Case Watch: A New Perspective on France’s Ban on Religious Headcoverings in Schools

France’s 2004 law banning the wearing of conspicuous religious symbols or clothing in public schools has always been controversial. Intended to promote the French constitutional principle of secularism, the law primarily ignited debate around its application to Muslim female students wearing variations of the hijab, or Islamic head scarf. But Jewish and Sikh students have also been affected by the law, since their religious practice may also require them to wear hair or head coverings.

Sikh students have challenged the ban multiple times before the European Court of Human Rights, Europe’s regional human rights tribunal, but the court has never agreed to hear their claims. This unsympathetic response makes the decision rendered by the UN Human Rights Committee in Singh v. France in November last year during its 106th session all the more impressive—and important for religious freedom.

Singh v. France was brought before the UN Human Rights Committee in 2008 by Bikramjit Singh, an Indian national of the Sikh faith, who resides in France. Singh was a student at a lycee (high school) and had worn his keski to school before the law was passed. A keski is a small light piece of material, often used as a mini-turban, covering the long uncut hair considered sacred in the Sikh religion. It is frequently worn by young boys as a precursor or alternative to a larger turban, and is an essential element of the Sikh religion.

Before the start of the academic year, the Sikh community met with the school to discuss how the new law would affect Sikh students. Singh arrived at school in his keski, which his family considered a compromise between the requirements of his ethnic and religious traditions and the principles of secularism. In response the school refused to let Singh enter his classroom. It kept him separate from other students without instruction for three weeks, and ultimately expelled him.

In his complaint to the UNHRC, Singh alleged that he was subjected to discriminatory treatment on account of his religion and/or ethnic origin. He also alleged that his expulsion infringed on his right to freely manifest his religion, and that he had been deprived of his right to privacy. Singh noted that even if he had removed his keski his uncut hair would remain a visible symbol of his faith.

The committee first noted that wearing a keski is a religiously motivated act. Therefore prohibiting it is a restriction of the freedom of religion (International Covenant on Civil and Political Rights, Article 18, paragraph 1). The committee then examined whether the limitation on Singh’s freedom was necessary and proportionate to the end sought (ICCPR Article 18, paragraph 3).

The committee found that for Sikh males, wearing a keski is not simply a religious symbol, but an essential component of their identity and a mandatory religious precept. The committee agreed that a state may restrict a person’s freedom to manifest his religion, but only if it is detrimental to public order or the fundamental rights and freedoms of others.

While the committee acknowledged that promoting secularism can protect overall religious freedom, it found that the state had not shown that by wearing his keski Singh posed a threat to the rights and freedoms of other pupils. Nor did Singh pose a threat to order at the school. The limitation was therefore not necessary.

The committee also held that Singh’s expulsion from school was a disproportionate punishment that had serious effects on Singh’s education. The state imposed this harmful sanction, not because Singh’s personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct.

Although France asserted that broadly extending the restriction simplified its administration, the committee ruled that France had not shown how the sacrifice of those persons’ rights is necessary or proportionate to the benefits achieved. Accordingly, the committee found a violation of Article 18. It chose not to address Singh’s discrimination claim under Article 26, and found his Article 17 claim of right to privacy inadmissible.

The UNHRC’s decision stands in stark contrast to the case-law currently established in identical issues by the European Court of Human Rights. In the cases Ranjit Singh and Jasvir Singh v. France the applicants also did not remove their keskis, were not allowed into their public school classrooms and, after failed negotiations between the parents and school, were expelled.

Before the European Court, the applicants complained that the ban on headwear violated the right to manifest their religion (European Convention on Human Rights, Article 9) and their right to education (Article 2, Protocol 1). The court declared the applications inadmissible. It held that the state’s interference with the pupils’ freedom to manifest their religion was prescribed by law and pursued the legitimate aim of protecting the rights and freedoms of others and of public order. In doing so the European Court accepted the French government’s contention that a public order issue existed, without actually scrutinizing the claim.

The court emphasized the state’s role as a neutral organizer of the exercise of various faiths and its assumed task of protecting the constitutional principle of secularity. It also seemed to accept the idea that this gave the state wide discretionary decision-making power (or margin of appreciation) as organizer.

As to the punitive character and impact of the expulsion from school, the ECHR ruled that it was proportionate to the aims pursued. The applicants could continue their schooling by alternative means, such as by correspondence courses or attending a private school.

Tellingly, the European Court did not balance the impact on the Sikh pupils’ educational career and their exclusion from the society of their peers, against their supposed impact on public order and neutrality.

This line of reasoning from the European Court can be traced back to a score of cases concerning the right to wear conspicuous symbols of religious affiliation in the context of education and public office. The court has a history of deferring to states’ conclusions that wearing religious symbols interferes with public order, the rights of others, or the neutrality of the state—even when this conclusion is reached without any analysis of the real world effects of the actions in question.

Given this background, the UNHRC decision in Singh v. France represents an important step forward towards a more balanced approach regarding equal treatment and freedom of religion. Even though the committee chose not to rule on Singh’s discrimination claim, its affirmation of his right to express an essential element of a minority group identity is an important step towards shoring up minority rights and contributing to an inclusive and diverse society. The case ties into the Open Society Foundation’s work towards building a more tolerant Europe where people of all backgrounds, cultures, and religions can feel at home—who are accepted for who they are and not forced to assimilate with the ruling majority.

In particular, this decision is a victory for children of minority religions whose access to state-funded education might otherwise be denied because of their compliance with their family’s religious beliefs. It is now up to France to properly implement this decision, and it will be interesting to see how it will reconcile it with conflicting European jurisprudence.