Headscarf dispute

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The term headscarf dispute refers to the dispute that is being waged in various countries over a so-called headscarf ban . The question is whether the wearing of a veil or a headscarf as a symbol of a certain interpretation of Islam is legally permitted or should be prohibited in certain areas of the public, especially in the public service and in its educational institutions.

A "headscarf controversy" has occurred in the recent past, especially in France and Germany, among other things after Muslimas tried to enforce the wearing of the headscarf in civil service and as lawyers when appearing in court. Because of the divergent religious practice in the religious communities, wearing a headscarf is perceived as particularly "Muslim" or interpreted politically. In the European culture, the headscarf is often seen as a symbol of the subordination of Muslim women and is seen as a strengthening of fundamentalist Muslim groups. In some European countries there is greater state acceptance of the headscarf (cf. the information on Austria and the United Kingdom as an example ).

In countries like Germany or Switzerland, there is a conflict between the religious freedom of the citizens on the one hand and the state's duty of religious neutrality on the other. The headscarf dispute also corresponds to the question of a ban on veiling , as has been planned or already practiced by some European countries since the beginning of 2010.

background

Many Muslims derive a commandment for Muslim women to cover their heads from the Koran ( Sura 24 , verse 31 and Sura 33 , verses 53 and 59). In these suras there is talk of an - unspecified - piece of clothing that the Muslim woman should put over her upper body so that she is "recognized as a believer and not bothered". There is no mention in the verses of the woman covering her hair or covering her face. In general, there are few references to female veiling in the canonical hadith works of Muhammad al-Bukhârî and Abû Dâwûd . The authenticity of the hadiths is also generally doubted, but is believed and followed by many Muslims.

A clarifying authority on this question is fundamentally lacking in Islam. Islamic scholars ( Muftis ) can be called upon for advice, but their advice (reports / fatwas ) are individual opinions and not generally binding. There are therefore great differences among Muslims in the exercise of religious duties. However, Sura 2/256 of the Koran contains the statement “ No compulsion to believe ”, which can also be interpreted in such a way that every Muslim woman can decide for herself whether she considers the headscarf a religious duty and this obligation want to meet. External coercion in this regard is therefore not permitted; however, it does exist in many Islamic states - in some cases even, e.g. B. in Saudi Arabia, by the state.

Individual neo-fundamentalist Muslims, for example the German convert Pierre Vogel , take the view that wearing a headscarf is a religious duty in Islam and not an expression of a political stance. The German teacher of Afghan origin, Fereshta Ludin , testified that she covered her ʿAura (German: nakedness, shame) with the headscarf and that it was therefore religiously prescribed to wear a headscarf.

Women in numerous Muslim countries such as B. Iran, Saudi Arabia, Sudan and Afghanistan must reckon with repression up to and including murder if they do not obey the mandatory veil that applies there. In Germany, the member of the Bundestag for the Greens, Ekin Deligöz , received abuse and death threats from radical Muslims after she and a group of German-Turkish politicians urged Muslims in this country to wear the headscarf on October 15, 2006 in the print medium Bild am Sonntag ("Signs of the oppression of women").

There are also clothing regulations for male Muslims, according to which men should dress inconspicuously. Mohammed himself always wore a turban and Muslims should follow his sunna whenever possible. For this reason, male Muslims also often wear headgear in public.

In addition to religious and political reasons, traditional, cultural and ethnic motives often play a role when wearing a headscarf. Also in other cultures, for example in Orthodox Judaism and Christianity, wearing veils or headscarves has a tradition.

The headscarf in academic and public discourse

Empirical research

The currently only, expressly non-representative study was carried out in 2006 by the Konrad-Adenauer-Stiftung . The subject matter was the motives of women who, for different reasons, voluntarily decided to wear the headscarf, and their social and political attitudes. The information is based exclusively on self-assessment by the participants; the authors made judgments. This led to clear criticism and doubts about the validity of the study. In 75 percent, the father played no role in the decision, in 40 percent the role of the mother was a large or medium one. As a rule, however, the respondents grew up in an environment in which the headscarf was the "normal case"; a “conscious rational weighing” is not to be assumed. Pressure from the family was not necessary for this "natural" decision.

A clear majority was in favor of democracy. Like many devout Muslims, the participants are convinced of the superiority of Islam. In contrast to 91 percent of the German population and 98 percent of those who are very connected to the Church , around a third apparently see people as unequal before God and consider themselves to be a “chosen, better part of humanity”. In contrast to the Christians surveyed , this increases with the degree of religiosity. It should therefore be clarified whether “parts of Islam propagated an ideology of superiority or inequality”, as well as the degree of widespread use of this interpretation and, consequently, a possible contradiction to democracy and general human rights . The largely uncontrolled Islamic classes in Germany should therefore be ended. The conveyed content "by self-appointed clergy" should be checked.

Analyzes by Rommelspacher and Kühn

Birgit Rommelspacher worked out that the headscarf was already considered a symbol of backwardness and oppression of women in Western Oriental Studies , and she is reminiscent of the “colonial feminism” of the colonial powers . They understood the unequal treatment of women and men in Islam as oppressive to women. Algerian women were brought from the villages to the cities by the French military and forced to take off their veils in public places. Not only they, but also the Algerian men felt this was a symbolic rape.

From a western or culturally modern point of view, the headscarf has become a symbol of women's oppression. Today, however, women wearing headscarves also include young, educated women from urban backgrounds. In her investigation of the headscarf debate in Germany, Rommelspacher also presented the point of view of the headscarf wearers themselves and referred to studies of the situation in the Federal Republic of Germany by Gökce Yurdakul , Yasemin Karakaşoğlu , Sigrid Nökel and Gritt Klinkhammer . Like these authors, Rommelspacher assumes that the young women who opt for the headscarf see it as a self-determined act. They wanted to find an individual standpoint between the tradition of the parents and the culture of the host society; In doing so, they set themselves apart from the more traditional Islam of their parents and developed their own views. The headscarf can also be interpreted as a possible vehicle for emancipation.

