What not to wear?
Kirstie Best, Subject Leader in Law discusses the legality of the burkini ban
What to wear, or not, on the beach is influenced by many things: weather, the purpose of the visit (sun bathing, paddling, surfing, and so on), one’s skin tone and body image. There may also be other factors — what’s an acceptable lack of attire on the naturist beach at Studland Bay isn’t acceptable at a seaside resort such as Bognor Regis. You do though retain a choice about what to wear, so on a sunny August day in Bognor beach-wear ranged from bikinis to burkinis, and from shorts and tee shirts to women wearing the hijab, tunic and trousers.
This freedom to choose what to wear (or not) in a public place contrasts markedly with France where the authorities in a number of areas have, in recent weeks, banned women from wearing the burkini.
This is an item of beach-wear designed, primarily, to allow Muslim women who wish to dress modestly to nevertheless be able to sun-bathe and swim. It’s also been marketed and sold to other women who want to cover up for other reasons, such as avoiding too much sun exposure.
In appearance, the burkini is very similar to wet suits and skin suits worn by swimmers and surfers, or sun suits often worn by children at the beach. The burkini has a tunic with a head (not face) covering — again, little different from the sort of wet suit that would be worn if scuba-diving or snorkelling.
The burkini ban recently lead to the bizarre spectacle of four police officers approaching a woman sun-bathing on a beach in Nice to require that she remove items of clothing or leave the beach. She appeared to be dressed in leggings and a vest, with a headscarf (not covering her face) and a wrap around her shoulders. The resulting image is an unedifying one — four men, at least two of whom were clearly armed, surrounding a woman and requiring her to undress, with the threat of sanctions if she didn’t comply.
Restrictions by the French State on what women can and can’t wear in public aren’t new. Since 2011 there’s been a ban on wearing the burqa and the niqab in public. What links these bans together is that it is women whose choice of clothing is regulated and, more precisely, Muslim women.
The justification for the burkini ban and the resulting appearance of the fashion police on French beaches is found in the Cannes decree, the source of the first burkini ban. This states that wearing a burkini is an ostentatious display of religious affiliation that threatens public order. An official went further and described the burkini as showing ‘allegiance to terrorist movements’. In response though, the ban has also been described as being a political message “tinted with Islamaphobia, racism and anti-religious feeling”. The ban has subsequently been extended to other seaside localities, and supported by the French Prime Minister who stated that the wearing of the burkini is incompatible with “the values of the French Republic”. In particular, this refers to the principles of secularism, neutrality and equality. The Prime Minister further described the burkini as subjugating women.
However, the legality of the burkini ban is questionnable, given the rationale behind it, and what seems to be an undue focus by the State on women and what they are allowed to wear. So far no men, quietly enjoying the sunshine on the beach with their families, have been told to remove clothing for reasons of secularity, public safety or gender equality.
Being free to choose what to wear relates to our sense of identity and personal autonomy, both of which are reflected in fundamental human rights.
Article 8(1) of the European Convention on Human Rights (ECHR) recognises everyone’s right to a private life. This includes freedom to choose how to live, including one’s appearance. Personal appearance can also be a form of expression. An obvious example is a tee shirt with a political or social slogan. In this context, clothing can be covered by Article 10(1) ECHR which recognises the right to freedom of expression.
In addition, Article 9(1) ECHR recognises a right to religious and conscientious belief both in terms of the having (holding) of that belief and its manifestation. This can cover the wearing of clothing or other items that symbolise that belief.
Linked to these three substantive rights is Article 14, the prohibition on discrimination. This protects against discrimination on various grounds, including gender, and is not free-standing but can only be claimed to the extent that the alleged discrimination also engages one of the substantive rights outlined above.
So, can what we wear be limited by the State or State-related authorities? Should it be? Articles 8, 9 and 10 are limited rights and the general criteria for their limitation is found in paragraph two of each Article. Basically, the right can be restricted if there’s a legal basis for the limitation (i.e. a clear law allowing it), a pressing social need (what’s also referred to as proportionality, to be decided on an examination of the facts), and a legitimate aim. The latter is specifically identified within the Articles as covering, inter alia, the interests of national security, and public safety, the prevention of disorder or crime, the protection of health and morals, and the protection of the rights and freedoms of others.
In SAS v France, a challenge to the 2011 ban in France on wearing the burqa or the niqab in public places, the European Court of Human Rights found that this ban was a legitimate restriction to Articles 8(1) and 9(1) because the full-face veil undermined social interaction and the French value of ‘living together’. The court found though that the ban would only be justifiable on grounds of public safety if there existed a general threat to society from the wearing of the item, which there did not. They also found that arguments as to gender equality couldn’t be used to stop women from wearing an item that they choose to wear.
When the burkini ban was challenged in the French High Court at the end of last month, the court suspended the ban in some localities on the basis that the burkini didn’t pose a threat to public order. This is in line with SAS and taken together they indicate that the ban on the burkini is not proportionate or for a legitimate aim as the burkini doesn’t conceal identity or hinder communication (the face is left uncovered), the wearing of it can’t plausibly be linked to problems of public order or terrorism (why would it, when it’s so similar to other clothing worn on the beach?), and a ban doesn’t protect gender equality (quite the reverse).
In trying to ban visible expressions of difference, the local authorities in France are potentially exacerbating divides in society. Through ‘protecting’ Muslim women against being forced to dress in particular way, the authorities are simply forcing them to dress in another way or be excluded from society. This also shows the fallacy of the argument that such bans are about protecting the unity of society. Instead, the local authorities are potentially stoking the tensions that they argue the ban is trying to dampen down, while giving religious significance to an item of clothing that has none.
 Ben Quinn, ‘French police make woman remove clothing on Nice beach following burkini ban’ The Guardian (24 August 2016).
 Angelique Chrisafis, ‘Human rights groups vow to challenge burkini ban on Cannes beaches’ The Guardian (12 August 2016).
 Angelique Chrisafis, ‘French PM supports local ban on burkinis’ The Guardian (18 August 2016).
 ‘Nice becomes the latest French city to impose burkini ban’ The Guardian (19 August 2016).
 (2015) 60 EHRR 11.
 Angelique Chrisafis, ‘French rightwingers call for extension of burkini ban’ The Guardian (26 August 2016).