Fashion Design’s Heather Akou article published in "Fashion Theory: The Journal of Dress, Body & Culture"

The french ‘burqa ban’

In June 2009, 58 members of the French National Assembly petitioned the Assembly’s president with concerns over the country’s substantial and growing Muslim population, specifically the practice of wearing the “voile integral” (full-face veil), a garment that Muslims call niqab or burqa. In a statement to both chambers of Parliament in which he announced the formation of a commission to study the history and evolution of the two garments in France (Mission d’information sur la pratique du port du voile integral sur la territoire national), then-President Nicolas Sarkozy declared his pre-existing position on the subject:

Although France had declined to support the US-led invasion of Afghanistan in 2001, Sarkozy’s rhetoric echoed statements that various US politicians had made to justify the invasion. In a November 2001 radio address, for example, Laura Bush—wife of then-President George W. Bush—insisted that Afghani women were “rejoicing” at the overthrow of the Taliban and that, “The fight against terrorism is also a fight for the rights and dignity of women.” ³

For nearly five months, a 32 -person commission assembled by the government gathered testimony from over 200 experts and witnesses, compiling more than 350 pages of transcripts. In January 2010, it issued a public report summarizing its findings. Noting that only a small minority of Muslim women in France were wearing face coverings—estimated at just 1900 women out of a total population of five to six million Muslims ⁴—the report expressed concern that the voile integral had been virtually non-existent in France just ten years earlier. Although it correctly identified the difference between the burqa (which is worn mostly in Afghanistan, not Europe) and niqab (the most common style of face-covering worn in France, originating from the Persian Gulf) ( figure 1), the term ‘burqa’ dominated the commission’s report, appearing five times more often than ‘niqab.’ ⁵ Both garments are controversial, however the burqa is the more extreme of the two, widely viewed as being connected with state-sponsored oppression against women in Afghanistan. ⁶ While the burqa covers the wearer’s entire body—having a mesh panel over the face that allows the wearer to see without being seen—the niqab is a head covering (worn with other loose-fitting, modest garments) that typically leaves the wearer’s eyes exposed.

As evidence to support this concern over the sudden rise in face-covering, a chart on page 31 ( figure 2) demonstrates usages of the term ‘burqa’ in the prominent French newspaper,  Le Monde. It divides the articles into four categories based on region: Afghanistan, other Muslim countries, France, and other Western countries. Unsurprisingly, the largest spike was in articles about Afghanistan during the beginning of the US-led invasion (2001–02). The next two largest spikes—much smaller than the first in 2001—represent articles about France: one in 2004 when the government passed a law banning students in public schools from wearing ‘conspicuous’ religious symbols, ⁷ and one in 2008 when politicians were starting to agitate for a possible ban on wearing the voile integral.

In the introduction to the report, the president of the commission, André Gerin, argued that the practice of wearing the burqa or niqab was an affront to the core values of liberty (liberté), equality (egalité), and brotherhood (fraternité) established in the French Revolution of 1789:

Although he noted that the commission was not unanimously in favor of establishing a law to ban full-face veiling, he called the practice the “tip of the iceberg” for fundamentalists living in France. In the conclusion, the commission made a series of recommendations. Some were directed towards women and minors perceived as being forced to veil:

• conducting mediation with women wearing the veil and their families to better understand their motivations;

• notifying the competent authorities of any minor wearing the full veil, within the framework of the protection of minors in danger;

• taking into account, in asylum requests, wearing of the full veil as an indication of a more general persecution;

It also included several recommendations on immigration policies:

• reinforcing civic education, in particular the teaching of gender equality, within the framework of the integration contract that immigrants who wish to settle in France have to sign;

• adding gender equality and secularism to the values that persons wishing to obtain a long-stay visa need to be aware of;

• refusing the issuance of a residence card or French citizenship to individuals who practice their religion in a way incompatible with the values of the Republic, in particular, with the principle of gender equality. It should be considered a lack of integration with French society;  ⁹

Ironically, an earlier section of the report noted that two-thirds of the women covering their faces in France were already French citizens—converts plus second- and third-generation immigrants ¹⁰—who would not be directly impacted by any changes in immigration policy.