According to Rommelspacher, the headscarf dispute touches on topics that are also controversial in Western culture and sometimes taboo. It is about the relationship between the sexes and the importance of pluralism and religious freedom in our society. Rommelspacher identifies three central conflicts:

  • Contradictions in the Western concept of emancipation
  • Dominance relationships between women
  • Secularism versus religiosity

In essence, it is about the question of recognizing a different culture as an equivalent. Rommelspacher also points out that the social advancement of German women and their professional emancipation can be largely attributed to the fact that the immigrant women took on less well-regarded and poorly paid jobs. The emancipation discourse also serves to legitimize a better position for German women on the labor market.

From a linguistic and discourse analytical perspective, the linguist Peter Kühn tries to work out that the dispute over the headscarf is a proxy debate. Depending on the cultural background, the headscarf is a symbol of oppression for some and a symbol of freedom for others. In the case of the "headscarf dispute", these positions are incompatible, which leads to a blockade of the discussion.

Feminist Aspects

Some women's rights activists point to the more political than religious importance of the headscarf. For them the headscarf is a symbol of the oppression of women, the “flag of Islamism” ( Alice Schwarzer ). Women's rights activists such as Sérénade Chafik , Wafa Sultan , Irshad Manji and Ayaan Hirsi Ali criticize Islamism and Islam. They state that representatives of Islamism have used the lack of education to agitate against the background of economic migration and a failed integration policy . This is how the political rather than religious significance of the headscarf came about.

Wearing the scarf is mostly based on the influence of the conservative patriarchal violence that determines the lives of women and is therefore not a really free decision. One problem in a multicultural society arises from the fact that many Muslims regard women as second-class people, who are severely disabled and restricted in their movement and communication with a headscarf and full-body veil.

The German-Turkish lawyer Seyran Ateş takes a clear stand: “It is easy to tolerate the headscarf from a distance and without being concerned. For me, however, that's not tolerance, it's ignorance. In my eyes, the headscarf and the chador symbolize the submission of women. But as long as the headscarf is determined by others, that is, determined by the man, I will show solidarity with the women who finally want to take off the headscarf or the chador. "

Ekin Deligöz puts it: “The headscarf is a symbol of women's oppression. Anyone who asks women to wear a headscarf turns them into a sexual object that has to be veiled. "The rejection of the headscarf is not only required in enlightened Islam, but also in secular European democracies in order to ensure equal human rights (self-determination and sexual Integrity regardless of the clothing worn) for everyone. The wearing of the headscarf should therefore also be prohibited in state schools. The emancipation of Muslims thus becomes a motor for the demands for liberal reforms within Islam.

Gerdlin Friedrich points out the role of the headscarf as a religious symbol - and religious duty - with a sexual background: In Judaism and Christianity, headgear merely expresses the relationship between man and God; The headscarf, on the other hand, only has its meaning within gender relations - the Muslim woman is only obliged to wear the headscarf if a man is suspected to be in the vicinity or even in the vicinity. Otherwise, she could signal that she is sexually responsible and available for a man.

Women's rights activists who advocate self-determined wearing of the headscarf, on the other hand, oppose a view that degrades Muslims to the object of attempts by Western women's rights activists and denies them the emancipatory ability to represent and define themselves as a subject. Neither the concealment is a sign of oppression, nor the revelation a sign of liberation. It is also inadmissible to defame women with headgear as terrorists or at least to imply that they are close to and sympathetic to fundamentalism or extremism. Nobody should dictate that a woman should be covered, nobody should deny her. Concealment requirements are just as much a violation of human rights as concealment bans. According to Özlem Topçu , a new generation of Islamic feminists is being ignored: those “women who want to see their faith cleared of patriarchal traditions, who strive for a gender-equitable life with children, a career and a headscarf (or without), who demand a feminist interpretation of their scriptures and want to live in a society in which women can live their religion and at the same time all the rights of an autonomous individual and responsible citizen ”. They wanted “to be visible in the public space, which is also their space, and still exhibit their religion”. Cigdem Toprak emphasizes that the dispute over the headscarf is always about freedom: "The freedom to wear it, and the headscarf as a symbol to restrict the freedom of women." Wearing a miniskirt or a headscarf means in both cases not yet to be free. "But to have the decision about whether to have a miniskirt or a headscarf - that is true freedom." According to Reyhan Şahin , “both feminist camps are sticking to the headscarf issue”. Some generalized it "as the exclusive 'flag of Islamism' and serve anti-Muslim resentments", while others see "only the emancipation gesture in it" and downplayed "other variants that are very painful for those affected". However, the truth lies in between.

Hayrünissa Gül , wife of the former Turkish President Abdullah Gül , who advocates that women can study with a headscarf, said: "The headscarf covers my head and not my brain."

The debate, which was often conducted with a high emotional content and which in some cases has become a political issue, has recently been showing an increasing number of nuances. For example, the women's rights activists Naomi Wolf and Irshad Manji point out that the headscarf or the entire “Islamic” clothing, which is often depicted as restrictive, does not necessarily say anything about the motives and feelings of the woman wearing it; rather, the character of a kind of "protective layer" is emphasized, which is used for various reasons.

Other reports use the example of Yemen to describe the necessity of clothing in order to be taken seriously in the “men's world” and thus to be able to protect the rights of women, which the western point of view usually hides. The fact that the use of civil rights leads to misunderstandings, since “Western” women cannot understand why other women voluntarily wear such clothing as an expression of their freedom, turns out to be particularly problematic. However, it is pointed out that there are also women who are forced to wear such clothing.

