Eroding the protection against discrimination: The procedural and de-contextualized approach to S.A.S. v France

Abstract

Can human rights law adequately address implicit modes of racism and gender discrimination? This question is discussed in this article through the analysis of the European Court of Human Rights case S.A.S. v. France (2014) concerning the ban on the Islamic full-face veil. The so-called 'headscarf cases' have been thoroughly discussed by many scholars, yet they seem to offer an endless source of different points of view. Departing from the previous discussion on the headscarf and full-face veil cases, which have largely concentrated on the questions of personal autonomy, identity and subjectivity, this article approaches S.A.S. v. France from the point of view of discrimination. It is suggested that the Court's procedural and de-contextualized approach to rights results in eroding the protection against discrimination. Procedural approach refers to the Court's tendency to emphasize procedural aspects of the Convention rights and not to engage sufficiently with substantive analysis. The de-contextual approach to rights on the other hand refers to lack of sensitivity to empirical information concerning the facts of the case at hand. Together the procedural and de-contextual approaches inadvertently erode the protection against discrimination of vulnerable groups, such as Muslim immigrant women.

The Mandatory Handshake in Danish Naturalisation Procedures: A Critical Race Studies Perspective

“…After all, most individuals and societies would categorically deny holding racist beliefs. There is also a risk that the focus in discourses on race remains on 'a psychological condition, an attitude, a prejudice -some event that occurs in the mind of an actor that predisposes the actor to take an action that is racist' rather than the structural manifestations of racism so typically found in Western societies (Nieminen 2019).…”

“…28 The case concerned the French law prohibiting full face veil in public. In assessing the ban, the Court did not take into account the legislative history or the ways in which the legislation manifests in society in light of French anti-Muslim public discourses (Nieminen 2019). The Court therefore failed to see how the ban was driven by a racialized discourse concerning Muslims and itself constituted a contribution to it.…”

“…26 therefore pursued a legitimate aim. Several scholars have pointed out how the nation-state's interpretation of safeguarding 'democratic institutions' has extended far into the cultural and religious realm and how the ECtHR has shown a willingness to protect the cultural assumptions of a nation-state's ethnic majority (Macklem 2012;Nieminen 2019).…”