Predicting that the report would lead the government to pass another law against religious dress, media outlets began referring to it as the ‘burqa ban.’ Hundreds of articles around the world debated the appropriateness of such a law and the potential outcomes, particularly as politicians in Belgium, the UK, Italy, and several other countries ¹¹ made similar proposals.

• French Opposition Takes Stand Against Burqa Ban (January 6, 2010 –  Agence France Presse)

• Judge Warns French Burqa Ban Could Spur Violence (January 10, 2010 – Associated Press International)

• Time to Ban Burqas (January 20, 2010 –  Birmingham Evening Mail, UK)

• France to Soon Vote Ban on Burqa in Public Places (January 21, 2010 – Kuwait News Agency)

• Paris Imam Backs France’s Proposed Burqa Ban (January 22, 2010 –  Trend Daily News, Azerbaijan)

• What’s Hiding Behind France’s Proposed Burqa Ban? (January 27, 2010 –  Christian Science Monitor)

• A Jewish Voice Against the ‘Burqa Ban’ (January 27, 2010 –  Daily News Egypt)

• France is Right on Burqa Ban (January 29, 2010 –  Daily Record and Sunday Mail, Scotland)

• Burqa Ban Wrong (January 30, 2010 –  The Hamilton Spectator, Canada)

• French Catholic Church Warns Against Burqa Ban (February 2, 2010 –  Daily Times, Pakistan)

• Call to Ban Burqa is Hypocritical (February 4, 2010 –  Irish Independent)

• Danish Poll Shows Support for Burqa Ban Dropping (February 23, 2010 –  BBC)

• Burqa Ban Would be Counterproductive, Top Official Says (March 7, 2010 –  dpa International, Germany)

After ten months of proposals, debates, and votes by the Assembly and the Senate, then-President Sarkozy signed the passage of “Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public” (Law number 2010-1192 of October 11, 2010 forbidding the concealment of the face in public spaces). The text of the law was very short, laid out in just three sentences with some additional technical notes.

The remaining articles referred to sentencing, established a six-month waiting period before implementation, and required the government to produce a report about the effects of the new law after 18 months. In anticipation of objections by the courts, the law did not refer to the burqa, Muslims, or gender equality; with some exceptions, it simply banned the wearing of face-coverings in France and all French territories.

Shortly before the law went into effect, the Minister of the Interior issued a circular to guide government agents who would be expected to enforce the law, giving details on which items of dress would be prohibited and which would still be allowed.

Also listed as being acceptable were motorcycle helmets (required by a law for safety reasons), respirators, bandages, welding masks, fencing masks, and outfits worn for religious processions “as long as they have a traditional character” (implicitly referring to bridal veils). It clarified that face coverings could be worn in private cars and places of worship, but not on public transport or in places open to the public (parks, beaches, hospitals, libraries, museums, stadiums, etc…), even if those places were privately-owned such as shops, restaurants, and movie theaters. ¹⁴ It advised that since covering the face was a “petty offence” ( contravention), it was not necessary to determine the wearer’s intent; offenders should first be reminded of the law and then asked to remove the garment in order to verify the wearer’s identity. ¹⁵

Implementation of the law in April 2011 was met with protests. ¹⁶ Attempts by police to fine women for wearing niqab set off riots in the suburbs of Paris. ¹⁷ Rachid Nekkaz, a businessman born in France to immigrants from Algeria, offered to cover the cost for any woman issued a fine under the new law. ¹⁸ Some women began wearing niqab for the first time as a protest against the French government. ¹⁹ In November 2013, the European Court of Human Rights (ECHR) agreed to hear a lawsuit filed by a French citizen—recorded as ‘S.A.S’ to protect her identity—against the French national government. In a summary published in 2014, the court noted that the applicant was a “devout Muslim” who emphasized that she was covering her face out of personal conviction, not due to pressure from her husband or family. She also emphasized that she was open to uncovering her face in certain situations, but wanted the freedom to wear niqab in public without being harassed or fined.

