also Wing & Smith, supra note 9,at 767 (reporting that many
Muslim women view the law as protecting girls from the decisions of parents and brothers).
168. Bennoune, supra note 9, at 173 (detailing the view of one commentator who
suggests that the headscarf is a visible sign of initerior status for women, evidenced by their
veiling to avoid being seen as sexually promiscuous): see also Wing & Smith, supra note 9. at
761 ('"A girl who wears the veil, that means that she's pure and that the other wvho doesn't
wear the veil, she's not pure is that she's a slut.' Thus some girls may wear the headscarf
to avoid being labeled in such a derogatory fashion.").
169. See Bemmoune, supra note 9. at 173 ("For many, the veil, often accompanied by
baggy clothing, became a kind of laissez-passer, allowing a girl to go out or to move around
safely ...."), see also Wing & Smith, supra note 9, at 760 (noting a particular problem in
schools with largely Muslim student populations where girls wlho do not wear the headscarf
are viewed as whores and are potential targets for violence, such as gang rape or murder).
1000 FORDHAAMINTERN\A4TIONAL LAWJOtIV 4L [Vol. 35:968

experienced stigma, family pressure, violence, and even death. 7 0

Some girls who rejected the de facto dress code were subjected to the
tournante, a ritualized gang rape of girls deemed "loose."' 7 1 Given
this atmosphere, supporters argue that the headscarf ban is a
reasonable restriction that creates an environment free from family
and community pressures to cover.172
Algerian journalist Malika Zouba argues that Law No. 2004-228
is not racist but rather "it is racist to assume that the veil is 'naturalty'
' 1 73
to be found on Muslim and North African womens heads.
Assuming that all Muslims oppose the ban treats them as a monolithic
group when, in fact, according to one poll, forty-nine percent of
French Muslim women supported the ban, and a majority of women
of North African background were hostile to headscarves in
schools. 1 74 The debate has led to conflicts within major French
Muslim organizations struggling with the balance between laicWit and
religious freedom. 175

170. See Bennoune, supra note 9, at 175 ("Not-being-veiled has led to a range of terrible
consequences for women and girls, including social stigma, family pressure and violence,
attacks in the community, and even death."), see also Wing & Smith, supra note 9. at 760, 763
(referencing the risk ofviolence to unveiled girls).
171. See Bennoune, supra note 9. at 175-76 ("[W]omen in the banlieues have been
attacked and gang raped, in the ritual known as the tournante, and even murdered for wearing
miniskirts, appearing 'Ioose,' or being disobedient."); see also Gey, supra note 150, at 15
("Gang rape of young Muslim women has become both a rite of sexual initiation for young
men and a means of enforcing Islamic strictures against female sexual and social
independence ...").
172. See Bennoune, supra note 9, at 184 (quoting an interviewee who was initially
opposed to the headscarf ban but decided it was worthwhile so that girls pressured to veil in
their neighborhoods would at least be free from fundamentalists in school); see also Haarscher,
supra note 113, at 381 (presenting arguments for and against veiling at school and explaining
one view that the headscarf ban is a reasonable protection of secularism).
173. Bernoune, supra note 9, at 171. Malika Zouba is a joumnalist and activist living in
France. Id. at 158.
174. See Wing & Smith, supra note 9. at 76647 (citing a poll by Elle magazine that
found that fifty-three percent of Muslim women of North African background living in France
were opposed to headscarves in schools), Veil of Tears, ECONOMIST, Jan. 15, 2004, at 34
(citing polling by Elle magazine and showing how this issue divides French Muslims); see also
Bennoune, supra note 9, at 171 ("[D]espite the stereotypical portrayals of the views of
Muslims in France in the international media, a majority support the Law.").
175. See Caroline Nagel, Introduction to GEOGRtAPHIES OF M)IUSLIM WOMEN: GENDER,
RELIGION, AND SPACE 3 (Ghazi-Walid Fallah & Caroline Nagel eds., 2005) (explaining that
the controversy has led to conflicts within major French Muslim organizations seeking to
balance secularism and religious freedom); see also Beimoune, supra note 8, at 415
(recognizing the divergence of opinion among Muslim organizations).
2012] PROTECTVG THE SPACE TO BE t VVEILED 1001

The ECtHR ruled on the permissibility of banning religious

symbols in schools in a case predating the law's enactment, Dogiu v.
France.176 Eleven-year-old Belgin Dogru refused to remove her
headscarf for physical education class on seven occasions before the
school expelled her for failing to participate actively in these
classes. 7 She argued that this violated her right to religious freedom
and her right to education. 178 After extensive discussion of the history
of secularism, its enshrinement in French law, and the veil debate in
France. the ECtHR found that the interference with Dogru's religious
freedom pursued the legitimate aims of protecting the public order
and the rights of others.17 9 As to whether the regulation at issue was
"necessarx in a democratic society," the Court cited 5ahin in finding
that upholding the domestic system of secularism, which protected
others against external pressure from extremist movements, was
necessary18" As in 5ahin, the ECtHR granted a significant margin of
appreciation to the state, but considered the process that preceded the
penalty of expulsion and the safeguards requiring conformity with
statute and judicial review in finding the restriction was
proportionate. 81

2. The Niqab Ban

In 2009, the French National Assembly appointed thirty-two
lawmakers to investigate ways of restricting the use of the full face
veil. 182 After a six-month investigation that included extensive
hearings and interviews, the committee concluded that the full veil
infringes republican values of liberty, equality, and fraternity and is
an intolerable infringement of the freedom and dignity of women,

176. See generally Dogru v. France, 49 Eur. H.R. Rep. 179 (2009) (finding that the
expulsion of a student who refused to remove her headscarf for gym class did not violate the
student's right to manifest her religious beliefs and right to education).
177. See id. ' 7-8.
178. See id. 3.The right to education is guaranteed by Article 2 of Protocol No. I of
the Convention. Id.
179. See id.1 17-22, 60.
180. See id 61 66.
181. See id.'74-77.
182. See Atwill, supra note 32 (stating that the Commission was established on June 23,
2009); France Sets b)p Burka Commission, BBC NEWS (June 23, 2009, 10:48 PM),
http://news.bbc.co.uk'2/hi/europe/8114590.stm ("The French National Assembly has
appointed 32 lawmakers on a fact-finding mission to look atways of restricting [the bu'qa's]
use.").
1002 FORDHAMINTERN\A4TIOAAL LAWJOtIV 4L [Vol. 35:968

representing the denial of gender equality and a mixed society.'83 The

commission identified three primary reasons women wear the full
veil: "the desire for purity through the practice of a more austere form
of the religion and to keep one's distance from a society perceived as
perverted- to conform with family and community values, to appear
respectable to such community; or coercion." '84
1 5
The commission did not unanimously recommend a full ban. 1
The Conseil d'Etat then considered various bans and warned that they
might not withstand constitutional scrutiny.18 6 When the
Constitutional Council considered the specific law that was ultimately
voted on in the Senate and National Assembly, however, it found that
the prohibition of concealing one's face in public did not violate the
Constitution, so long as it did not apply to places of worship." 7 The
law was set to go into effect six months after the president signed it, a
period during which the government would work to educate affected
individuals about the law. 88

a. Allegations of Islamophobia and the Intra-Muslim Debate

Debate in the English-speaking media surrounding the niqab ban
has exhibited many of the alleged mischaracterizations of the
controversy over banning religious symbols in schools.' 89 President
Nicholas Sarkozy's declaration that the burqa is "not welcome" in

183. See Aiwill, supra note 32 (concluding that the ull veil is contrary to the principles
enshrined in the French "inotto" and finding that [t]he full veil is an intolerable infringement
on the freedom and the dignity of women. Itisthe denial of gender equality and of a mixed
society").
184. Id (quoting the Commission's report).
185. See id.("[f]he members of the Commission were not unanimous as to whether or
not a law banning the full veil in public places should be adopted by Parliament.').
186. See PLENARY GENERAL ASSEMBLY, CONSEIL D'ETAT, STUDY OF POSSIBLE LEGAL
GROUNDS FOR BANNING THE FULL VEL 8, (2010), available at http://
ww .conseil-etat.fr/cde/
media documentiRAPPORT%20ETUDES/resume presse anglais.pdf (warning that some veil
bans might be unconstitutional).
187. See Conseil constitutionnel [CC] [Constitutional Court] decision No. 2010-613DC,
Oct. 7, 2010. J.O. 18345 (Fr.) (finding the law constitutional as long as it did not apply in
places of worship).
188. See Erlanger, supra note 2,at A6 (discussing how the law would be effective after a
six-month period for education about the law); see also Ryan, supra note 3 (reporting the
purpose of the six-month waiting period).
189. See, e.g.,The Taliban Would Applaud, supra note 3,atA26 (describing the bill as
the result of anti-Muslim prejudice without referencing the disagreement over the bill among
Muslims); Nussbaum. supra note 13 (attributing the ban to individuals who know little about
Islam despite the ban proponents of Muslim heritage discussed infiva inPart I.B).
2012] PROTECTVG THE SPACE TO BE tN VEILED 1003

