October 31, 2024
By Cathérine Van de Graaf, Eva Brems and Stéphanie Hennette-Vauchez
The Human Rights Centre[i] of Ghent University, joined by prof. Stéphanie Hennette-Vauchez (Université Paris Nanterre) submitted a third party intervention to the European Court of Human Rights (ECtHR or the Court) in the communicated case of F.D. and I.M. and three others v. France (38506/23, 38578/23, 38650/23 and 38651/23), after being granted leave to intervene by the President of the Court’s Fifth Section.
This case revolves around the claim of a group of applicants under the name ‘Les Hijabeuses’ with which they sought to annul the decision of the French Football Federation (FFF) that prohibits the wearing of religious signs or outfits by football players as part of article 1 of the statutes of the FFF. The French Council of State (Conseil d’Etat) rejected their request and motivated this conclusion as follows:
‘(…) 12. A delegated sports federation has regulatory powers in the areas defined by [the French Sports Code] for the organisation and operation of the public service entrusted to it. As such, it is responsible for determining the rules governing participation in the competitions and events it organises or authorises, including those which, during matches, ensure the safety of players and compliance with the rules of the game, as may be the case with equipment and uniform regulations. These rules may legally have the purpose and effect of limiting the freedom of those licensees who are not legally bound to respect the principle of neutrality of the public service, to express their opinions and beliefs if this is necessary for the proper functioning of the public service or the protection of the rights and freedoms of others, and is appropriate and proportionate to these objectives.
13. As a result, the Federation was legally able to prohibit “any speech or display of a political, ideological, religious or trade union nature” and “any act of proselytising or propaganda manoeuvre”, which are likely to hinder the smooth running of matches.
14. Furthermore, the ban on “the wearing of signs or clothing ostensibly expressing a political, philosophical, religious or trade-union affiliation”, limited to the time and place of soccer matches, appears necessary to ensure the smooth running of matches, in particular by preventing any confrontation or confrontation unrelated to sport. Consequently, the French Football Federation was legally entitled, by virtue of the regulatory power delegated to it for the smooth running of the competitions for which it is responsible, to enact such a ban, which is appropriate and proportionate (…)”.’
The applicants argue that this prohibition violates their rights under the European Convention on Human Rights, in particular Articles 8 (right to respect for private and family life) and 9 (freedom of thought, conscience, and religion) taken alone and in conjunction with Article 14 (prohibition of discrimination).
The case of F.D. and I.M. and three others v. France raises significant questions regarding the neutrality requirements imposed on private individuals, especially in the context of French laïcité. The Court has ruled that bans on religious dress that apply to ‘simple citizens’ constitute a disproportionate infringement on religious freedom.
Traditionally, the principle of laïcité in France has been interpreted as placing obligations of religious neutrality primarily on public authorities, not private individuals. The obligations of religious neutrality derived from the principle of laïcité, as it was understood and interpreted at the end of the 19th century and throughout most of the 20th century, primarily applied to public authorities. Civil servants and public agents, as well as official buildings embodying the State, were bound by strict rules of religious neutrality. Private individuals enjoyed freedom of expression and religion, constrained only by public order. In fact, Article 1 of the 1905 Act on the separation of Churches and the State – the Act that is often considered to be the source of the French republican tradition of laïcité – makes it an obligation of the Republic to ‘guarantee’ the ‘freedom of worship, limited only by [the following rules] in the interest of public order’. Against this background, recent bans and restrictions should be read as exceptions to a liberal rule rather than as the rule itself. The European Court of Human Rights has considered restrictions to the expression of religious beliefs in the name of ‘laïcité’ or ‘neutrality’ as compatible with requirements under the European Convention on Human Rights, due to the necessary leeway awarded to national decision-makers in matters pertaining to the relationship between the State and religions, the imperatives of laïcité in schools and the ensuing margin of appreciation, as well as the preservation of the rights of others. Two acts have been considered by the Court as compatible with requirements under the Convention: the 2004 Act, which prohibits religious symbols in public schools and the 2010 Act, known as the ‘burqa ban,’ which forbids face coverings in public spaces. At the same time, and precisely because they have until recently been barred by national jurisdictions, the Court has not yet ruled on any individual neutrality requirement not based on a legislative Act.
