On October 23rd, the United Nations Human Rights Commission found that France had violated the human rights of two women by fining them for wearing the niqab. The two women were prosecuted in 2012 under France’s 2010 law forbidding face-coverings in public spaces. While worded neutrally, this law was principally intended to target the wearing of Islamic face-coverings such as the niqab and burqa.
The UNHRC’s decision was based on a number of points:
- That the law harmed the women’s right to manifest their religious beliefs.
- That France did not adequately explain why it was necessary to prohibit face-coverings, either for security reasons (face coverings could be removed for security checks) or to facilitate “living together”
- That the decision did not protect niqabi women but could result rather in confining them to their homes
The committee specified that the decision did not target secularism (laïcité in French – the French often insist that laïcité is a concept unique to France and therefore requires its own term, though it is not clear why), nor did it endorse face-coverings, which they see as a form of oppression of women. Rather, the decision arose from their conviction that “a general criminal ban [does] not allow for a reasonable balance between public interests and individual rights.”
There are many positive aspects to this decision: firstly, the outcome itself, which marks a change from similar cases in recent years which have generally found such laws (in France and other countries) to be acceptable. In addition, the full decisions include many important arguments, such as that the ban, rather than promoting gender equality, may further stigmatise Muslim women.
However, from a feminist, anti-racist and decolonial perspective there are several elements missing, most notably that France’s colonial history is barely mentioned and that the niqab is treated as an isolated patriarchal practice with no links to or similarities with western patriarchal practices that all French women commonly engage in. The decision sees niqabi women as individuals making free, unfettered choices over how to express their religious beliefs, rather than as members of multiple oppressed classes (women, racialised people, Muslims) in a context in which they make up a small minority of the population which has been targeted for hatred by the France’s government and right-wing political forces for several decades, on top of more than a century of colonial history in Algeria.*
A genuinely feminist, anti-racist and decolonial argument would go something like this.
France’s recent and less-recent history of racism and colonialism
A feminist, anti-racist and decolonial argument would recognise the context in which the 2010 law was established: it was the end-point of at least twenty years of systematic demonization of women and girls who wear the headscarf and women and girls from Muslim backgrounds more generally (the first controversy over the hijab in schools took place in 1989). The decision to pass the 2010 law (and the 2004 law banning headscarves in schools) came about as a result from pressure from the extreme right to turn an already-disadvantaged and discriminated minority into the target of widespread societal hatred, in conjunction with events such as the Gulf War (1990-1991) and the September 11 attacks (2001). The relevant context is considerably larger even than that, though – it arises from 132 years of colonisation in Algeria.
The French colonisation of Algeria began in 1830 and ended in 1962 after a bloody seven-year war of independence. During the period of colonisation, France committed countless atrocities: systematically dispossessing rural people of their land, destroying local languages and customs, devastating traditional institutions and society. 1.5 million Algerians died during Algerian War, in which rape and torture were widely used against the Algerian population.
During this period, French racism against Arabs was firmly established. Arabs were portrayed as inherently uncivilised and un-civilisable, intrinsically different from Europeans and incapable of assimilating into French society. Muslim head-coverings were seen as the ultimate symbol of this difference. Colonial fantasies about Algerian women were sexualised from very early on – women were portrayed contradictorily as either prostitutes or trapped in private subjection by oppressive men. Women’s head-coverings were seen as a symbol of the supposed oppression of Algerian women; because of this oppression, Algerian women were seen as natural allies of the French and were exhorted to join their cause. The fact that many Algerian women chose not to do this was shocking to the French. Mass veil-removing ceremonies were held during pro-French rallies and the tearing off of veils was symbolically associated with rape. Even after the war and Algerian independence, head-coverings worn by Algerian women were seen as a symbol of the country’s backwardness.
