The legal struggle over Europe's veil bans

A woman wearing a veil Image copyright Reuters

Germany's highest court has overturned a 2004 ban on headscarves for state school teachers, saying that it violated religious freedom.

The case puts the spotlight on the many debates and court cases in Europe over the wearing of veils by Muslim women - and the differences from one country to the next.

Muslims are certainly not the only ones affected by restrictions on religious dress codes.

For example, Sikhs have had to fight in court for the right to wear a turban in schools and at work, and Christians have claimed a right to wear chastity rings in schools and crucifixes at work.

Yet these cases have been less numerous and contentious than those involving Muslim veils.

The reason may lie in the fact that the increasing use of these veils in Europe has been interpreted by some as an attack on the national identity of some European countries, on Western notions of gender equality, and on a desirable degree of separation between state and religion.

Those keen on generally retaining the right to wear a veil counter-argue, among other things, that law and society should protect religious freedom, multiculturalism, and the rights of religious and ethnic minorities.

Which countries have bans?

There is a great degree of variation across Europe on how the wearing of the veil is regulated.

Since 2008, Turkey has allowed teachers and students at any educational institution to wear headscarves and in 2013 lifted rules banning women from wearing headscarves in the country's state institutions - with the exception of the judiciary, military and police.

In 2004, France banned both teachers and pupils from wearing the veil in state schools, and public servants are also prohibited from wearing religious symbols.

Image copyright Getty Images
Image caption Headscarves are banned in schools in France, but permitted at universities

In 2010, France went further and prohibited the wearing of full veils in public spaces.

In 2011, Belgium also banned the full veil in public spaces.

Many other partial interdictions exist at regional level, and in relation to particular schools and work places, in accordance to national legal frameworks.

Are there legal challenges taking place in some of those countries?

The most famous challenges to bans on veils have involved Switzerland and Turkey, and have reached the European Court of Human Rights.

In Dahlab v Switzerland, the court found that a teacher in Switzerland was lawfully prohibited from wearing a veil, and similarly in Sahin v Turkey, the court accepted the prohibition to wear veils imposed on Turkish university students.

Although affording states a broad Margin of Appreciation in deciding on these matters may be appropriate, the court was widely criticised for allowing such restrictions on religious clothes due to the contentious arguments it used.

France's 2010 ban on full veils in public spaces has also been challenged at the European Court of Human Rights, and in 2014 the court held the ban to be lawful.

In the UK, although there is no legal ban on any form of veil, the right to wear a veil may be restricted at work or in schools.

This has been challenged in courts as discrimination on grounds of religion, for example, when some types of work have required uncovering the face or when school dress codes have limited the type of religious dress that can be used. Again, these challenges have been unsuccessful.

Muslim headscarves

The word hijab comes from the Arabic for veil and is used to describe the headscarves worn by Muslim women. These scarves come in myriad styles and colours. The type most commonly worn in the West is a square scarf that covers the head and neck but leaves the face clear.
The niqab is a veil for the face that leaves the area around the eyes clear. However, it may be worn with a separate eye veil. It is worn with an accompanying headscarf.
The burka is the most concealing of all Islamic veils. It covers the entire face and body, leaving just a mesh screen to see through.
The al-amira is a two-piece veil. It consists of a close fitting cap, usually made from cotton or polyester, and an accompanying tube-like scarf.
The shayla is a long, rectangular scarf popular in the Gulf region. It is wrapped around the head and tucked or pinned in place at the shoulders.
The khimar is a long, cape-like veil that hangs down to just above the waist. It covers the hair, neck and shoulders completely, but leaves the face clear.
The chador, worn by many Iranian women when outside the house, is a full-body cloak. It is often accompanied by a smaller headscarf underneath.
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Where has a ban been ruled out and why?

In Germany, some states banned teachers from wearing veils in state schools and such bans were initially allowed.

Yet, following a long string of court decisions, the German Federal Constitutional Court decided in 2015 that such bans are incompatible with the right to freedom of religion protected by the German Basic Law.

In doing so, the court conceded that state religious neutrality does not necessarily entail that state school teachers be prohibited from wearing religious symbols.

Other European countries, like the Netherlands and Switzerland, have debated the prohibition of the full veil in public spaces, but the necessary political majority has not been reached and proposals have been put aside for the time being.

Do some people believe this is nothing to do with the state?

Image copyright Getty Images
Image caption This sign in Varallo, Italy, says that the burka, niqab and burqini are not allowed by communal decision

While acknowledging that public security may justify some restrictions on full veils, many commentators argue that any restriction that goes beyond this narrow scope is potentially problematic and needs to be thoroughly justified.

Excessive and poorly justified limits on religious dress codes tend to lead to greater social tensions and limitation to individual rights.

This has to be thoroughly scrutinised to prevent a slippery slope of curtailing individual freedoms.

Nuno Ferreira, a senior lecturer in law, has written on this subject for The Conversation.

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