In the present case, the impugned rule of neutrality has not been authorised by the legislature. It therefore constitutes the first and only case in which such a broad infringement on religious freedom – one that results in prohibiting private individuals engaging in sports practice as licensees of an official sports federation– results from the internal rule of a private organisation. Before the current case, French jurisprudence allowed for neutrality obligations on private individuals only when imposed by way of legislation. Courts had previously struck down administrative measures imposing such requirements beyond public schools. Article 1 of the 1905 Act guarantees freedom of worship limited by public order, indicating that restrictions should be exceptions rather than norms. The current case marks a departure from established norms, with the French Football Federation (FFF) imposing neutrality rules without legislative backing. The Conseil d’Etat justified this by labelling the FFF as fulfilling a public service role, thus allowing its internal rules to carry the weight of public law. This contrasts with previous cases where only legislation had authorised religious neutrality. The argument asserts that such vague justifications for neutrality do not align with historical legal frameworks.
The intervention emphasises the need for the European Court of Human Rights to be cautious in upholding broad restrictions on religious expression in this context. The potential for these measures to contribute to the growing political Islamophobia in France is significant. The case should be seen within a larger societal context, where concerns regarding religious expressions, particularly Islam, have risen in reaction to political and social pressures, including events like the 2015 terrorist attacks. It is stressed that the Court has already expressed concern for this phenomenon – such as in its 2014 S.A.S. v. France ruling, when it emphasised ‘that a State which enters into a legislative process of this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance’. The submission urges the Court to establish firm boundaries for restrictions on religious expression, emphasising the right to manifest one’s religion as protected under Article 9 of the European Convention on Human Rights. The ruling could set a precedent influencing how laïcité is interpreted and applied, particularly concerning minority groups. In fact, the specific timeline of the emergence of anxieties related to the expression of religion in sports, strengthens this necessity. The present case serves as a critical juncture for evaluating the balance between state-imposed neutrality and individual religious freedoms in France. The shift towards imposing neutrality on private individuals risks undermining the foundational principles of freedom of expression and worship that are central to a pluralistic society. In conclusion, in the intervention, it is submitted that, rather than it has to do with the French republican and constitutional tradition of laïcité, the case echoes the broader problematic of Islamophobia that exists in France as well as other member states.
This expansion of the French tradition of laïcité significantly reduces individual freedoms, particularly impacting Muslim women and girls who choose to wear the hijab. The Conseil d’Etat approved this rule despite a stern warning from its rapporteur public, who cautioned against interpretations that could undermine the liberal principle of personal autonomy, which encompasses an individual’s right to choose and express their beliefs freely, provided they do not infringe upon the rights of others. The Conseil d’Etat itself issued a press release acknowledging the backlash it faced, including hate directed at its institution and rapporteur public due to the latter’s recommendation to overturn the ban on religious signs in football. In cases where rights-restrictive measures disproportionately affect marginalised minorities, human rights courts must exercise heightened vigilance and employ robust scrutiny of both the stated aims of these measures and their proportionality.
One essential aspect of this scrutiny involves examining the legitimacy of the aims behind the restrictive measure. The primary justification for the ban on religious signs in French football is the need to ensure the smooth running of matches and prevent conflicts unrelated to the sport. However, it is crucial for the Court to assess whether concrete evidence exists to substantiate the risk of such conflicts. An illusory or hypothetical risk that is beyond the individual’s control should not serve as a basis for restricting rights. Judges Spanó and Karakaş highlighted the necessity of concrete harm that justifies restrictions on human rights in their concurring opinion in Belcacemi and Oussar v. Belgium. Regarding hijabs in football, the 2015 decision by FIFA to lift its ban on headgear—specifically due to its discriminatory impact on Muslim women and girls—suggests that the need for such a ban is not widely accepted and may be difficult to substantiate. Before endorsing a ban on religious signs in sports, it is vital for the Court to rely on credible evidence demonstrating a serious issue regarding confrontations caused by individuals wearing such signs. Any conflicts arising from Islamophobia or other forms of hatred cannot justifiably be attributed to those targeted by such sentiments.
