Top Austrian court overturns headscarf ban

IGGÖ President Ümit Vural welcomed the high court ruling, but both Austrian Minister of Education Heinz Faßmann and Minister for Women Susanne Raab, said it was regrettable.

“It does not give girls the opportunity to make their way through the education system free of coercion,” according to Faßmann while Raab said it was “regrettable when little girls have to wear a headscarf and cover themselves in primary school”.

Leader of the Freedom Party in Upper Austria, Manfred Haimbuchner, commented after the ruling: “The prohibition of the wearing of Islamic headscarves in elementary schools was never intended to be a restriction of religious freedom, but rather as a protective mechanism against sexualization and Islamic oppression of underage children…. Unfortunately, this judgment is a step backwards in terms of civilization.”

He described the ruling as a “civilizational regression for society” while FPÖ leader Norbert Hofer said his party would fight the ruling: “With a two-thirds majority in the National Council [lower house of Parliament], we have the opportunity to put the regulation back into force through a constitutional law.”

FPÖ city councilor for Vienna Dominik Nepp called the ruling “a sad day for children’s rights and a dramatic kneeling to political Islam”.

“The prohibition of the wearing of Islamic headscarves in elementary schools was never intended to be a restriction of religious freedom, but rather as a protective mechanism against sexualization and Islamic oppression of underage children. We must accept the fact that the Constitutional Court has now repealed this law as unconstitutional.

“Unfortunately, this judgment is a step backwards in terms of civilization. The door has now been opened to a religiously motivated oppression of girls, an oppression that we do not want in our society.

“Therefore, it is now important to study this judgment carefully and to draw conclusions from it as to how such a ban can still be implemented for the benefit of the children. The search for a constitutional majority for appropriate legislation in parliament is of course an option.”

According to the ruling, “a regulation that only affects a certain group of female students and that remains selective in order to ensure religious and ideological neutrality as well as gender equality misses its regulatory goal and is irrelevant. §43a SchUG therefore violates the principle of equality in connection with the right to freedom of thought, conscience and religion,” the court ruled on December 11, 2020.

The headscarf ban was introduced in June 2019 by a governing coalition of the People’s Party (ÖVP) and the conservative Freedom Party (FPÖ). It was an extension of  the “Integration Law” from October 2017 which had sought to advance the integration of Muslims into Western society.

The 2017 law banned face coverings — including burkas, niqabs or masks — in public spaces. In 2019, the law was extended to prevent children under the age of ten from wearing Islamic headgear in primary schools.

The law did not explicitly refer to Muslims or Islam, but “any clothing that is ideological or religious and that involves covering the head” was banned. Head coverings were thus legally defined as “any type of clothing that covers the entire head hair or large parts of it” to include only Muslims. Sikhs and Jews were excluded

The bill sought to promote “the social integration of children according to local customs and traditions, the preservation of the basic constitutional values and educational goals of the Federal Constitution, as well as the equality of men and women”.

Austria’s official Muslim umbrella group [Islamische Glaubensgemeinschaft in Österreich, IGGÖ], condemned the law as “destructive” and a “direct assault on the religious freedom of Austrian Muslims ” and filed a lawsuit in January 2020 after Minister of Integration, Susanne Raab, announced that the ban would now include girls up to 14 years of age.

The Court noted: “The principle of equality, in conjunction with the right to freedom of thought, conscience and religion, establishes the state’s religious and ideological neutrality. When designing the school system, the legislature is required to comply with this requirement by treating various religious and ideological convictions based on the principle of equality. The school is based, among other things, on the basic values of openness and tolerance (Art. 14 Para. 5a B-VG).

“With §43a SchUG, however, the legislature picks out a specific form of clothing with religious or ideological connotations, which is in one way or another comparable with other, but not forbidden, religious or ideological clothing habits.

“A regulation that selectively picks out a certain religious or ideological conviction by deliberately privileging or disadvantaging such convictions requires a special objective justification with regard to the requirement of religious and ideological neutrality.”

It concluded: “The wearing of the Islamic headscarf is a practice that is applied for various reasons. The possible religious or worldview explanations that headscarf wearers give to justify the wearing of the headscarf, are manifold. By wearing a headscarf, you can simply express your affiliation with Islam or the orientation of your own life to the religious values of Islam. Furthermore, wearing the headscarf can also be interpreted as a sign of belonging to Islamic culture or of adherence to the traditions of the society of origin. The Islamic headscarf therefore has no clear and unambiguous meaning.”

The Court stated that it could not offer an interpretation of its own “when there are several possibilities for interpreting a religious or ideological symbol, particularly when it comes to questions of freedom of religion and belief, and to base its assessment of the legal rights of the existence of such symbols in state educational institutions on this”.

They added however that the ban carried “the risk of making it difficult for Muslim girls to access education or of marginalizing them from society”.

Austria’s Muslim population now exceeds 700 000 or 8 percent of the total population, according to data compiled by the University of Vienna. If current levels of migration continue, the Muslim population of Austria is forecast to reach around 20 percent of the total population by 2050, according to the Pew Research Center.

Muslim students already outnumber Austrian students at middle and secondary schools and it therefore only a matter of time before Muslims outnumber Austrians in Viennese elementary schools. Austria’s Agency for State Protection and Counterterrorism (BVT) has meanwhile warned of the “exploding radicalization of the Salafist scene in Austria”. Salafism can be described as an anti-Western ideology that seeks to replace liberal democracy with Islamic law.