I. Executive Summary

To use the language of sports, the law you put forward essentially says, "Ball games are forbidden in the schoolyard." But then comes the second sentence: "Soccer is not a ball game."

-Comment from an MP during the debate in the Baden-Württemberg parliament on the draft law banning religious symbols for teachers[1]

In recent years there has been a debate in Germany, as in many other European countries, about how to deal with an increasingly diverse society. One of the most prominent controversies has been the wearing by some Muslim women of the headscarf, a form of religious dress that usually conceals the hair and neck. In half of Germany's states (Länder), the past five years have seen the introduction of restrictions on women wearing the headscarf in public employment, in particular in schools.

In Germany the laws and policies on the use of religious symbols in schools are the responsibility of the 16 states, not the federal government.  The approach of the states toward the headscarf, and other religious symbols in schools, has varied, sometimes starkly. Eight states-Baden-Württemberg, Bavaria, Berlin, Bremen, Hesse, Lower Saxony, North Rhine-Westphalia, and Saarland-have enacted legislation and policies to prohibit teachers in public schools from wearing certain visible items of religious clothing and symbols. In two states, Hesse and Berlin, the ban is even applied more widely, covering many civil servant roles.

None of the laws banning religious symbols and dress explicitly target the headscarf. The restrictions in Bremen and Lower Saxony focus on the effect of a particular teacher's outward appearance as regards the school's ideological and religious "neutrality," but do not strictly prohibit religious clothing or symbols. Nor do they create explicit exceptions for the Christian faith or Western traditions and values. But the majority of the states with bans (Baden-Württemberg, Bavaria, Hesse, North Rhine-Westphalia, and Saarland) allow some form of exemptions for Christianity and Western cultural traditions.

The headscarf has, however, been the focus of the laws' prior parliamentary debates and explanatory documents, which have emphasized the need to recognize the Western cultural tradition shaped by Christianity (and Judaism). Furthermore, the only court cases to date involving challenges to the laws have concerned women wearing a headscarf.

The state of Berlin takes another approach. Its law, introduced in 2005, categorically bars all public school teachers (including kindergarten teachers if parents object),  as well as police officers, judges, court officials, prison guards, prosecutors, and civil servants working in the justice system, from wearing visible religious or ideological symbols or garments (with the exception of small pieces of jewelry). There have been no court cases yet in Berlin under the law.

Eight states have no specific legislation relating to religious clothing or symbols in employment. Three of those states–Brandenburg, Rhineland-Palatinate, and Schleswig-Holstein-considered but ultimately rejected such restrictions.

After examining the laws and policies in the eight German states that restrict the wearing of religious symbols, and how they are applied in practice, Human Rights Watch has found that they contravene Germany's international obligations to guarantee individuals the right to freedom of religion and equality before the law. These laws (either explicitly or in their application) discriminate against Muslim women, excluding them from teaching and other public sector employment on the basis of their faith.

Those states that ban religious clothing but still allow Christian symbols explicitly discriminate on the grounds of faith. In any event, in all eight states the ban is applied specifically against Muslim women who wear the headscarf. In practical effect, the ban also discriminates on the grounds of gender. The measures effectively force women to choose between their employment and the manifestation of their religious beliefs, violating their right to freedom of religion and equal treatment.

International human rights standards protect the rights of persons to be able to choose what they wish to wear, and in particular to be able to manifest their religious belief. Restrictions should only be implemented where fully justified by the state, and be the least restrictive necessary.

Policies and laws in countries that force women to wear the veil have repeatedly been criticized by Human Rights Watch. But laws such as in the German states, which exclude women who wear the headscarf from employment, also run foul of these international standards. These bans on wearing the headscarf in employment undercut individual autonomy and choice, privacy, and self expression, in similar ways to how they are violated in countries where women are forced to wear the headscarf.

Such restrictions require detailed justifications, including why they are needed now, when they were not required until the recent past, and why they are in practice only applied against Muslim women. Sufficient justifications have not been provided. While there may be legitimate grounds for some regulation of religious symbols and dress in employment for civil servants and teachers, the current wide-ranging and discriminatory restrictions adopted in German states have not been shown to be proportionate to their stated aim, and therefore amount to unlawful discrimination under international human rights law as well as violation of the rights of religion and privacy of those affected.

These regulations are not abstract concerns. The restrictions have a profound effect on women's lives, as was described by women affected who spoke to Human Rights Watch.

