Source: Taylor & Francis Online
The politics of covering the face: from the ‘burqa ban’ to the facekini
In 2009, the French government established a commission to study the controversial practice among a minority of Muslim women of wearing the ‘voile integral’ (full-face veil). This led to the passage of a law the following year—widely referred to in the media as the ‘burqa ban’—designed to curtail what many lawmakers had described as a discriminatory, oppressive, and gendered practice that contravened the French values of liberty, equality, and brotherhood. The actual text of the law, however, simply banned citizens and visitors from covering their faces in public. As the law went into effect, the rhetoric shifted from symbolism to security. Five years later, linguistic confusion and increased concerns about security led to bans on the ‘burqini,’ a full-body swimsuit that does not cover the face. A few journalists, questioning the underlying rationale for the bans, compared the burqini to the ‘facekini,’ a face-covering swim garment from China invented in 2004. Although Chinese men and women wear the facekini for various reasons (primarily for protection from jellyfish and from tanning), it does not have any religious or political significance.
The french ‘burqa ban’
In June 2009, 58 members of the French National Assembly petitioned the Assembly’s president with concerns over the country’s substantial and growing Muslim population, specifically the practice of wearing the “voile integral” (full-face veil), a garment that Muslims call niqab or burqa. In a statement to both chambers of Parliament in which he announced the formation of a commission to study the history and evolution of the two garments in France (Mission d’information sur la pratique du port du voile integral sur la territoire national), then-President Nicolas Sarkozy declared his pre-existing position on the subject:
…the problem of the burqa is not a religious problem. It is a problem relating to the freedom and the dignity of the woman. It is a sign of subservience, a sign of debasement. I want to solemnly say it: the burqa is not welcome in the territory of the French Republic.” … “[w]e cannot accept in our country women prisoners behind a screen, cut off from any social life, deprived of identity. It is not the idea that we have of a woman's dignity.2
Although France had declined to support the US-led invasion of Afghanistan in 2001, Sarkozy’s rhetoric echoed statements that various US politicians had made to justify the invasion. In a November 2001 radio address, for example, Laura Bush—wife of then-President George W. Bush—insisted that Afghani women were “rejoicing” at the overthrow of the Taliban and that, “The fight against terrorism is also a fight for the rights and dignity of women.”3
For nearly five months, a 32 -person commission assembled by the government gathered testimony from over 200 experts and witnesses, compiling more than 350 pages of transcripts. In January 2010, it issued a public report summarizing its findings. Noting that only a small minority of Muslim women in France were wearing face coverings—estimated at just 1900 women out of a total population of five to six million Muslims4—the report expressed concern that the voile integral had been virtually non-existent in France just ten years earlier. Although it correctly identified the difference between the burqa (which is worn mostly in Afghanistan, not Europe) and niqab (the most common style of face-covering worn in France, originating from the Persian Gulf) (figure 1), the term ‘burqa’ dominated the commission’s report, appearing five times more often than ‘niqab.’5 Both garments are controversial, however the burqa is the more extreme of the two, widely viewed as being connected with state-sponsored oppression against women in Afghanistan.6 While the burqa covers the wearer’s entire body—having a mesh panel over the face that allows the wearer to see without being seen—the niqab is a head covering (worn with other loose-fitting, modest garments) that typically leaves the wearer’s eyes exposed.
2262; both images correctly identify the difference between the burqa and niqab.Graphic by Reuters (used by permission) similar to one used by the French commission on the 'voile integral' on page 26 of Rapport d’Information No
As evidence to support this concern over the sudden rise in face-covering, a chart on page 31 (figure 2) demonstrates usages of the term ‘burqa’ in the prominent French newspaper, Le Monde. It divides the articles into four categories based on region: Afghanistan, other Muslim countries, France, and other Western countries. Unsurprisingly, the largest spike was in articles about Afghanistan during the beginning of the US-led invasion (2001–02). The next two largest spikes—much smaller than the first in 2001—represent articles about France: one in 2004 when the government passed a law banning students in public schools from wearing ‘conspicuous’ religious symbols,7 and one in 2008 when politicians were starting to agitate for a possible ban on wearing the voile integral.
