PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW of the entity in question; the key question in determining whether policies that pursue such aims are justifiable is whether the means to achieve the aims are strictly necessary and proportionate. PART TWO – I This general position is subject to two important qualifications. First, an aim that is itself discriminatory or based on discriminatory stereotypes – for instance, relating to a woman’s “reproductive function” – is not legitimate.423 This condition can be read into the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of Persons with Disabilities, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights: the elimination of discrimination is central to the “object and purposes” of each of those instruments.424 Thus, for example, the Human Rights Committee has noted that – while identity checks may serve a legitimate purpose – they must not “be carried out in such a way as to target only persons with specific physical or ethnic characteristics”.425 Relatedly, “traditional, historical, religious or cultural attitudes” must not be “used to justify violations of women’s right to equality before the law”.426 The Committee on Economic, Social and Cultural Rights has noted that a refusal to hire women based on stereotypical assumptions constitutes discrimination.427 Similar jurisprudence exists at the regional level.428 In this regard, it is clear that the intent of an individual is not relevant to a finding of discrimination, and deferring to a client’s discriminatory preferences will not constitute a legitimate aim.429 Second, measures adopted must be appropriate: evidence must be provided to demonstrate that an adopted measure is in fact capable of meeting its intended aim.430 It must additionally be demonstrated that any measure adopted is proportionate to the aim pursued. A legitimate aim that is pursued by means that are not proportionate cannot be justified. Broadly, this requires that the harm caused by such a measure does not outweigh the benefit of achieving its objective. It also requires an assessment of whether the measure exceeds what is necessary to achieve the purpose. Thus, for instance, in Yaker v. France, the Human Rights Committee found that a de facto prohibition on the full-face veil could not be justified on public security grounds on account of “its considerable impact on the author as a woman”.431 423 See, for instance, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 20; and Committee on the Elimination of Discrimination against Women, Medvedeva v. Russia (CEDAW/C/63/D/60/2013), para. 11.3. 424 Indeed, this is self-evident on the face of the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention on the Elimination of All Forms of Racial Discrimination, which focus on the elimination of “all forms of discrimination”. The Committee on Economic, Social and Cultural Rights has noted that the right to non-discrimination is “essential to the exercise and enjoyment of economic, social and cultural rights”, while the Committee on the Rights of Persons with Disabilities has described the rights to equality and non-discrimination as lying “at the heart of the Convention”. On account of its object and purposes, the Human Rights Committee has stressed that reservations to article 2 (1) of the Covenant are not permissible. See, respectively, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 2; Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), paras. 4–5 and 7; and Human Rights Committee, general comment No. 24 (1994), para. 9. See also Committee on the Elimination of Discrimination against Women, “Statements on Reservations to the Convention on the Elimination of All Forms of Discrimination against Women” (A/53/38/Rev.1, pp. 47–50), paras. 6 and 16. 425 Human Rights Committee, Williams Lecraft v. Spain (CCPR/C/96/D/1493/2006), para. 7.2. For further discussion on this topic, see Committee on the Elimination of Racial Discrimination, general recommendation No. 36 (2020). 426 Human Rights Committee, general comment No. 28 (2000), para. 5. Relatedly, in Müller and Engelhard v. Namibia, the Committee held that “long-standing tradition cannot be maintained as a general justification for different treatment of men and women, which is contrary to the Covenant”. See Human Rights Committee, Müller and Engelhard v. Namibia (CCPR/C/74/D/919/2000), para. 6.8. 427 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 20. See also Committee on Economic, Social and Cultural Rights, general comment No. 16 (2005), para. 11. 428 For instance, the European Court of Human Rights has emphasized that “references to traditions, general assumptions or prevailing social attitudes in a particular country” are insufficient to justify an otherwise discriminatory measure. See European Court of Human Rights, Konstantin Markin v. Russia, Application No. 30078/06, Judgment, 22 March 2012, para. 127. In Morales de Sierra v. Guatemala, the Inter-American Commission held that the “gender-based distinctions” that had been upheld “as a matter of domestic law essentially on the basis of … respect for traditional Guatemalan values, and … the need to protect women in their capacity as wives and mothers” could not be justified. See Inter-American Commission on Human Rights, Morales de Sierra v. Guatemala, Case 11.625, Report No. 4/01, 19 January 2001, paras. 31, 37 and 39, at 37. 429 See, for example, Court of Justice of the European Union, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, Case C-54/07, Judgment, 10 July 2008. See also the discussion of intent in section I.A.2(b) of part two of the present guide. 430 See, for instance, Human Rights Committee, Yaker v. France (CCPR/C/123/D/2747/2016), paras. 8.7 and 8.15; Human Rights Committee, Fedotova v. Russian Federation (CCPR/C/106/D/1932/2010), para. 10.6; African Commission on Human and Peoples’ Rights, Good v. Republic of Botswana, communication No. 313/05, Decision, 12–26 May 2010, para. 224; Court of Justice of the European Union, Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, Case C-414/16, Judgment, 17 April 2018, para. 66; and European Court of Human Rights, Konstantin Markin v. Russia, Application No. 30078/06, Judgment, 22 March 2012, para. 144. 431 Human Rights Committee, Yaker v. France (CCPR/C/123/D/2747/2016), para. 8.8. 55