VI. Human Rights Violations

The restrictions not only have a significant practical effect on the lives of the women affected by them: they also constitute violations of their human rights and of Germany's obligations under human rights law.

Gender Discrimination and Other Violations of Women's Rights

Policies of forced veiling and other obligations on women's attire violate international human rights standards, and have repeatedly been criticized by Human Rights Watch.[194] But policies of excluding women who wear the headscarf from employment also run foul of these international norms, such as article 11 of the Convention for the Elimination of Discrimination against Women and the International Covenant on Civil and Political Rights. A ban on the headscarf in employment undercuts individual autonomy and choice, a fundamental aspect of women's rights that is also violated in countries where women are forced to wear the headscarf. Muslim women concerned risk not being employed in the first place, and when they do have jobs, risk reprimands, suspension, and dismissal directly connected to the wearing of the headscarf. In fact, a blanket exclusion of women with headscarves from public schools amounts to a life-time employment ban in this specific career.

Government restrictions on women's attire of any kind interfere with their right to privacy and self-expression. In the case of the headscarf, which is part of the identity of those who choose to wear it and also reflects their religious beliefs, the restrictions violate those rights. Restrictions prevent Muslim women from identifying themselves through the display of a religious symbol, the headscarf, which is unjust, illegitimate, and unacceptable in a democratic society.

It further denies women equal protection, by declaring a select group of females the basis of "(fundamentalist) indoctrination" without assessment of their actual behavior. This amounts to a reversal of the burden of proof used in discrimination cases in German and EU law, where, once a difference in treatment is shown, it is for the authorities to justify why this has taken place.

The laws in all eight of the states discriminate on the grounds of gender and on the grounds of religion. Women's religious freedom is being violated, as these restrictions have been applied in practice exclusively against women wearing the headscarf. By such a clear negative distinction between men and women, they violate anti-discrimination provisions of international human rights law outlined above.[195] For Muslim women who consider the wearing of the headscarf to be an obligation of their beliefs, the laws require them to choose between their deeply held beliefs and their employment as teachers in public schools or other civil servants.

It has been argued by state officials and politicians that men could fall under the restrictions if they were to wear typical Muslim clothing[196] or if there were to be cases of teachers wearing traditional clothing of the Indian Bhagwan movement[197] (there had indeed been a few such cases involving teachers in the 1980s).[198] But there have in fact been no such cases since the laws have been enacted, and in practice it has affected only women who wear the headscarf, leading to double discrimination on the grounds of gender and religion.[199] 

As noted above, proponents of the restrictions argue that they can be justified by the need to protect gender equality and women's human rights: The wearing of the headscarf may be the reflection of coercion emanating from family or the individual's social context. However it is also clear that some sincerely desire to wear the headscarf as a part of their religious identity. All the cases documented by Human Rights Watch including the best known court cases have all involved adult women insisting that their decisions were personal, not imposed.

Some feminists, among them many scholars from universities, argue that wearing the headscarf represents individual expression covered by the right to religious freedom. They advocate in favour of integration and the right of Muslim women to reach higher qualifications and jobs. They are, just as the majority of the judges of the Federal Constitutional Court,[200] of the opinion that the headscarf is interpreted rather differently by each of the women who wear it.

In this regard it should be noted, that the Federal Constitutional Court had concluded in its 2003 judgment that there was no evidence that Ludin, "merely because she wears a headscarf, might for example make it more difficult for Muslim girls who are her pupils to develop an image of woman that corresponds to the values of the Basic Law or to put it into effect in their own lives." Furthermore, Germany's Muslim population is diverse and therefore one-sided oversimplified perceptions and public discourses on the Muslim communities should be avoided. Often, it is overlooked that Muslims in Germany are not a homogenous group.

Instead, the dominant image of a Muslim woman in Germany can lead to questionable misperceptions.[201] As the director of the German Institute for Human Rights, Heiner Bielefeldt, points out, there is a danger that policies that should be aimed at improving the opportunities for women and girls from migrant families, will instead turn into a "clash of cultures" with Islam. This tendency can already be identified in the alternatives confronting Muslim women with or without the headscarf. "Either they have to constantly distance themselves from or explain their religion, or they have to put up with being globally viewed as either victims or even accomplices of authoritarian family structures."[202]

In the light of the state's paramount obligations to protect human rights, coercion by the state in banning headscarves is arguably even more serious than coercion by private parties in requiring the headscarf. Legitimate efforts to eliminate coercion of those who do not wish to wear the headscarf do not justify the state in coercing others not to do so.

Banning adult women from wearing headscarves in state employment will not necessarily prevent familial or social pressure. In formulating these restrictions, the states do not appear to have assessed whether a blanket ban will have an impact on possible sources of compulsion.

