Abstract

In 2014 the European Court of Human Rights (ECtHR) upheld the French Constitutional Court’s decision that a ban on the Islamic face veil, could still be justified by reference to, amongst other legitimate aims, the legitimate aim of living together. While many celebrated that the Court no longer accepts the gender equality as one of the justifications for limiting the right to wear the Islamic face veil, others were disappointed to find that the judgment continues to run counter to the ECtHR’s equality jurisprudence and continues to perpetuate islamophobia.

This paper considers the representation of veiled women, their right to manifest their religious belief and inclusion in policy in the ECtHR. It examines the language, content and legal concepts integrated in the face veil cases. Furthermore, it will also draw on on the quantitative and qualitative research that has been conducted by researchers across Europe who have evidenced that Muslim women are disproportionately affected by such bans and documents the experiences and motives of the women affected. Third party interventions, or amicus curiae, submitted to the Court by NGO’s, national human rights institutions and litigation projects at leading universities have highlighting that these bans are disproportionate, deny the victims of the ban procedural justice and do not serve their purpose.

Drawing from intersectional theory, which argues that identity politics often replicate the exclusion of other groups;3 this paper will use intersectionality to identify shared assumptions and understandings of ‘gender’ which may continue to reassert traditional perceptions of women and religion. It concludes that the bans are based on outsider experiences and views and proposes a more inclusive framework for the right to manifest a religious belief.