{"id":78395,"date":"2016-08-29T12:01:06","date_gmt":"2016-08-29T11:01:06","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=78395"},"modified":"2016-08-28T15:32:48","modified_gmt":"2016-08-28T14:32:48","slug":"europe-when-a-swimsuit-is-a-security-threat","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2016\/08\/europe-when-a-swimsuit-is-a-security-threat\/","title":{"rendered":"Europe: When a Swimsuit Is a Security Threat"},"content":{"rendered":"
\"Credit<\/a>

Credit Kaye Blegvad<\/p><\/div>\n

24 Aug 2016 <\/em>\u2014 Fifteen towns in France<\/a> have issued bans<\/a> on the full-body swimsuit worn by some Muslim women and nicknamed the \u201cburkini<\/a>,\u201d citing public order and security concerns.<\/a> According to the ordinance in Cannes, \u201cBeach attire that ostentatiously displays a religious affiliation, while France and places of worship are the target of terrorist acts, is likely to create risks to public order.\u201d<\/p>\n

How do pants, a long-sleeve shirt and a head covering made of swimsuit material threaten public safety?<\/p>\n

According to France\u2019s prime minister, Manuel Valls, the suit is part of \u201cthe enslavement of women<\/a>.\u201d In a newspaper interview<\/a>, the mayor of Cannes, David Lisnard, said: \u201cThe burkini is the uniform of extremist Islamism, not of the Muslim religion.\u201d<\/p>\n

These explanations may seem ludicrous, but Mr. Valls and Mr. Lisnard perfectly summed up the two contradictory public order rationales that European courts all the way up to the European Court of Human Rights<\/a> use when dealing with Muslim women in religious garb. According to Europe\u2019s highest court of human rights, Muslim women in head scarves and burqas are simultaneously victims, in need of a government savior, and aggressors, spreading extremism merely by appearing Muslim in public.<\/p>\n

The jurisprudence reflects a perspective deeply ingrained in the French conception of Muslims and Muslim religious garb. To the extent that these French politicians were calculating their legal risk when banning burkinis, they had to know the European Court of Human Rights, which has routinely affirmed lower courts on these issues, would be on their side if they cited public order concerns.<\/p>\n

The same rationale has been used to deny a schoolteacher the right to wear her head scarf in the classroom, and to bar a university student from sitting for an exam while wearing a head scarf.<\/p>\n

Article 9 of the European Convention on Human Rights is the key provision, and it lays out a broad conception of \u201cthe right to freedom of thought, conscience and religion\u201d in the 47 member states of the Council of Europe; this includes the right of a person \u201cin public or private, to manifest his religion or belief, in worship, teaching, practice and observance.\u201d However, a further clause allows for exceptions \u2014 limits on the manifestation of belief as \u201cnecessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n

Unfortunately, the European Court of Human Rights has shown time and again that a challenged state can satisfy these exceptions largely in the strength of unsubstantiated stereotypes (the notion of a burkini as a type of jihadist \u201cuniform\u201d comes to mind). One reason member states get away with this is the court\u2019s consistent deference to national officials and judges \u2014 tipping the balance in favor of the government and against the plaintiff.<\/p>\n

This deference has been institutionalized by the makeup of the court, since each member state gets one judge on the bench, and the court always includes the relevant national judge when it hears a case, either as a seven-judge chamber or a 17-strong \u201cgrand chamber.\u201d (Recent Muslim religious-clothing cases have gone to the grand chamber.)<\/p>\n

States also benefit from the court\u2019s \u201cmargin of appreciation\u201d doctrine, which gives wide latitude to member countries on issues of cultural identity, particularly in religious liberty cases. In the case of Muslim religious claims heard at the court, sweeping generalizations and unreasonable fears have often taken the place of rigorous legal reasoning and sound evidence.<\/p>\n

The jurisprudence has been consistent over years. In 2001, in Dahlab v. Switzerland, the court held that for young pupils, seeing their teacher in a head scarf could be coercive because \u201cthe wearing of a head scarf might have some kind of proselytizing effect.\u201d Since the wearing of a head scarf, the court found, \u201cappears to be imposed on women by a precept which is laid down in the Quran,\u201d that made the custom \u201chard to square with the principle of gender equality.\u201d The court ruled that a woman in a hijab could not deliver \u201cthe message of tolerance, respect for others and, above all, equality and nondiscrimination that all teachers in a democratic society must convey to their pupils.\u201d<\/p>\n

In the 2005 case Sahin v. Turkey, the court addressed a religious liberty claim by a woman prohibited by the Turkish government from sitting for a university examination while wearing a head scarf. The court reiterated its reasoning from Dahlab, explaining that upholding the ban helped promote gender equality. It also furthered Turkey\u2019s interest in \u201cfighting extremism.\u201d Here again, the woman in religious garb was simultaneously a victim and a threat.<\/p>\n

In 2014, the court decided S.A.S. v. France, a case challenging France\u2019s 2010 law banning face-covering veils, including the niqab and the burqa. Despite the far broader application of this ban, the court\u2019s grand chamber upheld it on even squishier grounds than public safety. It ruled that banning the burqa helped preserve \u201cthe conditions of \u2018living together.\u2019 \u201d In other words, a woman wearing the burqa in public infringed the \u201crights and freedoms of others\u201d who might be offended by it.<\/p>\n

The same twisted logic is at play in the French ordinances against the burkini. To an American spectator, such bans probably appear a blatant restriction on religious liberty, or liberty generally, but what is striking is that the European jurisprudence upholding them speaks in the language of human rights. By couching prejudice and fear in the language of Article 9 exceptions, the court in effect uses human rights laws to limit human rights.<\/p>\n

_______________________________<\/p>\n

Asma T. Uddin is the director of strategy at the Center for Islam and Religious Freedom in Washington and a member of the Panel of Experts on Freedom of Religion or Belief for the Organization for Security and Cooperation in Europe.<\/em><\/p>\n

A version of this op-ed appears in print on August 24, 2016, on page A19 of the New York edition with the headline: The Swimsuit as Security Threat.<\/em><\/p>\n

Go to Original \u2013 nytimes.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

To an American spectator, such bans probably appear a blatant restriction on religious liberty, or liberty generally, but what is striking is that the European jurisprudence upholding them speaks in the language of human rights. By couching prejudice and fear in the language of Article 9 exceptions, the court in effect uses human rights laws to limit human rights.<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[225],"tags":[],"class_list":["post-78395","post","type-post","status-publish","format-standard","hentry","category-spotlight"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/78395","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=78395"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/78395\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=78395"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=78395"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=78395"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}