When Muslims argue against the “burkini ban” on grounds of “freedom of choice,” they are being inconsistent.
All societies regulate dress and impose standards of dress in one way or another. They might not always do it through explicit laws banning garment X or mandating garment Y. Most often it is done through social pressure.
For example, the reason so many Muslim women in the West decide to take off the hijab is due to social pressure. By wearing the hijab, they feel like fish out of water. They feel the stares from strangers and it makes them uncomfortable. Maybe they have secular relatives that bug them about it and pressure them to not wear it. Little things like that accumulate until they decide to take off the hijab or change their dress in other ways to conform to social standards. In this way, society controls how people dress and when it comes to Muslim garb, these controls are quite powerful and relentless.
So this whole notion of “free choice” makes no sense in context of these powerful social pressures. People might experience their choices as self-generated even though the truth of the matter is that people typically choose from the limited options social circumstances allow.
But that’s not the point I want to make here. The point I want to make is that Muslims, too, should want to exert social control. In the ideal society of a Muslim, dressing according to God’s standards is the norm. And even if in this ideal society there are no overt dress codes enforced by the law akin to what you find in Saudi or Iran, there is still going to be social pressure of a religious bent. In that ideal society, the women in the bikinis and tight skirts are the fish out of water and they will feel the pressure to dress like everyone else around them. In this way, Islamic religious norms would be imposed in much the same way Western standards of dress are imposed today.
So what is the ideal society Muslims envision? Is it not the society of the Prophet ﷺ? Even if we suppose that the early Muslims abided by a strict secularism and did not have overt regulations policing the dress of Muslims and non-Muslims in public like we find in today’s Saudi or Iran, we still know that the majority of people in that society dressed conservatively according to Islamic norms. And wouldn’t those norms put a lot of pressure on everyone, Muslims and non-Muslims, to dress similarly? Wouldn’t that amount to social control and religious imposition, i.e., exactly the kind of imposition secularism and these freedom of choice arguments eschew?
The only way to avoid that inconsistency is to either deny the validity of the freedom of choice arguments and stop using them when convenient OR to deny that the society consisting of the Prophet ﷺ and the Sahaba was ideal.
Put it another way. The kind of society that is implied by a commitment to freedom of choice does not exist, cannot exist even in theory. And if it could exist, it would not look like the kind of society Muslims value and aspire to. For these reasons, freedom of choice should not be invoked whenever hijab or other aspects of Islamic garb come under fire.
Consistency is important.