PART THREE: PROTECTING MINORITY RIGHTS PART THREE Matters relating to religious dress have proven a challenging subject for courts all over the world. In a widely publicized judgment delivered in 2014, the European Court of Human Rights considered whether French legislation that introduced criminal sanctions for the concealment of the face in public areas (the so-called burqa ban) was compatible with articles 9 and 14 of the European Convention.1001 While noting that the ban had the effect of limiting the right to manifest religion, the Court held that the ban was justifiable. The aim of “living together” was legitimate under the Convention, and the ban was both a necessary and proportionate means of achieving that aim, falling within the State’s margin of appreciation.1002 In 2018, the legitimacy of the ban was examined again, this time by the Human Rights Committee in the case of Yaker v. France.1003 In contrast to the decision of the European Court of Human Rights, the Committee found a violation of articles 18 (freedom of religion) and 26 (non-discrimination and equality before the law) of the International Covenant on Civil and Political Rights.1004 According to the Committee, the concept of “living together” was a “very vague and abstract” notion, and the French authorities had not demonstrated a rational link between the concept and the protection of the rights and freedoms of others.1005 Even if the authorities had done so, the State had not demonstrated that criminal sanctions were necessary or proportionate.1006 While the law was facially neutral, in that it did not explicitly target any particular religious group, it had a disproportionate impact on the enjoyment of rights by Muslim women. On this basis, the Committee held that the measures were indirectly discriminatory, ordering France to review its legislation to eliminate the discriminatory impact and provide reparations to the victim.1007 Other treaty bodies have examined the need to consider bans on religious hair or face coverings from the perspective of the equal enjoyment of rights, such as the right to privacy, to freedom of expression and to take part in the conduct of public affairs and the rights of minorities. The Committee on the Elimination of Discrimination against Women has expressed concerns in its concluding observations about the lack of information on the impact of the ban on wearing headscarves on women and girls and required that States monitor and assess this impact, in particular in relation to their access to education and employment.1008 The Committee on the Rights of the Child similarly has expressed concerns about rules prohibiting the wearing of headscarves by women and girls in government offices and in schools and universities.1009 OHCHR has issued guidance in this area, as follows: While, as repeatedly stated, nobody should be forced to wear a religious symbol, the arguments disregarding women’s voices concerning decisions to wear the veil, particularly the full-face covering veil, are considered by some as ignoring women’s agency and capacity to consent. Some argue that when dictated by social pressure, choice is not free. However, this argument could dangerously be extended to policing women’s bodies and dictating by law what women should or should not, inter alia, wear. While it is reasonable to state that the existing patriarchal system may lead women and girls to conform to societal expectations, even when they limit their freedom or perpetuate harmful stereotypes, it is questionable whether legal bans or restrictions, punishing the woman herself, would be the most appropriate response or whether they, instead, further marginalize and perpetuate discrimination.1010 Citing the Special Rapporteur on freedom of religion or belief, OHCHR has further noted that: limitations should neither be intended nor lead to explicit discrimination or camouflaged differentiation depending on the religion or belief involved. In the cases analysed, even when restrictions seem neutral, in practice they disproportionally affect Muslim women. More research would be needed 1001 European Court of Human Rights, S.A.S. v. France, Application No. 43835/11, Judgment, 1 July 2014. 1002 Ibid., paras. 157–159. 1003 Human Rights Committee, Yaker v. France (CCPR/C/123/D/2747/2016). 1004 Ibid., para. 9. 1005 Ibid., para. 8.10. 1006 Ibid., para. 8.11. 1007 Ibid., para. 10. 1008 See, for example, CEDAW/C/BEL/CO/7, paras. 18–19; and CEDAW/C/TUR/CO/6, paras. 16–17. 1009 See, for example, CRC/C/TUN/CO/3, paras. 36–37. 1010 OHCHR, “Human rights of women wearing the veil in Western Europe” (2019), p. 29. 145