In the last ten years, many European countries have enacted laws prohibiting face coverings, that specifically aim at Muslim women, a development which seems especially ridiculous in times of COVID-19, where everyone is required to wear a face cover. Nevertheless, just recently, Switzerland has held a referendum on the question of banning face veils in public. It will be the next European country in doing so, joining France, Belgium, Bulgaria, Austria and Denmark.
The extent of bans on face veils in European countries
France was the first country in Europe to introduce a ban on face veils in April 2011 (Loi n° 2010-1192). Since then, everyone in France is required to show their full face in public spaces and buildings, including for example public traffic, schools or shopping centres. Covering or concealing one’s facial features by clothing or other objects in such a way that they are no longer recognisable constitutes an administrative offence, that is punishable by fines of up to €150. Lawful exceptions are the covering of the face in the context of artistic, cultural or traditional events, for the practice of sport, as well as for health or professional reasons.
Just a few months after, in July 2011, Belgium followed France and enacted section 563bis Penal Code banning full – and partial – face veils in public with a fine of up to €25 or imprisonment of up to seven days. Permitted exceptions are work or festive events.
Despite heated discussions in many other European countries the following years, it took five years for the trend to continue. The next country joining a general face-ban in public spaces was Bulgaria in October 2016, with the already known exceptions for health or professional reasons. However, the fines are significantly higher than in any other country with up to €750.
In Austria, the Federal Act on the Prohibition of the Veiling of the Face in Public (Anti-Face Veiling Act) came into force on 1 October 2017, which aims to promote integration and to secure peaceful coexistence in Austria. It follows almost entirely the French law, including the amount of the fine, and requires people to show their full face from forehead to chin in public.
Although the Danish parliament initially decided against a ban on full-face veils in 2010, it voted in favour of the ban eight years later. Since August 2018, the wearing of garments covering a person’s entire face in public places carries fines of up to €135 for first offences, which can be increased tenfold in the case of repeated offences. The ban was introduced as an amendment to the Danish Penal Code and excludes face covers for “recognisable purposes”, such as cold weather or wearing motorcycle helmets.
The most recent development comes from Switzerland last week. In a referendum on 7 March 2021, a slight majority voted for the ban on face covering, despite the government campaigning against it. Such a ban was already in place for different cantons, and will now be introduced throughout the whole country. The ban is planned to be enforced in public, such as streets and shops, but will not be applied to tourists. Following a Swiss ban on minarets, this national development is not surprising.
Many other European countries have a partial ban on face-veils in force. This either applies to certain workplaces, specific public spaces or defined regions. For example, in Lombardy a ban on covering the face when entering a public building or a hospital has been in effect since January 2016 for identification and security purposes. This is based on a law from 1975, which prevents people from entering a public building with their face “unreasonably” covered. However, according to Article 85 of the Italian Royal Decree 773 from 1931 it has already been prohibited to wear a mask in order to prevent identification by the authorities.
It also continues to be a local issue in Spain, where a ban on full veils in public space in the city of Lleida has been repealed by the Supreme Court in 2013. However, in Northern cities as well as in Barcelona, face-covering veils are still prohibited in public buildings.
In Germany, civil servants, soldiers and judges are not allowed to veil their face during work, as well as anyone operating a car since 2017. Moreover, the German state Bavaria has prohibited the wearing of face veils for other professions, such as people working in schools, kindergartens or buildings of public service.
After more than 14 years of debate, the Netherlands prohibited full face-veils in public buildings, schools, hospitals as well as on public transport with a fine of up to €415 starting from 1 August 2019. The law was not well received as both the police and Dutch transport companies were unwilling to enforce the ban.
Lastly, in summer 2018, Norway was the first Nordic country to introduce a national ban on clothing that completely or partially covers the face in all educational institutions, including kindergartens, primary and secondary education as well as universities. The wearing of such garments might be justified for educational, learning, climatic, health or safety reasons. University students can be expelled for up to one year after an initial written warning, and employees can be dismissed on repeated violations.
Hence, in six European countries (including Switzerland) the wearing of face veils in all public spaces is prohibited, and five more countries have partial prohibitions in place. All these bans have one thing in common: They do not specifically ban Muslim face veils, or religious face-covering garments but ban all types of face coverings, unless they are worn in the context of a cultural event, for sport or health reasons.
Despite their neutral wording these laws de-facto aim to target only Muslim women who wear the Burka or the Niqab.
In small countries like Austria or the Netherlands, where the number of women wearing religious face veils is estimated to be around 100 to 150 (in Switzerland estimations are even lower), the necessity for such a ban is highly questionable as it mainly affects Muslim tourists, or hooded football fans. But even in the European countries with the highest Muslim populations, such as France with 5% or Bulgaria with 10% of their overall population, the numbers of women wearing religious face veils are miniscule in proportion. Overall, according to the Special Eurobarometer from 2019, only about 2% of the population in the EU considers themselves to be Muslim. The necessity of targeting Muslim women is therefore highly questionable.
