The latest laïcité clothing controversy in France: Why the 2004 law should be repealed

France’s law banning the wearing of items of clothing or symbols that express a religious affiliation in public schools has come back to haunt us once again with the latest controversy over abayas (and qamis, I'll return to this later). The law turns twenty next year. This is an opportunity to look back at the law itself, and to consider its effects on society and politics.

One of the main functions of a law is to calm the social fabric by resolving the issues that cause tension and thus generate conflicts.

Let's start with a brief overview of how the law was drafted. It was adopted in 2004 'in application of the principle of secularism', which is itself a pillar of the construction of the French nation-state, and in the wake of the Creil affair in 1989 when three young girls were expelled from their school after refusing to remove their headscarf in class.

The question that the 2004 law was meant to put to rest is the following: does the fact of expressing at school, and therefore in the common space of the Republic, through the wearing of a garment (or a sign) one's belonging to a religion, and therefore to a particular body, jeopardise living together, which presupposes recognising oneself as a full member of a more general body - France.

Has the law put the issue to rest?

Twenty years on, it must be said that the law appears to be fuelling rather than resolving conflicts. Its main effect seems to be to have repeated the original situation that prompted the law’s development in the first place, thus endlessly extending the list of items of clothing to be stricken by the republican ban: the veil, the bandana, the long skirt, the burkini, the burqa and, most recently, the abaya...

A law that locks us into a repetitious scenario, with no prospect of a peaceful resolution, is, quite simply, a deadly law.

Perhaps, then, it's time to admit that the response that the 2004 law afforded to the question of how to live together was not the right one. It consisted of reversing the burden of responsibility that lies at the heart of the principle of secularism, by placing it on the shoulders of schoolchildren rather than on those of the employees of the state: it is up to these children to show discretion in their dress, and thereby demonstrate their ability to live together.

The 2004 law enshrined an intransigent and narrow secularism, so insecure that it cannot accommodate the expression of differences. This version of secularism is also based on a presupposition, or rather a fantasy that is widely shared but less commonly admitted by its proponents, that, if they are stifled long enough, these differences will eventually disappear, producing a smooth, homogenous social body.

And yet, far from erasing the expression of Islam in our society, the 2004 law has only increased its visible expression tenfold.

It is worth pointing out that the 2004 law went against the grain of the Conseil d'Etat, the council of sages of the Republic, which, when the matter had been referred to it by the Minister of Education during the Creil affair (in 1989), had, to the contrary, established that 'the wearing by pupils of signs by which they intend to manifest their adherence to a religion is not in itself incompatible with the principle of secularism'; adding that public education should be "provided with due respect" for "the neutrality of all public services" and "the freedom of conscience of pupils" (Avis du Conseil d'État No 346963, 27 November 1989).

In the early 2000s, the law was already a key instrument in the crusade of what the anthropologist of religions and specialist in Islamic issues Bruno Étienne (who also happened to be my uncle) called 'the fundamentalists of secularism'. This narrow secularism inverts France’s true secularism, enshrined in the law of 1905, which imposes an obligation of neutrality upon the agents of the State – hence upon the adults, rather than on the Republic’s children. This neutrality is what makes living together possible, what makes it possible to form a social and political body across and beyond differences. It was never intended to stifle differences, including those expressed in dress.

What good is a law that, far from bringing appeasement, only fuels the desire to break it? That's the nature of coercive laws. What is certain is that this one has only whetted the appetite for finding ways around it. Hence it’s time to ask whether a law that has ceaselessly fuelled attempts to get around it – with the bandana (which was once used to replace the veil, before being proscribed), the long skirt, and now (we're told) the abaya - is really the law France needs.

With its latest controversy, crafted by the government out of thin air with a ministerial circular asking school masters to police the wearing of abayas (and qamis), the government is deliberately pressing the transgressive button that inheres in all coercive laws.

Those who focused on the abaya rather than the qamis were not mistaken: despite the education minister Gabriel Attal's last-minute addition of this male garment to give the appearance that the government (unlike the religious fundamentalists!) is playing into the hands of gender equality, it is first and foremost the woman's body and what she wears that is being policed with this law and its minor adjustments. Worse still, it is the possibility that through this body she can - yikes! - express her desire. Including the desire to wear the veil.

The ultimate irony is that the 2004 law is a poor implementation of a framework that we all agree to defend.

The article was originally published as a blogpost on Mediapart in French.