Unveiled or unemployed: The German unveiling policies- An ultimatum between Allah and work?

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As a symbol of ‘Islamic’ oppression and backwardness for some and an emblem of dignity and devout faith for others, veiling has sparked discussions centered on religion. However, recent unveiling policies in several European countries have characterized veiling as far more than an expression of religious faith. Veiling is now also understood as a political statement. In Germany for example, a country with recent state-based unveiling policies for public school teachers and in some instances civil servants in general, the veil has been perceived as a tool for gender segregation, a ‘danger’ to religious neutrality in public schools, and most notably a marker of cultural dissociation. Opponents of the unveiling policies, however, describe the measures as a restriction to economic independence, a tool of alienation and discrimination, and a violation of human rights, particularly the right to freedom of religion. Views of this kind were first brought to the public’s attention through the case of Fereshta Ludin in the state of Baden-Wuerttemberg, Germany.

In 1998, Fereshta Ludin was rejected from a teaching position in the state’s public school system on the alleged basis of “lack of personal aptitude” that made her “unsuitable and unable to perform the duties of a public servant in accordance with German Basic Law (HRW, 8).” A press release by the Baden-Wuerttemberg department of education in July of that year noted that the verdict was grounded on Ludin’s qualifications and professional achievements, a decision that was primarily motivated by the authorities’ evaluation of the ‘symbolism’ of the veil (HRW,8). As a result, the department declared that veiling does not constitute a religious duty as the veil is only worn by an insignificant number of devout female followers worldwide (HRW,8). Rather, the veil was claimed to carry political attributes that indicate cultural dissociation. In the context of the unveiling policies, cultural dissociation can be understood as a distinction between certain social groups based on their particular cultural characteristics and practices (veiling), which endanger religious neutrality in settings such as public schools.

Given these reasons for rejection, Ludin challenged the denial of the teaching position in the State and the Federal Administrative Court starting in 1998, and later appealed to the Federal Constitutional Court in 2002 (HRW,8). Ludin’s claims against the decision largely relied on the human rights framework, more precisely to the right to freedom of religion and thus (religious) minority rights. This human rights language was also taken up by the courts in their responses to Ludin’s claim: In 2003, the Federal Constitutional Court decided that “there was no legal basis for the refusal to employ Ludin as a teacher because of her wearing the headscarf [veil], and that the refusal violated her fundamental constitutional rights (HRW,8).” The Court further ruled that “any prohibition must be based on a clear statutory foundation” and emphasized Ludin’s basic right to freedom of religion (HRW,8). However, the Court also noted that this basic constitutional right of Ludin, and thus female Muslim public school teachers in general, may conflict with the interest of parents, the constitutional right to freedom of religion of the students, the impact of confronting students with the teacher’s manifestation of religion, as well as the danger of interference with the peace of the school (HRW,8). While considering these ‘dangers’ as ‘abstract’ and declaring them insufficient factors to resolve constitutional balancing of interests, the Court nevertheless ruled that “if states wish to eliminate even such abstract dangers...they must do so by regulating the problem in the applicable School act of similar laws” of each individual state [Laender] (HRW,8).

With this decision, unveiling policies in Germany became state-based. Following the Court’s decision, Baden-Wuerttemberg drafted a law in 2004 to ban the veil for public school teachers. When the proposal draft was brought to the Federal Administrative Court, the Court held that Baden-Wuerttemberg’s unveiling policy “does not excessively affect the Islamic religious community” because “the prohibition is limited to teachers in public schools”, a setting where “Christian educational and cultural values are ones with which every public servant should be able to agree, irrespective of his or her religious persuasion (HRW,8).” In this context, it is important to point out that Islam is not a formally recognized religion in Germany. Thus, “Islam has not been granted equal status and rights in the same way as the Christian and Jewish religions (HRW,58).” This is particularly crucial not only to the specific human rights discourse I discuss in this article, but also to the contextual understanding of the policies. Germany, a country with an estimated Muslim population between 3.2 and 3.5 million of which the majority originated in Turkey, brought a wave of ‘guest workers’ (Gastarbeiter/innen) into the country after World War II. These guest workers were thought of as temporary residents who will eventually leave-however, in the German case, the majority stayed and settled permanently. Interestingly enough, Baden-Wuerttemberg, the state discussed in this article, is a state with one of the largest Turkish populations in Germany. Since 2004, female Muslim public school teachers in Baden-Wuerttemberg hence face a difficult choice: Unveil or [be] unemployed.

