Jul 9, 2018 — with a burqa, which is in an Afghan one-piece garment that also covers the niqab.46 The party’s efforts to call for a national ban on face veils in public Racism (2013) enar-eu/IMG/pdf/austria.pdf accessed 15
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224 West 57 th Street, New York, NY 10019, USA | TEL +1-212-548 -0600 | justice.initiative@opensocietyfoundations.org Restrictions on Muslim women s dress in the 28 EU Member States: Current law, recent legal developments, and the state of play Open Society Justice Initiative This report maps laws and legal developmen ts restricting religious dress specifically the headscarf and face veil worn by Muslim women in the 28 countries of the Europe an Union (EU). Country -by-country , this study examines relevant law s, bylaws, and case law, as well as po litical platforms, legislative proposals , and public discourse . It also covers restrictions in employment, education, services , and public space.
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2 BRIEFING PAPER: REST RICTIONS ON MUSLIM W EXECUTIVE SUMMARY .. .. .. .. .. 3 A. S TATEMENT OF PURPOSE AND SCOPE OF RESEAR CH .. .. .. 3 B. T ERMINOLOGY AND METHO DOLOGY .. .. .. .. 4 C. C ENTRAL FINDINGS .. .. .. .. .. 5 COUNTRY P ROFILES .. .. .. .. . 1 3 A USTRIA .. .. .. .. . 13 B ELGIUM .. .. .. .. . 16 B ULGARIA .. .. .. .. .. 25 C ROATIA .. .. .. .. . 27 C YPRUS .. .. .. .. 28 C ZECH R EPUBLIC .. .. .. .. . 29 D ENMARK .. .. .. .. .. 31 E STONIA .. .. .. .. . 33 F INLAND .. .. .. .. . 35 F RANCE .. .. .. .. 37 G ERMANY .. .. .. .. 44 G REECE .. .. .. .. 49 H UNGARY .. .. .. .. 50 I RELAND .. .. .. .. . 51 I TALY .. .. .. .. 53 L ATVIA .. .. .. .. 55 L ITHUANIA .. .. .. .. . 56 L UXEMBOURG .. .. .. .. 58 M ALTA .. .. .. .. . 59 T HE N ETHERLANDS .. .. .. .. 60 P OLAND .. .. .. .. .. 64 P ORTUGAL .. .. .. .. . 64 R OMANIA .. .. .. .. 65 S LOVAKIA .. .. .. .. 66 S LOVENIA .. .. .. .. 67 S PAIN .. .. .. .. .. 68 S WEDEN .. .. .. .. .. 71 U NITED K INGDOM .. .. .. .. 73 ANNEX I RELIGIOUS DRESS BANS IN THE EU .. .. 78 ANNEX II – LIST OF N ATIONAL REVIEWERS AN D EXPERTS .. .. .. 79 ENDNOTES 80
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3 BRIEFING PAPER: REST RICTIONS ON MUSLIM W EXECUTIVE SUMMARY A. Statement of purpose and scope of research This report maps restricti ons on religious dress, specifically the headscarf and face veil worn by many Muslim women , in 28 countries of the Europe an Union (EU). 1 The restrictions and proposed restrictions explored within the study include l egislation, administrative law , 2 case law, political platforms , and legislative proposals. The report also considers public discourse, activism for and against bans, and the spread of bans and attempted bans within the EU across various sectors, including employment, education, services , and public space . Each chapter of this report examines restrictions and proposed restrictions in a specifi c country of the European Union , for a tot al of 28 chapters. Each chapter aims to provide the most up – to – date information for that particular EU country , as of 10 July 2018 . General background on the Muslim community in that country , in particular information on women who wear religious headscarve s or face veils , is included. Each chapter reports on the existence of legal bans at the national or municipal levels, as well as institutional/private bans or restrictions in practice, plus relevant case law. E ach chapter also traces the development of pu blic discourse on banning headscarves and face veils , media coverage, and political initiatives related to ban ning efforts . In addition to describing legal restrictions , the report tracks the development of bills and political proposals in each country . S uch initiatives may become national legislation or influence the enforcement of existing laws , as well as influencing public discourse. W here possible, the report maps each national legislative protection s against religious discrimination, with a focus on religious discrimination in employment . In Europe today, both academi a and civil society are paying increasing attention to Islamophobia and discrimination against Muslims in general , but there has been significant ly less focus on how legislation and government policies particularly restrictions on religious d ress discriminate against Muslim women . M ainstream international media and major reports by nongovernmental organizations (NGOs) have focus ed primarily on France, Belgium, Ger many, the United Kingdom , and Italy . This report looks beyond those five countries, and pay s equal attention to each EU member . This provides a comprehensive view of the limitations Muslim women encounter in their daily lives in the EU when they chose to p ractice their religion by wearing religious dress. Discrimination against Muslim women must be understood from an intersectional perspective. In addition to being women and religious minorities in Europe, Muslim women who wear religious dress are highly visible and easily identifiable as Muslim, making them even more vulnerable. The intersectional ity of discrimination against Muslim women who wear face veils or headscarves in the EU is emphasized throughout this report . 