France was met with accusations of "Muslim-bashing" and "hate-

mongering.""1 9 Criticizing the argument that the burqa is inherently
oppressive and objectifying, and specifically attacking one
politician's claim that the burqa is a "degrading prison," Professor
Martha Nussbaum claims, "the people who make [this argument]
typically don't know much about Islam and would have a hard time
saving what symbolizes what in that religion."1" Former French
Minister for Urban Affairs Fadela Amara, however, who believes that
"[w]e must do everything to stop burqas from spreading, in the name
of democracy, of the republic, of respect for women," has referred to
the burqa as a prison as well. 9 2 Amara is a practicing Muslim of
Algerian descent and a revered feminist activist. 113 She founded the
women's group Ni Putes, Ni Soumises (Neither Whores, Nor
Submissives) to address fundamentalist threats to the women of the
94
banlieues.1
Regulations in predominantly Muslim countries demonstrate that
limitations on veiling are not inherently anti-Muslim. 9 It is possible,

190. See, e.g., [e Faliban Would Applaud, supra note 3, at A26 ("It is ... far too easy
to fan anti-Muslim prejudices.... Muslim-bashing has been a potent vote-getter for French
far-right politicians . Nussbaum, supra note 13 (alleging that five arguments in favor of
'...");
the niqab ban are discriminatory).
191. Nussbaum, supra note 13.
192. See Henry Samuel, Burqa Is a Prison,Says French Minister, TELEGRAPH (London)
(July 17, 2008, 1:44 PM), http:/iw-w.telegraph.co.uknews/worldnews' europe/france/
2421220/Burqa-is-a-prison-says-French-ninster.htm (reporting that Fadela Amara described
the burqa as a "prison" and a "strait-jacket"); see also Henry Samuel, France to Consider
Banning the Burqa, TELEGRAPH (London) (June 19, 2009, 8:18 PM),
http://www.telegraph.co.uk/news/Nvorldnews europe/france/5580732/France-to-consider-
banning-the-burqa.html (quoting Amara, who called the burqa a "kind oftomb for women").
193. See Wing & Smith, supra note 9, at 767-68 (describing Amara as "a practicing
Muslim herself. [who] fights for the girls of the cits [ghetto areas where some Muslim girls
live] who are facing a return to obscurantism-girls who, if they do not want to wear the
headscarf, are considered by some as rebels and by others as whores"); see also Bennoune,
supra note 8, at 415 (calling Amara a "prominent beur (French-Algerian) feminist").
194. See Bennoune, supra note 9. at 171 (identifying Amara as a founder ofNi Putes, Ni
Soumises); see also Wing & Smith, supra note 9, at 767 68 (describing Amara as president of
V Puies, Ni Sounises and as fighting for girls facing "mandatory wearing of the veil, constant
surveillance by 6big brothers,' forced marriages, and the monitoring of a girl's virginity .... ").
195. See, e.g., Case no. 8/1996/Supreme Constitutional Court (Egypt), translated in
Nathan J. Brown & Clark B. Lombardi, The Supreme ConstitutionalCourt ofEgypt on Islamic
Law, Veiling and Civil Rights: An Annotated Translation ofSupreine ConstitutionalCourt of
Egypt Case No. 8 oJ'JudicialYear 17 (May 18, 1996), 21 Am. U. INT' L. REv. 437, 441 42,
460 (2006) (rejecting a father's challenge to a regulation forbidding girls in public schools
from wearing the niqab); Moharnad Ahrad, Tumisia's Hi/ab Ban Unconstitutional,J. TURK.
WKLY., Oct. 11, 2007, http:/ ivN-w.turkishweekly.net/news/'49443itunisia-s-hijab-bain-
1004 FORDHAAMIATERN\ 4TIOAAL LAWJOtiUA4L [Vol. 35:968

however, as some have alleged, that some French politicians'

condemnation of the full veil is a cynical ploy for the xenophobic vote
rather than a sincere defense of republican values. 9 6 Still, the fact that
discrimination against Muslims exists in France "does not mean that a
victim of racism is incapable of being himself an oppressor." ' There
are likely multiple and conflicting motivations behind the niqab ban,
but this fact should not silence the voices of those who condemn both
Islamophobia and Islamic fundamentalism.' 9 Antifundamentalists of
Muslim heritage have described the concept of Islamophobia as itself
problematic to efforts to protect human rights, arguing that it
conflates legitimate criticism of religious or political movements with
discrimination and silences intra-Muslim debate.' 99

b. Regulating the Public Space

Regulating what adults can wear in public represents a much
greater state intrusion than regulating attire in the classroom. In
Dahlab,the ECtHR relied heavily on the potential proselytizing effect
on children learning from a teacher wearing a headscarf.2 1 When
children wish to veil at school, there may be concerns about

unconstitutional.html (reporting a Tunisian court's holding that the hijab ban is

unconstitutional).
196. See The Taliban Would Applaud, supra note 3, at A26 (accusing Sarkozy of
"fan[ning] anti-Muslim prejudice" for political gain): see also Sarah Joseph, Indecent
Exposure Burqa Ban Turns a Right into a Crime, CNN.COm, Apr. 13, 2011,
http://a-ticles.cim.coin,2011-04-13/opinion/joseph.burqa.ban 1 niqab-face-covering-veil-
burqa-ban? s PM:OPINION ("The ban .. is simply dangerous gesture politics, representing
little more than pandering to the tar right in France."); see Atwill, supra note 32 (describing
the republican values of liberty. equality, and fraternity).
197. Bennoune, supra note 9, at 172 (quoting Jeanne Favret-Saada): see Bennoune,
supw note 41, at 676-77 (highlighting how fear of accusations of Islamophobia may lead
policyimakers to actually protect "the purveyors of discrimination").
198. See Bennoune, supra note 41, at 672 (arguing that a space must be found in human
rights discourse to condemn both racism and fundamentalism); see also Khaled Abou El Fadi,
The Culture of Ugliness inMlodern Islanm and Reengaging Mlorality, 2 UCLA J.ISLAMIC &
NEAR E. L. 33, 43-44 (2003) (describing ways that the views of Islam's internal critics can be
discounted).
199. See Bennoune, supra note 41, at 671 (discussing the effect of allegations of
Islan-ophobia on intracultural debate): see also Benmoune, supra note 9, at 182 (reporting that,
for some veil ban supporters of Muslim heritage "human rights arguments for the veil in
school are a kind of cultural relativism, ironically emanating fiom a human rights movement
putatively commnitted to universality").
200. See Dahlab v.Switzerland, 200 1-V Eur. Ct. H.R. 449, 454.
2012] PROTECTVG THE SPACE TO BE t VVEILED 1005

consent. 2 1 Although Leyla $ahin argued that university students are

"discerning adults who enjoy[] full legal capacity" and are "capable
of deciding for themselves what [is] appropriate conduct," the ECtHR
still found limitations on religious dress to be permissible in higher
education. 02° Not only does the niqab ban lack the pedagogical
justifications found in school veiling cases, it also extends the reach
of regulations outside state institutions to the street, where the state
has less interest in uniformity.203
The niqab, however, is potentially a greater harm than the
headscarf, justifying a more significant limitation of the rights of the
women who wish to wear it. 20 4 Among the more concrete distinctions
is the fact that the physical limitations of the headscarf are not such
that a woman cannot speak clearly, eat, see, or converse in an
unimpeded way.205 The headscarf also has lesser adverse physical

201. See Frances Raday, Culture, Religion, and Gender, 1 INT'L J. CONST. L. 663, 709
(2003) (raising the issue of whether young girls consent to veiling); see also 1-aarscher, supra
note 113, at 375 (identifying an issue of "real vulnerability"' based on concerns regarding
consent).
202. See $ahin v. Turkey, 2005-XI Eur. Ct. 1ER. 173, 101, 113 115 (noting $ahin's
arguments regarding the capacity of university students yet still finding legitimate state aims to
prohibit the headscarf); ef 1-aarscher, supra note 113, at 382 (arguing that veil bans aimed at
adult women "would not be acceptable inthe framework of liberal values").
203. See 1-aarscher. supra note 113, at 382 ("Acting for the good of the individual
against his will would amount to paternalism. So in the case of adult girls-for instance at the
university a general measure of prohibition would not be acceptable in the framework of
liberal values."); see also BRIAN BARRY, CULTURE AND EQUALITY: AN EGALITARIAN
CRITIQLE OF MLTLIICLTLrA LISM (2001)) (concluding that a Sikh motorcycle-rider's interest
in his religious headgear is greater than that of the government in uniform helmet regulations);
Abner S. Greene, Three Theories of Religious Equali,... and of Exemnptions, 87 TEX. L.
REV. 963, 997, 997 n.219 (2009) (reviewing MARTHA C. NUSSBAUMN, LIBERTY OF
CONSCIENCE: IN DEFENSE OF AMERICA'S 'TRADITION OF RELIGIOUS EQUALITY (2008);
CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE
CONSTITUTION (2007).
204. See, e.g., Bennoune, supra note 9, at 186 87 (quoting French sociologist and
veiling researcher Francoise Gaspard, wvho opposed the headscarf ban but believes that
covering the face should be prohibited because "itis useful in a society to see the face");
Erlanger, supra note 26, atA6 (describing an Imam whose wife ears the hijab but who sees
the niqab as a sign of growing radicalism that must be banned); see also Berlinski, supra note
10, at 39 ("The sheer outrageousness of the burqa makes it an easy target .... ).
205. See, e.g.,Selena Roberts, Enlightening the Clothes-Minded, S.COM, (Mar. 5, 2009,
9:13 AM), http://sportsillustrated.cnn.coln/2009/writers/selena roberts/03/05/clothesminded/
index.html (reporting that Bilqis Abdul-Qaadir expects to play Division I NCAA basketball
with her hair and limbs covered); see also Yasmin Alibhai-Brown, Nothing to Hide, TIME,
Oct. 16, 2006, at 64 ("State institutions as well as private companies should have the right to
stipulate that a person whose face cannot be seen need not be served. That would not
discriminate against Muslims, it would, for example, also affect men whose faces were
1006 FORDHAMINTERN\A4TIONAL LAWJOtIV 4L [Vol 35:968