As we saw in this brief introduction of the veil debate, the right to freedom of religion has exposed itself as the prominent human rights concern in the discussion between Ludin, the courts, and the education department of Baden-Wuerttemberg. Beyond this discussion however, lies the discourse on the structural discrimination in the employment sector and the right to free choice of employment. The ultimatum [Unveiled or Unemployed] imposed by the unveiling policies hence puts two human rights concerns-the right to freedom of religion and the right to free choice of employment-at the center of the veil debate and captures the main discussion of this article. Here, I discuss the veil debate first and foremost through the aspect of structural discrimination in the employment sector and hence within the realm of the right to free choice of employment. I thus shift the human rights discourse of the unveiling policies from discussions largely focused on the right to freedom of religion and women’s rights, to a specific debate on employment rights and structural discrimination on the basis of religion and gender. Rather than treating these two dimensions (religion and gender) as exclusive, I address them as mutually inclusive as the discrimination occurs correspondingly in both areas.

The concept of cultural dissociation, the symbolism of the veil, and the notion of religious neutrality: Critical concepts of the unveiling policies.

“There is no room for headscarves [veils] in the public service”- Gerhard Schroeder, Germany’s former chancellor

“…Veiling does not constitute a religious duty of female Muslims. This conclusion can be reached by the fact that the majority of female Muslims worldwide do not wear a veil-Thus, within the Islamic context, the veil renders itself more so as a symbol for cultural dissociation and thus as a political symbol ... In a public school, a teacher serves as a role-model and representative of the state... The peace of the school can be disturbed when religious symbols also embody political attributes and function as tools of cultural dissociation.” (Oesterreich  2004: 38/9)

The passage of the press release by the educational department of Baden-Wuerttemberg identifies two immediate factors that were determinant in the Ludin ruling: The concept of cultural dissociation and the symbolism of the veil. As stated, the symbolism of the veil has been interpreted as a political matter, rather than as a religious one. This political attribute has been further declared to function as a tool of cultural dissociation. Drawn from the statement, cultural dissociation describes the active decision by the female Muslim public school teacher to wear the veil and presents a concept that is further problematized by the various symbolic meanings of the veil.
The inherent religious concept of veiling first revealed itself in a metaphorical manner in several verses of the Qu’ran. The two most notable ones are Qu’ranic verse 24:30 and 24:31.

In interpretation, verse 24:31 reads as follows:

...And say to believing women that they should observe modesty in the eyes and guard their sexual parts and let them not display their attractions except those naturally exposed-and let them cast down their head-scarves onto their bosoms. (Ali 2000:78)

Scholars in the field have explored interpretations of these Qu’ranic verses by discussing the various symbolic meanings of the veil. Within her study of European Muslim women’s reasons for wearing the veil, Monika Hoeglinger broadly identifies the symbolic meanings of the veil in a threefold manner: First, the religious symbolism, deriving from the strict interpretation of the Qu’ran and the devout Muslim faith; second the social symbolism relating to gender separation and protection of modesty; and third the political symbolism denoting the identification of belonging to a certain group, in this case to Muslim women in the diaspora (Hoeglinger, 78-88). Thus, we find that the concept of cultural dissociation can occur on three symbolic levels - social, religious, and political.

