Burqa bans in all public places have no place in a liberal democracy

Writing in the Leicester Mercury, Professor Jill Marshall of the School of Law at the University of Leicester, author of Human Rights Law and Personal Identity, takes issue with the French ban on the face veil:

In 2011 it became a criminal offence to wear face coverings, including the burqa and niqab, in any public place in France. This summer the European Court of Human Rights decided this law did not violate human rights. It interferes with rights to religious freedom of expression and our private life, “personality” or “identity” rights. However, these interferences are justified by the “rights and freedoms of others”: “living together” argued by the French government.

As the two dissenting judges say this is notion is “far-fetched and vague”. It makes a mockery of rights to freedom of expression, religious or otherwise, identity or personality.

This judgement turns the focus in human rights protection on to how the majority perceive a person’s identity, allowing governments to criminally ban clothing even though it is part of a person’s identity. This is a worrying development in protecting human rights.

The court had previously said that “private life” embraced gender identification, name, sex, personal development, the right to establish and develop relationships with others, and appearance and clothing.

This personality right enables us to make our own choices in life, to have some power and control over our future. So human rights should protect choices and identities even if the majority of the population disagree or are shocked, offended or disturbed.

The French government represented the veil as a “symbolic and dehumanising violence”, an “effacement” and “self-confinement” of women who wear it. The dissenting judges do not agree and fieldwork in Belgium and France indicates that veil-wearing women had been happy to socialise in public: others harassed them.

Dr Irene Zempi also found this in her interviews with women in Leicester (where, of course, there are no such criminal bans). Regardless of what the face veil represents, the dissenters convincingly point out that there is no legal right not to be shocked or provoked by different types of personality or identity.

There is no right to enter into contact with other people in public places against their will. Communication is essential for life in society but we also have a right not to communicate, not to enter into contact with others in public places: “the right to be an outsider”.

The full face does not need to be shown for us to communicate as is clear when skiing, motorcycling, wearing carnival costumes (these are exempt under the French law). Ear or headphones, talking on the telephone, Skype without a video, email, letters, social media and other virtual communications could also be added to the list. Full face veil bans in all public places have no place in European liberal democracies. It is a shame the European Court of Human Rights missed the opportunity to say so.