VII. The Way Forward

As the European Court of Human Rights has repeatedly stressed, the State has a duty to remain neutral and impartial to ensure the preservation of pluralism and the proper functioning of democracy. When an issue such as the headscarf becomes a source of tension, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups at least tolerate each other and respect each others' rights.[216]

Accommodation based on mutual respect is possible. Many of the women interviewed by Human Rights Watch sought compromise by wearing hats and were willing to consider other alternatives that comported with their religious obligations. The majority of the Muslim women wearing the headscarf whom we interviewed accepted that it could be appropriate for states to impose restrictions on teachers wearing forms of Muslim dress that cover the face if it was shown to interfere with occupational requirements, such as children learning language and other skills through imitating their teacher's facial expressions.

Accommodation will require the states to genuinely consult across society. Doing so would give proponents of restrictions an opportunity to express their reservations and to suggest safeguards or undertakings that the government could make to protect society against the erosion of rights-and in particular, the rights of women-they fear would result from a lifting of the headscarf ban.

By listening to the concerns of women from all sides of the argument, the governments may be able to break away from the ban and move toward a genuine pluralism that allows women to make their own free choice whether to wear the headscarf. If those concerns are reflected not only in the final form of a law, but also in a broader government program to protect women's rights, legislation consistent with international human rights standards will also address concerns expressed.

The anti-racist organization Intercultural Council Germany is opposed to blanket bans on the wearing of the headscarf. The Council is an umbrella group that includes civil society organizations, unions, employers' organizations, municipalities, state institutions, and media. It advocates intercultural and interreligious dialogue in order to prevent the ethnic segregation of minorities. The Council published in January 2004 a collection of "theses on the headscarf" listing arguments for and against the headscarf, addressed at the majority society as well as Muslim organizations.[217]  It argues for a case-by-case approach with state action in headscarf cases only where the constitutional loyalty of the teacher is in doubt.

This suggests the way forward. There is undoubtedly a potential for actual concerns on the part of parents arising in particular from teachers wearing the headscarf. And schools have a duty to ensure that teachers exercise their function in accordance with the constitution. But the way to deal with those concerns while respecting the rights of those teachers who wish to wear the headscarf is to approach each case on its own merits. Teachers should be assessed on the basis of their actions, not on what they choose to wear.

Where there exist 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. Schools and educational authorities should also look favorably on offers by teachers to wear alternative head coverings that do not resemble the headscarf but are nonetheless consistent with their faith.