Society has changed enormously in recent months. The world is under the spell of a pandemic. New manners and customs are appearing, such as no physical contact with others, new ways of greeting each other, social distancing and wearing face masks or alternatives is becoming the norm in public spaces. When it comes to this issue, the WHO is clear: wearing a medical mask can limit the spread of certain respiratory viral diseases, including COVID-19. That is why some European countries, including Belgium, are recommending that all people wear them. In some places masks are even mandatory. Belgium is currently in a state of emergency that gives the government special powers to pass decrees, such as a recent one on face masks: “Wearing a face mask or any other fabric alternative to cover the mouth and nose is permitted for health purposes in places accessible to the public".

From a human rights perspective, the latter trend is particularly interesting, especially if we take into account the fact that in some European countries wearing full-face veils in public spaces is prohibited by law and can lead to sanctions (i.e. fines, prison, administrative fines). Equinet worked on a report that showed that such prohibitions also exist in France and Belgium.

When it comes to Belgium, the Criminal Code bans face-coverings. This ban stipulates that those who are present in places that are accessible to the public with their faces completely or partially covered or hidden, such as not to be recognizable will be punished with a fine of between EUR 15 to 25 and/or detention of 1 to 7 days. Exceptions are made for work-related clothing requirements, festive events (such as carnival and Halloween) or other, overriding laws (such as traffic law). Health reasons are not cited as an exemption. Although the ban is formulated in general terms, it is clear from the parliamentary preparations that the ban was primarily introduced to sanction those wearing a burqa or a niqab.

Many human rights lawyers can no doubt remember the decisions of the European Court of Human Rights (ECtHR) about the ban on full- face veils: S.A.S v. France, Belcacemi and Oussar v. Belgium and Dakir v. Belgium. As a reminder, several arguments were invoked by France and Belgium to justify the bans when challenged with reference to  amongst others the freedom of thought, conscience and religion as protected by article 9 of the European Convention on Human Rights: public security, dignity of women and equality between women and men and ‘living together’. According to that last argument, it is essential to be able to identify a person in order to live together. In order for a society to exist, a social link is needed. And in order for a social link to exist, it is necessary to be recognizable and identifiable. The human face is the instrument of identification and socialization. In this context, it is argued that the full-face veil is a refusal of any human exchange and the ban is fundamental for people to be able to live together.

The ECtHR only retained ‘living together’ as a legitimate aim, to the amazement of many human rights specialists. In the words of the ECtHR: The State proposed that wearing clothing that conceals the face in public was incompatible with the ‘ground rules of social communication’. ‘From that perspective, the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society. It can thus be said that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society’ (S.A.S v. France paras 128, 153 and 154).

This led to many (written) interventions by human rights specialists that criticized the weight given to the argument of living together to restrict fundamental human rights, such as the freedom of religion and the principle of non-discrimination.

Those judgments were pronounced in a completely different context compared to today. The question is, therefore, whether the argumentation of banning full-face veils for “living together” makes sense?  

Unia has been questioned about the contradiction that is created by the full-face veil ban in the current pandemic situation. For example, Unia was asked whether the general ban on wearing full-face veils can be maintained, taking into account the “new covid decrees” on face masks and alternatives. All the more so since it is not specified what counts as an acceptable mask. The answer is obviously no, which makes the ban on full- face veils unenforceable in the current situation. Fining women who wear a face veil for religious reasons would therefore constitute religious discrimination. However in France, religious face coverings remain banned, while wearing a face mask in public is mandatory to avoid further spread of the COVID-19 disease. This calls into question the real intentions behind this ban. This intention can also be questioned with regard to the Belgian ban, as it turns out that Asian tourists who wore face masks in public places, before the pandemic, were never fined. This shows again that Muslim women who wear a religious face veil have been targeted from the beginning even if the ban is formulated in general terms.

Another report that Unia received was questioning whether the ban is necessary considering the current pandemic and the advantages of  face masks for the public health.  

We can indeed ask ourselves whether the argument of ‘living together’ as a legitimate aim to limit fundamental human rights does not reach an essential limit here, especially in a context where wearing facial clothing (face masks or alternatives) is actually encouraged and in some places even mandatory, in order to protect the rights of others.

The ECtHR rulings provided almost no analysis of what the concept of ‘living together’ entails. The subjectivity of the notion is painfully demonstrated by the current pandemic. For example based on a survey conducted in Flanders, it now appears that a quarter of the Flemish people find it “problematic to very problematic” that people do not wear a face mask in shops and supermarkets and that for a part of the population the mask has become a symbol of exemplary behavior. Wearing face masks, and therefore covering your face, has become a condition for living together. The necessity of wearing face masks or alternatives in the current situation is clear: wearing face masks is necessary to protect others and especially to protect vulnerable members of society. The pandemic has shown us that the obligation to uncover our face is not necessary to socially interact, contrary to what has been highlighted in the past to limit the freedom of some Muslim women. Women who wear religious face veils are now in a stronger position because of the new legislative initiatives regarding face masks. It makes us wonder how the ECtHR would rule on the same topic in the current context.