On April 9th, 2024, the European Court of Human Rights (ECtHR) delivered its judgment concerning Belgium’s Hijab (Headscarf) ban on wearing visible religious symbols in Schools. The Court, following its previous notorious trial of SAS v. France, continued to allow the creeping erosion of the right to manifest religion under Article 9 of the European Convention of Human Rights (‘ECHR’) by deferring to the State’s margin of appreciation. This decision in the Mikyas case, involving three Muslim women who wear the Islamic veil and attend secondary schools in the Flemish Community’s official education system, has once again raised concerns about the Court’s approach to religious freedom and its failure to adequately address issues of indirect discrimination, intersectionality, and the right to education in the context of religious expression.
The Mikyas Case
The case involves three Muslim women who, following their religious beliefs, wear the Islamic veil i.e., Hijab/Headscarf, and attend secondary schools in the Maasland school group, part of the Flemish Community’s official education system. In 2009, the Council for Official Education of the Flemish Community extended a ban on visible religious symbols in its schools, citing neutrality, equal opportunities, and the prevention of segregation. Despite a transitional period, the ban was enforced in the applicants’ schools. The applicants’ parents challenged the ban in court, arguing it violated their freedom of religion under the Belgium Constitution and the ECHR. The Tongeren Court of First Instance ruled in their favour, but this decision was overturned by the Antwerp Court of Appeal, which upheld the ban, emphasizing the importance of a neutral educational environment free from social pressure and proselytism. The applicants did not pursue further legal action after a negative opinion on their chances of success in appealing to the Court of Cassation.
The Creeping Erosion of the ECtHR
The ECtHR ruled that the ban on wearing visible religious symbols in Flemish Community schools in Belgium does not violate Article 9 of the ECHR, which protects freedom of religion. The Court found that the ban pursues legitimate aims of protecting the rights and freedoms of others and public order, and is necessary in a democratic society [paras 57, 76]. The Court emphasized the margin of appreciation given to national authorities in regulating religious symbols in education [para 59-61]. The Court considered that the concept of neutrality adopted by the Flemish Community, which prohibits visible religious symbols for students, is compatible with the Convention [para 70]. The Court noted that students freely chose to attend these schools and were aware of the rules [para 72]. It also referenced previous case law upholding similar bans in other countries, including Leyla Şahin v. Turkey, Dogru v. France, and Aktas v. France.
In its assessment, the Court considered that the ban applies to all visible religious symbols, not just the Islamic veil [para 71]. The Court held that the aim of protecting students from social pressure and proselytism While recognizing that students are more vulnerable than teachers, the Court stated that while teachers are symbols of authority, minor pupils are more vulnerable [para 75]. The Court reiterated that restrictions on pupils could be justified to avoid exclusion and pressure while respecting pluralism and the freedom of others. Finally, the Court concluded that the national authorities were entitled, within their margin of appreciation, to design the education provided by the Flemish Community as a school environment free from religious symbols worn by pupils [para 76]. It found the restriction to be proportionate to the aims pursued and “necessary in a democratic society” [para 76].
Missed Indirect Discrimination again?
As Robin Bankel noted, the ECtHR on various occasions had excused itself from the consideration of delicate the balance between ‘indirect discrimination’ and ‘legitimate aim’, which doesn’t raise any alarm. While the Court acknowledged that the ban applies universally to all visible religious symbols [para 71], it failed to adequately scrutinize the practical ramifications of such a policy, particularly its disproportionate effect on Muslim girls who wear headscarves. This oversight is especially problematic given the extensive body of sociological and legal research documenting the prevalence of Islamic headscarves in European educational settings compared to other visible religious symbols. The Court’s failure to engage with this well-established evidence base suggests a concerning gap in its analytical framework.
‘Indirect discrimination’ occurs when a neutral provision, criterion, or practice puts persons of a particular religion or belief at a particular disadvantage compared with other persons. By not thoroughly examining the differential impact of the ban, the Court missed an opportunity to reinforce the importance of substantive equality, which looks beyond formal equality to consider the actual effects of policies on different groups. Thus, the Court’s approach falls short of fully addressing the complex realities of religious expression in contemporary European societies. By treating all religious symbols as equivalent in their visibility and impact, the Court overlooks the nuanced ways in which different faith traditions manifest their beliefs visually. This oversimplification risks perpetuating a form of indirect discrimination that disproportionately affects certain religious groups, particularly those who have visible forms of religious attire. Therefore, the concept of indirect discrimination becomes even more apparent when considering the varying degrees of visibility among different religious symbols.
