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Headscarfs in Nurseries

The German Federal Constitutional Court (Bundesverfassungsgericht) ruled on 18 October 2016 that a general prohibition on wearing a headscarf which applied to a teacher in a local nursery violates the constitutional right of freedom of belief (docket number: 1 BvR 354/11).

 

The appellant wore a headscarf as a symbol of her Muslim belief during her work as a teacher in a local nursery. After refusing to take off the headscarf during her working hours, she was given a warning by her employer, based on an alleged violation of section 7 para. 6 of the local rules on nurseries (now section 7 para. 8) (Kindertagesstättengesetz). This rule prohibits teachers from making any kind of political, religious or other manifestation if they can lead to a violation of the neutrality of the institution towards parents and their children or a violation of the general peace in the institution.

 

The Federal Constitutional Court decided that there is no violation of the institution’s or the state’s neutrality if a teacher wears a headscarf typical for her religious belief. The wearing of such religious symbols is protected under the constitutional right of freedom of belief and there is no constitutional protection whatsoever for being spared from other peoples’ religious manifestations. In Germany, an “Islamic headscarf” is not rare and its wearing does not lead to the impression of the state or the state’s institutions also being Islamic. It is the state’s duty of neutrality to treat each religion equally.

 

The obligation of the state to be neutral differentiates between schools and nurseries. Parents have more than one option for childcare and there is also no obligation for parents to send their children to nursery. It is therefore the parents’ decision whether or not to let their children be looked after by teachers wearing an Islamic headscarf.

 

With this decision, a general prohibition on headscarves in institutions other than those with a religious ethos becomes almost impossible. The differentiation made by the German Federal Labour Court (Bundesarbeitsgericht) between younger children in nurseries who are more easily influenced and children of school age is thus invalid.

 

Two decisions by the European Court of Justice (Europäischer Gerichtshof) are coming up soon in this context, in which the two Advocates-General gave different opinions.