From the Stasi Commission to the European court of human rights: l'affaire du foulard and the challenge of protecting the rights of Muslim girls.

AuthorChoudhury, Nusrat

In public schools, the wearing of symbols or clothing by which students conspicuously manifest a religious appearance is forbidden. Internal regulations state that the initiation of disciplinary proceedings must be preceded by a dialogue with the student.

--French national law, signed into law March 15, 2004 (1)

Wearing a veil, whether we want it or not, is a sort of aggression that is difficult for us to accept.

--President Jacques Chirac (2)

"It is more than time that French feminists and officials hold up their own practices to the same critical scrutiny they use to examine and judge foreign cultures. For no matter what one thinks about the veil, forcing women to take it off is no better than forcing them to wear it, both ways are discriminatory and undemocratic. "

--Raja El Habti, KARAMAH: Muslim Women Lawyers for Human Rights (3)

On March 15, 2004, President Jacques Chirac signed a law that prohibited "the wearing of symbols or clothing by which students conspicuously manifest a religious appearance" in French public primary and secondary schools. (4) The Minister of Education of France issued a circular, which the Conseil d'Etat quickly upheld, (5) clarifying that "[t]he prohibited signs and dress are those by which the wearer is immediately recognizable with regard to his or her religion, such as the islamic [sic] veil, whatever its name, the kippah or a crucifix of manifestly exaggerated dimensions." (6) This ban marked the latest development in a fifteen-year, ongoing controversy known as "l'affaire du foulard"--the Headscarf Affair. (7) The affair has proved to be an impassioned debate about the integration of Muslims in France, the influence of political Islam on French soil, gender equality in Muslim communities, and the perceived threat posed by Muslim girls wearing headscarves in school to laicite, a complex and contested term loosely translated as the French principle of state secularism. (8) While the French ban is phrased generally so as to apply not only to Islamic headscarves but also to Sikh turbans, Jewish yarmulkes, and large Christian crosses, it has had a disproportionate impact on one group of students: Muslim girls. Forty-five of the forty-eight students expelled in the four months following the implementation of the ban were Muslim girls who refused to remove their headscarves when entering public school. (9)

This disparate impact on Muslim girls should come as no surprise. The debates preceding the passage of the 2004 ban witnessed two central justifications for such a law: the need to protect laicite and the fight to end the oppression of Muslim girls. The "Stasi Commission," a group of prominent scholars, government officials, and educators commissioned by President Chirac to study laicite in France, set forth the most articulate expression of both arguments in its 2003 report. (10) The Commission found that the mere presence of Islamic headscarves in public schools threatened laicite and its concomitant values of state neutrality towards religion, equality between citizens, and tolerance of religious difference. (11) It also deplored the coerced covering of Muslim girls by their fathers, brothers, communities, and political Islamists, proclaiming that "[t]he Republic cannot remain deaf to the cries of distress from these young women." (12) Deploying the rhetoric of protecting students from proselytism and saving Muslim girls from their families and other members of the Muslim community, the Commission called upon the Republic and its public schoolteachers to safeguard human rights--those of students in general and Muslim girls in particular.

In contrast to the Stasi Commission's certainty, feminists and women's groups in France sharply disagree over whether the ban is a vindication or a violation of Muslim girls' human rights. French secular feminist Elisabeth Badinter claimed:

The veil, it is the symbol of the oppression of a sex. Putting on torn jeans, wearing yellow, green, or blue hair, this is an act of freedom with regard to the social conventions. Putting a veil on the head, this is an act of submission. It burdens a woman's whole life. (13) The members of Ni PuLes Ni Soumises (Neither Whores nor Downtrodden), (14) an organization combating violence against immigrant women in France, agree. (15) In 2003, the group staged a nationwide march for gender equality that highlighted the need for a ban on Islamic headscarves and greater protection of the rights of young Muslim girls to counter the pressures of their families and communities. (16)