health consequences stemming from Vitamin D deficiencies brought

on by lack of sunlight."' The niqab also obscures the age of the
wearer, which makes distinguishing between women old enough to
consent to wearing it impracticable. 7
Some argue the niqab has greater symbolic and historical
significance as well. 0° Professor Jeremy Waldron, although opposed
to the niqab ban, acknowledges the difficulty of balancing freedom of
religious expression with the perception of societal endorsement. 0 9
He characterizes ban proponents as concerned with what a well-
ordered society should look like and whether people "dress in a way
that connotes the dignity of a free person, not in a way that intimates
their subordination. ' *10 Despite his opposition, he is sympathetic to
the idea that how individuals present themselves matters to society:
"maybe not the burqa, but the appearance of large numbers of masked
men in white sheets and pointy hats is a problem, protestations about
purely private dress codes notwithstanding." 2 Some public
expression can have a very detrimental effect on the listener and on a

obscured by motorcycle helmets. The principle expressed, in other words, would not be anti-
Muslim, but one in favor of communication.").
206. See A. Batieha et al., Vitan D Status in Jordan: Dress SOile and Gender
Discrepancies, 58 ANxALS NUTRITION & METABOLISM 10 (2011) (finding that dress style in
females was independently related to low vitamin D status and that the high prevalence of low
vitamin D status contrasted the low prevalence in males, indicating the need for increase
awareness and efforts to reduce the risk among women, in particular those who cover most or
all oftheir skin); see also A.A. Mishal, Effects of Different Dress Stvles on Vitamin D Levels in
Healthy loung Jordanian Women, 12 OSTEOPOROSIS INT1 931 (2001) ("Dress styles
covering the whole body, totally or nearly totally. have adverse effects on 25(OH)D levels and
may produce a state of secondary hyperparathyroidism on the long run. Although Jordan
enjoys plenty of sunshine, these data are suggestive of widespread hypovitaminosis D in
Jordan.").
207. Cf Haarscher, supra note 113, at 375 (finding that questions of whether nonadult
girls can consent to veiling strengthens the argument for the headscarf ban): Raday, supra note
201, at 709 (discussing concerns about consent among girls in school).
208. See Alibhai-Brown, supra note 205, at 64 ("The robe is a physical manitestation of
the pernicious idea of women as carriers of original sin: it assumes that the sight of a cheek or
a lock of hair turns Muslim men into predators."); see also Waldron, supra note 117, at 1625
(comparing the burqa to a "portable private realm .. like an Edwardian bathing machine as
though women may appear in public only by remaining in effect in the private realm").
209. See Waldron, supra note 117, at 1625-26 (using veiling controversies to
demonstrate the complexity of balancing religious expression with society's perceived
endorsement).
210. Id
211. Id. at 1626.
2012] PROTECTVG THE SPACE TO BE t VVEILED 1007

society; the laws of most liberal democracies reflect this reality and
212
require a balancing of interests as a result.
This raises the highly contested question of the meaning of the
veil.2 11 Many scholars agree that the veil has no fixed meaning. 2 14 It
may be an expression of religious devotion or identity. In the case
of Najate Nait Ali and Hind Ahmas's veiled protest at the Meaux,
France, town hall, it might be an assertion of women's autonomy. 21
Others assert that the niqab makes a more dangerous statement, such
as that women do not have responsibilities to society but belong in the
private sphere, or that women need not wear attire conducive to study
or employment.1 The niqab may embody the view that the sight of

212. See, e.g., Von Hannover v. Germainy, 2004-VI Eur. CL H.R. 43, 76-77
(balancing the interests of the press and the public in freedom of information against the
applicant's rights to dignity and privacy); Waldron, supra note 117, at1598 99 (characterizing
the hate speech laws of Europe and other advanced democracies as recognizing an "affirmative
responsibility for protecting the atmosphere of mutual respect against certain forms of vicious
attack," arguing that "It]he [real] question isabout the direct targets ofthe abuse. Can their
lives be led, can their children be brought up, can their hopes be maintained and their worst
fears dispelled, in a social environment polluted by these materials? Those are the concerns
that need to be answered when we defend the use of the First Amendment to strike down laws
prohibiting the publication of racial hatred," and contrasting "most liberal democracies [that
have] undertaken to prohibit these manifestations of hatred, these visible defamnations of social
groups" with the United States).
213. See, e.g.,DORIS I. GRAY, MUSLIM WOMEN ON THE MOVE: MOROCCAN WOMEN
AND FRENCH WOMEN OF MOROCCAN ORIGIN SPEAK OUT 67 (2008) (quoting a mother whose
daughter wished to wear the hijab in reclamation of her Moroccan heritage: "For me the veil is
too much a syimbol of oppression.... I cannot sit still and watch as my own daughter is trying
to turn back the clock"); see Wing & Smith, supra note 9. at 758-71 (describing a broad range
of meanings that Muslim women attribute to the veil).
214. See Danchin, supra note 110. at 725 ("As many scholars have argued, wearing the
Islamic headscarf has no single or fixed meaning. Muslim women and girls wear the hijab for
many, often conflicting and conflicted reasons ...."); see also Robert A. Kahn, Are Muslimns
the New Catholics? Europe's Headscarj Laws in Comnparative Historical Perspective, 21
DuKLE J. COMP. & INT'L L. 567. 593 (2011) (posing questions raised by the fact that the
headscarf means different things to different people).
215. See supra notes 23-44 and accompanying text (discussing the multiple reasons why
women veil).
216. See supra notes 17 19 and accompanying text (describing Nait Ali and Ahmas's
protest): see also Danchin, supra note 110, at 725 (listing among the reasons women veil
expressions of autonomy, self-realization, resistance, and freedom").
217. See, e.g.,CATTLIN KILLIAN, NORTH AFRICAN WOMEN IN FRANCE: GENDER,
CULTURE,AND IDENTITY 230 (2006) ("The traditional practice of veiling in Muslim countries
demarcates men's space, or public space, from women's space in the home.")' KIATON, supra
note 23, at 185 (noting concerns that the headscarf of a student majoring in science would
block her view or catch fire during laboratory experiments); Beimoune, supra note 8. at 387
(noting the Turkish government's argument in 5ahin that a "conservative religious approach
would undoubtedly be incompatible with hygiene requirements" for a medical student); Wing
1008 FORDHAAMINTERN\ 4TIONAL LAWJOtiUA4L [Vol. 35:968

women corrupts men, that men are incapable of controlling

themselves, or that women are the property of their husbands. 21 8 The
fact that many individuals of Muslim heritage consider the veil to be a
sign of subjugation is in part a product of the historic and ongoing
violent imposition of the veil by both theocratic governments and
nonstate actors. 19

C. Balancingthe Interests at Stake

1. Weighing the Rights of Women Forced or Pressured to Veil

The potential harms caused by the wearing of the niqab in public
range from the concrete to more abstract concepts of the societal
conditions that promote order and human rights. Those most directly
harmed by state tolerance of the niqab are those who wear it
unwillingly 220 If no one is permitted to wear the niqab, no one can be
forced to wear it. 221 Women who wear the niqab and many other
opponents of the ban reject the idea that the niqab is frequently
imposed on women, and argue that the number of women forced to
wear the niqab is too small to constitute a threat justifying the

& Smith, supra note 9, at 768 (describing Muslim secular feminist view, which associates the
veilwith the seclusion and isolation of women); Berlinski, supra note 10, at 40 (arguing the
choice to wear the veil has a "deeply sinister political and cultural meaning," disqualifying
wearers from working for the government or teaching children).
218. See KEATON, supra note 23, at 186 (quoting a student aide on the issue of why
women should veil but not men: "It's God wvho says it.It's because of man's weakness ....If
a man sees a woman pass by, he'll have bad thoughts about her"); see also Wing & Smith,
supra note 9,at768 69 (noting critics of the veil who reject the idea that Muslim men cannot
control themselves necessitating that women cover and explaining that, according to Muslim
feminists, statements by Muslim men that the headscarfprotects women from the "carnivorous
gaze of men" promote the idea that the veil covers a woman from all men except her husband,
wlho in that sense owns her).
219. See Wing & Smith, supra note 9. at 767 (describing the views of Muslims who see
the veil as a symbol of subjugation); see also El Fadl, supra note 198, at33 34 (describing the
deaths of school girls in Saudi Arabia who were kept from escaping a burning building
because they were not wearing niqabs); Luerssen Crowther, supra note 160, at 632-33
(discussing the imposition of the hi jab through Islamist threats of rape or death).
220. See Atwill, supra note 32 (relaying the finding of the commission established by the
French National Assembly that coercion is one of three primary reasons women veil); see also
Wing & Smith, supra note 9, at 763 (including protection from violence among reasons
women veil). See generally Benmoune, supra note 9 (describing the pressures that cause
unwilling women to veil).
221. See Bennoune, supra note 8,at426 ("Not-being-veiled isa condition that can only
exist in the presence of veiling.'); see also Nussbaum, supra note 13 (acknowledging that in
Turkey "women who went unveiled were being subjected to harassment and violence. The ban
protected a space for the choice to be unveiled .... ").
2012] PROTECTVG THE SPACE TO BE tN VEILED 1009

limitations on those who wish to wear it.2 - - Ban opponents suggest

that laws already exist to address any coercion to veil and that
focusing on the women who veil against their will paints all Muslim
women as victims and Muslim men as oppressors.22 3 Even if most
women freely choose to wear the niqab, however, as those who speak
to the press almost uniformly assert they do, focusing on their
situations to the exclusion of unwilling women may also unhelpfully
treat Muslim women as monolithic.2 24 The law wll affect women in
different ways and their varying interests should be weighed
accordingly .225 Even ban opponents acknowledge that some women in
226
France are made to wear the niqab against their will.