While the commission to study the full-face veil focused on gender and society, the case made by S.A.S. anticipated that ‘security’ would also become a justification for the new law.

Ultimately, the Court rejected arguments from the French government that covering the face was inherently threatening to gender equality and human dignity.

External to the Court, but in a similar train of thought, a chapter exploring contradictions in the French ban by legal scholar Rim-Sarah Alouane argues that,

The Court also rejected concerns about public security, arguing that bans on covering the face should only be applied in situations “where a risk for the safety of persons and property has been established, or where particular circumstances entail a suspicion of identity fraud.” ²³

In the end, however, the Court did not overturn the law, arguing that the ban could be justified on the grounds that covering the face was not conducive to social interaction.

The final vote was 15 to 2. In a statement of partial dissent, the two judges who did not agree argued that the decision would sacrifice “concrete individual rights” to express one’s cultural and religious identity in order to satisfy “abstract principals” that were not guaranteed by the European Convention on Human Rights.

Furthermore, the judges argued that if the goal was to protect women from oppression, the law would oppress them in new ways: by forcing them to either change their styles of dress (and by extension, any personal and/or cultural attachment to it) or remain at home and be excluded from society. They also recognized that while the penalty for breaking the law was described by the French government as mild (150 € or being required to take a citizenship course), women such as S.A.S. who persisted in wearing niqab were likely to receive numerous fines over time, potentially creating a serious financial burden. ²⁶

The broader politics of covering the face

Human rights organizations and scholars from a variety of academic disciplines have been highly critical of the French law. In her introduction to  The Experiences of Face Veil Wearers in Europe and the Law, editor Eva Brems noted that before 2011, there were no country-wide (federal) laws in Europe restricting items of dress that cover the face, only provincial and municipal laws. In Belgium, for example, laws developed in the nineteenth century to stop participants in festivals and carnivals from wearing “disguises, masks, and costumes” were rediscovered and applied to a small number of Muslim women starting in 2004. ²⁷ In Italy, prosecutors attempted to use a provincial law passed in 1975—written to stop violent fascist demonstrators from wearing balaclavas—to stop Muslims from wearing niqab. These cases were generally dismissed on the grounds that niqab is religious in function (not political) and not worn for the main purpose of hiding the wearer’s identity. ²⁸

In the United States, laws against face coverings were established starting in the nineteenth century, primarily in an effort to restrict the Ku Klux Klan (KKK). A law passed by US Congress in 1870 to protect the rights of newly-freed slaves made it a crime to “go in disguise upon the public highway” for the purposes of intimidation or for depriving others of their constitutional rights. ²⁹ This was followed by numerous state and local laws into the early twentieth century; however, KKK members were rarely prosecuted simply for wearing a hood due to the difficulty of proving intent. The laws were applied only “where someone commits a crime while masked, masks in order to avoid identification that could lead to criminal or civil action, or masks in order to interfere with a law enforcement officer's duty.” ³⁰

Much more recently, in parts of Africa and Central Asia, laws against covering the face have been established more explicitly to counter the spread of fundamentalism. One of the first was in Uzbekistan, where lawmakers needed to write a new constitution and new laws after the fall of the Soviet Union in 1991. While Uzbekistan allows colorful, patterned scarves that cover the head but leave the face exposed (viewed as national dress), it forbids garments that cover the face, particularly black garments (viewed as a negative, foreign influence). ³¹ More recently, the government of Chad established a ban on face coverings after two suicide bombings attributed to the fundamentalist group Boko Haram. A government official described the ban as applying to any clothing “where you can only see the eyes.” While partially directed at the scarves and balaclavas worn by clandestine soldiers, the government also ordered security forces to “go into the markets and seize all burqas on sale and burn them.” ³² In northwest China, officials in the Xinjiang Uygur Autonomous Region banned the burqa from the city of Urumqi, warning that “burqas are not traditional dress for Uygur women.” A press release by state-sponsored Xinhua News Agency observed that the 2015 law was “seen as an effort to curb growing extremism that forced Uygur women to abandon their colorful traditional dress and wear black burqas.” ³³