2262, analyzing appearances of the term ‘burqa’ in the prominent French newspaper, Le Monde.Chart from page 31 of Rapport d’Information No
In the introduction to the report, the president of the commission, André Gerin, argued that the practice of wearing the burqa or niqab was an affront to the core values of liberty (liberté), equality (egalité), and brotherhood (fraternité) established in the French Revolution of 1789:
Le voile intégral est une atteinte intolérable à la liberté, à la dignité des femmes. C’est la négation de l’égalité des sexes, de la mixité dans notre société. C’est finalement la volonté d’exclure les femmes de la vie sociale et le rejet de notre volonté commune de vivre ensemble.8
The full-face veil is an intolerable attack on liberty and the dignity of women. It negates equality between the sexes, and of mixing [genders] in our society. It is finally the will to exclude women from social life and to reject our common will to live together. (translation by author)
Although he noted that the commission was not unanimously in favor of establishing a law to ban full-face veiling, he called the practice the “tip of the iceberg” for fundamentalists living in France. In the conclusion, the commission made a series of recommendations. Some were directed towards women and minors perceived as being forced to veil:
conducting mediation with women wearing the veil and their families to better understand their motivations;
notifying the competent authorities of any minor wearing the full veil, within the framework of the protection of minors in danger;
taking into account, in asylum requests, wearing of the full veil as an indication of a more general persecution;
It also included several recommendations on immigration policies:
reinforcing civic education, in particular the teaching of gender equality, within the framework of the integration contract that immigrants who wish to settle in France have to sign;
adding gender equality and secularism to the values that persons wishing to obtain a long-stay visa need to be aware of;
refusing the issuance of a residence card or French citizenship to individuals who practice their religion in a way incompatible with the values of the Republic, in particular, with the principle of gender equality. It should be considered a lack of integration with French society; 9
Ironically, an earlier section of the report noted that two-thirds of the women covering their faces in France were already French citizens—converts plus second- and third-generation immigrants10—who would not be directly impacted by any changes in immigration policy.
Predicting that the report would lead the government to pass another law against religious dress, media outlets began referring to it as the ‘burqa ban.’ Hundreds of articles around the world debated the appropriateness of such a law and the potential outcomes, particularly as politicians in Belgium, the UK, Italy, and several other countries11 made similar proposals.
French Opposition Takes Stand Against Burqa Ban (January 6, 2010 – Agence France Presse)
Judge Warns French Burqa Ban Could Spur Violence (January 10, 2010 – Associated Press International)
Time to Ban Burqas (January 20, 2010 – Birmingham Evening Mail, UK)
France to Soon Vote Ban on Burqa in Public Places (January 21, 2010 – Kuwait News Agency)
Paris Imam Backs France’s Proposed Burqa Ban (January 22, 2010 – Trend Daily News, Azerbaijan)
What’s Hiding Behind France’s Proposed Burqa Ban? (January 27, 2010 – Christian Science Monitor)
A Jewish Voice Against the ‘Burqa Ban’ (January 27, 2010 – Daily News Egypt)
France is Right on Burqa Ban (January 29, 2010 – Daily Record and Sunday Mail, Scotland)
Burqa Ban Wrong (January 30, 2010 – The Hamilton Spectator, Canada)
French Catholic Church Warns Against Burqa Ban (February 2, 2010 – Daily Times, Pakistan)
Call to Ban Burqa is Hypocritical (February 4, 2010 – Irish Independent)
Danish Poll Shows Support for Burqa Ban Dropping (February 23, 2010 – BBC)
Burqa Ban Would be Counterproductive, Top Official Says (March 7, 2010 – dpa International, Germany)
After ten months of proposals, debates, and votes by the Assembly and the Senate, then-President Sarkozy signed the passage of “Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public” (Law number 2010-1192 of October 11, 2010 forbidding the concealment of the face in public spaces). The text of the law was very short, laid out in just three sentences with some additional technical notes.
Nul ne peut, dans l'espace public, porter une tenue destinée à dissimuler son visage.
No one may, in a public space, wear an outfit designed to conceal the face.
I. Pour l'application de l'article 1er, l'espace public est constitué des voies publiques ainsi que des lieux ouverts au public ou affectés à un service public.
For the application of the first article, public space consists of public roads as well as places open to the public or offering a service to the public.
II. L'interdiction prévue à l'article 1er ne s'applique pas si la tenue est prescrite ou autorisée par des dispositions législatives ou réglementaires, si elle est justifiée par des raisons de santé ou des motifs professionnels, ou si elle s'inscrit dans le cadre de pratiques sportives, de fêtes ou de manifestations artistiques ou traditionnelles.
