Is the Law Empowering or Patronizing Women? The Dilemma in the French Burqa Decision as the Tip of the Secular Law Iceberg

The article analyses a French seminal legal award which served as a stepping stone in the recent French debate concerning the legislation banning women from wearing the Burqa headscarf in public. Under this wording—Burqa—a special style of the hijab—a scarf donned by Muslim women—is being targeted. It represents a more extreme form of covering: The Burqa is worn by the Pashtun women of Pakistan and in Afghanistan and covers the body from head to toes in a continuous piece of fabric, whereas the veil banned in France also includes the niqab which may or may not cover the entire body, and allows visibility of the eyes but not the entire face. In the relevant debate, gender equality has been the banner hoisted by court and parliamentarians purporting to protect women against the unsettling impact of the Burqa. This article represents a critical study of this claim. The article describes and analyses the ambivalent tenor of the Burqa Decision and arrives at two main conclusions. First, having distinguished two key values addressed (directly and indirectly) by the Conseil d’État—equality and freedom—the article concludes that although hailed as defying gender discrimination, the judgment must also be construed as contributing to inequality among women. The award remains just as unclear in regards to the protection of freedom of religious expression suggesting that women equality offers only one among other explanations for this ruling. Second, the article’s analysis applies several feminist approaches to the Burqa Decision and finds that the pluralist feminist discourse results in different and inconsistent potential resolutions to the case. The upshot is that the Burqa Decision, which was taken as a strong condemnation of a practise said to be symbolising the subjugation of the female to male domination, was confirming a view espoused largely by Western secular women. In doing so, and given the approval by France’s mainstream society, the award appears to have empowered this particular segment in the female population. At the same time however, the tribunal also stated the obvious namely, that gender equality has been serving as a powerful tool in the adjudicative struggle between secularism and religion. While women’s struggle for gender equality, especially in politics and the economy, has been protracted and not yet fully achieved, the comparatively brief and hurried commitment to gender equality at the intersection of religion and secularism, suggest that gender equality was not the only priority on the adjudicator’s mind, hence is not necessarily the ultimate winner of this award.