3 The report does not cov er l egal restrictions on headwear in photographs required for official documents (such as passports ), which are therefore not included here. While the wearing of face veils is strictly prohibited in official photographs across all EU countries, the wearing of headscarves for religious reasons is often permitted as long as the face is clearly visible. Such restrictions are often long – identity rather than by religious discrimination. Although in some countries Muslim women 4
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4 BRIEFING PAPER: REST RICTIONS ON MUSLIM W and Sikh men 5 face difficulties even when they only cover their head s in photographs particularly in France , which requires pictures be taken with the head uncovered (article 5 of the decree of 26 February 2001 6 ) , and in Bulgaria , which has a similar requirement 7 this issue falls outside the scope of this report . B. Terminology and methodology The terms Islamic headscarf , face veil religious clothing , are used interchangeably in this report. The terms refer to the practice of Muslim women wearing a headscarf or face veil in accordance with their faith. A headscarf refers to a garment that covers only the hair and neck of the wearer; it is often referr ed to as a hijab or dupatta, and is most commonly worn by Muslim women who wear religious dress. 8 The face veil covers the head and face but not the eyes ; it is also known as the niqa b. The niqab is often confused with a burqa , which is in an Afghan one – p iece garment that also covers the eyes with a grille and falls under the same legal restrictions . Scope: kinds of garments covered. Three types of bans are discussed in this report : headscarf ban s , face veil ban s , or ban s that cover both . The distinction is important. While some legal bans, case law, bills, political statements , and public debates target clothing that covers the face under the rationale of ensuring public security , others focus on both face and head coverings in the name of prohibiting the outward display of religious symbols. Scope: spatial and temporal. Within a single jurisdiction, bans on Islamic clothing are classified into five geographic categories: A national general ban: A ban that applies to all public place s in the entire country ; A national specific ban: A ban that applies to specific sectors (such as government service employees ) across the entire country ; A local general ban: A ban that applies to all public space s in a specific jurisdiction within a coun try ( i.e. , a region, city, or district ) ; A local specific ban: A ban that applies to particular sectors in a specific jurisdiction within a country ( such as teaching jobs in particular cities ) ; Institutional/private/bans in practice: bans enshrined in th e rules or regulations of a particular institution or private compan y, or unwritten bans enforced in practice, for example, by restaurant s or fitness club s . This type of ban is most common in places of employment and education. In the country chapters tha t make up the majority of the report, notations in the margins will guide readers interested in tracking the different kinds of bans (by garment and spatial and temporal scope). This report also draws a distinction between legislative proposal s seeking to ban the headscarf and/or face veil , and political p latforms or statement s . A legislative proposal or a bill under consideration by the legislature is a potential law, where a s political p latforms, p roposal s , or statement s to ba n religious dress are not , unl ess they are submitted to the parliament a s a bill. Th is report draws on a variety of sources, both primary and secondary, including statutes, case law, NGO reports, academic journals , and news accounts. Wherever possible, the country sections w ere review ed by at least one expert on that country . Most reviewers have