The prohibition provided for in the first article does not apply if the outfit is prescribed or authorized by legislative or regulatory provisions, if it is justified for health reasons or professional reasons, or if it is included as part of sports practices, festivals, or artistic or traditional events.12
The remaining articles referred to sentencing, established a six-month waiting period before implementation, and required the government to produce a report about the effects of the new law after 18 months. In anticipation of objections by the courts, the law did not refer to the burqa, Muslims, or gender equality; with some exceptions, it simply banned the wearing of face-coverings in France and all French territories.
Shortly before the law went into effect, the Minister of the Interior issued a circular to guide government agents who would be expected to enforce the law, giving details on which items of dress would be prohibited and which would still be allowed.
The law prohibits and sanctions the wearing of an outfit, whatever its form, which has the effect of covering the face and making it impossible to identify the person. For example, a garment that would only reveal the eyes of a person falls within the scope of the law. On the other hand, the ban does not prohibit the wearing of a light scarf (foulard), head covering, winter scarf (écharpe), or glasses since those accessories do not impede the identification of a person. (translation by author)13
Also listed as being acceptable were motorcycle helmets (required by a law for safety reasons), respirators, bandages, welding masks, fencing masks, and outfits worn for religious processions “as long as they have a traditional character” (implicitly referring to bridal veils). It clarified that face coverings could be worn in private cars and places of worship, but not on public transport or in places open to the public (parks, beaches, hospitals, libraries, museums, stadiums, etc…), even if those places were privately-owned such as shops, restaurants, and movie theaters.14 It advised that since covering the face was a “petty offence” (contravention), it was not necessary to determine the wearer’s intent; offenders should first be reminded of the law and then asked to remove the garment in order to verify the wearer’s identity.15
Implementation of the law in April 2011 was met with protests.16 Attempts by police to fine women for wearing niqab set off riots in the suburbs of Paris.17 Rachid Nekkaz, a businessman born in France to immigrants from Algeria, offered to cover the cost for any woman issued a fine under the new law.18 Some women began wearing niqab for the first time as a protest against the French government.19 In November 2013, the European Court of Human Rights (ECHR) agreed to hear a lawsuit filed by a French citizen—recorded as ‘S.A.S’ to protect her identity—against the French national government. In a summary published in 2014, the court noted that the applicant was a “devout Muslim” who emphasized that she was covering her face out of personal conviction, not due to pressure from her husband or family. She also emphasized that she was open to uncovering her face in certain situations, but wanted the freedom to wear niqab in public without being harassed or fined.
The applicant added that she wore the niqab in public and in private, but not systematically: she might not wear it, for example, when she visited the doctor, when meeting friends in a public place, or when she wanted to socialise in public. She was thus content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings. There were certain times (for example, during religious events such as Ramadan) when she believed that she ought to wear it in public in order to express her religious, personal and cultural faith. Her aim was not to annoy others but to feel at inner peace with herself.
The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks.20
While the commission to study the full-face veil focused on gender and society, the case made by S.A.S. anticipated that ‘security’ would also become a justification for the new law.
Ultimately, the Court rejected arguments from the French government that covering the face was inherently threatening to gender equality and human dignity.
…respect for human dignity cannot legitimately justify a blanket ban on the wearing of the full-face veil in public places. The Court is aware that the clothing in question is perceived as strange by many of those who observe it. It would point out, however, that it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. It notes in this connection the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body. Moreover, it does not have any evidence capable of leading it to consider that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others.21
External to the Court, but in a similar train of thought, a chapter exploring contradictions in the French ban by legal scholar Rim-Sarah Alouane argues that,
…in France, pornography is not prohibited, and neither are violent consensual sexual relations, scarification of the body or indecent attires. Therefore, why would the wearing of the full-face covering be treated differently and be considered as a violation of human dignity?22
The Court also rejected concerns about public security, arguing that bans on covering the face should only be applied in situations “where a risk for the safety of persons and property has been established, or where particular circumstances entail a suspicion of identity fraud.”23
In the end, however, the Court did not overturn the law, arguing that the ban could be justified on the grounds that covering the face was not conducive to social interaction.