Dilemma in public appearances

Discussions arose about the fact that the integration officer of the state government of Saxony-Anhalt, Susi Möbbeck , wore a headscarf on an official occasion when entering a mosque in February 2018. What Möbbeck represented as respect and consideration for the applicable clothing rules in a place of worship, critics assessed as "submission".

Debate on the headscarf congress

In May 2019, a conference on "The Islamic headscarf - a symbol of dignity or oppression?" Took place at the Frankfurt Research Center Global Islam (FFGI). The speakers included the women's rights activist Alice Schwarzer and the sociologist Necla Kelek as opponents of the Islamic headscarf, but also advocates such as the journalist Khola Maryam Hübsch . In advance, a student initiative called for the conference to be canceled and for the FFGI director Susanne Schröter to be dismissed . The initiators accused her and several speakers of "anti-Muslim racism". The university immediately rejected these demands, and the General Student Committee also supported the controversial conference. Because of the previous shitstorm, the congress attracted media attention and around 700 participants registered for the conference. The police were also present due to the violent protests.

Headscarf bans in individual countries

Germany

In eight federal states (red) there are bans on wearing the headscarf during school work. Status: 2015

The following federal states have introduced a headscarf ban for their teachers at schools and universities (as of 2015): Baden-Württemberg , Bavaria , Berlin , Bremen , Hesse , Lower Saxony , Saarland In Rhineland-Palatinate and Schleswig-Holstein , the CDU also tried to introduce a headscarf ban the DVU in Brandenburg ; these attempts failed in the state parliaments.

In North Rhine-Westphalia affected teachers, student teachers and social workers joined forces to form the “Initiative for Self-Determination in Faith and Society” (ISGG) and want to take action against the law. End of January 2015 was the Federal Constitutional Court a blanket ban on headscarves in public schools by a decision of principle rather than with the fundamental right to belief and religious freedom compatible so that with changes in the law in addition to the Education Act for North Rhine-Westphalia in the education legislation is expected to further provinces. A ban is only justified if wearing it poses a "sufficiently concrete risk" for school peace or state neutrality. However, an abstract danger is not enough.

Since October 1, 2017, it has been forbidden to wear a face veil while driving. The lawfulness of this prohibition in the road traffic regulations was confirmed by the Federal Constitutional Court.

Baden-Wuerttemberg

The case in which the Muslim teacher Fereshta Ludin sought her position as a probationary civil servant in the school service of Baden-Württemberg in 1999 is best known in Germany . She was denied this because she was unwilling to refrain from wearing a headscarf during class. The reason given by the school authorities was that the headscarf was an expression of cultural demarcation and thus not only a religious but also a political symbol. The 'objective' effect of cultural disintegration associated with the headscarf cannot be reconciled with the constitutional requirement of state neutrality in matters of faith. The Federal Constitutional Court ruled (see headscarf ruling ) that a prohibition for teachers to wear a headscarf in school and class does not find a legal basis in the law of the state of Baden-Württemberg, but requires a legal basis as state intervention ( materiality theory ). A corresponding regulation could not be made by an authority decision (or at the sub-statutory standard-setting level), but had to be created by state law - a path that the state parliaments are free to take, but which has not been followed until then. The Constitutional Court did not respond to the question of whether the headscarf was a political and, at the same time, an inadmissible symbol - a point on which the state's argumentation and public discourse were based. In 2004, the following wording was added to the Baden-Württemberg Schools Act in Section 38: “(2) Teachers at public schools in accordance with Section 2 (1) may not make any political, religious, ideological or similar external statements in the school that are suitable To endanger or disturb the neutrality of the country towards pupils and parents or the political, religious or ideological school peace . In particular, external behavior is inadmissible which can give pupils or parents the impression that a teacher is acting against human dignity , equal rights for people according to Article 3 of the Basic Law, the fundamental rights of freedom or the 'free-democratic' basic order. The fulfillment of the educational mandate according to Article 12, Paragraph 1, Article 15, Paragraph 1 and Article 16, Paragraph 1 of the constitution of the state of Baden-Württemberg and the corresponding presentation of Christian and Western educational and cultural values ​​or traditions does not contradict the requirement of conduct according to sentence 1. The religious neutrality requirement of sentence 1 does not apply in religious instruction according to Article 18 sentence 1 of the constitution of the state of Baden-Württemberg. "

In 2006, the Stuttgart Administrative Court ruled in the first instance to a Muslim teacher who had sued against a ban on the basis of this law, since the authorization to intervene violated the principle of equality. The court referred to the fact that in the Black Forest , for example, Catholic nuns taught in habit . In the case of the nun habit, however, the misunderstanding could not arise that girls and women must “in principle also wear such a nun habit in order to adequately take into account moral requirements or the position of women in society”. The nun's habit also corresponds to the historical development and public perception of the Christian-occidental educational and cultural values. In response to the state's appeal, the Baden-Württemberg Administrative Court confirmed the original instructions from the Stuttgart Higher School Office on March 14, 2008 and overturned the decision of the Stuttgart Administrative Court. The teacher violates a duty of service under the School Act; the instruction to teach only without head covering is legitimate. The court did not see a violation of the principle of equality because the school law forbids religiously motivated clothing or other external religious expressions regardless of the gender of the teacher concerned and is not specifically directed against the Islamic headscarf or headgear worn by women.

