Hijabs in the French courts

On 24 June 24 2019, the council of the Bar Association of Lille amended its rules of procedure by adding the following to the section devoted to “relations with institutions”: “An advocate may not wear with the robe any decoration or sign ostensibly manifesting a religious, philosophical, community or political affiliation or opinion”. A student advocate who wished to wear the hijab in court and her pupil-master each lodged an appeal against the change. (The French text, rather unhelpfully, describes her as wishing to wear “le voile ou le foulard”, though Reuters reports that the applicant, Ms Sarah Asmeta, wears the hijab.)

The case came before the highest civil court in France, the Cour de Cassation. The main questions before the Court were as follows:

  • Is the council of a bar association competent to prohibit, in its rules of procedure, the wearing of any sign manifesting a religious, philosophical, community or political affiliation or opinion, with court dress?
  • Does this prohibition by the bar association constitute an attack on freedom of religion and freedom of expression?

In its judgment of 2 March 2022, the Court came to the following conclusions. The Bar Council of Lille had been competent to act as it had. In the absence of a specific legislative provision and in the absence of a regulatory provision enacted by the National Bar Council, it fell within the remit of local bar councils to regulate the wearing and use of the costume of their profession. The Bar Council of Lille, therefore, had the power to modify its rules of procedure in order to prohibit the wearing of any distinctive sign with court dress.

The restriction of freedom of religion and expression was proportionate. By requiring its members to wear court dress without any distinctive sign, the Bar Council was contributing to ensuring equality between lawyers and, through that, to equality between litigants. The principle of equality was one of the constituent elements of the right to a fair trial. Prohibiting the wearing of a sign manifesting a religious, philosophical, community or political affiliation or opinion was therefore necessary and appropriate, on the one hand, to preserve the independence of the advocate and, on the other, to guarantee the right to a fair trial. The prohibition did not, therefore, constitute discrimination.

You can read the full text here: 2 mars 2022 Cour de cassation Pourvoi n° 20-20.185.

Cite this article as: Frank Cranmer, "Hijabs in the French courts" in Law & Religion UK, 3 March 2022, https://lawandreligionuk.com/2022/03/03/hijabs-in-the-french-courts/

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