222. See The Faliban Would Applaud, supra note 3,at A26 (arguing that the fewer than
2000 women wlio thought to wear full body veils do not threaten French identity or security).
See generally OPEN SOC'Y FOUNDS., supra note 23 (surveying thirty-two women who wear
the niqab, none of whom stated or implied that they veiled under duress). A 2009 study found
that 1900 women wore the niqab in France. Half of these women were under thirty years old
and ninety percent were under forty; a quarter of them were converts to Islam and two-thirds
were French nationals. In 2000, the niqab was virtually nonexistent in France. See Atwill,
supra note 32.
223. See Nussbaum, supra note 13 ("[O]f course all forms of violence and physical
coercion in the home are illegal already, and laws against domestic violence and abuse should
be enforced much more zealously than they are."); Warrick, supra note 15, at B I (alleging that
the law treats Muslim women as victims).
224. See, e.g., Angelique Chrisafis, French Burqa and Niqab Ban: 'Muslim Woen Are
Being Scapegoated', GUARDIAN (U.K.).Apr. 12, 2011, at 15 (asserting that the decision to veil
is an intellectual one and has nothing to do with marriage); Angelique Chrisafis, Muslim
Women Protest on First Day of France's Veil Ban, GUARDIAN (U.K.), Apr. 12, 2011, at 15
(reporting on women protesting for their right "to dress as they please"): see Bennoune, supra
note 41, at670 (arguing that concealing heterogeneity among Muslims "privileges voices like
fundamentalists that claim to represent a singular and monolithic reality"'): see also Wing &
Smith, supra note 9, at 749 ("Muslim female views cannot be essentialized.").
225. See $ahin v. Turkey, 2005-XI Eur. Ct. H.R. 173 106 ("[1]t may be necessary to
place restrictions on freedom to manifest one's religion or belief in order to reconcile the
interests of the various groups and ensure that everyone's beliefs are respected"); see also
Bennoune, supra note 8,at 396 ("[H]uman rights advocates weighing restrictions on 'modest'
garments for Muslim women and girls in public schools ...should consider the following
factors: the impact of the garments on other women (or girls) in the same environment
coercion of women in the context, including activities of religious extremist organizations-,
gender discrimination: [and] related violence against women in the location .... ).
226. See, e.g., Human Rights Watch Subnission to the National Assembly Information
Committee on the Full Muslim Veil on National Territory, HUm.RTS. WATCH (Nov. 20,
2009), http://www.hnv.org/ei/news/2009/11/20/human-rights-watch-submission-national-
assembly -information-colmittee-full-muslim-ve ("[P]rohibiting [the] wearing [of the full veil]
in public would likely harm, rather than help, those who do so under coercion."); see also
Amnesty Int'l Press Release, supra note 13 ("A generally applicable ban would restrict the
rights of those who freely choose to wear full face veils, while punishing those who do so
against their will ")
1010 FORDHAMINTERN\ 4TIONAL LAWJOtiUV4L [Vol. 35:968

States regularly limit the freedom of autonomous individuals in

order to protect the vulnerable. France allowed North African
immigrants to practice polygamy in the 1980s, exhibiting deference to
cultural traditions and the rights of adults to form whatever
relationships they choose.7 Because polygamy proved so detrimental
to some women, however, the state ultimately had to sacrifice the
interests of those who believed they would benefit from the
arrangement in order to protect those harmed.228 Similarly, some sex
workers argue that prohibitions of prostitution restrict their self-
determination and right to control their own bodies. 22 ' Even if this is
true, states may still limit the freedom of consenting adults, not just to
ensure public health and morals, but also to protect those who would
engage in prostitution under duress. 30

227. See Okin, supra note 14, at 9 ("During the 1980s, the French government quietly
permitted immigrant men to bring multiple wives into the country, to the point where an
estimated 200,000 families are now polygamous."); see also Jennifer M. Collins et al.,
Punishing Fanaly Status, 88 B.U. L. REV. 1327, 1409 10 (2008) (discussing the
decriminalization of bigamy in the United States and arguing that a liberal state should not be
opposed to that private ordering arrangement if harms to third parties are trivial).
228. See Okin, supra note 14, at 10 ("[O]nce reporters finally got around to interviewing
the wives, they discovered .. that women affected by polygamy regarded it as an inescapable
and barely tolerable institution in their African countries of origin, and an unbearable
imposition in the French context.")- see also Adrienne D. Davis, Regulating Polygamy:
Intimacy, Default Rules, and Bargainingfor Equality, 110 COLLi. L. REV. 1955, 1957-58
(2010) ("Some [legal scholars] have framed [polygamy] as a question of how far constitutional
protection for religious freedom and privacy rights extends .... Others have debated
decriminalization, based on the contested effects of polygamy on matters ranging from
women's subordination, to fraudulent behavior, to democracy.").
229. See Catharine A. MacKinnon, Trafficking. Prostitution,and Inequality, 46 1HARV.
C.R.-C.L.L. REV. 271, 297 (2011) (acknowledging the argument that prostitution "can make a
woman's life more autonomous and independent"); see also David AJ. Richards, Comnmercial
Sex and the Rights of the Person:A Moral Argument for the Decriminalizationof Prostitution,
127 U. PA. L. REV. 1195, 1202 (1979) ("[T]here are forceful moral arguments ... that
demonstrate that laws criminalizing commercial sex violate certain basic rights of the
person.").
230. See Richards, supra note 229, at 1215 (identifying criminogenesis, veneral disease,
immorality, and self-destructiveness as the most familiar justifications for American
prostitution bans); see also KRISTOF & WLTDLNN, supra note 22, at 25-32 (arguing for
prohibitions on prostitution in light of the increases in sex trafficking that attend legalization);
Max Waltman, ProhibitingSex Purchasingand Ending Trafficking: The Swedish Prostitution
Law, 33 MICH. J. INT'L L. 133, 141 (2011) ("[I]n most situations, coercive circumstances-
including child sexual abuse, homelessness, sex discrimination, economic discrimination, and
often racial discrimination propel persons into prostitution.").
2012] PROTECTVG THE SPACE TO BE tVVEILED loll

2. Unintended Harms to Women Forced to Veil

Other commentators accept that some women are forced to veil
and oppose the ban on the grounds that it will be harmful to these
women. They warn that the law could have the unintended
consequence of confining women to their homes .2 1 For those forced
to veil by family members who believe that a woman must not be
seen by men other than her husband and family, this presents a
serious risk.232
The ban on religious symbols in schools had adverse
consequences for some girls as well. Adrien Katherine Wing and
Monica Nigh Smith have described girls required to unveil in school
as experiencing a "spirit injury," the symptoms of which include
"defilement, silence, denial, shame, guilt, fear, blaming the victim,
violence, self-destructive behaviors, [and] acute despair/emotional
death.- 233 Women they interviewed recounted feeling uneasy or
unwell without their headscarves, and one described unveiling as a
form of rape) 34 In the school year that the regulation went into effect,
forty-four students were suspended for wearing headscarves, and
ninety-six reported transferring to private schools, enrolling in
correspondence classes, or dropping out. 235 These numbers are
significantly lower than expected and, as Professor Bennoune notes,
do not quantify the number of girls who felt less coerced because the

231. See Sunderland, supra note 13 (arguing that headscarf bans will trap women who
are coerced to veil at home, isolating them from society): see also Katha Pollitt, Ved of Fears,
NATION (U.K.). June 14, 2010, at 10 ("[T]he ban may make [veiled women's] situation[s]
worse ifthe men who force them into the niqab decide that without it, they can't leave the
house at all.").
232. See Richard Owen, Italian Police Fine Woman for Wearing Burqa in Public,TI\Es
(London), May 5,2010 (quoting a man stating that he will confine his wife to comply with the
Italian ban on face coverings in public because he believes that Islam prohibits other men from
looking at her); see also Amnesty Int'l Press Release, supra note 13 ("For those women who
are being coerced into wearing full face veils, the ban means they will either face state
punishment if they go out in public-or more likely-they will be confined to their homes.").
233. See Wing & Smith, supra note 9. at 777 (quoting Adrien Katherine Wing & Mark
Richard Johnson, The Promise of a Post-Genocide Constitution: Healing Rwandan Spirit
Injuries, 7 MICH.J.RACE & L. 247, 289 (2002)).
234. See id. at 778-79 (describing the experiences of women forced to unveil).
235. See CHERIFI, supra note 151, at35; see also Wing & Smith, supra note 9, at783
("[T]he headscarf ban has its price: the exclusion of a number of young Muslim girls who will
be removed from the public schools hidch may be their only cdnce to escape from the cage
that segregationists plan for them.").
1012 FORDHAAMINTERN\A4TIOAAL LAWJOtIV 4L [Vol. 35:968

ban protected their desire not to wear the headscarf.236 Still, even
proponents of the law agree that "the expulsion of a girl [from school]
is a failure.- 237 Expulsion removes her from "an environment where
different cultures can come together to learn. 2 38 A girl whose parents
will not allow her to attend school without a headscarf may face 2 39
greater imposition of religion when schooled privately or at home.
The beliefs of a girl who refuses to remove her headscarf may harden
in the absence of diverse peers and in response to the perceived
injustice of her removal.240 Some girls over sixteen may end their
educations all together.241 Professor Ayelet Shachar argues that rather
than encouraging inclusion, "the law hinders the attainment of
education, which is the only long-term strategy that has consistently

