By Professor Jill Marshall, School of Law
Professor Jill Marshall from the School of Law discusses that full face veil bans in all public places have no place in European liberal democracies.
In 2011 France made it a criminal offence to wear face coverings in any public places. Although neutrally worded, it is accepted that the bans are intended to stop a small minority of Muslim women wearing the full-face veil, including the burqa and niqab. In the midst of our Prime Minister calling for withdrawal from the European Convention on Human Rights, this summer its Court decided the French law did not violate the rights of a woman who wears the burqa and niqab in France. It interferes with her right to religious freedom of expression and to personality rights derived from a right to respect for one’s private life: but this is justified by the ‘rights and freedoms of others’, as the French government presented it, in an ideal of ‘living together’.
In previous cases, the Court said that ‘private life’ embraces gender identification, name, sex, personal development, the right to establish and develop relationships with other human beings and the outside world and appearance and clothing. This establishes a personality right enabling us to choose our own way of life and develop our own personality in line with an empowering and self-determining personal freedom. As such, human rights should protect choices and identities even if the majority of the population disagree or are shocked, offended or disturbed. [ J Marshall Human Rights Law and Personal Identity Routledge 2014].
I am particularly concerned that the judgment, in its acceptance of ‘living together’ as a concept qualifying these rights, turns the focus in human rights protection onto how the majority or others perceive another’s identity. On this basis, governments can criminally ban clothing that a person sees as part of her personality. This problematic concept called ‘far-fetched and vague’ by the two dissenting judges makes a mockery of freedom of expression, religious or otherwise, and any so called right to identity or personality.
What is more convincing is the dissenters disagreement with the French government’s reference to the veil’s ‘symbolic and dehumanising violence’, the ‘effacement’ and ‘self-confinement’ of women who wear it, cutting themselves off from others. Empirical research in Belgium and France referred to in the judgment shows women who wore the veil before the bans were happy to be socially active publically. There was harassment by others who did not want to interact with them. My colleague Irene Zempi has also found this in her empirical research amongst women in Leicester.
Referring to case law on ‘offensive, shocking and disturbing’ freedom of expression, the dissenting judges say, even if this view of the veil were accepted, there is no legal right not to be shocked or provoked by different models of identity. There is no right to enter into contact with other people in public places against their will. Communication is essential for life in society but we also have a right not to communicate, not to enter into contact with others in public places: ‘the right to be an outsider’.
The full face does not need to be shown for us to communicate as is clear when skiing, motorcycling, wearing costumes at carnivals (these are exempt under the French law). Ear or headphones could also be added to the list as can talking on the telephone, skype without a video, email, letters, social media and other virtual communications.
Full face veil bans in all public places have no place in European liberal democracies and it is a shame that the European Court of Human Rights allows them.