Bavaria

In Bavaria, Article 59, Paragraph 2, Clause 3 of the Bavarian Education and Teaching Act (BayEUG) is the legal basis. The ruling of the Bavarian Constitutional Court of January 15, 2007 (Vf. 11-VII-05) pointed the way. An Islamic religious community had civil suit brought before the Bavarian Constitutional Court and 2 set while Article 59 para attacked three BayEUG in which it is set. "External symbols and clothing that express a religious or philosophical conviction may not be worn by teachers in the classroom, provided the symbols or clothing can also be understood by the pupils or the parents as an expression of an attitude that is incompatible with the basic constitutional values ​​and educational goals of the constitution, including the Christian-Western educational and cultural values. "The Islamic religious community justified its complaint On the one hand, with the fact that the provision in the BayEUG is unconstitutional, as it affects Muslim teachers in their freedom of religion granted in Article 107 of the Bavarian Constitution . On the other hand, nuns are allowed to continue to wear their uniform while teaching, so that the principle of equality before the law within the meaning of Article 118, Paragraph 2 of the Bavarian Constitution is also violated.

The Bavarian Constitutional Court saw the popular lawsuit as unfounded. The teachers' freedom of belief and religion is in tension with the basic rights of students and their parents as well as with the state's educational mandate. The deliberative assessment of the legislature that the credible communication of the basic values ​​and educational goals in the classroom can be endangered by wearing certain items of clothing is not constitutionally objectionable. There is also no inadmissible preference for the Christian denominations. The Christian-Occidental educational and cultural values ​​in the legal text are not about the beliefs of a religion, but about values ​​and norms that have largely become the common property of the occidental culture. The fact that certain items of clothing are not allowed to be worn by teachers results from these values ​​anchored in the Bavarian constitution and from the educational goals. Thus, the regulation in the BayEUG is constitutional. The challenged legal norm, Article 59 Paragraph 2 Clause 3 of the BayEUG, thus remains in place.

Following the lawsuit of a 25-year-old Muslim legal trainee, the Augsburg Administrative Court declared the headscarf ban at this point with reference to the protection of religious freedom as inadmissible. On the other hand, the Augsburg Administrative Court based its decision primarily on the lack of a legal basis. The Bavarian Minister of Justice, Winfried Bausback , appealed. On March 7, 2018, the judgment of the Augsburg Administrative Court was overturned by the Bavarian Constitutional Court in Munich for procedural reasons and the lawsuit was dismissed. On February 22, 2018, the Bavarian State Parliament passed a new law on judges and public prosecutors, which forbids the visible wearing of religious or ideological clothing in the courtroom. The law came into force on April 1, 2018. A Muslim religious community filed a popular complaint against this. In their opinion, the law violates the Bavarian constitution because it is directed against a certain religious community and crosses are allowed in the courtroom at the same time. On March 18, 2019, the Bavarian Constitutional Court announced in a press release that it had dismissed the lawsuit in its decision of March 14, 2019. The law does not constitute discrimination because it affects not only Muslims but also other religious communities, such as Sikh. The hanging of a cross in a courtroom is attributable to the administration. Therefore, this would not raise any doubts about the independence of judges. Something different applies to the clothing of public officials. Here the state must guarantee the judicial independence of the judges. Therefore, different treatment in these two cases is not unequal treatment.

Berlin

In Berlin there was a legal ban on headscarves for teachers, among other things; the law - also known as the “Neutrality Law” for short - goes far beyond the headscarf ban with a total ban on religious symbols in the public service, against which the two major churches protested. On April 14, 2016, the Berlin Labor Court rejected a complaint by a Muslim teacher against the headscarf ban. In February 2017, the Berlin State Labor Court awarded two prospective teachers (including those whose lawsuit had just been dismissed) who had been rejected in Berlin elementary schools because of their headscarves for the first time. The Education Senate continues to adhere to the Neutrality Act (as of September 2017).

In November 2018, another Muslim applicant was awarded damages. The plaintiff was a computer scientist who had applied as a career changer for high schools, secondary schools and vocational schools. The Neutrality Act does not apply to vocational schools, as their students are mostly of legal age; According to the education administration, there were already more suitable teachers with full pedagogical training.

At the beginning of September 2020 there was a dispute in the red-red-green government coalition over a court ruling from August in which a teacher who had been refused to teach with a headscarf was awarded compensation by the Federal Labor Court for failing to do so to prove an actual "disturbance of the school peace". Thereupon Justice Senator Dirk Behrendt (Bündnis 90 / Die Grünen) appeared and interpreted the judgment as meaning that legal trainees of Muslim faith were now also allowed to read out indictments with headscarves in court.

Bremen

The legal prohibitions on the headscarf do not apply to trainee teachers, i.e. to prospective teachers who want to complete their legal clerkship. The state has a monopoly on teacher training, but the profession, for example at private schools, can also be practiced by independent and private providers. A provision in the Bremen Schools Act, which also banned trainee teachers from wearing the headscarf, was declared inapplicable by the Federal Administrative Court, provided that the school peace was not disturbed.

Hesse

The State Court of Hesse confirmed on December 10, 2007 that a law passed in autumn 2004 is compatible with the constitution of the State of Hesse . This law prohibits not only teachers and professors, but all civil servants from wearing clothing that could endanger political peace. Hesse's Justice Minister Eva Kühne-Hörmann (CDU) lodged a complaint in April 2017 against the urgent decision of the Frankfurt am Main Administrative Court , which allowed a trainee lawyer to wear a headscarf during her legal preparatory service. As part of the 2017 collective bargaining round, the state enforced a " burqa ban " (to be precise: the ban on covering the face during working hours) for public sector workers.

