Observers of France's abaya ban should look to Britain for a sensible example

Students at the Pasteur high school in Strasbourg, eastern France, in July. AFP

The recent banning of the abaya in France’s public schools has become the new bete noire for some politicians in the country. Last month, Minister of Education Gabriel Attal announced in an interview that the abaya will be banned in order to protect schools from “a religious gesture, aimed at testing the resistance of the Republic”.

It’s not the first time the French state has waded into discussions around the display of religion. But curiously, there is a precedent for discussions around the abaya in Europe in recent years – notably in the UK.

The approach was different, but perhaps not in the ways that might have been expected.

The French abaya ban is the latest move in an ongoing saga that began in the 1990s. These actions in schools are purported to have been taken due to perceived conflicts with the principle of laicite, a form of secularism that primarily emphasises a strict state neutrality.

However, contemporary France’s new laicite has taken an illiberal turn. It has been used to impose various restrictions, possibly fuelled by an increasing hostility towards the visibility of French Muslims and Islam in particular, and religion in general.

In 2004, lawmakers passed a law prohibiting the wearing of conspicuous religious symbols in schools. Ostensibly aimed at all religious groups, it still disproportionately affected Muslims, with legislators citing explicitly that they were the primary target.

Moreover, controversy arose as the law relied on highly subjective interpretations of what qualifies as a “religious symbol”. For instance, even bandanas and long skirts were cited by enforcement officials as “conspicuous religious symbols” if the wearers were identified as wearing religious clothing off-campus.

Earlier this month, a Muslim girl was sent home after she appeared at her school in a kimono, which her headteacher interpreted as a religious garment.

In other words, even non-religious attire in France can be labelled as religious based on a deeply subjective assessment of the individual, and thus proscribed.

Contrast that with the UK, and its own “abaya” case, more than 20 years ago.

In 2002, a British student in a community that had a large Muslim population had begun to wear a jilbab – similar to the abaya, in that it was a single and usually fairly loose coat-like garment that covered the abdomen and legs. The student claimed religious motivations, and the school rejected the wearing of it, as it was against the school’s uniform.

The student took the school to court on religious freedom grounds, and the case eventually went to the House of Lords, which served as the highest court of appeal. She lost the case.

On the face of it, there are parallels between this episode in the UK and the situation in France two decades later. But there are significant differences.

In the British case, there was a genuine effort to identify ways and avenues to provide for religious freedom, as well as balance what the wider community saw as the need for communal harmony.

The school had already provided uniform options its management thought respected the religious freedom demands. In consultation with different Muslim religious authorities the school provided different options for Muslim students, including the wearing of the shalwar kameez, which was worn by various faith groups in the Luton community, which thus made it a more common item to be worn as part of a uniform.

Importantly, the arguments were about a particular school. The House of Lords did not rule on all schools across the nations of the UK; it ruled on a particular school and a particular student, which included a school that had clearly gone to a lot of effort to, at least, try to balance a religiously sensitive uniform code of dress in a multi-faith community.

The very idea of such dress codes is to promote a sense of community and inclusivity, while reducing the distraction of fashion and differences of clothing for young people.

Given that the school had gone to such efforts to provide space, and that it did have a uniform, it was inevitable that the House of Lords would rule in its favour. Yet when it did, it included in its judgment the cautionary note that this was about a specific case. Indeed, “The House is not, and could not be, invited to rule on whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country [UK].”

That focus on embedding the discussion in local dynamics; of trying to find a genuine balance between different and competing imperatives; recognising the freedom to manifest religious belief as a fundamental value; all of this seems to have been absent within the French context in recent years.

Earlier this month, the Conseil d’Etat – France’s highest administrative court – upheld the abaya ban on the grounds that it did not “constitute a serious and manifestly illegal infringement on a fundamental freedom”, and that it conforms with the Law of 2004. Nonetheless, there is still uncertainty regarding how such a ban would be enforced. This is because the Conseil d’Etat requires proof of a “religious practice” and a “religious declaration” by the student for the abaya to be considered prohibited.

Such proof is difficult to determine and will probably result in racial and/or religious profiling – in short, a non-Muslim would get a pass for wearing the exact same clothing that a Muslim wears. Given the arbitrary nature of the ban, there will continue to be legal challenges from various angles, which means this saga is far from its conclusion.

It isn’t that the French state ought to have no interest whatsoever in this arena. Rather, it’s how that interest is implemented, and what that interest is.

No doubt, supporters of the French state will comment on the British precedent and see a state that did not sufficiently promote its own interests in shaping the Muslim community. But control and coercion are difficult in a diverse and multi-faith society – and, arguably, counter-productive.

After all, simply put: how can it be right to send a child home for wearing a kimono, just because she is Muslim?