It is against this backdrop that France’s 2010 law must be understood: almost two hundred years of effort such that Arabs and French people of Arab origin are seen as inherently different, inferior, and even barbaric. Such that Arab women are seen as uniquely oppressed and subordinated by uniquely violent Arab men. And such that – in contrast – France and white French women are seen as modern and liberated, France’s particular version of patriarchy is erased, and white French men’s violence denied.
This background is not visible in the UNHRC’s decision. Taking it into account makes understanding the second point easier.
Western and non-Western harmful cultural practices
A feminist, anti-racist and decolonial decision would recognise that the niqab is one of a very large number of “harmful traditional/cultural practices” imposed on/adopted by women all over the world. It exists on a continuum of such practices that includes many commonly practiced in Western contexts, such as plastic surgery, high heels, makeup, hair removal, and so on. As Sheila Jeffreys has argued, these practices all fit the definition given by the UN of harmful traditional/cultural practices (HCPs) in that they are damaging to the health of women and girls, are performed for men’s benefit, create stereotyped roles for the sexes and are justified by tradition. The concept of HCPs was created by the UN to address practices such as forced marriage, widow burning and female genital mutilation which are not widely practiced in the West, but Jeffreys convincingly argues that many western practices should also be understood through the same lens, and that the fact that they are not understood as such is a result of western bias.
The response to this argument is often confusion, or even outrage. How can I argue that Western beauty practices are a similar kind of practice to Islamic head-coverings? I believe that this confusion or outrage emerges from a Western-centric perspective that encourages us not to critically interrogate practices that are commonly accepted in the West, and focus our condemnation on practices commonly adopted by non-Westerners. The systematic highlighting in public and feminist discourse of non-Western patriarchies – such as Algerian patriarchy – and the systematic minimisation of Western patriarchies – such as French patriarchy – means that we are less likely to apply the same level of critical reflection to western beauty practices as we are to non-western practices such as Islamic head-coverings.
Once this is understood, it can be seen that France’s 2010 law is racist because it only sanctions one HCP practiced in French society – that of wearing the niqab. It ignores the vastly more common HCPs widely practiced by women from all ethnic backgrounds in France, such as makeup, high heels, hair removal, and – less commonly, but still much more commonly than the niqab – plastic surgery. In this way, the law is also misogynist because it fails to make connections between HCPs emerging from different cultures, implying that only Muslim women are subject to patriarchal oppression and thereby fostering divisions among women.
Individualist and patriarchal legal frameworks
Because the UNHRC decision is made within an individualist human rights framework, it fails to see all women as a class whose choices to engage in HCPs are shaped by patriarchy. Women from western backgrounds who choose to wear makeup, remove their pubic hair and wear uncomfortable, sexualising clothing that limits their freedom of movement do so because their preferences are shaped by the demands of the western patriarchy in which they are immersed: for example, advertising, films, books, media all show women that they must engage in these practices if they are to receive approval under western patriarchy .
Women from Muslim cultural backgrounds who choose to wear head-coverings are also subject to pressures shaping their preferences, albeit pressures of a somewhat different kind. And this is normal because the form of patriarchy in which they are immersed is somewhat different. Women from Muslim cultural backgrounds living as a minority in western countries are further subject to pressures emerging from racism, and may choose to wear head-coverings as a form of resistance to racism: to show their allegiance to their culture of origin over that of mainstream, racist society that condemns them as backwards and barbaric.
Because the UNHRC decision is made within a patriarchal framework, it fails to see that the French government’s approach to the niqab is fundamentally about enforcing a white, western form of patriarchy which demands that women be constantly, visibly sexually available according to western patriarchal terms. Women wearing head coverings is intolerable to this form of patriarchy, which interprets it as meaning that these women are not sexually available to white men but are the property of brown men. In summary, the 2010 French law condemns one patriarchal practice occasionally engaged in by an oppressed minority in French society, and ignores a vast array of others which are much more widely practiced by the majority of French society. This is then used as a weapon against the oppressed minority, further reinforcing its perceived status as different, barbaric and uniquely patriarchal and oppressive of women.