While the noted statement from the education department of Baden-Wuerttemberg allows us to assume that the state authorities heavily focus on the political symbolism of the veil in their immediate decision of the Ludin ruling, we find that the act of veiling has nevertheless been interpreted in a religious context, namely upon the notion of religious neutrality. Religious neutrality presents a further complex concept that is crucial to the veil debate and has historically been interpreted in a variety of ways. In the context of the unveiling policies, the school law of Baden-Wuerttemberg notes that “teachers at public schools are prohibited from expressing any political, religious or other world views, which counteract the upheld state-neutrality towards students or parents and endanger the political and religious philosophy of the education sector (HRW, 26).” The law specifically stresses physical appearance and behavior that may obscure the “image of human dignity, gender equality (as noted in Article 3 of the Basic Law), the rights of freedom or the free and democratic order of the constitution (HRW, 26).” Even though the veil is not explicitly listed as a prohibited item (in regards to physical appearance), Muslim women have reported difficulties in obtaining trainee teacher positions or have been denied subsequent employment as teachers after having successfully completed their education. In this context, a female Muslim public school teacher notes:

“My applications stand out... and they [employers] like it… -They are very nice over the phone and tell me that they look forward to meeting me. But when they actually see me, their enthusiasm drops to the point that they ask me: Are you allowed to work? They completely forget my outstanding application, my character, and my grades. I was top of my class, but they forget about all that. All they recognize is what is in front of them and they ask: Is this necessary? Why are you wearing a veil? … I do anything to impress them and this piece of fabric is my personal freedom that I don’t want to give up.” (Oesterreich 2004:167)

Similar experiences have been shared by many female Muslim public school teachers and led to verdicts as seen in the Baden-Wuerttemberg state judiciary in March 2008, which denied a teaching position to a female Muslim public school teacher on the explicit grounds of veiling (Landesrecht BW). In its reasoning on the decision, the verdict notes that school teachers “wearing an Islamic veil or similar headcovers... endanger the abstract religious neutrality of the school and the religious peace of the school (Landesrecht, BW).” In Baden-Wuerttemberg, religious neutrality has thus been interpreted in terms of unveiled female Muslim public school teachers.

From this brief, but crucial exploration of three of the major concepts that underlie the unveiling policies, we find that while official statements (on the policies) appear to emphasize the political symbolism of the veil and hence the significance of cultural dissociation, the reasoning for the policies relies heavily on the religious aspect of the veil debate, more precisely the notion of religious neutrality and Germany’s particular understanding of secularism. This inconsistency of reasoning is particularly significant to the forthcoming main discussion of this article where I attempt to shift the human rights discourse from discussions largely focused on the right to freedom of religion, to a critical examination of structural discrimination in the employment sector.

The human rights discourse on structural discrimination in the employment sector on the basis of religion and gender

Germany’s federal human rights commitments:

The unveiling policies present a case of structural discrimination in the employment sector on the basis of religion and gender. Thus, in order to fully understand the deep human rights concerns that problematize the unveiling policies, it is important to at least briefly discuss the state, federal, and even the international human rights commitments of Germany that are at stake in the veil debate. Since I explore the human rights discourse of the veil debate first and foremost through the over-arching aspect of structural discrimination in the employment sector, I begin my discussion by drawing on articles in German Basic Law that describe employment rights and obligations. Article 12 of the Basic Law states the following on occupational freedom:

All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.

Article 12 hence guarantees the right to free choice of employment on constitutional grounds. The unveiling policies in Baden-Wuerttemberg, for example, however, restrict this occupational freedom for female Muslim public school teachers by prohibiting the expression of “any political, religious or other world views, which counteract the upheld state-neutrality towards students or parents and endanger the political and religious philosophy of the education sector (School Law BW).”