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5 BRIEFING PAPER: REST RICTIONS ON MUSLIM W expertise in the field of anti – Muslim discrimination or are local lawyers, academics , or activists ( please see Annex II for a list of reviewers ). T ime and resource constraints limited unearthing restrictive policies by nongovernmental or semi – autonomous institutions and private sector employers. C. Central findings Actual, legally enforceable restrictions are relatively rare in the EU. Of the 28 EU member states, th ere are only nine where restrictions on religious dress worn by Muslim women are enforced . Of those nine , seven states have enacted some form of national ban . In addition, local bans exist in five countries some of which also have national bans . Another five countries are currently considering legislative proposals for a ban. In 13 out of 28 EU countries , there have been reports of institutional/private bans or bans in practice. Not taking into account legislative proposals, currently 14 countries have no legal bans, or cases or reports about institutional or private bans. Of these, six countries do not have no r did they ever have a proposal for a ban. Most b ans on religious dress were instituted after 9/11 , in a context of increasing Islamophobia . France has been a leader in adopting bans and shaping much of the discourse through its extensive case law and heated public debates , with select other countries , chiefly Belgium , following suit . Beyond these common roots, at least five interlinked disco urses , discussed below, dominate debates about bans and the justification for them . Nationalist and far – right political parties played a major role in introducing and promoting legal bans and proposals for bans , but in most cases it was mainstream politic al parties that actually enacted religious dress restrictions . There has been significant pushback against bans in dif ferent EU countries, with a few important wins. In 22 countries , previous legislative proposals to ban the headscarf or face veil were rej ected. In the majority of countries with case law, bans in private and public employment, in education, and elsewhere have been struck down by court rulings, or reversed after grassroots mobilization and action. Although national litigation has often led to rulings against bans , c ase law from the two major regional courts , the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union ( CJEU ) , has given states and private actors more leeway in instituting bans . Backgr ound Muslims live in every EU country. However, the history and size of Muslim communi ties and the number of Muslim women wear ing religious clothing varies from country to country . While anti – Muslim sentiments have increased in many countries in the EU, the level of restrictions faced by Muslim women because of their religious dress is not the same everywhere. The situation is by far the worst in France and Belgium , the two countries that have the most bans, related case law , and institutional or practice bans covering different . In countries including Austria, Bulgaria, Denmark , Germany,
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6 BRIEFING PAPER: REST RICTIONS ON MUSLIM W Italy, Spain, and the Netherlands , there are important legal restrictions affecting Muslim women , but they are less far – reaching and fewer Muslim women are affected by them . In the 19 other EU member states, restrictions are either nonexistent (in 14, or half the EU states) or are limited to scattered institutional/private bans , and bans in practice. The a ttempt to prevent Muslim women who wear headscarves and face veils from entering specific spaces, however rationalized , can be attributed to increasing Islamophobia in Europe. Almost all religious dress restrictions were introduced after 9/11. The global discourse surrounding the attacks and the subsequent war on terror , supported by the clash of civilizations hypothesis, provided various j ustifications for restrictions on religious dress worn by Muslim women. France, which already had a law banning religious dress for public employees and whose experience with politicizing the Muslim veil traces back to its colonial history, set the tone with its 2004 law banning religious dress in public schools , which followed two years of national debates . 