Tensions between Women’s Rights, Religious Rights, and State Law as Seen in the Application of Laïcité in France
Hannah Ott is a graduate student at AUP, part of the MA in Diplomacy and International Law program. She is from Ithaca, New York, USA.
Introduction
When looking at the various human rights enumerated within international law, specifically human rights treaties, it appears that a crucial element is how these rights should be equal for all, and applied as such. However, what happens when rights seem to contradict each other when applied culturally, or specifically within the domestic laws or customs of different States? These issues are exemplified in the French concept of “laïcité,” which is often directly translated simply as “secularism” although, in reality, it is far more complex and often raises questions of both religious and general freedom of expression. Laïcité entails the complete separation of the state and religion, making religion an aspect of an individual’s identity that is confined to the private sphere, and completely disallowed in the public sphere, including government buildings, and thus public schools. With the question of contradictions in mind, I am going to be examining the tensions that arise between women’s rights and religious rights when applied in domestic law, in particular the tensions that have become controversial in France regarding “laïcité,” and how this creates a conversation about both secularism and women’s rights to religious expression. After exploring how laïcité has had a direct effect on both women’s and religious rights in France through the lens of the 2024 Olympic Games held in Paris, I will engage with several common arguments in favor of laïcité and conclude with recommendations towards better inclusivity through the applications of human rights law.
International Human Rights Framework
Human rights treaties emphasize the equality of men’s and women’s rights, focusing on non-discrimination on the basis of sex and gender, as well as the right to freedom of religious and cultural expression. As a baseline definition, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) defines “discrimination against women” in Article 1 as
…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (UN General Assembly, 13).
This is reflected similarly in Article 3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (UN Generaly Assembly, 3). Immediately this definition would seem to make banning women from wearing headscarves, such as hijabs, burqas, veils, niqabs, etc., in State-affiliated institutions such as schools and government buildings a violation of both their human rights and fundamental freedoms.
The International Covenant on Civil and Political Rights (ICCPR) then elaborates on religious rights in Article 18.1, which expresses “…the right to freedom of thought, conscience and religion… either individually or in community with others and in public or private, to manifest his religion or belief…” (UN General Assembly, 171). The most relevant part of this section with regard to laïcité would be that it outlines the right to manifest religion or belief in public or private, which would make French laws on laïcité a violation of human rights. However, the French government is able to circumvent this because Article 18.3 of the ICCPR clarifies that this freedom “…may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others,” (Ibid). This is the first major discrepancy between rights, since the government of a State may violate the rights of women to freedom of religious expression as long as they deem it necessary to protect the freedoms of others. This is how the French government often defends its strict secularism, as seen in a 2003 report issued by the Stasi Commission, assembled by former French President Jacques Chirac, which argued first that “freedom of conscience is necessarily restricted by calls for public order and that the donning of the hijab falls into this category. Secondly, in order to ensure neutrality of the state, religious symbols must be removed from public schools,” (Adrian, 102-114). The open-ended terminology regarding the protection of “public safety” or “order” thus “has the potential to be interpreted widely to allow states to intervene in religious practices at any time that they become inconvenient or annoying to those in power,” (Ati).
When it comes to having unimpeded access to public education, the ICESCR states in Article 13.1 that everyone has a right to education and that it “…shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms,” (UN General Assemly). While young women in France still have the right to public education under laïcité, for some girls, the laws against wearing headscarves in public schools can provide a significant barrier to receiving this education when it conflicts with their personal religious beliefs and expression. The Convention on the Rights of the Child (CRC) includes in Article 14.1 that “States Parties shall respect the right of the child to freedom of thought, conscience and religion,” and even further in Article 14.2 that the rights of parents “…to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child” should be respected (UN General Assembly, 3). An argument often presented for laïcité as it applies to children is that parents should not be able to impose their religion upon their child(ren), but Articles 14.1 and 14.2 of the CRC would seemingly protect the right not only of the child to respect from the State regarding their chosen religion, but also the rights of parents to give guidance in this area. However, similar to specifications made in other treaties, the CRC provides a limitation to these rights in Article 14.3 “…as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others,” allowing France to bypass the former stipulations of Article 14 (Ibid).
Laïcité in Practice
I. French Legal Context
It may be questioned why laïcité is often viewed as being in contention with women’s rights when it is technically aiming to curb all religious manifestations regardless of sex, but this is because the law most notably targets religious symbols of a certain size, such as headscarves, which are primarily worn by women. In 1994 the French Minister of Education at the time, Francois Bayrou, released a circulaire, or ban, that while not legally binding, issued strong recommendations regarding religious manifestations in State-affiliated locations such as public schools. Though the ban did name other religious symbols such as the yarmulke and cross, “it was clear that the driving reason for this uproar was the hijab…it seems from the argument that the larger the symbol, the more likely that it would be used for proselytization… the idea that students might wear such large crosses as to be offensive or considered an act of proselytization was not considered…” (Adrian, 104). It is then explicitly stated in 2004 French law regarding the concept and application of laïcité that, “In public schools, the wearing of symbols or clothing by which students conspicuously manifest a religious appearance is forbidden,” (Chirac). The legislation around laïcité would then seem to come into direct contention with specific rights and freedoms women have regarding access to particular State functions and institutions such as public schooling and, though not shown in this particular citation, their ability to seek office in their government. Addressing the rights of women to be able to seek and hold office in their State’s government, Articles 7(a-c) and 8 of the CEDAW outline several objectives States should work towards with regards to eliminating discrimination against women in the political sphere, all of which would be made extremely difficult for women in France to achieve if they are forced to choose between either getting involved in State politics or representing their religion UN General Assembly).