236. See Bennoune, supra note 9, at 162 (reporting numbers were much lower than
predicted and stating that "these statistics do not quantify the number of girls who, thanks to
the Law, felt less coercion in school because the ban reinforced their personal choice not to
wear the headscarf. despite familial or community pressure to do so"): see also Wing & Smith,
supra note 9, at 767 ("Those girls [in favor of a ban] asked their instructors not to back down
so that they would not feel compelled by their families or community to wear a scarl").
237. Bennoune, supra note 9. at 186; see Wing & Smith, supra note 9. at 780 ("The
consequences of girls being excluded from the classroom are far-reaching.").
238. Wing & Smith, supra note 9, at 780; see Danchin, supra note 110, at722 ("The
presentation of and engagement with different points of view is an intrinsic part of the
educative process.").
239. See Wing & Smith, supra note 9,at761 (citing students who said that their parents
would not allow them to go to school if they did not wear the scarf): see also Raday, supra
note 201, at 709 (noting veil bans ma) result in traditionalist families not sending their
children to public schools); Tiefenbrun, supra note 138, at 30 (warning of"the social isolation
of private schools where they can be influenced by some dangerous imamis in madrassas or
schools that reportedly harbor intense anti-West sentiments"); Peter G. Danchin, Suspect
Svinbols: Value Pluralism asa ieorF y fReligious hreedoin in InternationalLouw, 33 YALE J.
INT'L L. 1,7 8 (2008) ("[I]fthere isan exercise of pressure or proselytizing to be found, it is
more likely to exist in the home between parents and their children.").
240. See Michel Troper, Religion and Constitutional Rights: French Secularism, or
Laicit, 21 CARDOZO L.REV. 1267, 1279 n. 17 (2000) ("Ithe wearing of the veil isprohibited,
the young women dismissed from public school will not have any contact with the values of
tolerance and equality that only the school can inculcate.-); see also Wing & Smith, supra note
9, at 782 ([1i]f Muslims are being forced to choose between their religious convictions and a
public education, more may look to starting their own private schools. This may only further
their alienation from French society.").
241. See Bennoune, supra note 9, at 161 (suggesting that some of the ninety-six students
wlho were over sixteen years old who voluntarily left public schools in the first year of the ban
may have dropped out completely). Education is compulsory from ages six to sixteen in
France. See, e.g., INCA Summnary Profile Education inFrance. INT'L REV. OF CLTRRICULLM1\
AND ASSESSNWNT FRAMNEWORKS INTERNET ARCHIVE http://www.inca.org.ul,!france-systeim-
mainstream.html (last
visited May 16, 2012).
2012] PROTECTIVG THE SPACE TO BE tVVEILED 1013

been linked to improved life chances and empowerment for girls.,, 242
Still, despite the "misfortune for national education" that at least 140
girls who would have otherwise attended public French schools in
2004 did not, proponents argue that the harm was necessary to combat
the growing misfortunes of divisions among students, pressures to
veil, and girls* bodies becoming the battlegrounds of lslamists. 43
Veiling controversies throughout the world demonstrate the need
for difficult line drawing. The controversy leading to the English case
Regina v. Governors of Denbigh High School started when the
brother of a girl attending a majority Muslim private school, whose
carefully designed uniform included the shalwar kameeze, arrived
with her at school and demanded she be permitted to wear the jilbab,
a more restrictive coat-like garment, instead.244 As a controversy
ensued, her fellow Muslim students who wore the shalwar kameeze
faced fundamentalist demonstrators outside the school demanding the
students cover even more. 4 s Despite the brothers loss in a lengthy
legal battle on her behalf, England has since faced demands that
children be allowed to attend school in full face veils, as have other
countries. 246

242. Shachar, supra note 40, at 85; see also Wing & Smith, supra note 9. at 784-85
(advocating tor a focus on empowerment of French Muslim women and girls through
education).
243. Wing & Smith, supra note 9, at 783; see Wing & Smith, supra note 9. at 770-71
(discussing how headscarves create divisions among students); Bennoune, supra note 9, at 186
(reporting that proponents believe that the fieedom from pressure to veil provided by the ban is
worth its negative consequences). See generally Mona Eltahawy, Why Do They Hate Us?.
FOREIGN POL'Y, May/June 2012, http:// ww.foreignpolicy.com/aiticles/2012/04/23/why do
they hate us (discussing current manifestations of "Islamist hatred of women" such as dress
codes, genital mutilation, and virginity testing).
244. See Regina v. Governors of Denbigh High School, [2007] 1 A.C. 100 (H.L.) 100
(Eng.). The shalwar kameeze is a loose-fitting South Asian pants suit that conceals the body.
See Beimoune, supra note 8, at 411.
245. See Governors of Denbigh High School, [2007] 1 A.C. at III (recounting the
demonstrations by fundamentalists); see also Beimounce supra note 8, at 412 (reporting that
fundamentalist demonstrators were at the school gates pressuring the girls to cover
themselves).
246. See Governors of Denbigh High School, [2007] 1 A.C. at 101: see also Shachar,
supra note 40, at 59 (referencing debates in France over the headscarf as being similar to those
in France in Belgium, Denmark, Germany, Russia, and Singapore); Rasheed Kidwai, Burqa
Row in School, TELEGRAPH (India), Oct. 12. 2004, http://www.telegraphindia.com/1041013/
asp/nation/story 3876610.asp. (describing a 6burqa campaign" at a high school): Neil Sears,
Muslim Father Gets Legal Aid to Fight School over Veil Ban, DAILY MAIL (U.K.) (Jan. 22,
2007, 11:54 PM), http://www.dailylmail.co.ul&news/'article-4 3 0705/Muslim-father-gets-legal-
aid-fight-school-veil-ban.html (reporting on a father's demand that his twelve-year-old
daughter be allowed to wear a full tace veil to school).
1014 FORDHAMINTERN\ 4TIONAL LAWJOtiUA4L [VoL 35:968

Some commentators argue that public school is the proper place

for a student to learn the responsibilities that come with citizenship:
that she will sometimes have to make compromises in order to be part
of society and that her desires and needs must sometimes be
subordinated to those of others. 4 7 In some cases, parents have the
greatest difficulty accepting such limitations; where they refuse, their
daughters suffer deprivation of a public education. 24 Thus, the
headscarf ban sacrifices protection of these students in the hope of
protecting their peers and future students.249
A child who was never permitted to a wear a headscarf to school
will not experience the "spirit injury" of having to remove it. 250 The
number of students who accepted the French headscarf ban without
incident suggests that the ban may encourage groups to embrace
modified religious and cultural practices in order to receive the
benefit of a public education. 251 Furthermore, state-imposed
limitations on religious manifestations may even provide theological
justification for the moderation of practices, as where religious

247. See Leonardo Alvarez Alvarez, Education and Pluralism: Towards A Democratic
Theory of Education in Europe, 6 Intercultural Hum. Rts. L. Rev. 349, 356 (2011) (describing
one conception of the function of education in wvhich "education does not enable the individual
to decide freely and autonomously, but to preserve the nations' political and cultural values,
these being superior to the rights of the individuals"); see also Wing & Smith, supra note 9,at
755 ("It is believed that schools are where the future leaders and citizens will be molded in the
spirit of the Republic, which is based on the ideal citizen who is 'French' before any other
identity." (footnote omitted)).
248. See Shachar, supra note 40, at 85 (arguing the headscarf law deprives girls of
education and thus empowerment): see also Wing & Smith, supra note 9. at 761 (discussing
the statements of girls who said their families would not allow them to go to school unveiled).
249. See Bennoune, supra note 9, at 186 (reporting the views of commentators who view
the detrimental effects of the headscarf ban as necessary): see also Haarscher, supra note 113,
at 369 (concluding that fundamental democratic values cannot "be taught and defended
wlhich is vital indeed for the future of our children-wifle accepting the veil at school").
250. See Wing & Smith, supra note 9. at 777-79 (identifying "spirit injury" as a result of
having to remove the veil and explaining "spirit iijury" as a Critical Race Feminism term that
contemplates the psychological, spiritual, and cultural effects of multiple types of assaults
upon women); see also Adrien Katherine Wing., Brief Reflections Toward a Multiplicative
Theorv and Praxis ofBeing, 6 BERKELEY WOMEN'S L.J 181, 186 (1990) (explaining "spirit
injuries").
251. See Governors of Denbigh High School, [2007] 1 A.C. at 134 (opinion of Baroness
Hale) ("[S]uch a policy may send a clear message that the benefits of state education are tied
to the obligation to respect women's and girls' rights to equality and fieedom." (quoting
Raday, supra note 201, at709)); see also Bennoune, supra note 9. at 162 (describing the
number ofexpulsions and departures from school to be much lower than predicted).
2012] PROTECTVG THE SPACE TO BE t VVEILED 1015

leaders teach that God requires the faithfulness within the bounds of
earthly laws.252
Still, as was the case with the school ban, the niqab ban could
harm some vulnerable women in the name of protecting a wider
population. In October 2010, Italian authorities fined a fully veiled
woman for violating an ordinance banning from public buildings any
clothing that prevents the identification of the wearer. 253 The
woman's husband said he would respect the ordinance and pay the
fine, but because he believes his wife cannot be looked at by other
men according to the Qur'an, he would no longer allow her to leave
the house. 254
In 2005, France denied citizenship to Faiza Silmi on the grounds
that her niqab demonstrated "insufficient assimilation" and a rejection
of gender equality.25 When she challenged the decision, Silmi
claimed that the choice to wear the niqab was her own. 6 On other
occasions, however, she stated she had adopted the niqab at her
husband's request when she moved to France. 2' 7 The denial of her
citizenship application in the name of gender equality potentially put
Silmi in a position of greater reliance on her citizen husband. 25 It is
unclear whether the decision to wear the niqab was truly her own. 2 9

