Veil of Discord: France’s Approach to Religious Clothing Condemned by the United Nations Human Rights Committee
In three decisions issued on 10 August 2018 and 23 October 2018, the United Nations Human Rights Committee (UNHRC) found that France violated rights guaranteed under the International Covenant on Civil and Political Rights (ICCPR), because of its treatment of Muslim women wearing religious clothing.
In the first case, an educational childcare centre employee was fired for violating the centre’s policy on secularity and neutrality by wearing an Islamic veil. She challenged the decision before the French Courts. The Cour de cassation found that the restriction on the freedom to manifest one’s religion as set down in the centre’s internal regulations was sufficiently precise, justified by the nature of the tasks performed by the employees of the association (i.e. caring for young children who are naturally susceptible to influence) and proportionate to the aim pursued. The applicant brought a complaint before the UNHRC, alleging a violation of Article 18 (freedom of religion) and 26 (prohibition of discrimination) ICCPR.
It was France’s contention that the centre’s internal regulations were not discriminatory, insofar as they were not specifically aimed at any religion, but merely intended to protect the children from any religious influence. In its decision, the UNHRC rejected France’s contention, finding instead a violation of the applicant’s freedom of religion and discrimination based on the employee’s gender and religion. The Committee stressed that the restriction was not objectively justified, nor was dismissal a proportionate measure.
In the second and third cases, two women were prosecuted and convicted for wearing articles of clothing intended to conceal their faces in public (the niqab), in contravention of the French Act prohibiting the concealment of the face in the public space (the Act). They appealed their convictions before the Cour de cassation which dismissed their arguments on the basis of non-admissibility. They also petitioned the European Court of Human Rights (ECtHR), who found their applications inadmissible. Before the UNHRC, they alleged violations of Article 18 and 26 ICCPR.
France defended the Act, arguing that it was justified by two objectives, namely public safety, and the protection of the rights and freedoms of others (encompassing the concept of “vivre ensemble”, that is, the minimal rules ensuring harmonious cohabitation between individuals or communities). The Committee rejected both grounds, stating that France had not demonstrated that the Act was proportionate to the purported objectives, nor was the ban the least restrictive measure necessary to achieve them. It therefore concluded that there was a violation of Article 18 ICCPR. Observing that the ban disproportionately affected Muslim women, it also concluded that there was intersectional discrimination based on gender and religion, in violation of Article 26 ICCPR.
A stricter approach than the European Courts?
It is worth noting that both the ECtHR, and the Court of Justice of the European Union (CJEU), have ruled on similar issues, and reached somewhat different conclusions.
The CJEU ruled in Samira Achbita and Asma Bougnaoui, that the prohibition on wearing an Islamic headscarf in the workplace does not constitute direct discrimination based on religion if the prohibition stems from an internal organisational rule prohibiting the visible donning of any political, philosophical or religious symbols. However, such a rule can constitute indirect discrimination if it results in a disadvantage for persons adhering to a particular religion, unless the rule is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The CJEU notably ruled that the desire for a private company to project an image of neutrality towards its customers is legitimate, illustrating the extent of the grounds allowing restrictions. In Dahlab v. Switzerland the ECtHR found that preventing a teacher from wearing an Islamic headscarf did not contravene the European Convention on Human Rights (the Convention). The aim of ensuring State neutrality and the protection of young children from being influenced was legitimate and reasonable (this, however, was in the context of the public sector; in the private sector, a less flexible approach may be adopted, see Eweida v. The United Kingdom).
As for the Act, the ECtHR ruled in S.A.S. v. France that France’s ban did not breach the Convention, emphasising that the aim to preserve the conditions of “vivre ensemble” was legitimate, and that the State should be afforded a wide margin of appreciation in such complex matters, as opinions on the subject may differ widely in a democratic society. In this regard, the Committee departs more clearly from the ECtHR’s case law, adopting a stricter approach to proportionality and necessity.
It remains to be seen whether France will comply with the decisions of the UNHRC. The Cour de cassation has already announced it will reconsider its case law concerning the headscarf in the workplace.