Lower Saxony

The Administrative Court of Lüneburg decided in 2000 that the religious belief of a teacher and the wearing of a headscarf derived from this should not be taken into account when selecting applicants - from the point of view of suitability (Art. 33 Paragraph 3, 3 Paragraph 3 GG,? ? 3 para. 1 NSchG). Wearing a headscarf does not violate the principle of neutrality in schools in Lower Saxony. The teacher of German and art, who converted to Islam in 1990 and did not want to do without her headscarf in class, successfully fought for her position as a probationary civil servant before the administrative court in 2000. In its reasoning, the court had emphasized that just wearing a headscarf in school could not in any way lead to a lack of aptitude, since no one should be disadvantaged because of their beliefs and the clothing they derive from it. This was not only approved by the former Federal Constitutional Judge Böckenförde (judge in the 2nd Senate of the Federal Constitutional Court from December 20, 1983 to May 3, 1996), but also elsewhere in the literature. In the second instance, however, this decision of the Lüneburg Administrative Court was overturned by the Lower Saxony Higher Administrative Court, emphasizing the employer’s discretion in school law, which also includes protection against religious influences. However, the appeal to the Federal Administrative Court was admitted: Here the plaintiff gave up in the hearing and agreed to the teaching without a headscarf.

North Rhine-Westphalia

The North Rhine-Westphalian School Act forbade (until the amendment of 2015; see below) teachers in Section 57 Paragraph 4 to make political, religious, ideological or similar external statements that could endanger the neutrality of the state towards students and parents or the school peace. This is especially true if the impression could arise that teachers are acting against human dignity, equal rights according to Article 3 of the Basic Law or the free-democratic basic order. Confessional and ideological schools are excluded.

A teacher was then dismissed in 2007 for wearing a headscarf, which lasted until the Federal Labor Court. In the same year, a long-serving civil servant who converted to Islam in 1990 was banned from wearing the headscarf in class as a “religious expression”. Your counterclaim was dismissed by the Düsseldorf Administrative Court. In another case, a Turkish teacher wanted to teach with a beret instead of a headscarf. On the grounds that this was only a replacement for the headscarf, the Düsseldorf Regional Labor Court dismissed her appeal. The teacher rejected the court's settlement proposal to wear a wig instead of a beret. In January 2015, the Federal Constitutional Court ruled that a blanket headscarf ban was incompatible with the constitutionally guaranteed freedom of religion and that Section 57 (4) of the Schools Act had to be restricted to the effect that wearing a head covering as a fulfillment of religious duty was only possible if there was a concrete risk to school peace or state neutrality may be banned.

By changing the School Act of June 25, 2015, Section 57 (4) of the School Act was repealed and a new provision was added to Section 2 (8) of the School Act, which takes this case law of the Federal Constitutional Court into account. The former President of the Constitutional Court for the State of North Rhine-Westphalia, Michael Bertrams , dealt critically with this new regulation and called for practicable administrative regulations.

Headscarf in day care centers

In the area of day-care centers , only two federal states have so far adopted legal regulations for dealing with religious symbols and clothing: Baden-Württemberg and Berlin . According to the case law of the Baden-Württemberg State Labor Court, the regulation in Baden-Württemberg is compatible with the Basic Law and in particular does not violate the positive freedom of belief of those who wear a headscarf. This decision was confirmed by the Federal Labor Court , but the Federal Constitutional Court overturned the decision and decided that the relevant provision of the Baden-Württemberg state law was to be interpreted in a reducing and constitutional manner in that the wearing of a headscarf could only be prohibited if there was a sufficiently concrete risk for the person Protected goods named in the law (negative freedom of religion and belief of children, basic parental rights of the parents of those children, principle of state neutrality) existed. This specific risk must be proven and justified.

Headscarves for church employers

According to a ruling by the Federal Labor Court (BAG) on September 24, 2014 in Erfurt, church employers are generally allowed to forbid their employees from wearing other denominational symbols in the workplace, since employees in church institutions are at least obliged to behave neutrally. The BAG decided in favor of the Augusta Hospital in Bochum , which had banned a Turkish nurse from wearing a headscarf. With the judgment, the BAG referred the complaint back to the Hamm Regional Labor Court . It still has to be clarified to what extent the Augusta Hospital is a church institution. With a judgment of May 8, 2015, the Hamm Regional Labor Court also ruled in favor of the Augusta Hospital. This is a church employer. The hospital's “headscarf ban” is consistent with the church's right to self-determination and is a permissible measure.

Ban on headscarves for lawyers in courtrooms

The legal situation regarding the wearing of headscarves by lawyers involved in the proceedings in courtrooms is not uniform nationwide. In February 2020, based on a constitutional complaint by a legal trainee from Hesse , the Federal Constitutional Court ruled on the legality of bans on headscarves for lawyers involved in the proceedings in courtrooms, since the requirement of state neutrality and distance in court proceedings outweighs freedom of religion and professional freedom . According to the Federal Constitutional Court, however, this decision does not mean that from now on there will be a nationwide compulsory ban on headscarves for lawyers and judges during the exercise of their office.

Austria

As a result of the annexation of Bosnia by Austria-Hungary in 1908 , the Islamic Law was promulgated in 1912 as a supplement to Article 14, Paragraph 1 of the Basic State Law on the general rights of citizens . In it, the Islamic religious community was officially recognized and put on an equal footing with other religious communities. After Austria-Hungary was dissolved under international law by the Treaty of Saint-Germain , the law was incorporated into the Austrian Federal Constitution in 1920.

Muslims have extensive internal autonomy . Wearing a headscarf is considered to be a claim to the right to religious freedom , which is also documented in Article 9 of the European Convention on Human Rights . There was therefore no headscarf ban in Austria for a long time.

On June 8, 2017, the Anti-Facial Veiling Act (AGesVG for short) was passed, which forbids covering or concealing one's facial features in public places or in public buildings with clothing or other objects so that one is no longer recognizable. The law came into force on October 1, 2017.