252. See ALI RAFEA ET AL., THE BOOK OF ESSENTIAL ISLAM 29 (2005) ("The guidance
to respect earthly laws and at the same time seek God's support is mentioned in various ways
in the Holy Qur'an .. "); see also SHACHAR, supra note 14, at 34-35 (describing one
response to pressures to assimilate in which groups amend certain traditions in order to align
them more closely with majority norms).
253. See Owen, supra note 232 (reporting on a woman fined for violating an Italian ban
on tace-coverings in government buildings).
254. See id. (reporting the husband's assertions that he would confine his wife).
255. See Katrin Bennhold, A llusin Woman Too Orthodox for France, N.Y. TIvWS.
July 18, 2008, http: iw-wnytimes.com2008/7/18/orld/europe/18iht-france. 4.1461
8011 .html?pagewanted all (reporting on the citizenship determination). The Council of State
upheld the decision to deny citizenship. See id; see also A Burja Barrier, ECONOMIST, July
19, 2008, at 61 (reporting the same story but identifying Faiza Silmi as Faiza M); krance
Rejects Veiled Mushin Wife, BBC NEWS (July 12, 2008. 8:34 PM),
http:/news.bbc.co.uki2ihi/europe/7503757.stm (reporting that the Conseil d'Etat upheld the
decision to deny her citizenship).
256. See Beimhold, supra note 255 (reporting Silmi's assertions the decision to veil was
her own).
257. See A Burqa Barrier,supra note 255, at 61 ("The woman adopted the burqa at her
husband's request in France .... ").
258. See Gilbert, supra note 110, at 394 (arguing that denial of French citizenship to
Faiza Silmi was likely to make her even more dependent on her male relatives for protection).
259. See id. (noting that Silni may not have had the option of not wearing the
niqab, "Ms. Silmi, who was eligible for citizenship through her spouse, apparently would have
had to place herself in the untenable and potentially dangerous position of challenging gender
1016 FORDHAMINTERN\A4TIONAL LAWJOtIV 4L [VoL 35:968

Despite the possibility that the niqab ban risks harming some of
the vulnerable women it is meant to protect, Mona Eltahawy, an
Egyptian-born Muslim journalist, hopes that men will have sufficient
incentives to let their wives leave the house because they need them
to continue to work. 60 Others have speculated that men forcing their
wives to stay home would "pay the price" by having to take on
responsibilities like taking children to school, shopping, paying bills,
and going to the bank or post office. 26 ' The fact that an estimated half
of French women who wore the niqab prior to the ban removed their
full veils in the absence of enforcement may support these
predictions. 6 2 Still, it must be acknowledged that the ban could lead
to the extreme isolation of women who feel they cannot leave their
2 63
homes with their faces uncovered or are not allowed to do so.

3. Considering the Protections of Secularism

As Professor Nussbaum explains, the headscarf ban in Turkey
was necessary given threats to the safety and well-being of unveiled
women in that country: "The ban protected a space for the choice to
be unveiled, and was legitimate so long as women did not have that
choice." 264 She concludes, however, that European bans are not
justified because women in Europe are generally free to dress as they
please today .265 As the scholarship discussed above demonstrates, this

roles within her family and her community."); see also .4Burqa Barrier,supra note 255, at 61
("The paradox is that it was only when Faiza M came to France [fiom her native Morocco]
that she felt obliged to don the burqa.").
260. See Brown, supra note 115 (expressing Mona Etahawy's hope that women will not
be confined because their husbands will need them to work).
261. See, e.g., Owen, supra note 232 (suggesting husbands will allow their wives to
remove the veil rather than accept these tasks).
262. See de la Baume, supra note 6 (reporting one half of women have removed the veil
in public according to an anti-ban leader): see also First Women Fined Under Franzce's Burka
Ban, RF ENG. (Sept. 22, 2011), http:/ wvw-w.english.rfi.fr/fraince/20110922-women-fined-
wearing-islamic-niqab-public (reporting that half of the 2000 women who wore the full veil
before the ban are believed to have stopped since the ban went into effect).
263. See, e.g., Owen, supra note 232 (reporting that an Italian mai will pay the fine
imposed on his wife for wearing a face covering in public, but will no longer allow his wife to
go outside); see also Press Release, Amnesty Int'l. supra note 13 (stating that some women
may be confined to their homes because of the French law).
264. Nussbaum, supra note 13 (describing threats to women in Turkey who went
unveiled).
265. See id. (claiming that women in Europe can dress as they wish today).
2012] PROTECTVG THE SPACE TO BE tNVEILED 1017

is not true for a significant segment of French women of Muslim

heritage.2 66
Opponents of the ban argue that the number of French women
who wear the niqab, an estimated 2000 at the time of the law's
passage, was too small to justify the intrusion. 6 7 Mohamed Sifaoui,
an Algerian journalist exiled to France, who has experienced threats
and attacks attributed to his antifundamentalist and secularist views,
drew the opposite conclusion from the small number of girls seeking
to veil in the context of the school ban debate. 26' He argues that the
secularism of the entire society should not be jeopardized for the
small minority of Muslims who sought to veil in school. 269 Scholars
have argued that religious fundamentalism is among the greatest
threats to the human rights of women worldwide, against which
secularism is an important protection. 270 A woman need not be the
subject of explicit violence or threats in order to be affected by other
women wearing the niqab. While individual women are not

266. See supra notes 169 71 and accompanying text (describing the violent attacks and
gang rapes of women thought to be violating rmodesty" norms in France).
267. See, e.g., 2 Arrested as France's Ban on Burqas, Niqabs Takes Elfect, CNN, Apr.
11, 2011, http://articles.cim.coin,2011-04-11 /world/france.burqa.ban 1 france-s-islamic-
burqas-french-nuslim? s PM:WORLD (quoting an American political science professor as
saying, "Its an unnecessarv confrontation.. ..This is not ainepidemic"); see also, e.g.,
Thomas Hammarberg, Penalising Women Who Wear the Burqa Does Not Liberate Them,
COUNCIL EuR. CON1DIUSSIONER'S H4,i. RTS. COIv.1ENT (July 20, 2011, 9:27 AM),
http://commissioner.cws.coe.int/tiki-view blog~post.php?postId= 157 ('The way the dress of a
small number of women has been portrayed as a key problem requiring urgent discussion and
legislation is a sad capitulation to the prejudices of the xenophobes.").
268. See Bennoune, supr, note 9,at 163 (describing Mohamed Sifaoui's position); see
also France.1ustEnsure Police Protectionfor Mohamed Sifaoui, SECULARISM IS A WOMEN S
ISSUE (Aug. 19, 2008). http://www.siawi.org/article5O7.html (calling for public support on
behaltfofMohamed Sifaoui after he was threatened by fundamentalists).
269. See Bemoune, supra note 9, at 183 (reporting Sifaoui's view that secularism should
not be undermined for the few girls wlho seek to veil).
270. Bennoune, supra note 41, at637 38 ("Unfailingly, such [Muslim fundamentalist]
movements purvey systemic discrimination against women and religious minorities, and
advocate other violations of human rights .... ");see also Raday, supra note 201, at 675
("Under most of the monotheistic religious norms, women are not entitled to equality in
inheritance, guardianship, custody of children, or division of matrimonial property. In most of
the branches of the monotheistic religions, women are not eligible for religious office and, in
some, they are limited in their freedom to participate in public life, whether political or
economic.").
271. See Bennoune, supra note 9. at 175 (quoting Bemmoune, supra note 8, at 426)
(F'[N]ot-being-veiled isa condition that can only exist in the presence of veiling.' Not-being
veiled has led to a range of terrible consequences for women and girls .... ");see also Wing &
Smith, supra note 9, at 760 (reporting that atFrench schools with largely Muslim populations,
unveiled Muslim girls are viewed as whores and potential targets ofviolence).
1018 FORDHAMINTERN\ 4TIONAL LAWJOtiUV4L [Vol 35:968

responsible for the broader political context in which they veil, that
context can determine the meaning of the choice and what impact it
has on others.2 72 The veil is a symbol that, in some contexts, is
273
harmful to women's equality and the secularism that protects it.

