the abaya back before the Council of State

Just two weeks after a first hearing, on September 5, the administrative judge will examine a new summary appeal (accelerated procedure) against the memo from Minister Gabriel Attal which prohibits the wearing of the abaya and qamis as clothing ostensibly displaying religious affiliation.

On September 7, the Council of State rejected the “freedom summary” on the grounds that the applicants did not provide proof that the measure carries a “serious and manifestly illegal infringement” to a fundamental freedom or respect for private life. This time he will have to look at a related action, a “referred suspension” which is based on substantive arguments and the competence of the minister. Three organizations approached the judge, the Sud-Éducation unions, La Voix lycéenne and Le Poing leva.

In the 35 pages of conclusions, the lawyers raise several arguments including that of the minister’s incompetence. According to Article 21 of the Constitution, regulatory power rests with the Prime Minister. Members of the government can take necessary measures to organize their service but they cannot enact new rules, a principle that Gabriel Attal’s note would have violated. For lawyers, the ban on these outfits has until now been based on an individual examination of situations which took into account in particular the behavior of the student.

Religious clothing “by nature”

The new memo establishes a “novatory rule” in that it brings abaya-type clothing into the field of religious symbols, implying their systematic ban. Failure of the minister to have regulatory power, “he was incompetent to enact the new rule”argue the lawyers.

On the merits, three main arguments are developed. By qualifying young girls’ dresses as religious clothing ” by nature “the government is committing a “manifest error of assessment”. The wearing of the abaya is not prescribed by Islamic texts and several Muslim authorities as well as researchers and theologians cited have taken a clear position to say that they are simple traditional but non-religious outfits.

Furthermore, this decision by Gabriel Attal would undermine the principle of separation guaranteed by the law of 1905 because “it comes from an assessment by the State of the religious character of an outfit”.

Discriminatory decision

During the first hearing, on September 5, the ministry representatives fought these arguments at length. In essence, they demonstrated that the State does not take over the definition of what is religious and what is not, a process which would in fact be contrary to the principle of separation. But it only notes that young girls themselves assume religious motivations, that the outfits are purchased on Muslim online sales sites and that Islamic influencers encourage them to dress in this way. If it is not the competence of the State to arbitrate what concerns dogma, precepts, it is its responsibility to prohibit clothing which immediately recognizes the religion of the person wearing it.

The lawyers’ third argument denounces the discriminatory nature of the decision which in practice amounts to prohibiting the wearing of long and loose dresses only for students. “perceived as Muslim”. In the absence of a strict definition of the abaya, the attribution of the Muslim character of the garment assumes “other criteria relating essentially, on the one hand to physical appearance in connection with the supposed origin of the students, on the other hand to true or supposed belonging to an ethnic group, an alleged race or a specific religion, whose assessment comes up against obvious discriminatory biases”.

In fact, the ministry has not given a precise definition of the abaya (cut, length, color, etc.) to avoid circumventions. The note sent on August 31 to school heads mentions the wearing of uniforms ” Of type “ abaya or qamis. A broad formulation which therefore leaves room, in fact, for assessment on a case-by-case basis.