In those states with bans in effect, women wearing the headscarf are not permitted to work as teachers. Immediately after the new laws came into effect, teachers were asked to remove the headscarf and were reprimanded if they refused to do so, and in some cases even dismissed. Teachers, some with many years of employment, have been threatened with disciplinary action if they continue to wear the headscarf, and have been subject to disciplinary action in North Rhine-Westphalia and Baden-Württemberg.

Although those who have permanent civil servant status enjoy greater protection, they may still be removed from their teaching position and may lose their civil servant status if they continue to wear the headscarf and fail with legal challenges. Muslim trainee teachers have been denied subsequent employment as teachers after successful completion of their education, unless they take off their headscarves.

These restrictions have led some women to leave their home state or leave Germany altogether, to prolong maternity and other leave from their employment, or to leave teaching after years of studies and investment in developing their skills. Women concerned feel alienated and excluded, even though many had lived in Germany for decades or even their entire lives, or are German-born converts to Islam.

These bans are not necessary, as accommodation based on mutual respect is possible. Human Rights Watch spoke to many affected women who sought compromise and were willing to consider alternatives to the headscarf (such as large hats and untypical styles of tying the scarf), that would still allow them to comply with their religious obligations. Accommodation will require the states to genuinely consult across society, act in good faith, and seek workable solutions.

Where there are concrete concerns that a teacher's conduct infringes neutrality, those concerns should be dealt with through ordinary disciplinary procedures on a case-by-case basis. Teachers should be assessed on the basis of their actions, not views imputed to them by virtue of the manifestation of their belief. Such outright and discriminatory bans as the eight states have imposed are neither justified nor necessary.

Methodology

This report is based on research conducted between April and November 2008. During the course of the research we carried out a total of 72 interviews in Berlin, Hamburg, Baden-Württemberg, Lower Saxony, Hesse, North Rhine-Westphalia, and Bavaria. In addition a further 12 phone interviews were conducted with persons in North Rhine-Westphalia, Lower Saxony, Baden-Württemberg, Hesse, and Schleswig-Holstein. States examined for this research were targeted to represent all existing categories of approaches to this issue.

Among the interviewees were 34 Muslim women resident in Germany affected by state restrictions on the headscarf, including converts. Face-to-face interviews were conducted in German both privately and in group settings in their homes, mosques, and other public places. The majority of interviewees were identified with the assistance of an informal network in North Rhine-Westphalia (the state with most cases) composed of teachers, trainee teachers, students, and social workers specializing in education (known as "social pedagogues") who wear the headscarf.

Human Rights Watch also interviewed officials in relevant state ministries, as well as politicians, party spokespersons, representatives and parliamentarians in the states under analysis.  Other persons interviewed included lawyers engaged in relevant court cases, academics, and members of civil society such as research institutes, foundations, NGO representatives (including anti-discrimination organizations and Muslim organizations), state institutions, and union representatives.

The identity of interviewees has been disguised with pseudonyms in many cases, and in some cases certain other identifying information has been withheld, to protect their privacy. Identifying information for other individuals has been withheld in some cases for the same reasons. Interviewees whose real names are used gave their permission. All participants were informed of the purpose of the interview, its voluntary nature, the ways in which the data would be collected and used, and the purposes and advocacy plans of the research and report, and consented to be interviewed.

In addition to our field research, we analyzed existing laws and regulations, reviewed press reports, and examined studies by academics and civil society. Other sources of information included court judgments, government press releases and statements, parliamentary materials (including minutes of plenary proceedings), NGO reports and position papers, public initiatives, academic studies and articles, and news reports.

The research also involved legal and policy analysis (including national constitutional, anti-discrimination, administrative, and labor law). The legal analysis not only included a thorough analysis of legal regulations in different German states in the framework of human rights law, but also of existing jurisprudence of courts at various levels.

Key Recommendations

• State governments should repeal legislation on religious dress and symbols and ensure that their legislation and procedures are compatible with Germany's international human rights obligations, guaranteeing in particular that these do not discriminate on grounds of gender or religion.
• Should concrete concerns arise that a teacher's conduct infringes neutrality, those concerns should be dealt with through ordinary disciplinary procedures on a case-by-case basis.
• The Federal Anti-discrimination Office should issue public opinions assessing the discriminatory impact of state legislation restricting the headscarf and the compatibility of such legislation with the Equal Treatment Act.
• The United Nations special rapporteur on the freedom of religion or belief should conduct a country visit to Germany to assess the compatibility of measures in place in Germany banning religious symbols and clothing in public employment with international human rights law, and issue concrete recommendations for remedying abusive policies and practices.