9 influenced debates about religious dress restrictions elsewhere. The French ban o n headscarves in schools reverberated in Belgium , in particular , where bans on religious dress were introduced in many schools and were applied to both pupils and teachers . In countries including Belgium, Germany, the Netherlands, and Denmark, the current French in terpretation s of neutrality and s tate secularism have b ec o me more popular , and have been invoked to justify bans in public and private employment as well as in education , despite different institutional 2010 legal ban on the face veil , and particularly the EC t HR case S.A.S. v . France , which upheld the 2010 ban, likewise inspired political action in other countries , even if only a small number of women actually wear the face veil in those countries . Most of these proposals were rejected , and only Belgium, Bulgaria , Austria , and most recently the Netherlands , have enacted a legal ban on the face veil , as have a few cities in Spain and Italy . H eadscarf and face veil debates often took place against the backdrop of ethnic minority struggles over equal economic and social rights and against racism. Islamophobia legitimized the demonization and exclusion of Muslims based on their religious identity and allowed the disqualification of their c laims to equal rights. 10 D isparities between majority and minority populations deepened when religion became an added ground for discrimination. Muslim women who w o r e religious dress bore the brunt , being the most visible and easiest target s . 11 The increasing numbers of refugee s in Europe further intensified debate s , with bans on religious dress proposed or introduced as a way to stop a perceived or feared Islamic invasion of European countries . 12 N egative stereotypes associating Islam with terrorism and associating headscarves and/or face veils w ith the oppression of women have become increasingly entrenched. Motivations and justifications In most EU countries, bans on headscarves or face veils were promoted primarily by nationalist and far – right political parties. Many of the legislative proposals for bans we re initiated and sponsored by the se parties or their members . This has been the case in Austria, Belgium, Bulgaria, Denmark, Finland, Ireland, Italy, Luxembourg, the Netherlands, Sl ovakia, Slovenia, Spain, Sweden , and the United Kingdom.
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8 BRIEFING PAPER: REST RICTIONS ON MUSLIM W France and Belgium, followed by Spain, Germany , Austria, the Czech Republic , Denmark , Finland , and the United Kingdom . At the regional level, various cases have been brought before the ECtHR and the CJEU. These cases are particularly impor tant because the rulings apply across the Council of Europe ( in the case of the ECtHR ), or the European Union ( in the case of the CJEU ) . For th os e cases where judgments were delivered, the bans were often upheld by both courts. T he ECtHR has decided many cases on religious dress . These cases cover various contexts, including bans in schools , 18 in the public sector , 19 and in public place s . 20 In its jurisprudence to date, r egardless of the settings in which ban s have been challenged, the ECtHR has upheld the bans, fail ing to find violations of article 9 (religious freedom), article 8 (right to respect for private and family life), or article 14 (prohibition of discrimination) of the European Convention on Human Rights. At the time of writing, there is one case still under review, which concerns wearing a headscarf in a courtroom ( Lachiri v . Belgium [ No. 3413/09 ] ) . The application was communicated to the Belgian government in October 2015. 21 It is unclear when the judgment will be delivered. One of the most notable cases decided to date is S.A.S. v. France (No. 43835/11 ; 2014) , which national general ba n on face veils . The case was brought by a Muslim French national who complained that the ban prevented her from wearing the burqa and niqab , which are required by her religious faith , thereby infringing on her right to private life and her right to freedom of religion. In its judgment , the ECtHR relied upon the concept of living together for the first tim e to conclude that the ban did not violat e the right to private life or the religious freedom of Muslim women who wear face veil s . The only two cases on religious dress decided by the CJEU , which established a n important baseline , are Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV (Case C 157/15 ; 2017); and (Case C – 188/15 ; 2017 ) . These cases were the first to invoke the relevant EU directive addressing religious discrimination in employment. A t the heart of both cases are bans on the headscarf imposed by private companies, one in Belgium and one in France. Both cases were referred by national courts to the CJEU for an authoritative interpretation on the applicatio n of EU law, specifically the Employment Equality Directive 2000/78. In both judgments, delivered simultaneously, the c ourt acknowledge d that restriction s on headscarves in the workplace could constitute indirect discrimination . B ut the court concluded th at such discrimination may be justified by companies wish to promote an image of neutrality to customers , as long a s the ban is the result of a clear and consistent internal policy, and only when it is applied to customer – facing (as opposed to back – offi ce ) jobs . However, the judgments are inconsistent on the importance of customer opinions. In Achbita , the court stated justi f iable when applied to employees having direct contact with customers , projection of neutrality. 22 However, i n Bougnaoui , the c ourt stated that , under EU law, on which employers can order employees to alter their clothing. 23 Indeed , the c ourt stressed that the willingness of an employer to take acco unt of the wishes of a customer who did not want to work with someone wearing a headscarf cannot be considered a genuine and determining occupational requirement. 24