…the face plays a significant role in human interaction: more so than any other part of the body, the face expresses the existence of the individual as a unique person, and reflects one’s shared humanity with the interlocutor, at the same time as one’s otherness. The effect of concealing one’s face in public places is to break social ties and to manifest a refusal of the principle of ‘living together’ (le ‘vivre ensemble’).24
The final vote was 15 to 2. In a statement of partial dissent, the two judges who did not agree argued that the decision would sacrifice “concrete individual rights” to express one’s cultural and religious identity in order to satisfy “abstract principals” that were not guaranteed by the European Convention on Human Rights.
While communication is admittedly essential for life in society, the right to respect for private life also comprises the right not to communicate and not to enter into contact with others in public places – the right to be an outsider. It is true that ‘living together’ requires the possibility of interpersonal exchange. It is also true that the face plays an important role in human interaction. But this idea cannot be turned around, to lead to the conclusion that human interaction is impossible if the full face is not shown. This is evidenced by examples that are perfectly rooted in European culture, such as the activities of skiing and motorcycling with full-face helmets and the wearing of costumes in carnivals. Nobody would claim that in such situations (which form part of the exceptions provided for in the French Law) the minimum requirements of life in society are not respected. People can socialise without necessarily looking into each other’s eyes.25
Furthermore, the judges argued that if the goal was to protect women from oppression, the law would oppress them in new ways: by forcing them to either change their styles of dress (and by extension, any personal and/or cultural attachment to it) or remain at home and be excluded from society. They also recognized that while the penalty for breaking the law was described by the French government as mild (150 € or being required to take a citizenship course), women such as S.A.S. who persisted in wearing niqab were likely to receive numerous fines over time, potentially creating a serious financial burden.26
The broader politics of covering the face
Human rights organizations and scholars from a variety of academic disciplines have been highly critical of the French law. In her introduction to The Experiences of Face Veil Wearers in Europe and the Law, editor Eva Brems noted that before 2011, there were no country-wide (federal) laws in Europe restricting items of dress that cover the face, only provincial and municipal laws. In Belgium, for example, laws developed in the nineteenth century to stop participants in festivals and carnivals from wearing “disguises, masks, and costumes” were rediscovered and applied to a small number of Muslim women starting in 2004.27 In Italy, prosecutors attempted to use a provincial law passed in 1975—written to stop violent fascist demonstrators from wearing balaclavas—to stop Muslims from wearing niqab. These cases were generally dismissed on the grounds that niqab is religious in function (not political) and not worn for the main purpose of hiding the wearer’s identity.28
In the United States, laws against face coverings were established starting in the nineteenth century, primarily in an effort to restrict the Ku Klux Klan (KKK). A law passed by US Congress in 1870 to protect the rights of newly-freed slaves made it a crime to “go in disguise upon the public highway” for the purposes of intimidation or for depriving others of their constitutional rights.29 This was followed by numerous state and local laws into the early twentieth century; however, KKK members were rarely prosecuted simply for wearing a hood due to the difficulty of proving intent. The laws were applied only “where someone commits a crime while masked, masks in order to avoid identification that could lead to criminal or civil action, or masks in order to interfere with a law enforcement officer's duty.”30
Much more recently, in parts of Africa and Central Asia, laws against covering the face have been established more explicitly to counter the spread of fundamentalism. One of the first was in Uzbekistan, where lawmakers needed to write a new constitution and new laws after the fall of the Soviet Union in 1991. While Uzbekistan allows colorful, patterned scarves that cover the head but leave the face exposed (viewed as national dress), it forbids garments that cover the face, particularly black garments (viewed as a negative, foreign influence).31 More recently, the government of Chad established a ban on face coverings after two suicide bombings attributed to the fundamentalist group Boko Haram. A government official described the ban as applying to any clothing “where you can only see the eyes.” While partially directed at the scarves and balaclavas worn by clandestine soldiers, the government also ordered security forces to “go into the markets and seize all burqas on sale and burn them.”32 In northwest China, officials in the Xinjiang Uygur Autonomous Region banned the burqa from the city of Urumqi, warning that “burqas are not traditional dress for Uygur women.” A press release by state-sponsored Xinhua News Agency observed that the 2015 law was “seen as an effort to curb growing extremism that forced Uygur women to abandon their colorful traditional dress and wear black burqas.”33
Within the last decade in Europe, municipal and provincial bans on covering the face have been established in parts of Spain,34 northern Italy,35 and southern Switzerland.36 In addition to France, federal laws against face coverings have gone into effect in Austria, Belgium, Bulgaria, Denmark, Germany, the Netherlands, and Norway. In some cases, the laws are very specific. For example, as part of a new law on traffic regulations, Germany banned drivers from wearing any item of dress that covers “significant” parts of the face, arguing that cameras installed to catch traffic violations needed to be able to identify drivers.37 The law in Norway applies only to staff and students in public schools, including daycare centers.38 The law in the Netherlands is more comprehensive—applying to public transportation, schools, hospitals, and government buildings—but allows face coverings on public streets. However, it does not make exceptions for any items of dress (even safety helmets), regardless of the purpose for wearing them.39
Although no law or policy has attempted to list all the types of garments, helmets, or masks that enforcement authorities might encounter, the Italian region of Liguria approved a placard that hospitals and other public institutions could display to remind visitors that “for security reasons, no face coverings will be allowed.40 It shows only three examples—a motorcycle helmet, balaclava, and niqab—which cover most or all of the face. It is possible, however, to imagine a variety of other dress items that may or may not be impacted by the burqa bans (Table 1). Shortly after the Austrian government enacted a ban on face coverings in 2017, a man was fined for wearing a shark costume in public that partially covered his face. When asked to remove the costume, he initially refused saying, “I’m just doing my job.”41 He was advertising as a mascot for an electronic store called McShark.