On November 21, 2018, the National Council unanimously passed a general ban on headscarves in kindergartens . The ban is intended to serve as a protective measure against religious indoctrination, sexualization and stigmatization. The federal states should take measures against violations of the agreed headscarf ban. The Lower Austrian Kindergarten and Childcare Acts are to be changed and fines are to be imposed on those with parental authority who send their daughters to kindergarten wearing a headscarf.

In May 2019, the National Council passed a headscarf ban for elementary schools . Girls are not allowed to wear a headscarf that covers all or essential parts of their hair until the end of the school year in which they turn ten years old. In the event of violations, parents can be punished with a fine of 440 euros or a two-week substitute imprisonment. The law has yet to be confirmed by the Federal Council and notarized by the Federal President . The Islamic Faith Community in Austria announced shortly after the decision in the National Council that it would take action against the law before the Constitutional Court .

On December 11, 2020, the Constitutional Court declared the headscarf ban in elementary schools unconstitutional and lifted it with immediate effect. The constitutional judges justified the decision that the regulation single out a certain religion, Islam, without further justification, which contradicts the requirement of religious and ideological neutrality of the state.

Switzerland

In Switzerland , the two largest retail chains Migros and Coop took part in the headscarf debate. Migros employees may - if it is hygienically responsible - wear headscarves; Coop, on the other hand, decided not to allow headscarves because the clothing regulations were not designed for them.

In 1996 the authorities in the canton of Geneva prohibited a primary school teacher from wearing a headscarf while practicing her profession. The decision was supported by the Federal Supreme Court and the European Court of Human Rights .

In the canton of Ticino , there has been a ban on covering since July 1, 2016. However, according to media reports, it is circumvented by women wearing a headscarf in conjunction with a medical face mask. In 2016, the National Council initially voted with a narrow majority in favor of a general burqa ban in Switzerland; in 2017 , the St. Gallen Cantonal Council instead proposed a restricted ban on covering faces in contact with authorities and official bodies. There is no headscarf ban in Swiss schools .

France

In France since the adoption of the law on the separation of church and state in the year 1905 of secularism official state doctrine . Since then, teachers at state schools and universities have been banned from displaying "conspicuous religious symbols" in public teaching. It is unclear to what extent this ban also affects symbols of political ideologies (red star, Che Guevara symbolism). After a long debate, the parliament decided on February 10, 2004 that the wearing of larger religious symbols such as kippah , voile (headscarf) and habit is also forbidden for schoolchildren and students. Only small religious signs are allowed, such as B. small stars of David or crosses . In France, secularism is recognized in large groups of the population. Critics see in the above Resolve a serious restriction on religious freedom while proponents point to republican values ​​like equality . The French debate has also been shaped by the social pressures and violent incidents faced by young women in predominantly Muslim settings. The French women's rights organization “Ni putes, ni soumises” (“Neither whores nor subjugated”) advocates maintaining the ban on veils in public institutions, as they offer some of these young French women in the suburbs freedom, while in the district the veil is often unavoidable to avoid attacks by male adolescents. On the occasion of a visit by the then French Interior Minister Nicolas Sarkozy in December 2003 to Egypt , Muhammad Sayyid Tantawi , Grand Sheikh of the renowned al-Azhar University in Cairo , declared that wearing a headscarf was a divine commandment, but that women who lived in non-Muslim countries were subject to compulsory prohibition lived, are exempt from this obligation. Also Soheib Bencheikh , the Grand Mufti of Marseille and religious authority of the French Mediterranean metropolis, expressed understanding for a non-wearing of the headscarf ban under duress. The headscarf ban for schoolgirls drew wide circles. In August 2004, during the Iraq war, the two French journalists Christian Chesnot and Georges Malbrunot were kidnapped by the militant Islamist group Islamic Army in Iraq , which demanded that France lift the ban. The kidnapping ended in December 2004 without France giving in to blackmail. The ban has been in force since school began on September 2, 2004. On the first day of school, 70 students refused to take off their headscarves. Many switched to other headwear. Some pupils switched to Islamic schools or left school under family pressure without a school leaving certificate. Schoolgirls who refused to take off their headscarves despite the ban, faced reprimands.

The European Court of Human Rights in Strasbourg ruled on November 26, 2015 that anyone who works for the French state should not use a veil. The European Court of Human Rights considers the interests of the state to be more important. In October 2018, the UN Human Rights Committee found that the French regulation was incompatible with human rights. France has 180 days to respond to this finding.

United Kingdom

As the UK has a long tradition of dealing with migrants from Commonwealth countries, society is very multicultural. There, as in Canada , the Sikhs achieved before the Muslims that the wearing of turbans is tolerated for teachers. Therefore, no clothing was forbidden to the Muslims either. Schoolchildren are generally required to wear a school uniform , which defines a certain framework (e.g. length of the headscarf, etc.). The headscarf is generally tolerated. Female police officers are also permitted to wear a headscarf.

Netherlands

In the Netherlands , burqas and nikabs are no longer allowed to be worn in hospitals, schools and in local public transport.

Bulgaria

In Bulgaria , public veiling is prohibited on the basis of a 2016 law.

Turkey

In 1937, in Turkey, secularism was included as one of the state principles in the then valid constitution. The Turkish Constitutional Court defined secularism, among other things, as the liberation of religion from politicization. This attempt at secularization also envisaged a headscarf ban.