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9 BRIEFING PAPER: REST RICTIONS ON MUSLIM W National bans At the time of writing, there are five EU states that have passed a national general ban on face veils: France, Belgium , Bulgaria , Austria and Denmark . France was the first , issuing the a ct On the Prohibition of Concealing the Face in Public Space in 201 0 , which prohibits anyone from concealing his or her face in public. The penalty for violating the mentioned provisions is a fine o 150 and/or a requirement to take part in classes on French citizenship. 25 Shortly after the law was passed in France, Belgiu m adopted the same ban in its Criminal C ode , under a rticle 563 bis . The Belgian law bans the practice of face covering, either completely or partially, in any place that is a cc essible to the public. Offenders are subject to a fine of b etween fifteen and tw enty – five E uros and imprisonment of between one and seven days, or only one of those sanctions. 26 Bulgaria , Austria and Denmark adopted national general ban s more recently . In Bulgaria, the law was enacted in September 2016 and stipulates that clothing that hid es the face may not be worn in government offices, schools, cultural institutions , or a ny place of public recreation. People who do not comply with the ban in Bulgaria face fines of up to 1,500 levs ( 760). In Austria, the law that bans wearing vei ls that cover the face in public was adopted in May 2017 and enforcement began in October 2017. gust 2018 with a fine of 1,000 k roner for anyone who violates it. Overview of exist ing and proposed bans National General Ban National Specific Ban Local General Ban Local Specific Ban Legislative Proposals Austria Belgium Belgium Belgium Bulgaria Bulgaria Denmark Denmark Finland France France Germany Germany Italy Latvia Luxembourg Netherlands Spain Spain Spain All five national general bans have two elements in common. First, they do not explicitly target the face veil worn by Muslim women , but are i nstead framed in general terms. Legal provisions that ban wearing face veils are worded using the term s concealing or covering the face. Secondly , each ban provides exceptions that establish certain circumstances in which covering the face is allowed , but the concealment religion is not one of them . C ommon exceptions include the concealment of the face for health and professional reasons, 27 festive events, 28 sporting activities, and artistic or traditional occasions. 29 N ational bans on religious clothing (including headscarves , in addition to full – face veils) in specific settings or sectors exist in France, Denmark , Spain and the Netherlands . In France, a
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10 BRIEFING PAPER: REST RICTIONS ON MUSLIM W ban on religious dress for public employees (including government administration, public schools, and hospitals, among other s ) was implemented in 1983. A national ban on headscarves for public schoo l pupils was enacted in 2004. In 2016 , an amendment was in serted into the Labor Code that allow s private businesses to introduce internal regulations banning religious manifestation for the sake of neutrality , a development that was largely shaped by public debate over the high – profile Baby Loup case. The own er of Baby Loup, a woman wearing a headscarf. A fter lengthy legal proceedings , the Court of Cassation decided that manifestation, was justified by the need to protect In Denmark, the ban applies to judges wearing headscarves and similar religious or political symbols, inc luding crucifixes, Jewish skull caps (also known as yarmulke s or kippahs) , and turbans in courtrooms. The law ( called the Headscarf Act) was passed by parliament in 2009, but to date no cases challenging it have been filed . 