It may seem that it is preferable to sanction one type of patriarchy than to sanction no patriarchy at all, but I don’t believe this is the case: this is because the negative effects of this law on women from Muslim cultural backgrounds in France are severe. Given this, I think it is better to sanction no patriarchy at all than to selectively sanction the patriarchy of a minority group.
Negative effects of the 2010 law on women
What are these negative effects on women from Muslim cultural backgrounds in France? As the UNHRC decision rightly recognised, one of the most likely effects is that niqabi women will stay at home rather than venture into public where they are not permitted to wear their niqab. This is the case whether the niqab has been imposed on them by force or whether they have chosen to wear it. What it means concretely is that women from an oppressed minority will have less access to public space and public services, which can only be negative. This shows that even if we assume that French lawmakers are genuinely concerned by gender equality (which I don’t think we should, given the French state’s history of anti-Arab racism and their general disinterest in women’s rights at all other times) it is a fundamentally unhelpful law because it punishes the victims of the very practice it condemns. It is positive that the UNHRC’s decision recognises this, even if implicitly.
There are many broader negative effects. Many of these involve increased violence towards and discrimination against this group (for a small selection of reports of such incidents, see here, here, here and here). This occurs partly because the law legitimises the racist views already held by much of the population, making some people feel more justified in engaging in violence or discrimination towards women wearing Islamic head-coverings than they would if the government had not officially singled out these garments as unacceptable.
In the aftermath of the 2004 law, which banned headscarf in schools only, some people nonetheless have taken the opportunity (through ignorance or racism) to discriminate against women wearing it in other contexts, even though this is perfectly legal. For example, women wearing headscarves have been refused service in banks and restaurants, forbidden from swimming, banned from accompanying their children on school excursions, discriminated against in the job market, fired from their jobs, excluded from feminist and leftist groups. They are targeted for hatred when expressing themselves in public – for example, when competing in a reality TV show, representing a student union, running for political office – with their headscarf seen as invalidating everything they have to say, even when they are speaking about their own experiences. Teachers unilaterally decided that girls who were not allowed to wear the headscarf to school should not be permitted to wear long skirts or headbands either, and in the 2016 “burkini affair” overzealous public officials targeted women for wearing body-covering clothing on beaches in summer – which courts later found to be illegal. The results of the 2010 law are likely to be similar.
More generally, this law reinforces the racism and discrimination faced by all women from Muslim backgrounds in France by contributing to dominant mainstream ideas of them as being oppressed, backwards, and so on – ideas that have continued uninterrupted from the colonisation of Algeria until the present.
This law also has negative effects on other groups. Through the government’s obsession with the oppressive nature of Islamic head-coverings, all other forms of patriarchal violence are, by implication, seen as less severe. This means that racism is increased against Muslim men as they are portrayed as uniquely oppressive, the sole perpetrators of violence in French society. The other side of the coin is the minimisation and erasure of violence perpetrated by non-Muslim men in France – that is, the large majority of male violence – making it harder for any woman victim of this violence to make her claims heard and taken seriously. Thus, the losers from this law include women and men from Muslim cultural backgrounds, all other women, and probably all non-white men due to a general contribution to racism. The only beneficiaries are white men. Progressive.
The UNHRC’s decision does not capture the large majority of these feminist, anti-racist and decolonial arguments. Even though the outcome of this legal decision is positive, the argument used to get there is important because it defines how the issue is understood: not just who is considered to be in the wrong, but why they are considered to have done wrong and therefore what kind of behaviour is tolerated by society. In this sense, while the UNHRC’s decision is a step forward for women of colour in France, particularly those from Muslim cultural backgrounds, from a feminist, anti-racist and decolonial perspective it leaves much to be desired.
* This is not to say that niqabi women should be seen as naturally submissive and/or in need of saving by white Europeans – to do so would be to engage in a colonial discourse – but simply to establish that, like any oppressed group, their actions are shaped by the oppression of which they are victim.