The wearing of headscarves ( Türban ) is no longer forbidden in authorities. All public employees such as civil servants and teachers, but also schoolchildren and students were affected by this regulation, which was lifted for female students in 2008, which brought the leading party AKP into a ban proceedings before the constitutional court, which they only barely survived: at the one for one Prohibition required two-thirds majority of the judges were missing a single vote. For this reason, many wealthy women from strictly religious families studied until the headscarf ban for female students was lifted in Western Europe, where there is no such restriction. The headscarf was not forbidden by law for employers outside the public service; here the general labor law regulations applied. Outside of working life there is never a ban. Some women circumvented the ban by wearing a wig. The headscarf ban was also enforced through police measures (for example, female students with headscarves were banned from entering universities), which has often been the subject of heated debates in the past. The Kemalist elite regards the wearing of a headscarf, especially among female students, as a political symbol of an Islamist movement. From their point of view, the dispute is not primarily about the rights of freedom, but about an ideological struggle of the secular state against the Islamists who are striving to re-Islamize Turkish society.

On November 10, 2005, the Grand Chamber of the European Court of Human Rights considered the ban to be compatible with the European Convention on Human Rights . It confirmed the judgment of the first chamber of the court, which on June 28, 2004 dismissed the complaint of a Turkish medical student. It does not constitute a violation of the principle of religious freedom if a student with a headscarf is prohibited from entering a public university. The judges found that the headscarf in Turkey is classified as a symbol of an "extremist movement" which is directed against the constitutional order and the equality of men and women. With the ban, Turkey is pursuing the goals of maintaining public order and protecting civil liberties, and the ban is therefore in accordance with the constitution. In a judgment from February 2006, the second chamber in the Turkish State Council confirmed the headscarf ban in educational institutions and extended the ban to the streets in front of such institutions.

At the beginning of 2008, the Turkish Prime Minister Erdoğan's plans to plan a new constitutional article that did not explicitly mention the headscarf, but would lift its ban at universities, for example, became known. The current Turkish ruling party, the AKP, headed by Prime Minister Erdoğan, and the opposition nationalist MHP agreed on January 24, 2008 to end the headscarf ban at universities. Accordingly, the parties planned to amend Articles 10 and 42 of the Turkish Constitution. These deal with equality before the law and the right to higher education . The Kemalist CHP criticized the planned constitutional changes and interpreted them as a sign that Turkey was on the way to becoming an Islamic state of God . On February 6, 2008, deliberations on the constitutional amendment began in the Turkish parliament, which were accompanied in advance by demonstrations against the lifting of the ban in Ankara. Three days later, the constitutional amendments were adopted by parliament with a clear majority (403 against 107 and 403 against 108 votes). On June 5, 2008, however, the Turkish Constitutional Court annulled these constitutional amendments by nine to two votes. According to the judges, the amendments violated several principles of the constitution, according to which Turkey is a "democratic welfare state on a secular basis". The CHP had sued against the changes in the law by the AKP . According to observers, the verdict was seen as a prejudice to the prohibition proceedings against the AKP, which Prosecutor General Abdurrahman Yalçınkaya initiated at the Constitutional Court on March 14. The reason is that the AKP is a “focus of activities against the principle of secularism ”. In initial reactions, several AKP politicians accused the Constitutional Court of breaching the constitution and a coup of the judiciary.

In a survey carried out by the Islamic conservative daily Zaman in 2008, a total of 7,422 people from twelve provinces took part. 99.5 percent of the headscarf wearers surveyed, 73.1 percent of the non-headscarf wearers and 78 percent of the men surveyed spoke out in favor of lifting the ban.

In October 2010 the "headscarf ban" was abolished at Turkish universities. The University Council of Turkey announced that female students will no longer be excluded from lectures if they violate the dress code.

In September 2013, the Turkish Prime Minister Recep Tayyip Erdoğan announced that he would end the headscarf ban for women in the civil service (except for judges, public prosecutors, military personnel and policewomen).

On September 23, 2014, the Islamic conservative government under Prime Minister Ahmet Davutoğlu announced that it was now allowed to wear a headscarf from grade 5 onwards.

United States

In the United States of America there has been a dispute over the wearing of headscarves in schools since the end of March 2004 . A school board in Oklahoma state banned a Muslim girl from class for wearing a headscarf. The Washington Department of Justice took legal action to allow the girl to go to school with a headscarf.

Canada

According to the 2001 census, there were 579,740 Muslims in Canada in 2001 ; In 2010 it was estimated at 940,000. That is a good 3% of the country's population. 5 percent of the residents of the Greater Toronto Area are Muslims; this is the highest concentration of Muslims in any North American city.

In 2007 the case of an 11-year-old Muslim woman who wanted to wear a headgear to an official soccer game was discussed. At first they were banned; In 2012, FIFA allowed them.

In the Canadian province of Québec , the provincial football association banned the wearing of headgear, such as a turban, when playing football. The reason for the ban were Sikhs who wear headgear for religious reasons. The Canadian Soccer Association asked FIFA to make a decision on the matter. In June 2013, FIFA issued an exemption. However, the matter has not been finally clarified. It is to be discussed in October and March 2014 in the responsible FIFA committee, the International Football Association Board , which is basically responsible for football rules.

A bill presented to the National Assembly of Québec in 2013 stipulates that officials and employees of the province are not allowed to wear conspicuous religious symbols. This regulation should include hospitals, universities and state or state subsidized schools and kindergartens.

Iran

Under Reza Shah Pahlavi , a legal ban on wearing the chador was enacted in 1937 and enforced with coercive police measures. His son Mohammad Reza Pahlavi had the ban on wearing the chador lifted to meet the demands of the clergy.

In the Islamic Republic of Iran , which has existed since 1979, there is a general compulsion to wear the headscarf in public, not only in institutions, but also in everyday life. Headscarves may be removed from private areas that cannot be seen from the outside and in apartments. In Iran (as in Saudi Arabia) it is also mandatory for foreigners (such as tourists) to wear a headscarf.