30 In Spain, using any kind of cloth that covers the face during demonstrations is prohibited by the Ley mordaza ( gag law ), enacted in 2015. The Netherlands passed a law banning the wearing of face veils o n public transportation, and in education, health care , and government buildings , in June 2018. It is still unclear when the law will be enforced. Local bans F ive EU states apply legal bans at the local (provincial or municipal) level: Belgium, Bulgaria, Germany, Italy , and Spain. I n Belgium, Bulgaria , and Spain , these local bans overlap with general bans . I n almost all major cities and t owns in Belgium, the face veil is banned in public place s under local regulations. In Bulgaria, the local government of Pazardzhik issued a regulation that bars the wearing of clothing or accessories that hide the face and prevent identification of the citizen or public servant in public space , with fines from 300 BGN ( 150) to 1 , 000 BGN ( 500) for noncompliance. In Spain, several municipalities (all but one of them are in Catalonia ) introduced a ban on face veils. T he Spanish Supreme Court struck down b ans in two municipalities . Eight out of 16 states in Germany ( Baden – Württemberg, Bavaria, Berlin, Bremen, Hesse, Lower Saxony, North Rhine – Westphalia, and Saarland ) have local specific bans on visible religious symbols including headscarves and face veils , but they are applied differently in the different states . Local specific bans exist in at least two regions in Italy, Lombardy and Veneto. The bans apply to head coverings that could conceal the offices and hospitals. Legislative proposals In five EU states , there are pending legislative proposals seeking to ban face veils . These countries are Belgium, Finland, Germany, Latvia, and Luxembourg. In addition, a legislative proposal in Hungary sought a ban that would appl y only at the local level ( in the town of Assothalom) , but it was struck down by the Hungarian C onstitutional C ourt . In Belgium and Germany, at least one type of legal ban already exists.
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11 BRIEFING PAPER: REST RICTIONS ON MUSLIM W Institutional/private bans/ban s in practice Even where a country has no legal ban ( s ) , there may still be limitations on wearing certain form s of religious dress . Aside from legal bans at national and local levels, in several EU countries there are bans that are not set out by law , but rather by the written rules of an individual entity such as a private company , or by unwritten practices, such as bans by a restaurant or a fitness club. This type of ban , which exists at the sub – national level, is most commonly found in the fields of employment and education. Of the 28 EU states, there are 13 where data on rest rictions is available: Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Ireland, the Netherlands, Spain, Sweden , and the United Kingdom . Belgium , wh ich has regionalized many federal competenc i es and devolved governance responsibility to certain institutions, has the most restrictions. Many of the se restrictions are the result of the autonomy individual schools , local governments , or private companies enjoy in deciding their dress policies . The restrictions tend to apply to private employees, students and/ or teachers, and public servants . These b ans are implemented in the form of a guideline issued by the relevant ministerial authorities , or through d ress codes or internal regulations . 31 Case law on bans in private employment Nine EU countries Austria, Belgium, Denmark, Finland, France, Germany, Sweden, Spain , and the United Kingdom have case law that challenges restrictions by private companies . Even though the se restrictions are not legal bans but rather internal policies, they interfere with the religious freedom of the affected persons . There have been at least 20 court cases of this type, 16 of which concern ed the headscarf and four concern ed the face veil. Of the 20 cases where private company restrictions were challenged, judges ruled in favor of the bans in six cases , judges overruled the bans in eight cases , four cases reached settlement with victims receiving compensation from their employers , and one case (in Sweden) is still pending before the court. Case law on bans in education There are at least nine court cases challenging by educational institutions. The countries in which these challenges took place include Austria, Belgium, Bulgaria, Czech Republic, France, Spain, Sweden , and the United Kingdom. Free of restrictions While the majority of EU countries have seen public discussions regarding bans and even legal actions at some le vel , there are six EU states where the headscarf and/or face veil ban have not been a subject of public debate at all . Tho se countries are Croatia, Cyprus, Greece, Poland, Portugal , and Romania. EU country Out of 28 EU countries With a legal ban 9
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