Asmeta vs. France: France’s ban on female Muslim lawyers wearing the hijab in court is taken to the European Court of Human Rights
Sarah Asmeta, a French-born and fully qualified lawyer who chooses to wear the hijab (a headscarf worn by Muslim women) filed her case with the European Court of Human Rights after the Court of Cassation (France’s highest court of appeal) dismissed his appeal on March 2, 2022, upholding a ban from the Lille Bar that prohibits French lawyers from wearing the hijab or other marks of faith in court. The Court of Cassation said the ban was necessary to guarantee “the independence of lawyers”, “the equality of citizens” and the “right to a fair trial”.
Ms. Asmeta holds an undergraduate degree and several master’s degrees. She has also worked at the International Criminal Court. The effect of Court of Cassationis that she is effectively barred from practicing in the area of criminal law she has chosen and is limited to practicing in cases or areas of law that do not require her to represent clients before the courts, which is both financially and professionally detrimental to his legal career. If Ms Asmeta were to appear in court wearing the hijab to represent her own clients, she would be suspended and eventually disbarred.
Rabah Kherbane is part of the legal team representing Ms Asmeta in her appeal to overturn this ban at the European Court of Human Rights.
Over the weekend, the team filed Ms Asmeta’s case against France before the European Court of Human Rights, claiming violations of Articles 6, 9, 10, 13 and 14 of the European Convention human rights.
It is argued that the ban is a violation of these rights, including by:
- Article 6 (right to a fair trial) – The prohibition undermines the independence of lawyers in private practice who are not civil servants, not covered by the classic definition of secularism, and therefore should be free from this kind of state interference (real or perceived), as well as able and seen to be able to act freely, independently and fearlessly on behalf of clients. The ban also presents an unjustified limitation of the right to choose a lawyer and an attack on the equality of arms between lawyers.
- Article 9 (freedom of religion) – The ban constitutes an unjustified interference with the right to freedom of religion which does not pursue a legitimate aim and is neither necessary nor proportionate. Among other things, the allegation that wearing the hijab impairs the applicant’s independence as a lawyer is unfounded and erroneous, the ECHR does not allow states to preemptively allege lack of independence profession without any evidence of lack of independence, and there is no correlation or causation between bias or lack of independence and wearing the hijab. On the contrary, state interference in this mission precisely undermines the perceived independence of lawyers, and any inability to treat lawyers equally due to religious signifiers would suggest discrimination on the part of the court and not a fault of the lawyer.
- Article 14 (prohibition of discrimination) – The prohibition constitutes indirect discrimination and indirect intersectional discrimination because the plaintiff is treated less favorably than other lawyers because of the protected characteristics of gender/sex and religion.
In addition to Rabah, Ms Asmeta’s legal team includes Clara Gandin (1948 Lawyers), Dr Christina Lienen (Cornerstone Barristers), Daniel Grütters (One Pump Court) and leading academics Dr Stephanie Berry, Senior Lecturer in International Human Rights Law at the University of Sussex, as well as Dr Shreya Atrey, Associate Professor of International Human Rights Law at the University of Oxford. The team is managed by Sultana Tafadar QC (No. 5 Chambers).