In the first days of the 2020 Women's Chess World Cup , the Iranian chess referee Shohreh Bayat wore a loose headscarf, which, however, could not be seen depending on the perspective. After criticism in the Iranian state media, the Iranian Chess Federation asked her to apologize and to wear a particularly pious-looking headscarf out of repentance, and left her request for an assurance of a safe return to Iran unanswered. She then decided not to return to her home country for the time being and took off her headscarf completely.

Egypt

In the Arab Republic of Egypt , headscarves were banned from women on state television for over 50 years. After the overthrow of Hosni Mubarak and the election victory of the Muslim Brotherhood , this changed in September 2012, when Fatma Nabil presented the news for the first time with a hijab .

Violent protests against wearing full-body veils arose in Egypt; the Azhar declared full-body and face veils un-Islamic as early as 2009. The secular Cairo University banned its female professors from wearing a face veil in 2015.

Algeria

During the Algerian war , at a pro-French rally on May 16, 1958, a few dozen Algerian women demonstratively took off their full-body veil, the "Haïk". The action was organized by a charitable women's organization led by the wife of the French general Raoul Salan . Afterwards, many Algerian women put their veils back on. Frantz Fanon evaluated this in his book Sociologie d'une révolution as a positive identity symbol:

“After May 13, 1958, the veil was put back on by many women, but it was finally stripped of its traditional dimension. So there is a historical dynamic of the veil that can be grasped very specifically in the course of the colonization of Algeria. The veil is a mechanism of resistance. "

- Frantz Fanon : in: Bernhard Schmid, Algeria. Frontline State in Global War ?, p. 99

Alleged participants in this action were searched for and persecuted after Algerian independence in the course of "moralization campaigns". In a demonstration in 1963, women burned their hijābs to protest against the discrimination that persisted after independence . From March to June 1989, various Islamist groups campaigned for the wearing of the hijab. Against the increasing public pressure, seven women's associations organized repeated counter-demonstrations, and a petition from 200 intellectuals publicly opposed the rise in intolerance.

Tunisia

In 1924, Mannubiya Al Wirtani, a member of the French SFIO , demanded in a public address the emancipation of women, their intellectual training and exposure. In 1929, a Tunisian woman, Habiba Al Minsari, publicly took off her face veil during a speech. At that time, the leader of the Tunisian independence movement and later head of state, Bourguiba , opposed unveiling women because the veil was an expression of the Tunisian identity threatened by France. In the following years, the writer At-Tāhir al-Haddād campaigned for the equality of women and against their veiling, which took place in Tunisia at that time in the form of the full-body veil ( niqab and abaya ).

"The veil makes it impossible for women to enjoy the sunshine, to pursue sporting activities and to benefit from nature during the four seasons"

- At-Tāhir al-Haddād : Imraʾatunā fī š-šarīʿa wa-l-muǧtamaʿ , 1930, pp. 21f.

The veil was originally a tribal custom, it was worn in cities and villages, but not in the desert, where people followed their instincts. It is a cruel custom that gives little girls the idea that they are not trustworthy. In addition, he restricts the choice of partner because when choosing a bride, the man can only orient himself to the often too exuberant descriptions of the woman by the bride's family. The reality is often disappointing, which leads to unhappy marriages and many divorces. Taking off the veil is said to have advantages for both sexes.

Wearing niqabs is still banned in Tunisia today. In 1981, the then head of state Bourguiba also banned the wearing of hijab in public buildings. His successor Ben Ali tried to enforce further bans on wearing hijab in "Circular 102"; a Tunisian court declared this circular to be unconstitutional.

People's Republic of China

In April 2017, Muslim Uyghurs in Xinjiang Province were legally banned from wearing headscarves in the country.

European Court of Justice

In May 2016, the Advocate General before the European Court of Justice (ECJ) judged a headscarf ban by private employers to be permissible if the headscarf was used as a religious symbol. Such a ban could come into effect if there were general company regulations in which the display of political, philosophical and religious symbols in the workplace was forbidden. While an employee cannot discard his gender, skin color, ethnic origin, sexual orientation, age or disability as soon as he enters the premises of his employer, he can be expected to “be expected to exercise a certain degree of restraint” with regard to the practice of religion at work it in the summary of the ECJ on the assessment of the Advocate General. On March 14, 2017, the ECJ ruled that a headscarf ban by private employers is permissible if ideological signs are generally prohibited in the company and there are good reasons. In July 2021, the ECJ ruled that it was possible for entrepreneurs to prohibit the wearing of a headscarf under EU law. The condition is that any ideological symbols are prohibited in the company. In addition, national constitutional law, such as that on religious freedom, can be included in the weighing up of the admission of such indirect discrimination . In the opinion of the ECJ, other (i.e. higher) requirements for such treatment of employees could result from national constitutional law.

See also

literature

Web links

Individual evidence

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  124. ↑ FAZ.net: EU Advocate General: Ban on headscarves in companies may be permissible
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  126. ↑ According to the ECJ, employers can ban headscarves in the workplace ( Memento from March 15, 2017 in the Internet Archive ), FAZ.net, March 14, 2017.
  127. ↑ Michael Fuhlrott : Wearing headscarves in the workplace can be forbidden . In: lto.de . July 15, 2021, accessed July 19, 2021.
  128. ↑ Sueddeutsche.de: Employers can prohibit wearing headscarves , July 2021
  129. ↑ Press release No. 128/21. (PDF) The ban on wearing any visible form of expression of political, ideological or religious convictions can be justified by the employer's need to convey an image of neutrality to customers or to avoid social conflicts. Court of Justice of the European Union, July 15, 2021, accessed July 18, 2021 .
  130. ↑ ECJ , judgment of July 15, 2021 in the joined cases C-804/18 and C-341/19 .