For instance, a Christian cross can often be worn discreetly as a small piece of jewellery, easily concealed beneath clothing if necessary. Similarly, the Janeu, a white thread worn traditionally by Brahmin men in Hinduism, is typically hidden undergarments and not immediately visible to others. Jewish individuals may wear Star of David jewellery that can be tucked inside clothing when needed. Buddhists might choose to wear a small Yin and Yang symbol that can be easily obscured. In contrast, the Islamic headscarf and turban worn by Sikh men, by their very nature, is a more visible and less concealable form of religious expression. This disparity in visibility creates an uneven playing field where adherents of some faiths can more easily comply with restrictions on visible religious symbols without compromising their religious practices, while others—particularly Muslim women—face a much starker choice between their education and their religious identity. The Court’s failure to adequately consider these distinctions in visibility and practicality of concealment further underscores the potential for indirect discrimination inherent in blanket bans on religious symbols. This approach inadvertently privileges certain forms of religious expression over others, contradicting the very principles of neutrality and equality that these policies ostensibly aim to uphold.
The Court’s approach also raises questions about its understanding of the lived experiences of religious minorities in Europe. The headscarf, for many Muslim women and girls, is not merely a religious symbol but an integral part of their identity and religious practice. By failing to adequately consider the specific impact on this group, the Court has inadvertently perpetuated a form of cultural insensitivity that fails to recognize the diverse ways in which individuals express their religious beliefs. The court’s framing of the issue as a matter of “manifesting” faith rather than “practising” or “observing” it is problematic. Weiler argued that there is a significant difference between choosing to display religious symbols and adhering to religious obligations and that the court’s ruling fails to adequately address this distinction. Furthermore, the Court’s judgment seems to prioritize the principle of neutrality in education over the right to manifest one’s religion, without fully exploring the possibility of balancing or accommodating both. This approach reinforces the notion that visible religious expression is inherently problematic in educational settings, potentially exacerbating feelings of exclusion and marginalization among religious minorities.
Intersectional Oversight in Mikyas
The ECtHR’s inadequate treatment of intersectionality in this case represents a significant shortcoming in its analysis. Despite the explicit raising of this issue by third-party interveners [para 52], the Court failed to engage meaningfully with the complex interplay of multiple factors contributing to the discriminatory impact of the ban on visible religious symbols. This oversight not only diminishes the comprehensiveness of the Court’s analysis but also fails to reflect the evolving understanding of discrimination in contemporary legal and human rights discourse.
Intersectionality, a concept pioneered by legal scholar Kimberlé Crenshaw, posits that individuals often face multiple, intersecting forms of discrimination simultaneously. In the context of this case, an intersectional analysis would have recognized that the ban’s impact on Muslim girls cannot be understood solely through the lens of religious discrimination. Instead, it necessitates an examination of how religion intersects with gender, age, race, and ethnicity to create a unique and often more severe form of disadvantage. For instance, young Muslim girls from minority ethnic backgrounds may face a triple burden: discrimination based on their religious practices, gender-based expectations and limitations, and racial or ethnic prejudices. The ban on religious symbols might exacerbate these existing vulnerabilities, potentially leading to increased social isolation, reduced educational opportunities, and heightened psychological stress. By failing to adopt an intersectional approach, the Court overlooked these compounded disadvantages, potentially underestimating the true extent of the ban’s discriminatory impact.
Moreover, the Court’s oversight is particularly glaring given the growing recognition of intersectionality in legal scholarship and human rights discourse. Numerous international bodies, including the UN Committee on the Elimination of Discrimination against Women (CEDAW) and the UN Committee on the Elimination of Racial Discrimination, have emphasized the importance of intersectional analysis in addressing complex forms of discrimination. The European Union’s non-discrimination law has increasingly recognized the need to address multiple and intersecting grounds of discrimination. The Court’s failure to engage with intersectionality also represents a missed opportunity to develop more sophisticated and nuanced jurisprudence on discrimination. An intersectional approach would have allowed the Court to move beyond single-axis frameworks of discrimination and recognize the multifaceted nature of identity and oppression. This could have led to a more holistic understanding of how different forms of discrimination interact and reinforce each other, potentially paving the way for more effective and comprehensive anti-discrimination measures.
