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Headscarf and other religious symbols: legal framework

  • Religious and philosophical convictions

What legal bases are there to determine whether or not a headscarf or turban is acceptable? We list the most important concepts and the underlying legislation or case law.

Freedom of thought, conscience and religion: European Convention on Human Rights (ECHR)

Freedom of thought, conscience and religion is one of the pillars of democratic society. This freedom is endorsed, among others, by Art. 9 of the European Convention on Human Rights (ECHR), Art. 19 of the Constitution and other international and European legal texts.

This is the text in art. 9 of the ECHR:

  1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change one’s religion or belief and the freedom, alone or in community with others, in public or private, to manifest one’s religion or belief, in worship, teaching, its practical application and keeping the commandments and regulations. 
  2. The freedom to manifest religion or belief shall not be subject to any restrictions other than those provided for by law and which, in a democratic society, are necessary for public order, health or morality or the protection of rights and freedoms of others.

Art. 9 of the ECHR offers all citizens this protection:

  • Inner freedom of religion: everyone has the right to believe, not to believe and to change their religion or philosophy. This freedom is absolute. This means that it is forbidden to interfere with someone’s religion.
  • Right to express a religion or philosophy in private or in public, both alone and in groups: for example, teaching a faith or philosophy, attending and organising worship services, determining dress codes (kippah, headscarf, kirpan, beard, etc.) and performing religious acts (dietary regulations, funeral regulations, etc).

Religion and belief: judgments of the European Court of Human Rights (ECHR)

Judgements by the European Court of Human Rights (ECtHR) show that the concepts of 'religion' and 'belief' are interpreted very broadly and protect:

  • traditional religions
  • non-religious philosophical beliefs
  • minority religions

For the Court, the precondition is that the expressions must be those that testify to "a vision from which there is a certain force, as well as seriousness, coherence and importance"(ECHR 7511/76 Campbell and Cosans v UK, 25 February 1982).

Externalisation of beliefs: judgments of the European Court of Human Rights (ECHR)

Externalisations of beliefs are objects, images, clothing or symbols that show that someone belongs to a religious or philosophical belief. Consider, for example, effigies, headscarf, kippah, turban, cross, Star of David, hand of Fatima, kirpan, ...

The intention of the person wearing it matters. For example, the European Court of Human Rights (ECHR, November 10, 2005, Sahin/Turkey ) ruled with regard to the Islamic headscarf that one can assume that wearing it is motivated or inspired by a religion or belief, if the woman wearing the headscarf believes she is thus obeying “a religious rule and, through it, manifests her will to strictly adhere to Islamic obligations.” The Court therefore adopts a personal or subjective view of freedom of religion. Importantly, theological discussions should be avoided. It is therefore not the task of the state, government institution or employer to interpret these religious obligations in the place of the believers.

Finally, actions can also be an externalisation of a belief. If an act is closely linked to a religion or belief, it is considered an expression of a belief under the European Convention on Human Rights.

Restriction options: European Convention on Human Rights (ECHR) and case law of the European Court of Human Rights

The freedom to express a belief/belief can be restricted under strict conditions. These conditions are contained in Article 9 §2 of the European Convention on Human Rights (ECHR) and have been further interpreted by the case law of the European Court of Human Rights. Only if ALL these conditions are met is a restriction on religious freedom permissible.

  • The restrictions must be provided for by law. That is, they must rely on a legal basis that is accessible and foreseeable. We also speak of the principle of legality. The term 'law' is given a very broad interpretation in the case-law of the European Court. A regulation adopted by a municipal council (Council of State judgment no. 223.042) or a school regulation (Council of State judgment no. 228.752 of 14 October 2014) are also considered a law.
  • In addition, they must be lawful : the restriction must serve these legitimate objectives: public security, the protection of public order, health or morals and the protection of the rights and freedoms of other citizens.
  • Finally, they must be necessary in a democratic society. Is there an urgent need to restrict the human right and is the impact of this interference proportionate to the interest being protected? It must therefore be assessed whether:
    1. the measure is appropriate to achieve the objective pursued,
    2. there is a balance between the conflicting fundamental rights and
    3. less far-reaching and restrictive measures exist to achieve the objective

Application of freedom of religion: European Convention on Human Rights (ECHR)

According to the European Convention on Human Rights (ECHR):

  • the government may not interfere with the exercise of the freedoms protected by the treaty (negative obligation);
  • the government must take measures to enable a normal experience and development of the freedoms protected by the treaty (positive obligation) (G. MAES, The enforceability of fundamental social rights, Intersentia, 2003, 177-205; HARRIS, O'BOYLE and WARBRICK, Law of the European Convention on Human Rights, Oxford, OUP, 2009, 18-21).

These obligations also have consequences for relations between citizens. According to the Court, the government must take the necessary measures to ensure that third parties cannot infringe the fundamental rights of fellow citizens. Furthermore, the government must provide appropriate procedures to determine and sanction violations by third parties (G. MAES, The enforceability of fundamental social rights, Intersentia, 2003, 186). This obligation is necessary to guarantee the rights and freedoms contained in the ECHR as fully as possible.