Other women in France vehemently disagree. (17) On January 17, 2004, over 20,000 French Muslim women protested in Paris, Lille, Marseille, Mulhouse, and other cities with chants of "Chirac, Sarkozy, we chose the headscarf" and "[n]ot our fathers, not our husbands, we chose the headscarf." (18) Many protesters wore "various forms of hijab" and embraced their simultaneous identity as Muslims and French citizens by singing the Marseillaise, wearing headscarves featuring the French tricolor, and waving their national identity cards. (19) Other Muslim women, intellectuals, and politicians joined together in 2004 to create Une Ecole pour Toutes et Tous (One School for All), a group protesting the expulsion of Muslim girls and Sikh boys from school under the ban. (20) Supported by local and national politicians, the group argues in part that the law hurts young Muslim girls by forcing them to drop out of school when faced with choosing between their education and religious beliefs, further isolating them from education, employment, and integration in French society. Outside observers, including Human Rights Watch, the Islamic Human Rights Commission, and the U.S.-based KARAMAH: Muslim Women Lawyers for Human Rights, have also claimed that the ban violates Muslim girls' human rights to education, freedom of religion, freedom of religious expression, and freedom from discrimination. (21) They further argue that these violations contravene France's ratification of all major human rights instruments and its position as the host country of the European Court of Human Rights (ECHR). (22) Recently, the U.N. Special Rapporteur on Freedom of Religion or Belief reported to the U.N. Commission on Human Rights that the law denies the rights of minors who have freely chosen to wear a religious symbol to school as part of their religious belief. This situation has led both to instances of intimidation of these girls and young women and to acts of religious intolerance against those who wear headscarves in places where the law does not apply, such as universities and workplaces.(23)

Recent debates over foulards in France have thus focused prominently on the headscarf as a symbol of women's subordination to men in Islam and its impact on Muslim women and girls' human rights. While proponents of the ban decry the headscarf as a tool to oppress women and girls, opponents contest the ban itself as an act of discrimination against a marginalized minority and as a law that hurts the very people it claims to protect. L 'affaire du foulard thus highlights a central issue at the juncture of feminism and human rights: the perceived tension between secular, liberal, and universal norms of gender equality and practices grounded in religion or culture. (24)

Susan Moller Okin has suggested that this tension exists and poses a dilemma: "[W]hat should be done when claims of minority cultures or religions clash with the norm of gender equality that is at least formally endorsed by secular, liberal states?" (25) Some agree with Okin's response that female members of a "more patriarchal minority culture ... might be much better off if the culture into which they were born were either to become extinct ... or, preferably, [if the culture were] encouraged to alter itself so as to reinforce the equality of women." (26) This position conceives of the removal of the Islamic headscarf from public schools as an emancipatory move for women, one that forces change in a patriarchal, religious minority through its integration into a mainstream, secular French majority.

Others have challenged both Okin's question and her answer for unfairly constructing a binary opposition between culture and religion, on one hand, and human rights and gender equality, on the other. Leti Volpp has pointed out that this construction positions "'other' women as perennial victims," thereby denying "their potential to be understood as emancipatory subjects." (27) Catherine Powell recently demonstrated that this false binary also obscures the ways in which "women have often challenged the validity of ... cultural claims or have provided alternative interpretations of their local culture or religion." (28) Similarly, Frances Raday has shed light on the efforts of a group of orthodox Jewish women to provide such an alternative interpretation through their demand for equal participation in the ceremonial worship of Judaism. (29)

This Article joins these scholars in challenging the false binary between culture and religion as opposed to gender equality and human rights. It seeks to clarify the misconceptions and assumptions about Muslim women and girls' agency made by two key bodies that have recently considered the issue of headscarves and women's rights: the Stasi Commission and the ECHR. In recommending a ban on conspicuous religious symbols in French public schools, the Stasi Commission posited the Islamic headscarf as a uniformly oppressive symbol. The ECHR did the same in upholding a similar ban in Turkish public universities. In putting forth this interpretation of the headscarf, both bodies created and promoted a troubling isomorphism, one that this Article seeks to deconstruct, that neatly maps secularism onto gender equality and religious expression onto gender inequality. (30)

The concept of an isomorphism is useful to describe the Stasi Commission and the ECHR's justifications for...

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