Human Rights implications
Preventing Muslim women from wearing religious face veils involves the violation of many human rights, such as the freedom of religion, the right to a private life, the freedom of expression or the prohibition of discrimination. Limitations to these rights, for example guaranteed by the ECHR or the ICCPR, can only be justified if they are necessary in the interests of public safety, the protection of public order, health, morals, or for the protection of the rights and freedoms of others.
In 2014, the European Court of Human Rights rejected an application made against the French law. In S.A.S v. France, the Court decided that although public safety could not justify a blanket ban, the French ban did not breach the ECHR because the ‘observance of the minimum requirements of life in society as part of the protection of the rights and freedoms of others’ was a legitimate aim for the law. It ruled that prohibiting everyone from wearing concealing clothing in public places might prevent certain women from expressing their personality and beliefs, but that France deemed that clothing incompatible with social communication and “living together”. Since there is no European consensus against a ban, the Court concluded that ‘the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society’.
Similar decisions were delivered regarding the Belgian ban of face coverings in July 2017 (Dakir v. Belgium, Belcacemi and Oussar v. Belgium). Naturally, these decisions faced harsh criticism. The French law is not proportionate to promote “living together” since the result of the ban is not that wearers of face veils take off their veils to participate in public life, but that they avoid public life altogether. Furthermore, wearing a burqa does not infringe the right of others to “living together”. A dress code restriction is not in justifiable proportion to the protection of the rights of others because this measure is not necessary for establishing a functioning coexistence: A burqa or niqab does not prevent others from living harmoniously together.
Izza Leghtas from Human Rights Watch voiced her disappointment after the judgement:
“Bans like these undermine the rights of women who choose to wear the veil and do little to protect anyone compelled to do so, just as laws in other countries forcing women to dress in a particular way undermine their rights.”
In 2018, the UN Human Rights Committee decided that the French law violates the freedom of religion because a general ban on face covering is not necessary for security reasons or for “living together” in society. Rather, the ban confines fully veiled women to their homes and impedes their access to public services. Moreover, the law is discriminatory due to its lawful exception, which disproportionately impact Muslim women. One of the reasons why the Committee reached a different conclusion than the European Court can be explained by the fact that it applies universal standards rather than interpreting rights within the European context and hence, did not require a “European consensus” for its conclusion. However, it seems little has been done in France to comply with this decision so far.
The alleged links to integration and terrorism
The Austrian Anti-Face Veiling Act, in line with many others, is justified with integration because integration requires interpersonal interaction for which “barrier-free communication” is deemed indispensable. Interestingly, Austria’s interpretation of this is needing to be able to recognise the other person’s face and features, as otherwise communication would not work.
This logic is being undermined in light of the current mandatory wearing of face masks due to the pandemic. People are still able to communicate with each other despite a piece of cloth and there is clearly no necessity to show one’s face to protect the public order. Even with everyone covering their faces with masks, the safety and public order of the society could be maintained, and millions of people prove every day how to participate in public life with a covered face without any issues. This shows that the requirement of a bare face is not necessary to protect “European” values but is simply used to force cultural assimilation and impede the visibility of Muslim women in Europe.
Rather than promoting integration, banning people from wearing face veils pushes Muslim women to retreat in self-marginalisation and prevents them from participating in public life. The European countries enforcing bans in public are reluctant to accept the Muslim minority within their society to be visible, which shows that they most likely do not see Muslims as part of their identity. While it is important to protect women from being forced by others to wear religious face coverings, it is also important to protect their choices and to not stigmatize women if they voluntarily decide to wear certain garments as a cultural or religious expression.
The second main argument cited for a ban of burqas and niqabs is the threat of terrorism. Although the wearing of a burqa might indicate a radical interpretation of Islam and hence, might point to a possible security threat, it does not inevitably need to show a radicalisation. On the contrary, a ban can lead to further exclusion and in turn, reinforce extremism.
A study conducted in 2019 demonstrated that countries that enforce veil bans experience 15 times more cases of Islamist terrorist attacks and 17 times more fatalities from such attacks than countries where similar laws do not exist. These results support the critique from above: The bans of face veils do not encourage integration, but increase greater isolation of the Muslim community. These bans can be used as recruitment tools by extremist groups for anyone who feels treated unfairly. In this way, the bans do not only violate religious freedom and freedom of expression of the affected women, they also lead to more and more lethal terrorist attacks, thereby violating the right to life and security of many others.
Tolerance Instead of Fear
Laws preventing the covering of the face in professions affiliated with the state or in certain circumstances, where the hiding of one’s identity could lead to risks regarding public safety and security, are necessary and understandable. Nevertheless, mandating people to not wear certain types of clothing in general public is not proportionate and necessary. The pandemic has revealed the hypocrisy of a blanket ban on face coverings in public. It is the obligation of states to ensure tolerance and respect towards different religions. As Fotis Filippou from Amnesty International rightly put in relation to the Danish ban:
“Women should be free to dress as they please and to be able to safely wear clothing that expresses their identity and beliefs in the general public.”
European governments need to find other ways to integrate immigrants and to enhance cultural and religious sensitivity towards the Islamic faith because in the end, censorship only reflects a society’s lack of confidence in itself (Justice Potter Stewart). European governments need to start believing in their democratic societies. Multiculturalism should not be feared but embraced as the gift it is.