This explains why the European Court of Human Rights’ summary of the case of S.A.S. vs. France focuses not just on the politics and social impact of face coverings, but on security. A section translating the guidelines issued by the French Minister of the Interior actually draws from two different circulars—one issued on March 28, 2011 regarding LOPPSI II, and the one issued on March 31, 2011 regarding the burqa ban.
The concealment of the face in public places is prohibited from April 11, 2011 throughout the territory of the Republic, both in metropolitan France and in French overseas administrative areas. The offence is constituted when a person wears an item of clothing that is designed to conceal his or her face and when he or she is in a public place; these two conditions are necessary and sufficient.
Items of clothing designed to conceal the face are those which make the person impossible to identify. The face does not have to be fully concealed for this to be so.
The following are prohibited in particular, without this list being exhaustive: the wearing of balaclavas (cagoules), full-face veils (burqa, niqab, etc.), masks or any other accessory or item of clothing which has the effect, whether separately or in combination with others, of concealing the face. Since the offence is classified as a petty offence (contravention), the existence of intent is irrelevant: it is sufficient for the clothing to be designed to conceal the face.
Although the political rhetoric is clear—that lawmakers who want to “ban the burqa” are concerned about what it represents, specifically as a symbol of Islamic fundamentalism and oppression against women—enforcing the law and deciding when “too much” of the face is covered has proven to be a much more complicated matter.
The burqini and the facekini
At a public roundtable in Paris in April 2016—five years after the implementation of the ban on face coverings—then-Prime Minister of France, Manuel Valls, made a statement that he believed fundamentalists were still “winning the ideological and cultural battle.”
“The veil does not represent a fashion fad, no, it's not a color one wears, no: it is enslavement of women," he said, warning of the "ideological message that can spread behind religious symbols."
"We have to make a distinction between wearing the veil as a scarf for older women, and as a political gesture confronting French society."47
Amid growing concerns about security and terrorism committed by Muslims, that summer more than 30 towns in Germany, Austria, France, and Italy passed laws to ban the burqini from public pools and beaches—a two-piece, full-body swimsuit with pants, a tunic, and a hood, which Lebanese-Australian designer, Aheda Zanetti, had invented in 2004 to make public swimming more accessible for Muslim women.48 Although the burqini does not resemble the burqa and does not cover the face, the term is a combination of “burqa” and “bikini.”
In late August 2016, one of the first burqini bans was struck down by the highest French court, the Conseil d’État.