Prohibition of discrimination: anti-discrimination legislation

Anti-discrimination legislation prohibits unequal treatment on the grounds of religion or philosophy, unless the distinction can be justified. One of the basic principles of anti-discrimination legislation is that equal cases should be treated equally, and unequal cases should be treated unequally.

Anti-discrimination legislation prohibits direct and indirect discrimination. To determine whether something is a direct or indirect distinction, the following questions must be answered: 

  • Are only certain religious beliefs/philosophies targeted? 
  • Or is a general ban applied more strictly to certain religious/philosophical symbols, so that in practice only certain religions or philosophies are at a disadvantage?

If this is the case, then the distinction can be qualified as a direct discrimination on the grounds of religion, which is generally prohibited.

Direct discrimination on the grounds of religion can only be justified if there is an 'essential and determining occupational requirement':

  • The characteristic in question or the absence of the characteristic must be essential and decisive because of the nature of the function or the context in which that function is performed. This entails that there must be a clear necessity or need and that it is not sufficient that a particular characteristic is 'useful' or 'appropriate' for the exercise of the professional activity in question.
  • The requirement of the characteristic in question or the absence of the characteristic must be motivated by a legitimate/lawful purpose. The legitimate objective cannot of course be related to discriminatory motives. For example, it is not a legitimate objective if someone wants to meet a discriminatory preference of customers or other employees.
  • The required characteristic must be in reasonable proportion to the aim pursued. This means that the required characteristic must be appropriate and necessary and that there must be a balance between the purpose and the right to equal treatment. Furthermore, there must be no other means of achieving the aim pursued which would entail a less extensive violation of the right to equal treatment.

This is assessed context by context and requires a job-specific assessment.

If it concerns a general ban on wearing visible symbols of religious beliefs or orientations or a general ban on wearing head coverings, then that ban must be based on an objective and reasonable justification. The ban must then meet three conditions:

  • The ban serves a legitimate purpose.
  • The ban is an appropriate means to achieve that goal. This means that the prohibition is suitable to achieve the legitimate purpose.
  • The ban is a necessary means to achieve that goal. This means that no less far-reaching alternatives are possible. These are alternatives that have less impact on a human right, such as the principle of non-discrimination.

Neutrality: Constitution, Council of State and Court of Justice of the European Union

Neutrality has a different meaning in the public and private sectors. 

 

Neutrality in the public sector

The principle of neutrality is not explicitly included in the Constitution, but it does follow from the following constitutional articles:

  • art. 19: freedom of worship and their public performance, freedom of expression 
  • art. 20: no compulsion for acts or ceremonies of the religion
  • art. 21: no intervention by the state in the appointment of ministers of worship

The council of State states that the government must be neutral because: "it is the government of and for all citizens and because in principle it must treat them equally without discriminating on the basis of their religion, their philosophical beliefs or their preference for a community or party. For that reason, government officials may also be expected to strictly adhere to this neutrality and to the principle of equality of use in the performance of their duties towards citizens.” (Opinion n° 44.521/AG of 20 May 2008 of the legislation department of the Council of State on the Bill implementing the separation of the State and religious or non-denominational philosophical organisations or communities, Parl. Acts Senate, Ordinary session, 2007-2008, n°4-351/2, p. 8).

The principle of neutrality is therefore closely linked to the prohibition of discrimination in general and the principle of equality of users of the public service in particular.

There is no consensus on how government neutrality should be put into practice:

  • Exclusive neutrality: all religious or philosophical symbols are prohibited. Under this interpretation, all civil servants are prohibited from externalising religion or philosophy and not only the service provided by the civil servant, but also the appearance of the civil servant himself must be neutral. The civil servant's authority is tied to how he or she looks in public.
  • Inclusive neutrality: religious or philosophical symbols are permitted. Under this interpretation, there is no prohibition on civil servants from wearing external symbols of their religious or philosophical beliefs, and all external symbols are permitted. Only the service provided must be neutral, and not the appearance of the civil servant.
  • Mixed interpretation: a government service can, for example, decide to ban religious or philosophical symbols only to first-line civil servants or civil servants who exercise authority and/or power over citizens (e.g. police officers, magistrates).

Exception: parliamentarians

Members of the parliamentary assemblies are not civil servants and therefore do not have to be 'politically neutral'.

 

Neutrality in the private sector

In the private sector it is considered legitimate to want to demonstrate a policy of political, philosophical and religious neutrality in relations with public and private customers. The Court of Justice of the European Union has ruled that an employer's desire to demonstrate neutrality towards customers is linked to the freedom to conduct a business recognised in Article 16 of the Charter of Fundamental Rights of the European Union. That desire is, in principle, legitimate, especially when the employer, in pursuing that objective, only involves employees who can have visual contact with the employer's customers and when this is an essential part of their job duties.

Attention! Anti-discrimination legislation must always be complied with.

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Report discrimination

Do you feel you have experienced or witnessed discrimination? Report it online or call the toll-free number 0800 12 800 on weekdays between 9.30 a.m. and 1 p.m. 

  • Religious and philosophical convictions