Within the last decade in Europe, municipal and provincial bans on covering the face have been established in parts of Spain, ³⁴ northern Italy, ³⁵ and southern Switzerland. ³⁶ In addition to France, federal laws against face coverings have gone into effect in Austria, Belgium, Bulgaria, Denmark, Germany, the Netherlands, and Norway. In some cases, the laws are very specific. For example, as part of a new law on traffic regulations, Germany banned drivers from wearing any item of dress that covers “significant” parts of the face, arguing that cameras installed to catch traffic violations needed to be able to identify drivers. ³⁷ The law in Norway applies only to staff and students in public schools, including daycare centers. ³⁸ The law in the Netherlands is more comprehensive—applying to public transportation, schools, hospitals, and government buildings—but allows face coverings on public streets. However, it does not make exceptions for any items of dress (even safety helmets), regardless of the purpose for wearing them. ³⁹

Although no law or policy has attempted to list all the types of garments, helmets, or masks that enforcement authorities might encounter, the Italian region of Liguria approved a placard that hospitals and other public institutions could display to remind visitors that “for security reasons, no face coverings will be allowed. ⁴⁰ It shows only three examples—a motorcycle helmet, balaclava, and niqab—which cover most or all of the face. It is possible, however, to imagine a variety of other dress items that may or may not be impacted by the burqa bans ( Table 1). Shortly after the Austrian government enacted a ban on face coverings in 2017, a man was fined for wearing a shark costume in public that partially covered his face. When asked to remove the costume, he initially refused saying, “I’m just doing my job.” ⁴¹ He was advertising as a mascot for an electronic store called McShark.

This explains why the European Court of Human Rights’ summary of the case of S.A.S. vs. France focuses not just on the politics and social impact of face coverings, but on security. A section translating the guidelines issued by the French Minister of the Interior actually draws from two different circulars—one issued on March 28, 2011 regarding LOPPSI II, and the one issued on March 31, 2011 regarding the burqa ban.

Although the political rhetoric is clear—that lawmakers who want to “ban the burqa” are concerned about what it represents, specifically as a symbol of Islamic fundamentalism and oppression against women—enforcing the law and deciding when “too much” of the face is covered has proven to be a much more complicated matter.

The burqini and the facekini

At a public roundtable in Paris in April 2016—five years after the implementation of the ban on face coverings—then-Prime Minister of France, Manuel Valls, made a statement that he believed fundamentalists were still “winning the ideological and cultural battle.”

Amid growing concerns about security and terrorism committed by Muslims, that summer more than 30 towns in Germany, Austria, France, and Italy passed laws to ban the  burqini from public pools and beaches—a two-piece, full-body swimsuit with pants, a tunic, and a hood, which Lebanese-Australian designer, Aheda Zanetti, had invented in 2004 to make public swimming more accessible for Muslim women. ⁴⁸ Although the burqini does not resemble the burqa and does not cover the face, the term is a combination of “burqa” and “bikini.”

In late August 2016, one of the first burqini bans was struck down by the highest French court, the Conseil d’État.

