Demonstrators stage a beach party outside the French Embassy, in Knightsbridge, London, in protest against burkini bans. Photo Credit: EPA
Another wrong decision on the part of the European Court of Human Rights.
How can a ban on full face covering not be discriminatory when the full face covering is banned when Muslim, but allowed in many other circumstances not defined as Islamic? Indeed, a scarf over one’s face protects from the cold, as is the case for months on end in Canada. A full face helmet protects most motorcyclists. A mask protects from pollution or dust, as is often the case in New York or other cities. A face covering may be worn to protect the skin against the sun. And I remember mantillas worn in church by ladies when I was young and which are still often a fashion statement when attached to a small hat. Why should, without any other specific circumstance, protecting one’s face from the view of others be treated differently?
The idea that such a general distinction can be justified by vague notions such as principles of “living together” or the “protection of the rights and freedoms of others”, without specifics, seems totally insufficient. Distinctions made between individuals without justification are prohibited discriminations. A justification is often possible (showing one’s face for identity controls before taking a flight is a good example), but it needs to respond to specific criteria. Restrictions to freedom should be specific, individualised, necessary and limited to the minimum restriction possible.
For example, a young football player should not be permitted to wear a head scarf with a knot under the chin, as she could get accidentally strangled in a kerfuffle during a play. A “reasonable accommodation” can be found. A head gear bound in the nape of her neck, or a bandana, or a bathing cap will ensure, at the same time, the hair covering she wishes (and should be free to decide for herself) and her physical security during the game.
How can one tell a person that she needs to remove her face covering for the sole reason that she is Muslim? How can one tell one Muslim women that her clothing preference prevents the “living together” (of whom?), when motorcyclists and persons who do not want to breathe pollution are not requested to abide by the same standard? Why would a face covering prevent the “living together” more than a face full of metallic studs, or even a big beard? How can one seriously argue, without any other information, that a young Muslim woman’s face covering threatens the “rights and freedoms of others”, if a motorcyclist’s helmet doesn’t? How are those “rights and freedoms of others” specifically threatened: What rights? Whose rights? In what circumstances? Should not the same reasoning lead some cities to ban masks at Halloween altogether? What about carnivals? Venice’s would be sorry without the masks.
Freedom of religion, including the right to express one’s religion, should not be a second-class freedom, only acceptable when the majority doesn’t “feel” offended. We would not have same-sex marriage in Canada if Canadian courts had followed this kind of reasoning. Freedom of expression should not be limited based on the single fact that this is a religious expression.
The caveat in the judgement that Muslims should not be singled out seems a very feeble attempt to limit the considerable effect of the judgment. Muslims will have to go to court and spend time, energy and money trying to demonstrate that each specific instance of implementation against them of the ban on face covering is specifically aimed at them as Muslims, which will always be very difficult. In a properly hierarchised scale of values, it should be for the power that wants to restrict the freedom of any individual to justify specifically and individually the necessity and limited nature of the restriction they wish to impose: in this case, the authorities should be asked to demonstrate that the specific request to uncover one’s face is not implemented for the sole reason that the person is Muslim.
The “margin of appreciation” left to States in the case law of the ECtHR should not allow such blatant religious discrimination. Recognising the essential freedom to dress as one wishes, with only limited and specifically justified restrictions, should be essential.
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