III. SECULARISMAND GENDER EQu4LTY: MEANS OF

PROTECTING THE PUBLIC ORDER ANVD THE RIGHTS OF
OTHERS
Part 11 outlined the history and unique social and legal context of
the veil debate in France. This Part analyzes the legality of the niqab
ban and argues that it does not violate the European Convention on
Human Rights due to the state's legitimate interest in protecting the
public order and the rights and freedoms of others by upholding
secularism and gender equality. It further argues that international
misunderstanding of the law's context is problematic due to its effect
on the efforts of Muslim reformers and influence on preeminent
human rights organizations.

A. Secularism and Gender Equality. Vital Protectionsof the Human

Rights of Women
As the ECt-IR has repeatedly held, secularism and gender
equality are vital to the protection of public order and the rights of
others and thus justify some limitations on individual rights) 74 In

272. See Bennoune, supra note 8, at 418 (agreeing with HUMAN RIGHTS WATCH, supra
note 97, that women choosing to cover their heads are not at fault for the political
circumstances, but arguing the meaning in context makes the religious expression subject to
limitation regardless): see also Phyllis Chesler, Ban the Burqa? The Argument in Favor,
MIDDLE EAST Q. 33, 44 (Fall 2010) ("The burqa is harmful not only to the wearer but to others
as well. The sight of women in burqas can be demoralizing and frightening to Westerners of
all faiths, including Muslims, not to mention secularists. Their presence visually signals the
subordination of women.").
273. See id. (noting that limiting expression may be necessary "in pursuit of other goals,
whether women's equality as mandated by the Women's Convention or the secularism which
makes it possible"); see also Wing & Smith, supra note 9, at 768 (quoting feminist Anne
Vigerie, who sees the veil as a "flag on the head" that confirms the underdeveloped status of
women in radical Islam and symbolizes the acceptance of all the conditions that Islam
mandates).
274. See supra Part 1.B (discussing $ahin v. Turkey, 2005-XI Eur. Ct. H.R. 173, and
related cases addressing limitations of religious expression); see also notes 176-81 and
accompanying text (discussing Dogru v. France, App. No. 27058/05, 49 Eur. H.R. Rep. 179
(2008)).
2012] PROTECTVG THE SPACE TO BE t VVEILED 1019

some cases, this may justify regulation of even the public space.T
The state will sometimes have to make value judgments as to
conflicting protected freedoms." 6 The freedom to wear a symbol that
is widely considered offensive to secularism and gender equality
deserves less protection than the rights to liberty, freedom of
conscience, and freedom from violence of a woman experiencing
pressure or coercion to veil. France has constitutionally enshrined the
value of secularism. 7 Where the rights of a woman to manifest her
religion conflict with the rights of someone who wishes to enjoy the
protections of a secular society, France is correct to favor the interests
of the individual embracing and seeking the protections of the
foundational values central to the public order.27' The woman who
chooses to wear the niqab makes a decision affecting those who must
interact with her, other Muslim women, and women in general.2 79
As in Turkey, the veil presents a genuine threat to secularists,
particularly Muslim secularists. 0 France has a legitimate interest in
protecting laiciti, just as Turkey protects laik.281 Both states'
regulations seek to protect the public order by responding to religious
divisions and threats to the safety of women; both states' "historical
experiences" include struggles against theocracy that led to the
28 2
founding of secular states.
Commentators have been highly critical of the idea expressed by
the Dahlab court that the veil is "imposed on women by a religious

275. See supra Part II.B.2.b and accompanying text (discussing justifications for
regulations of religious dress beyond those in schools ).
276. See supra Part I.C (discussing the balance of interests at stake between the
individual rights of women wlio wish to veil and others that are affected).
277. See supra notes 135 36 and accompanying text (describing the concept of la 'ite).
278. See supra Part I.B. 1 and accompanying text (describing the ECtHR's identification
of secularism and gender equality as vital to the public order); see also supra note 196 and
accompanying text (explaining the concept of republicanism and listing values considered
central to it).
279. See supra notes 271-73 and accompanying text (discussing the impacts of veiling
on unveiled women).
280. See supra notes 268-69 and accompanying text (quoting a Muslim who views the
headscarf in school as putting the secularism of society at risk).
281. See supra notes 67 70 and accompanying text (explaining the Turkish concept of
secularism and detailing how some perceive the headscarf as a threat to this principle).
282. See supra note 82 and accompanying text (citing $ahin v.Turkey, 2005-X1 Eur. Ct.
HR. 173, 115, regarding the significance of states' historical experiences); see also supra
note 115 and accompanying text (discussing the history of religious wars in Europe); supra
note 136 and accompanying text (describing France's struggle with the Catholic Church and
legal enshrinement of secularism).
1020 FORDHAMINTERN\A4TIONAL LAWJOtIV 4L [Vol. 35:968

precept that [is] hard to reconcile with the principle of gender

equality. 2 83 However, the niqab and burqa have been and continue to
be instrumental in the violent oppression of women. 284 Even where it
is not imposed by force, the veil represents a discriminatory
interpretation of the Qur'an given that it is only required of women,
despite the Qur'an's directions to all Muslims to dress "modestly. ' *8 s
Unlike the headscarf, the full veil accomplishes the complete
disappearance of a woman's identity .2 6 Thus, beyond the immediate
practical threat it poses to the safety of some women in France, it is a
symbolic harm. 28 7
Furthermore, although this Note has characterized the rights-
bearing woman who wishes to veil as making a fully autonomous
choice, it should be noted that this assumption is problematic. Relying
on the choice of individual women to veil or their consent to
membership in a religious group risks absolving the state of its
responsibility to address harms to women. 2 The decision to deny
Faiza Silmi citizenship essentially punishes her in the name of gender
equality for a choice that may not truly have been her own. 9
Authorities not only construed her choice as a failure to meet
citizenship criteria of which she had no notice but also relied on an
unrealistic assumption that she could choose not to veil should her
husband want her to do so. 290 The niqab ban is a more coherent and
realistic attempt to address the practice, rather than an abdication of
responsibility based on the assumption that a woman can simply
choose not to veil.

283. See supra note 78 and accompanying text (citing criticism of this assertion and and
noting relevant provisions in the Qur'an).
284. See supra note 232 and accompanying text (describing family coercion to veil); see
also supra note 219 and accompanying text (describing the violent imposition of the veil on
women by theocrats).
285. See supra note 78 (discussing allegations that the precept underlying the veil is
difficult to reconcile with equality).
286. See supra note 217 and accompanying text (citing commentators equating the veil
with a woman's disappearance from active citizenry and individually recognized pubic life).
287. See supra notes 165-71 and accompanying text (describing some of the harms to
women stemming from the symbolism of the veil).
288. See supra notes 126-29 and accompanying text (discussing state obligations under
CEDAW).
289. See supra notes 255 59 and accompanying text (describing the rejection of Sihni's
citizenship application).
290. See supra notes 255-59 and accompanying text (questioning wiether Silmi made
the decision to wear the niqab).
2012] PROTECTVG THE SPACE TO BE t VVEILED 1021

B. An Invasive Regulation of an Extreme Practice

The niqab ban is certainly a more extreme regulation than the
one at issue in 5ahin, but it is aimed at a more extreme practice. 291 As
in 5ahin and Dogru, the ECtHR should grant a margin of appreciation
to French officials' greater ability to evaluate local needs, especially
given the evident failure of the international community to recognize
the severity of the problem sought to be remedied and the diversity of
viewpoints among Muslims. 2 9 2 The ECtHR should, however, weigh
the circumstances on the grounds against the intrusion more explicitly
than it did in its proportionality analysis in 5ahin.2 93
The decision leading to the French ban was arguably more
thoroughly investigated and debated and the process of
implementation more lengthy and considered than was the case in
,5ahin. In 5ahin, the ECtHR found that the careful implementation of
the rule demonstrated the proportionality of the measures to the ends
that the state sought to achieve. 9 4 In the case of the niqab ban, the
law was preceded by a commission to study the phenomenon,
extensive debate, approval of the Conseil d'Etat, and a six-month
window prior to implementation to educate the public about the
law.29 5 The penalty of a fine or citizenship class is not so severe as to
be disproportionate to the need to protect secularism and gender
equality. Furthermore, citations by law enforcement provide an
important opportunity for state intervention where a woman has been
coerced into wearing the niqab, for example under threat of violence
296
or threats regarding withholding immigration sponsorship.
In analyzing the proportionality of the law, the ECtHR should
consider the differing effects it will likely have on a range of women.
The law risks harming women whose husbands or fathers will confine