Despite the clear decision from the court, some municipalities ignored the ruling. Additional burqini bans were established the following summer. ⁵⁰

The same month—several weeks after a Tunisian immigrant killed more than 80 people in Nice by driving a truck through a crowded pedestrian area ⁵¹—French police were filmed forcing a woman to remove her burqini while onlookers applauded and shouted “go home.” She did not have her face covered and said that she was merely sitting with her family enjoying the beach, not intending to swim. ⁵² In Pennes-Mirabeau, 200 km west of Nice, a sports organization attempted to organize a “burqini day” for Muslim women and children at a private water park. A flyer asked participants to plan on wearing a bathing suit that would cover from at least the chest to the knees. ⁵³ Echoing the stance of the Prime Minister, in an interview with  l’Express conservative politician Valérie Boyer argued,

Mayor of the town, Michel Amiel, called it a “provocation” and vowed to make such events illegal, viewing the burqini as a threat to public security. ⁵⁵ The intense backlash caused the waterpark to cancel the event. Ironically, many conservative Muslims reject the burqini as being insufficiently modest, ⁵⁶ so the event was never likely to attract fundamentalists.

In 2012, news of a different type of swimwear—the “facekini”—was picked up by media outlets in Europe. First created in 2004 by Zhang Shifan, a Chinese designer and entrepreneur with a swimwear business in the city of Qingdao, ⁵⁷ the invention quickly took off. ⁵⁸ Selling for the equivalent of just a few dollars, the facekini—which covers most of the face, leaving holes for the eyes, nose, and mouth—is favored by older women in China, but has also been adopted by younger women, men, and children. Some are solid colors (the color orange, for example, is advertised as being repellent to sharks ⁵⁹), but floral, animal-print, and geometric patterns are also popular. In 2015, Zheng released a line that resembles the masks worn by performers in the Peking Opera ( figure 3), with complementary full-body swimsuits. An online shop for US customers, facekini.com, describes the garment as being worn primarily as protection from jellyfish and the sun (as an alternative to sunscreen), with additional creative uses such as costumes and for comfort under motorcycle helmets and c-pap machines. ⁶⁰ In an interview with Reuters news service, Zheng described how local children found the original solid-color facekini “scary,” which prompted her to experiment with new patterns. ⁶¹

Curiously, French media outlets have had very little to say about the facekini. Major newspaper  Le Figaro has only published two articles about the garment. The first, in 2012, described it as a “hit” on Chinese beaches; ⁶³ the second in 2015 described Chinese swimmers wearing facekinis as looking like “superheroes.” ⁶⁴ Le Monde has only published one, a photo-essay with a short caption describing the swimwear as “surreal” and “astonishing” (étonnant). ⁶⁵ Although the facekini covers as much of the face as niqab, none of the authors described the swimwear as a security threat or as a barrier to social connection. The facekini is very uncommon in France; the burqa is also very uncommon. The burqini and facekini are both worn for swimming; however, the facekini is worn by both men and women and does not have overt religious or political significance. Curiously, some people who wear the facekini cover the rest of their body, but many do not—wearing European-style trunks and one-piece swimsuits that expose the chest, arms, and legs.

Is the facekini legal in France? If security is the main concern, then it probably should not be; the swim garment covers just as much of the face as niqab. Popular-culture magazine,  Bustle, compared the facekini to a “water-proof ski-mask,” observing that it could be worn not just for protection from jellyfish and the sun, but to conceal one’s identity while spending time at the beach. ⁶⁶ The lack of interest in the facekini from the French media seems to indicate that the concern is not really about security, but about symbolism and Islamophobia.

During the summer of 2016, social media erupted with images of beachgoers in France—images of divers wearing goggles and wetsuits, Catholic nuns wading into the surf, and historic photographs showing very modest swimwear before the maillot (1920s) and bikini (1940s) were invented. American comedian Jeremy McLellan posted an image on Twitter, showing himself dressed in a Superman costume for a cold swim in the Atlantic Ocean:

While humorous, the post questioned what the burqini bans were really about. In London, protestors created an impromptu beach outside the French embassy, wearing goggles, veils, and burqinis. In the crowd, participants held signs arguing, “Islamophobia is not freedom” and “Let them wear what they want.” ⁶⁷