An illegal move? Following Gabriel Attal’s announcement of the ban on wearing the abaya in schools, Manuel Bompard, coordinator of La France insoumise, announced his intention to occupy the Council of State.
“This rule will be contrary to the Constitution,” the rebels asserted. Is it really possible to ban this loose clothing that covers the entire body except the face and hands in universities and institutes?
“If Pap NDiaye had not been in the scope of the prohibition, it was for a good reason. We are in the process of having a very broad interpretation of the principle of secularism,” advances Patricia Rrapi, professor of Law in audience in Paris-Nanterre. with BFMTV.com.
Discussion around the religious character of the abaya
Gabriel Attal’s predecessor recalled in a circular that this garment could be prohibited if “it is worn in a way that ostensibly shows a religious affiliation”, without going any further.
The historian, now assigned to the Council of Europe, based himself on the 2004 law on secularism in schools. “In public schools, colleges and high schools, the use of signs or clothing by which students ostensibly manifest a religious affiliation is prohibited,” he read. Among them are all “ostentatious religious signs”, such as the kippah, the veil or the cross.
Problem to explain why Pap NDiaye had not gone further by simply prohibiting this clothing: the religious connotation of the abaya is debated.
“For me, the abaya is not a religious dress, it is a form of fashion,” said Abdallah Zekri, vice president of the French Council for Muslim Worship. Already in June, this body had considered that the abaya was not a Muslim religious sign.
“Knowing the meaning that this garment gives to whoever wears it”
The same story for Haoues Seniguer, a professor at Sciences-Po Lyon and a specialist in Islamism. “In the Arab context or in the Gulf countries,” “the abaya is not primarily or initially a religious garment,” he told AFP. “The best way to know if it is religious or not is to know the meaning that this garment gives to those who wear it,” he concludes.
In France, the use of the abaya, which is very recent (the first information on the academies dates from 2021), may have been encouraged, in particular, by the spread of viral videos on social networks, starting with the Chinese platform TikTok .
University and high school girls film themselves there, evoking their daily life, their music, their fashion, with very different reasons. Questioned by BFMTV, a young woman evokes “finding her pretty, wide,” ideal “to hide her shape” from her.
The necessary demonstration of an attack on secularism
Others, however, explain that they see it as a “way to deal with the 2004 law”, which prohibits the use of religious symbols in schools, as explained by Mediapart in November 2022.
“We are not just in a fashionable dress,” said Sonia Backès, Secretary of State for Citizenship, on our antenna this Monday night. “There we have clothing that only serves to mark religious affiliation.”
The Ministry of National Education should soon be able to rely on “a set of texts” to ban the abaya in all schools, before turning, most likely, to the Council of State.
“The government will have to prove that the abaya is or has become a religious garment. If the Sages find the demonstration convincing, this legal basis will necessarily fall within the scope of the 2004 law and will be considered legal,” deciphers the constitutionalist Paul Casia.
appeals very likely
“If Gabriel Attal does not demonstrate that this garment has a religious dimension, the general prohibition will not be able to work legally,” says this specialist in public law.
Asking a young woman to remove her abaya if it has a religious connotation, and not simply if she is wearing it, will then be up to the manager of the establishment, as is currently the case.
But even in case of approval by the Council of State, possible disputes can be expected.
“It is true that the families of the young women who wear it will argue about other dimensions, such as the fact that it allows a young woman with a complex to camouflage her forms”, advances professor of constitutional law Dominique Rousseau.
The jurisprudence on variable geometry of the Council of State
Another stone in the shoe for the government: “The unpredictable side of the Council of State in religious matters”, according to the jurist Bertrand Mathieu.
“On the burkini, the judges said one thing, on the issue of hijab-wearing women wanting to veil in the context of football competitions, they said another. It’s really hard to make a prediction on the abaya,” she explains. this constitutionalist.
Last June, the Council of State recognized that the French Football Federation, which prohibits the use of the hijab on the pitch, could adopt the rules it deems necessary for the “proper development” of the matches. Get it: keep banning the hijab on soccer fields.
But at the same time it considered that the players were not subject to the duty of “neutrality” and pointed out that the use of the hijab did not have the character of “proselytism” or “provocation”.
In June 2022, the Council of State opposed the new swimming pool regulations of the city of Grenoble which allowed women, in particular, to bathe in a burkini. The judges considered it a “very specific derogation” intended to “satisfy a religious claim.”
Source: BFM TV