Furthermore, by not adopting an intersectional lens, the Court may have inadvertently reinforced a hierarchical approach to discrimination, where different grounds of discrimination are treated in isolation rather than recognizing their interconnected nature. This approach risks perpetuating blind spots in human rights protection, where individuals facing multiple, intersecting forms of discrimination fall through the cracks of legal frameworks designed to address single-axis discrimination. Thus, the Court’s failure to fully engage with intersectionality represents a significant missed opportunity. A more comprehensive intersectional analysis would have provided a richer, more nuanced understanding of the ban’s impact on vulnerable groups. It would have allowed the Court to recognize and address the unique challenges faced by individuals at the intersection of multiple marginalized identities, potentially leading to a more just and equitable application of human rights law. This oversight underscores the need for continued development and integration of intersectional approaches in international human rights jurisprudence.
When Neutrality Discriminates
The ECtHR rationale in this case also presents a problematic approach to the right to education, particularly in its intersection with religious freedom. While the Court’s primary focus on Article 9 of the Convention is understandable given the nature of the complaint, however, its failure to adequately address the educational implications of the ban on visible religious symbols in Flemish Community schools represents a significant oversight in its judicial reasoning.
By concentrating predominantly on religious freedom, the Court fails to engage substantively with the right to education as enshrined in Article 2 of Protocol No. 1 to the Convention. This approach neglects the potential cumulative effect of the ban on students’ educational experiences and opportunities, thus presenting an incomplete picture of the human rights implications at stake. The judgment lacks a thorough examination of how the ban might impede access to education for students from minority religious backgrounds. This oversight is particularly problematic given the fundamental nature of education in a democratic society and its role in fostering social integration and equal opportunities (Timishev v. Russia, 2005).
The Court appears to prioritize the principle of neutrality in education over the right to education without sufficiently balancing these competing interests. A more nuanced analysis, akin to that in Lautsi v. Italy (2011), would have considered how to accommodate both the state’s interest in neutrality and the students’ right to education without unduly interfering with their religious practices. The judgment fails to adequately explore the potential for indirect discrimination in the field of education. While the ban applies universally to all visible religious symbols, its disproportionate impact on certain religious groups could create unequal access to educational and employment opportunities, a concern that warrants deeper examination in light of the Court’s jurisprudence on indirect discrimination (D.H. and Others v. Czech Republic, 2007).
The Court’s approach seems to contradict the principle of pluralism in education, which it has previously recognized as fundamental to a democratic society (Folgerø and Others v. Norway, 2007). By allowing a ban on visible religious symbols, the Court may be endorsing an educational environment that does not fully reflect or respect student diversity, potentially undermining the educational experience of minority students. While the Court briefly mentions alternative schooling options [para 51], it does not adequately consider the practicality or equality of these alternatives. The availability of religious schools or homeschooling does not necessarily provide equivalent educational opportunities and could lead to educational segregation, a point that deserves more thorough consideration in light of the Court’s jurisprudence on educational choice (see, Konrad and Others v. Germany, 2006).
Thus, the Court’s approach appears to have fallen short in its analysis of the right to education in the context of religious freedom. A more comprehensive examination of this right, informed by the Court’s jurisprudence and relevant empirical research, could have led to a more balanced decision that better protects the educational rights of all students, regardless of their religious beliefs or practices. The Court missed an opportunity to provide nuanced guidance on how states can navigate the complex interplay between religious freedom, educational rights, and the principle of neutrality in public education.
Beyond the Veil & ECtHR
The ECtHR judgment in the Belgian headscarf ban case represents yet another missed opportunity to address the complex realities of religious expression in contemporary European societies. By upholding the ban on visible religious symbols in Flemish Community schools, the Court has continued its troubling trend of eroding the right to manifest religion under Article 9 of the European Convention on Human Rights. Earlier, the ECtHR in SAS and the Court of Justice of the European Union in Samira Achbita; Asma Bougnaoui; Wabe, and Müller had upheld the ban on headscarves on similar reasoning, however, in the present case, the ECtHR had the opportunity to distinguish its jurisprudence considering that it was a case wherein the ban was directed against Muslim women students in an educational institution. Thus, the ECtHR’s failure to adequately engage with issues of indirect discrimination, intersectionality, and the right to education of the minority religious group underscores a significant gap in the Court’s analytical framework. This approach risks perpetuating systemic inequalities and undermining the principles of pluralism and inclusion that are fundamental to democratic societies. The Court’s decision reflects a broader trend of prioritizing a narrow conception of state neutrality over the protection of religious expression and educational access. This not only raises questions about the Court’s understanding of lived religious experiences but also against its commitment to substantive equality.
Editors’ note: this piece has been updated to correct some typographical errors and with minor amendments to the conclusion.
