Hijab colloquially refers to a veil covering the head.[1] The word niqab refers to a veil covering the lower half of the face. In normative fiqh, or Islamic jurisprudence, covering the head and hair is obligatory, with a difference of opinion on whether covering the face is necessary.[2] In 2010, France passed a law, Act No. 2010-1192 (“Act”), banning the wearing of cloth that covers one’s face in public spaces, becoming the first European country to ban niqab in public areas.[3] France’s 8.8% Muslim population made the law particularly impactful for many people.[4] Unlike Anglo American secularism, French secularism, laïcité, rejects expressions coded as religious in public spaces.[5] Thus, the ban effectively limits the participation of Muslim women in civil society, asking them to choose between religious expression and civic participation. As the laws stand now, and in the absence of adequate justification, they are in conflict with the United Nations.[6]

In 2018, the United Nations Human Rights Committee (“Committee”) found that France’s general ban on wearing niqab in public was inadequately justified and disproportionate to the objectives claimed by France.[7] In two related decisions involving Muslim women convicted for covering their faces in public, the Committee discussed whether the criminalization of niqab constituted a violation of religious freedom.[8] They noted that ​​the Act lacked a clearly defined objective and was instead justified “exclusively by a political desire.”[9] While France argued that the Act sought to protect public order and to ensure others’ rights and freedoms, it did not demonstrate that the Act was the “least restrictive method that is protective of religion or belief.”[10] For example, France could not explain why face veils were permitted for sporting or artistic purposes, but not for religious reasons, undermining public safety claims.[11] France also failed to specify which rights and freedoms were impinged by the presence of women with niqab in public spaces. Ultimately, the Committee concluded that the Act was not “necessary and proportionate” to the objectives outlined by the State.[12]

Despite the United Nations’ directions that France had 180 days to prove that it acted on its findings and report, little has changed as the Act remains in place.[13] Although the Committee found that stronger reasoning is needed if the Act is to be justified as “necessary and proportional,” the decision was non-binding. Subsequently, the Ministry for Europe and Foreign Affairs rejected the decision, maintaining in their brief statement that covering one’s face was incompatible with the values of “a democratic and open society” and was not discriminatory.[14] The statement does not respond to the Committee’s challenge to the Act, nor does it address its concern with protecting Muslim women from ostracization and marginalization in France. Further challenges to the ban are necessary to protect Muslim women from discriminatory laws and impingement on religious freedoms.

[1] See Shaykha Marzuqa Karimah, Hijab and Jilbab in the Quran: On the Hermeneutics of the Quranic Verse of Khimar, Muslim Matters (Jan. 19, 2022), https://muslimmatters.org/2022/01/19/hijab-jilbab-hermeneutics-of-the-quran-verse-khimar/.

[2] See Mohammed Al-Hasan Ould Al-Khadim, Al-Lāli’ Al-Hisān ‘Alā Mahārim ul-Lisān [Pearls of Goodness on Prohibitions of the Tongue] 83–84 (1998).

[3] Loi 2010-1992 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Law 2010-1992 of October 11, 2010 on the Prohibition of Face Concealment in Public Space], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Oct. 12, 2010, p. 1; Steven Erlanger, France Enforces Ban on Full-Face Veils in Public, Gazette N.Y. Times (Apr. 11, 2011), https://www.nytimes.com/2011/04/12/world/europe/12france.html.

[4] Conrad Hickett, 5 Facts About the Muslim Population in Europe, Pew Rsch. Ctr. (Nov. 29, 2017), https://www.pewresearch.org/fact-tank/2017/11/29/5-facts-about-the-muslim-population-in-europe/.

[5] E.g., Rim-Sarah Alouane, The Weaponization of Laïcité, Berkeley Ctr. for Religion, Peace & World Affs. (Oct. 7, 2020), https://berkleycenter.georgetown.edu/posts/the-weaponization-of-laicite.

[6] France: Banning the Niqab Violated Two Muslim Women’s Freedom of Religion – UN Experts, United Nations: Hum. Rts. Off. of the High Comm’r (Oct. 23, 2018), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23750&LangID=E.

[7] Id.

[8] E.g., U.N. Hum. Rts. Comm., Views Adopted by the Committee Under Article 5(4) of the Optional Protocol, Concerning Communication No. 2747/2016, U.N. Doc. CCPR/C/123/D/2747, ¶ 9 (2016); U.N. Hum. Rts. Comm., Views adopted by the Committee Under Article 5(4) of the Optional Protocol, Concerning Communication No. 2807/2016, U.N. Doc. CCPR/C/123/D/2807, ¶ 8 (2016) [hereinafter Hebbadj v. France].

[9] Hebbadj v. France, supra note 8, ¶ 3.5.

[10] Id. ¶¶ 7.7–.9.

[11] Id. ¶ 7.7.

[12] Id. ¶ 7.17.

[13] Supra note 6; see also James McAuley, France Mandates Masks to Control the Coronavirus. Burqas Remain Banned., Wash. Post (May 10, 2020), https://www.washingtonpost.com/world/europe/france-face-masks-coronavirus/2020/05/09/6fbd50fc-8ae6-11ea-80df-d24b35a568ae_story.html.

[14] Chloé Benoist, UN Committee: France’s Niqab Ban Violates Human Rights, Middle E. Eye (Oct. 28, 2018, 10:50 AM), https://www.middleeasteye.net/news/un-committee-frances-niqab-ban-violates-human-rights.