In addition, the proportionality of the national authorities’ assessment of the restrictive measure warrants careful examination, particularly in cases affecting marginalised minorities. A key question is whether these authorities have sufficiently considered alternative measures that would interfere less with individual freedoms. Football, as a sport, frequently experiences minor altercations and even violent conflicts among players, which referees manage through immediate and appropriate interventions. If players behave in unacceptable ways, referees have the authority to intervene and impose suspensions as needed. However, the current ban on religious signs pre-emptively excludes hijabi women from participation, which is a far-reaching measure. The rationale for such a broad prohibition is unclear, especially when less restrictive alternatives are available. If the aim is to prevent conflicts on the football field, referees already possess the means to address potential issues within the established framework of the sport. The principle of subsidiarity suggests that the Court should require national authorities to investigate and justify why existing regulations cannot adequately ensure the smooth running of games. Moreover, when confrontations arise due to a prejudiced player or third party, it is essential for the referee to remove the instigator rather than the individual being targeted. Failing to do so would contradict the obligations outlined in Article 1 of the Statutes of the French Football Federation, which mandates preventing discrimination and protecting individual dignity concerning various characteristics, including gender, ethnic origin, and beliefs.
The Court’s review process also necessitates assessing the quality of human rights reasoning employed by domestic decision-makers in both legislative and judicial processes. In this context, two significant aspects of the case should be highlighted. First, the current ruling represents a departure from established case law, which necessitates that domestic courts provide sufficient explanations when they reverse previous judgments that awarded compensation. Second, the Conseil d’Etat’s decision starkly contrasts with the rapporteur public’s recommendation against the ban, which is based on extensive motivations and references to the European Court of Human Rights’ case law. A qualitative review should prompt the Conseil d’Etat to engage with the rapporteur’s arguments substantively or, at the very least, to clarify how its interpretation of the Convention justifies the opposite outcome. Overall, the Court is invited to scrutinise whether the Conseil d’Etat has adequately justified its shift toward a more restrictive interpretation of rights.
The case at hand requires an analysis under both Article 9 and Article 14 in conjunction with Article 8 of the European Convention on Human Rights (ECHR), with particular emphasis on gender discrimination. The concept of intersectionality, which originated in U.S. anti-discrimination law, highlights how overlapping identities—particularly for marginalised groups—can compound discrimination. In this context, the intersectional subject in Europe often becomes the hijabi Muslim woman, who faces unique challenges due to both gender and religious identity.
Bans on religious dress, such as headscarves, disproportionately affect Muslim women and girls in football, while other forms of religious expression, especially those by male players, remain unchallenged. This selective targeting raises concerns about implicit biases in how these rules are formulated and enforced. For instance, we demonstrate that male players often express their religious beliefs on the field without consequence, as seen through gestures like prayers or visible tattoos, while women wearing hijabs face restrictions.
The prevalence of male football players’ religious expressions, which reach a wider audience, diminishes the credibility of the rationale for banning headscarves. Moreover, the indirect discrimination faced by female players due to these bans cannot be justified. Arguments that the wearing of hijabs is more likely to provoke conflict ignore the societal prejudices that contribute to such tensions. It is unreasonable to suggest that the hijab poses an inherent risk for confrontation, especially when other religious expressions remain unregulated.
In conclusion, the disproportionate impact of the ban on Muslim women and girls should be acknowledged, and the Court is invited to recognise the intersection of gender and religious discrimination.
The full third party intervention in the case as well as the annex can be found on the website of the Human Rights Centre.
[i] For the Human Rights Centre, the team consists of Prof. Dr. Eva Brems and Dr. Cathérine Van de Graaf, joined by Prof. Dr. Stéphanie Hennette-Vauchez (Université Paris Nanterre).
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