II. Social Context: The 2024 Olympic Games
The debate over laïcité and secularism in France has been happening for a long time, however, a recent manifestation of this issue took place this past summer when the Olympic Games were held in Paris. The French government decided that, in order to represent France in the Olympics, female athletes would have to remove any headscarves, with France’s sports minister Amélie Oudéa-Castéra reinforcing “…the idea that the country’s national team is considered part of the civil service — so is subject to the same restrictions that apply to anyone in public service in France,” (Advani). In the context of human rights law, such discrimination specifically against female athletes by the French government may be regarded as a violation of Article 13(c) of the CEDAW, which stipulates that States should make appropriate efforts “…to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular…The right to participate in recreational activities, sports and all aspects of cultural life,” (UN General Assembly). This decision by the French government was seen as highly controversial by many, who viewed it as the government asking female athletes to choose between their religious identity and their national identity in order to participate. With this in mind, it can be said that laïcité desires “a unified Republic identity ‘to take precedence over and above other aspects of an individual's persona, whether those characteristics are religious, ethnic or linguistic.’” (Abilmouna, 117-132). Having to make these choices and put one part of your identity over another can be extremely detrimental to anyone’s wellbeing, and Anna Błuś, a researcher with Amnesty International was quoted as saying, “…a lot of the women that I spoke to said that they didn't see a future for themselves in France and that they were planning to leave the country and to compete for other national teams,” (Advani). Women should not be put in a position to have to diminish one part of themselves in order to advance or protect another. Decisions such as this made by the French government effectively strip women of their individual agency, and make them a separate, and arguably lesser class from their male counterparts, who do not have to face such turmoil.
Analysis and Discussion
Though there are clearly various aspects of laïcité that are in contradiction with women’s and religious rights as enumerated in international human rights treaties, there are many people in France who do support the restrictions put out by the government. There are numerous arguments commonly used either by the French government or by members of the French public in support of the implementation of laïcité, such as the argument from the French government that public institutions and officers should remain ideologically neutral. This holds merit, however, if this is not applied equally across all religions and sexes, as it is seemingly not in France since laïcité primarily affects women wearing headscarves, then it seems to be a discriminatory law more than one focused on equality. Another popular argument from those who support laïcité is that women are made to wear headscarves for discriminatory reasons within their religions, however, this should point towards granting personal agency and receiving input from women themselves on an individual level as “there are a ‘variety of reasons’ why women wear the headscarf-hijab, and…‘it can even be a means of emancipating women’ in some cases,” (Ati). Similarly, it is argued that children, in this case young girls, should not have a religion imposed on them by their parents that they may not themselves agree with. However, this is an almost hypocritical argument since it assumes that all young girls wearing headscarves or other coverings would rather not be wearing them, such as when they attend school, and thus that they are being coerced or having a religion imposed on them by their parents. In this case, it would again be better for the child to be given individual agency in the decision of whether or not to wear religious coverings rather than either the parents or the State deciding for them. Although there are surely some girls who would prefer not to wear headscarves or other such coverings, there is no reason to believe there are not also girls who would prefer to wear them, and this is not a decision that should be imposed on them by the state, especially at a young age where they should be encouraged to critically develop their own personal beliefs and values.
Conclusion and Recommendations
Although there is no obvious or simple solution to the contentions that arise between women’s rights, religious rights, and State law regarding the concept of laïcité in France, looking to human rights treaties should provide some first steps toward compromise and inclusivity. The ICESCR (UN General Assembly), ICCPR (UN General Assembly), and CRC (UN General Assembly), among other treaties, all include stipulations against discrimination based on various characteristics, including sex and religion. When it comes to freedom of expression and the right to manifest one’s religion, these Articles should serve as the foundational principles of how individual States govern. While most States would surely agree that they do adhere to these Articles in their legislation, many treaties provide limitations on certain rights that allow States to deviate from these key principles, such as Article 14.3 of the CRC, which allows States to limit children’s freedom to manifest their religion in the interest of protecting “…public safety, order, health or morals, or the fundamental rights and freedoms of others,” (Ibid). There are undoubtedly conceivable situations wherein the suspension of these rights could be genuinely beneficial to the public, such as situations of national emergency perhaps, but these situations should be critically reviewed by human rights treaty bodies to ensure States are not merely abusing such limitations within the treaties to fit their own agendas. As it stands, these limitations seem to serve as a catch-all loophole for States to ignore certain human rights as it suits their needs. The issue of laïcité and women’s rights to religious expression within their States more generally cannot be easily resolved, but in order for there to be true equality of treatment it is necessary to look to human rights treaties for guidance, provide further clarification and review of the application of limitations, and make sure the affected women are given agency in decisions being made about them by their States.
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https://www.e-laicite.fr/minformer/la-laicite/