291. See supra Part II.B.2.b (discussing differences between the laws and the practices
they seek to regulate).
292. See supra note 90 and accompanying text (discussing the 5ahin court's grant of a
significant margin of appreciation based on the greater understanding of local needs): see also
supra Part 11.B (discussing misconceptions about the debate in France).
293. See supra Part I.B.2 (discussing the ECtHR's proportionality analysis and criticism
thereof).
294. See supra Part I.B.2 (discussing the 5ahin court's proportionality analysis).
295. See supra notes 182-88 and accompanying text (describing the commission
researching the ban, constitutional review of the law, and the six-month period allotted after
passage of the law for education of the public prior to implementation).
296. See supra note 232 and accompanying text (discussing a woman whose husband
stated h would not let her leave the house unveiled); see also notes 255-59 (discussing how a
woman was denied French citizenship in part due to wearing a niqab).
1022 FORDHAMINTERN 4TIOAAL LAWJOtUIV4L [Vol. 35:968

them rather than let them show their faces in public. 29 7 In such cases,
however, the situation is so extreme they need to seek the assistance
of law enforcement. The state should be encouraging these women to
do so rather than protecting a rights-violative status quo out of fear
that an already intolerable situation might become worse. These
coerced women already are victims of the ideas the ban seeks to
combat, especially that women are lesser humans who should be
confined to the private sphere. 29' The French ban is a reasonable step
to prevent this idea from taking hold in its society by sending the
message that the economic, political, educational, and other benefits
of life in a democracy are conditioned on acceptance of certain
minimums. 2 9' Gender equality certainly correlates to and likely
promotes the stability and prosperity of a country .3 " The qualities of
a country that attract immigrants from various traditions may be a
powerful incentive to moderate unjust practices, but this cannot be the
case if the state is overly deferential to demands for tolerance that
facilitate the oppression of less powerful members of religious or
cultural groups. 3
Perhaps the youth of the majority of niqabis in France and the
newness of the phenomenon of full veiling suggests that the
psychological trauma to women required to unveil by the state will be
less than one might expect. 3° One can hope that abandoning a new
practice early will be less traumatic than deserting an entrenched one
that a woman has practiced for much of her life. 3 Not only is the
experience of women forced by the state to unveil likely to vary
widely from person to person, however, women who do not fit the
majority profile among niqabis, such as a recent immigrant or an
older woman, may have worn the veil for most of their lives. Still, one

297. See supra notes 231-32, 263 and accompanying text (discussing the possibility the
bai will result in the confinement of women to their homes).
298. See supra notes 217-19 and accompanying text (discussing harmful meanings
attributed to the veil).
299. See supra note 260-61 and accompanying text (discussing coercive veiling and
incentives to modify repressive religious or cultural practices).
300. See supra note 22 and accompanying text (discussing the correlation of gender
equality to stability and the maintenance of public order).
301. See supra notes 260-63 and accompanying text (discussing the law's modification
of cultural and religious practices).
302. See supra note 222 (presenting statistics regarding the age of women who wear the
niqab and the high number of converts among them).
303. See supra notes 233-34 and accompanying text (describing the traumatic
experience of girls having to unveil at school).
2012] PROTECTVG THE SPACE TO BE t VVEILED 1023

can hope that, among women who experience trauma at having to

show their face, there will be some for whom undergoing it will
ultimately be beneficial. For women who refuse to unveil and resolve
not to leave their homes, the law will certainly have a very
detrimental impact. 4 Yet, the risk to these women is necessary to
avoid harn to other women by 305ending a marginal practice that was
growing rapidly prior to the ban.

C. Whyv the InternationalMisunderstandingof the Ban Mlatters

Critics of the French niqab ban who approve of the Turkish
headscarf ban upheld in Sahin rightly identify significant differences
between the regulations.30 6 Two primary differences are the fact that
Turkey is a Muslin-majority country, and that the headscarf ban did
not extend to the public space. 0 7 It is true that, unlike in Turkey,
Islamophobia is a serious concern in France' 0 8 Reflexively blaming
Islamophobia, however, conflates legitimate opposition to
fundamentalist movements with anti-Muslim bias and thus silences
Islam's internal critics. 30 9 Regulating veiling is not necessarily
Islamophobic, as the restrictions in place in Turkey as well as other
majority Muslim countries demonstrate.1 This idea reflects a
dangerous ignorance of the very real threats to Muslim women's
freedom and safety.31 1 It also devalues secularism as an important
protection for the rights of French citizens in general and women in
particular.
Both the headscarf ban in schools and the niqab ban are attempts
to address specific circumstances in France. Simplistic accusations of

304. See supra note 263 and accompanying text (describing a man who says he will not
allow his wife to leave the house due to a comparable Italian ordinance).
305. See supra notes 233-43 and accompanying text (weighing the harms of the
headscarf ban against its continued and growing presence in schools).
306. See supra notes 264-65 and accompanying text (citing Professor Nussbaum's
argument that the ban in Turkey protected a space to unveil in a context of pressure whereas
women can wear what they like in Europe today).
307. See supra notes 200-03 and accompanying text (discussing the significance of the
ban in a school setting).
308. See supra note 199 and accompanying text (citing concerns ofracism in France).
309. See supra note 198 and accompanying text (discussing the effects of allegations of
Islamophobia on intra-Muslim debate).
310. See supra note 195 and accompanying text (citing veiling restrictions in Muslim
majority countries).
311. See supra note 170-71 (describing violent attacks and gang rapes of French Muslim
women deemed in violation of modesty norms).
1024 FORDHAAMINTERN\ 4TIONAL LAWJOtiV\4L [Vol. 35:968

racism and Islamaphobia obscure the complicated intra-Muslim

debate and have the potential to silence those who do not fit Western
or American stereotypes of Muslims. 31 2 The debates resulting from
competing visions of Islam have tangible effects on women's lives,
and therefore, the state will sometimes have to take a side. 13
The mischaracterization of the ban in the English-speaking
media, particularly in the United States, matters not only because it
silences Muslim reformers and ignores the facts on the ground for
Muslim women in France, but also because of the influence that this
narrative has on the major international human rights organizations.3 14
These groups are extremely influential in setting the global human
rights agenda, an agenda that has been criticized for protecting
religious freedom at the expense of the human rights of women and
failing to recognize those who are oppressed can also be oppressors.
usually of women.3 1 This highlights the importance of the contextual
analysis demonstrated by the Sahin court. 3 6 Abstract concepts of
individual religious freedom imported from other jurisdictions and
societies cannot be determinative. 317 Without considering the actual
circumstances on the ground in a particular country, women stand to
be harmed in the name of women's rights.)'

D. Paternalismor the Reasonable Ijmposition of a Duty on Women?

The statements of women demanding their right to veil in the
media and to scholars are overwhelmingly devoid of an)
acknowledgement of the historic and ongoing violent imposition of
the veil on other women, or the possibility that their individual

312. See supra note 173 75 and accompanying text (discussing assumptions that
Muslims generally wear veils and therefore oppose the ban).
313 See supra notes 165 71 and accompanying text (describing the harms to women
that have resulted in part from veiling in the French context).
314. See supra notes 13, 129 and accompanying text (citing Amnesty International and
Human Rights Watch among the organizations opposing the veil bans on individual freedom
grounds).
315. See supra notes 198-200 and accompanying text (discussing the phenomenon of
Islamophobia obscuring the oppression of Muslims by other Muslims).
316. See supra notes 80-86 and accompanying text (discussing the 5ahin court's
attention to the circumstances in Turkey).
317. See supra Part 11.A (contrasting the legal and social contexts in France and the
United States).
318. See supra notes 264-66 and accompanying text (discussing the context in Turkey of
violence against unveiled women as sufficient to justity restrictions).
2012] PROTECTVG THE SPACE TO BE t VVEILED 1025

choices could have harmful effects on others.?" These women assert

that the choice to fully veil is their own and adamantly reject any
implication that someone is forcing them to do so, seemingly without
any recognition that other women may not enjoy such freedom from
coercion and pressure.120 This emphasis on personal choice is
divorced from the fact that women have such autonomy thanks to the
good fortune of living in a liberal society that protects equality. It
evidences a conception of rights as concerning only those of the
21
individual as against the state, typical of American jurisprudence)
As international human rights law recognizes, state inaction is not
necessarily protective of rights and states have affirmative duties to
protect rights and actively promote equality. 32 Especially in the case
of women, rights are often violated by private action and oppressive
social norms rather than state action 23 France's positive obligations
to protect the rights of all women will sometimes entail limiting the
rights of some women. 2 4 Rather than a paternalistic attempt to make
women do what the state thinks is best for them, the niqab ban is a
statement that women have minimum duties to other women and to
society.

CONCLUSION
The English-speaking media and prominent international human
rights organizations have generally analyzed the French niqab ban
with insufficient understanding of its context. Attention to the actual
circumstances in France and the range of views among French
Muslims are imperative for a sound balancing of interests. As in
5jahin, France has a legitimate objective in protecting secularism and
gender equality, values fundamental to the public order and women s

319. See supra note 224 and accompanying text (describing women asserting their rights
to veil as a matter of personal autonomy).
320. See supra notes 224, 256 and accompanying text (discussing accounts of women
who wish to veil).
321. See supra notes 119-20 and accompanying text (contrasting US jurisprudence
interpreting the Constitution as protecting primarily individual rights and international law).
322. See supra notes 121 29 and accompanying text (contrasting US and international
law, which imposes affi mative duties on govermnents).
323. See supra notes 121-29 and accompanying text (discussing the affirmative duty to
protect again stthe acts of third parties under CEDAW and other treaties and citing precedent
of the hnter-American Court of Hulman Rights concerning domestic violence).
324. See supra note 129 and accompanying text (discussing state obligations under
CEDAW).
1026 FORDHAMINTERN\A4TIOAAL LAWJOtIV 4L [Vol. 35:968

rights. Although the law places on all women a responsibility that will
limit the religious, cultural, or political expression of some, it should
be seen as fostering freedom rather than infringing it. It is reasonable
and just to require a woman who enjoys the benefit of life in a liberal
democracy to show her face in public so that other women may live
more freely.