In [the town of] Villeneuve-Loubet, there is nothing to suggest that there is a risk to the disturbance of public order resulting from the clothing adopted for swimming by certain persons. In the absence of such risks, the mayor cannot take measures prohibiting access to the beach for swimming. (translation by author)49
Despite the clear decision from the court, some municipalities ignored the ruling. Additional burqini bans were established the following summer.50
The same month—several weeks after a Tunisian immigrant killed more than 80 people in Nice by driving a truck through a crowded pedestrian area51—French police were filmed forcing a woman to remove her burqini while onlookers applauded and shouted “go home.” She did not have her face covered and said that she was merely sitting with her family enjoying the beach, not intending to swim.52 In Pennes-Mirabeau, 200 km west of Nice, a sports organization attempted to organize a “burqini day” for Muslim women and children at a private water park. A flyer asked participants to plan on wearing a bathing suit that would cover from at least the chest to the knees.53 Echoing the stance of the Prime Minister, in an interview with l’Express conservative politician Valérie Boyer argued,
Accepting this so-called fashion is strengthening partisanship in our country, but it’s also a question of the dignity of women, a question of respect for our fundamental principles. This is nothing trivial, the battle of ‘the veil’ is a visible expression of the will of fundamentalists to mark their territory and oppress women, like men, by establishing a territory where Islamism seems uniform and organizes real social control. (translation by author)54
Mayor of the town, Michel Amiel, called it a “provocation” and vowed to make such events illegal, viewing the burqini as a threat to public security.55 The intense backlash caused the waterpark to cancel the event. Ironically, many conservative Muslims reject the burqini as being insufficiently modest,56 so the event was never likely to attract fundamentalists.
In 2012, news of a different type of swimwear—the “facekini”—was picked up by media outlets in Europe. First created in 2004 by Zhang Shifan, a Chinese designer and entrepreneur with a swimwear business in the city of Qingdao,57 the invention quickly took off.58 Selling for the equivalent of just a few dollars, the facekini—which covers most of the face, leaving holes for the eyes, nose, and mouth—is favored by older women in China, but has also been adopted by younger women, men, and children. Some are solid colors (the color orange, for example, is advertised as being repellent to sharks59), but floral, animal-print, and geometric patterns are also popular. In 2015, Zheng released a line that resembles the masks worn by performers in the Peking Opera (figure 3), with complementary full-body swimsuits. An online shop for US customers, facekini.com, describes the garment as being worn primarily as protection from jellyfish and the sun (as an alternative to sunscreen), with additional creative uses such as costumes and for comfort under motorcycle helmets and c-pap machines.60 In an interview with Reuters news service, Zheng described how local children found the original solid-color facekini “scary,” which prompted her to experiment with new patterns.61
‘Facekini’ in the style of a Peking Opera mask, collection of the author.
Chinese beachgoing women don the facekini to shield themselves from the sun. In some Asian countries, not only do many women fear wrinkles caused by ultraviolet rays, but they also want to be as pale as possible. Skin-whitening creams are popular in Japan, South Korea and Thailand, for example. Chinese women who wear facekinis also sometimes wear bathing suits that cover their entire torsos and arms, similar to the burkini and to the wet suits common among surfers.
As startling as they may seem in photographs, facekinis are familiar in China, but what about in France? How would the same officials and police officers who have forced burkini-clad Muslim women off beaches react to this Chinese outfit?62
Curiously, French media outlets have had very little to say about the facekini. Major newspaper Le Figaro has only published two articles about the garment. The first, in 2012, described it as a “hit” on Chinese beaches;63 the second in 2015 described Chinese swimmers wearing facekinis as looking like “superheroes.”64 Le Monde has only published one, a photo-essay with a short caption describing the swimwear as “surreal” and “astonishing” (étonnant).65 Although the facekini covers as much of the face as niqab, none of the authors described the swimwear as a security threat or as a barrier to social connection. The facekini is very uncommon in France; the burqa is also very uncommon. The burqini and facekini are both worn for swimming; however, the facekini is worn by both men and women and does not have overt religious or political significance. Curiously, some people who wear the facekini cover the rest of their body, but many do not—wearing European-style trunks and one-piece swimsuits that expose the chest, arms, and legs.
Is the facekini legal in France? If security is the main concern, then it probably should not be; the swim garment covers just as much of the face as niqab. Popular-culture magazine, Bustle, compared the facekini to a “water-proof ski-mask,” observing that it could be worn not just for protection from jellyfish and the sun, but to conceal one’s identity while spending time at the beach.66 The lack of interest in the facekini from the French media seems to indicate that the concern is not really about security, but about symbolism and Islamophobia.
During the summer of 2016, social media erupted with images of beachgoers in France—images of divers wearing goggles and wetsuits, Catholic nuns wading into the surf, and historic photographs showing very modest swimwear before the maillot (1920s) and bikini (1940s) were invented. American comedian Jeremy McLellan posted an image on Twitter, showing himself dressed in a Superman costume for a cold swim in the Atlantic Ocean:
Hey France, I have some questions. Here’s a picture of me at the “Polar Bear Plunge” on New Year’s Day. Can I wear this one your beaches? Am I covering too much? Should I take it off? What am I hiding under there? Does the “S” stand for Shariah? Please let me know!