In any event, these issues should be tackled on their own terms, rather than by restricting the rights of women who chose to wear the headscarf.[203] It would be far better to look for legislative or regulatory safeguards for the rights of women who choose not to wear the headscarf, as well as strong public endorsements of women's freedom to dress according to their own free choice. Above all, state governments could actively and broadly seek out civil society groups representing women (including Muslim women wearing the headscarf) to cooperate on these concerns.

All women who spoke to Human Rights Watch emphasized that the decision to cover their head was a private choice that they would not seek to impose upon other Muslim women.[204] They argue that the headscarf does not oppress women, and emphasize that nobody should force a women to wear a headscarf or to take off her headscarf.

Discrimination on the Grounds of Religion

Most of the state restrictions on religious symbols in Germany discriminate on their face on the grounds of religion. As such they violate provisions of the ICCPR and the European Convention on Human Rights, as well as EU law.[205] Such direct discrimination cannot be justified.

As noted in Chapter IV, the laws in Baden-Württemberg, Saarland, Hesse, Bavaria, and North Rhine-Westphalia contain explicit exceptions for Christian and Western values and traditions, and in Bremen and Lower Saxony the explanatory documents and parliamentary debates for the legislation stated that Christian traditions do not breach the neutrality requirement relied on to justify the restrictions. Consequently, the laws allow states to treat members of certain (popular) religious groups differently from otherwise similarly situated members of other (less popular) religious groups. In practice, this means that school authorities in those states can legally ban headscarf-wearing Muslim public school teachers while continuing to allow Christian nuns who are teachers to wear religious clothing and symbols.[206]

The restrictions in these seven states target Muslims or otherwise have a disproportionate effect on them.  This is evidenced by the fact that all of the court cases in relation to the constitutionality of the restrictions on religious symbols and their application in practice have concerned women who wear the headscarf for reasons of Muslim religious expression.  Moreover, as noted above, when the measures were introduced, state government representatives made clear in several cases that the aim was to restrict the wearing of the headscarf and not other religious symbols.

This focus was acknowledged by the Federal Administrative Court when it heard Fereshta Ludin's case. The court recognized the effect of the Baden-Württemberg law on "the Islamic religious community" even though it concluded that the effect was not "excessive" because of the possibility of Muslim teachers who wear the headscarf finding employment in private schools.

The only other cases in Germany involving restrictions on dress were of a secular nature.  As mentioned above, there were cases in which trainee judges agreed to alter a "punk hair style" and remove piercings deemed to breach the neutrality of the state. In addition, a "left-wing" trainee teacher in Baden-Württemberg was refused a teaching post because he was engaged with the organization Antifa. The teacher went to court, losing at first instance in 2006, but won his appeal at the state administrative court in 2007 and is now teaching.[207] In other words, when a person's fundamental beliefs were at stake, the case was resolved in his favor notwithstanding the risk to the neutrality of the school.

The discriminatory nature of the restrictions was further underscored by efforts by Baden-Württemberg, Bavaria, and North Rhine-Westphalia to exempt Christian nuns who wore habits from the restrictions, even after the ruling of the Federal Administrative Court that all religions must be treated equally under the law. Baden-Württemberg continued to permit nuns to wear their habits while teaching in public schools, and therefore failed to implement the judgment.

As former Federal Constitutional Court judge Ernst-Wolfgang Böckenförde has pointed out, the efforts of states to maintain exceptions for nun's habits even while they ban the headscarf constitute discrimination and violate the right to equality.[208] In the long run, he points out, Germany, and especially states with close ties to the Catholic faith, risk losing the opportunity to express Christian values and traditions if they prohibit Muslim symbols in schools and public spaces, as the need to be non-discriminatory when adopting such an approach to "neutrality" is likely to result in secularism.[209]

It should be noted that some church representatives have also spoken against a headscarf ban, motivated by a concern that the obligation enumerated by the Constitutional Court to treat all religions equally would ultimately lead to secularism, and the exclusion of Christian symbols and dress.[210]

In understanding the context of the restrictions on the headscarf it is also important to note that Islam is not a formally recognized religion in Germany and therefore Islam has not been granted equal status and rights in the same way as the Christian and Jewish religions.[211]

Berlin

Berlin takes a different approach, in that it bans all expression of visible religious commitment in the appearance of teachers. This raises a question about whether the "visibility" of religious symbols should be a criterion for the exercise of religious freedom. Obviously a headscarf is "more visible than a small golden cross fixed to a necklace". One can argue that Berlin's law has a disproportionate impact on Muslims.[212]

Leaving aside that issue, it is clear that Berlin's law disproportionately impacts teachers who have religious faith they wish to manifest. It is not neutral between teachers with religious faith and those without it.

While ostensibly fairer than the other restrictions as it formally treats all religions equally, the law in Berlin nevertheless discriminates against those of faith who wish to enter state public service and to manifest their beliefs, by forcing them to choose between their job and their religion.

Furthermore, Berlin's the ban on religious clothing also affects in practice at present only women wearing the headscarf, amounting to indirect discrimination.