While humorous, the post questioned what the burqini bans were really about. In London, protestors created an impromptu beach outside the French embassy, wearing goggles, veils, and burqinis. In the crowd, participants held signs arguing, “Islamophobia is not freedom” and “Let them wear what they want.”67
Symbols of criminality
In 1998, a professor of law at the University of Chicago, Eric Posner, published an article exploring the politics and legal implications of protecting or banning symbols.
The lone protestor who burns an American flag on the steps of the courthouse also ignites a political firestorm, and when the smoke finally clears, it reveals a political and legal system in great disarray: political leaders condemning the perpetrator in the strongest terms, prosecutors struggling to bring him to justice, legislators scrambling to outlaw flag desecration, commentators wringing their hands beneath the looming shadow of constitutional amendment. By any standard, this is an extraordinary uproar. And yet the burning of the American flag harms no one in any way. In a country where the dominant political view holds that the state's main purpose is to prevent coercive harm, the attention lavished on the question whether a person should be allowed to burn an American flag—an action that does not coerce or harm anyone—can only be called an embarrassment. True, people are offended at the desecration of a symbol. But why is the American flag a symbol? And why do symbols matter?68
He observed that interest in symbols both tangible and intangible (such as flags, wedding rings, and diplomatic protocols) naturally increases and decreases over time. Lawmakers can attempt to ban them, but history has shown that while some people comply, others only become more resistant to the state’s position.69 This has certainly happened with the French burqa ban.
Comparing the face coverings that have been allowed and banned under the French law (Table 1), a pattern emerges: those that are allowed are worn by members of the dominant culture and viewed as “non-threatening;” those that are banned are worn by minorities and viewed by the state as symbols of impending violence (regardless of the wearer’s intention). Many French citizens view the niqab as a symbol of oppression and as a physical and cultural threat—even though the women who wear niqab regard it as a personal choice and a sign of faith, not as a political symbol. Between 2012 and 2017, 27 attacks in France were attributed to Muslim terrorists, the most deadly being the “Charlie Hebdo” incident in 2015, coordinated attacks in Paris in 2016, and the attack with a truck in Nice in 2016. None of the perpetrators were women. Although the burqa ban was established before these attacks, it can hardly be regarded as having prevented any violence. On the contrary, it seems to have increased the level of violence and reinforced an ‘us vs. them’ mentality.
One final comparison in considering how laws might be used (successfully or unsuccessfully) to restrict certain styles of dress and what they symbolize: in the 1980s and 1990 s, the city of Los Angeles was perceived as having a serious problem with gang violence. In 1988 there were 678 murders within city limits; over 400 of those were attributed to members of gangs.70 In hopes of reducing gang membership and gang violence, in 1988 the state of California passed a law known as STEP (Street Terrorism and Enforcement Act) to enhance fines and prison terms for crimes committed by known gang members, a law that was widely copied by other legislatures in the US. A similar law in the state of Florida, for example, established eight criteria for judging gang membership, defining a ‘criminal gang member’ as “[A] person who engages in a pattern of youth and street gang activity and meets two or more of the following criteria:”
Admits to gang membership.
Is a youth under the age of 21 years who is identified as a gang member by a parent or guardian.
Is identified as a gang member by a documented reliable informant.
Resides in or frequents a particular gang's area and adopts their style of dress, their use of hand signs, or their tattoos, and associates with known gang members.
Is identified as a gang member by an informant of previously untested reliability and such identification is corroborated by independent information.
Has been arrested more than once in the company of identified gang members for offenses which are consistent with usual gang activity.
Is identified as a gang member by physical evidence such as photographs or other documentation.
Has been stopped in the company of known gang members four or more times.71
While criticized for other reasons (such as the length of prison sentences72), the STEP laws did not make it a crime to wear gang symbols. Unlike the French law on face coverings, they did not give police the authority to fine or arrest anyone based on their appearance. In an article on preventing gang violence, activist Luis Rodriguez describes these punitive laws as ‘back end’ solutions that must be paired with community outreach by non-profit organizations and social service providers if any meaningful reductions in violence are going to be achieved.73 Perhaps France and other countries in Europe—which have a stronger social safety net than the United States—will eventually turn to these solutions, rather than drafting more laws on clothing.