Denial of the Right to Religious Freedom

A blanket prohibition on teachers and civil servants wearing visible religious symbols in schools violates freedom of religion. The ICCPR, among other sources of international human rights law, obliges state authorities to avoid coercion in matters of conscience, and states must take this obligation into account when devising school dress codes. Countries such as Iran or Saudi Arabia that force women to wear headscarves violate this principle. So too do countries that adopt blanket prohibitions on visible religious symbols.[213]

As noted above, religious freedom, including the freedom to manifest one's religious beliefs through clothing and symbols, is not an absolute right. The state may impose reasonable restrictions on rights for the purpose of regulating a legitimate state interest.

The current bans in eight German states on religious symbols for teachers and other civil servants, however, do not constitute reasonable restrictions. Headscarves do not pose a threat to public safety, health, order, or morals, and they do not impinge on the rights of others. They are not inherently dangerous or disruptive of order, and do not undermine the educational function. There may be specific circumstances in which state interests justify regulation of religious dress, as when such dress would directly jeopardize individual or public health or safety. Such concerns, however, cannot justify a blanket prohibition.[214]

The German state laws, particularly those that include exceptions for Christianity, include many of the "aggravating factors" identified by the UN special rapporteur on freedom of religion or belief," providing further evidence that the measures are incompatible with international human rights law: (1) The restrictions lead to discrimination or camouflageddifferentiation depending on the religion involved; (2) The limitations are based on principles deriving exclusively from a singletradition and exceptions are tailored to the predominant or incumbent religion or belief; (3) In practice, state authorities apply the imposed restriction in a discriminatory manner, for example by arbitrarily targeting certain communities orgroups, in particular Muslim women. (4) Finally, no due account is taken of specific features of religions or beliefs.

Restrictions on the wearing of the headscarf by teachers in public school engage two conflicting aspects of religious freedom: the teacher's positive freedom to manifest her religion, and possibly the negative freedom of religion of the pupils in her class from "indoctrination." Parents or legal guardians have the right to ensure the religious and moral education of their children in general conformity with their own convictions about a child's upbringing.[215]

In Human Rights Watch's assessment, however, restrictions can be imposed on a teacher only  when an assessment of that teacher's entire behavior has shown that the teacher has taken action what would interfere with the freedom of religion of the children, for example through coercion. A general ban on headscarves is not a proportionate measure: It is based on a possible abstract danger of a negative effect, without any concrete evidence that teacher's wearing a headscarf, in and of itself, leads to a coercive influence on children to adopt Islam or would lead Muslim girls to feel compelled to wear the headscarf.

None of the grounds under human rights law for limiting religious freedom is satisfied in the case of Germany's headscarf ban. The protection of health and morals is hardly an issue in connection with the headscarf ban. Neither is prevention of disorder or crime. It is not the responsibility of teachers who feel religiously obliged to wear the headscarf to maintain harmony by removing themselves altogether.

The appeal to the principle of secularism or neutrality in Germany in justifying this ban is unconvincing for several reasons. Firstly, one has to question whether the arrangements in Germany (with the exception of Berlin) can be described as secular at all, given the explicit exceptions granted for Christian values and symbols. Secondly, besides referring to the abstract principle, state governments in Germany have not shown how permitting a teacher to wear a headscarf in a state school could in practice compromise state neutrality. It would not constitute endorsement of those views by the state.

The interests of public order are not overriding, and the benefit of limiting a right has to be balanced against the interests of those who wish to exercise their right. In this case, the costs for the women denied state employment are heavy, whereas the benefit for other citizens is far from clear, since to the best of Human Rights Watch's knowledge, headscarves were worn by school teachers and other civil servants without incident before the laws were enacted.

In the same vein, Germany's headscarf ban cannot be justified as necessary for public safety. Again, the experience before the enactment of the laws puts the accuracy of this in question. It is difficult to see how teachers and civil servants wearing a headscarf, accompanied by credible safeguards for women who choose not to wear the headscarf, could present a threat to public safety convincing enough to justify such a drastic limitation of an individual's right to freedom of religion and expression.

The final justification commonly advanced for the headscarf ban is that it protects the rights and freedoms of others who choose not to cover their heads. Human Rights Watch is not aware of any evidence from before the laws were introduced to suggest that this is a genuine problem. Excluding women with headscarves from teaching or even entirely from state employment cannot be a reasonable and proportionate response to a future, hypothetical, threat of exclusion posed to women who leave their heads uncovered. The governments cannot reasonably claim that a restriction on head-covering answers a "pressing social need" and advances democracy and rule of law, especially in a country in which Muslims constitute a minority.

Minority Rights

In fact in none of the states concerned is there any evidence that the authorities considered their duties to take particularly steps to ensure the protection of religious minorities and that they can practice their faith. On the contrary, there is explicit or implicit attempt to privilege the majority religion. Therefore Germany, by virtue of being responsible for its Länder, is in clear violation of its duties to protect the rights of minorities.