Beyond exploring this specific law on occupational freedom, it is also important to consider articles of German Basic Law that discuss human rights commitments to non-discrimination on the basis of religion and gender. Most notable in this context, is Article 3 of the Basic Law, which very broadly declares non-discrimination on the basis of gender and religion (amongst other aspects). Beyond this, Article 4 (of the Basic Law) further specifically notes that “freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable”, which includes the “undisturbed practice of religion (Basic Law, Article 4).” Beyond these two rather general laws on non-discrimination on the basis of gender and religion, Article 33 explicitly prohibits discrimination in these dimensions in the public service:

(2) Every German shall be equally eligible for any public office according to his aptitude, qualifications and professional achievements.

(3) Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed.

Article 33 guarantees every German, beyond their religious affiliation, the right to free choice of employment in the public service sector. Article 33, however also states that equal opportunities to employment are bound to the employee’s ‘aptitude, qualifications and professional achievements’. As noted in the introduction, it is specifically upon these premises that Ludin was denied the teaching position in the public school sector.

Germany’s international human rights commitments:

Contextualizing these human rights commitments beyond the country’s borders, we find that Germany has (legally and non-legally binding) obligations to significant international human rights treaties-first and foremost through its membership in the EU. The EU Directive 2000/78/ EC, for example “sets out a framework for the elimination of direct and indirect discrimination on grounds including religion and belief in employment and education (HRW,16).” This Directive required EU member states to implement the noted provisions in national laws and regulations by 2003 (HRW,16). Additionally, Germany is also obliged to EU Directive 2006/54/EC, which requires federal law to “prohibit all direct or indirect discrimination on the grounds of sex, in the public or private sectors in employment or working conditions (HRW,16).” Germany hence agreed to enact these provisions as of 2008. Beyond these immediate human rights commitments within the EU system, Germany signed and ratified CEDAW (Convention of the Elimination of All Forms of Discrimination Against Women), as well as the legally binding ICCPR (International Covenant on Civil and Political Rights), which requires Germany “to promote and ensure women’s participation in high-ranking civil service positions and the judiciary (HRW,15).”

Possibly even more significant with regards to the focus of this article is Germany’s membership in the International Labour Organization (ILO). In recent years, the ILO “has expressed concerns about government restrictions on employment based on religious practice (HRW, 16).” With all this in mind, it is crucial to note that while the international human rights treaties stress non-discrimination in the employment sector on the basis of religion and gender, the unveiling policies are not federal policies. Hence, as a state-based matter, the policies may appear far-fetched from the international human rights commitments of Germany. Also, while the noted federal laws serve as the grounding principles for state-based policies, the decision of the Federal Court in 2003 allows the states to eliminate the ‘abstract dangers’ to religious neutrality in public schools via unveiling policies. (1)

We find that there is a discrepancy between the constitutionally guaranteed non-discrimination on the basis of religion and gender, the right to free choice of employment and the right to freedom of religion, and the state-based unveiling policies, which perpetuate structural discrimination in the employment sector on the basis of gender and religion. The unveiling policies hence problematize Germany’s constitutionally rooted human rights commitments on the federal, and as demonstrated above, international level.

Unveiled or unemployed-Allah or work? The ultimate verdict in the German veil debate?

The discourse on the concept of cultural dissociation, the symbolism of the veil, and the notion of religious neutrality revealed that there appear to be inconsistencies in the reasoning of the Ludin verdict and the unveiling policies more broadly speaking. While the noted official statements stress the political symbolism of the veil and the active decision of cultural dissociation on behalf of the female Muslim public school teacher, we find that it is the religious aspect that grounds the determinant reasoning of the unveiling policies, namely the ‘abstract’ danger to religious neutrality in public schools. Thus, we find that despite denouncing the religious meaning of the veil, it is specifically this religious attribute of the veil that endangers religious neutrality in public schools. Upon this emphasis on religious neutrality and the religious symbolism of the veil, it became evident that the prominent human rights discourse focused on the right to freedom of religion. In this article, however, I shifted this strict focus on the religious aspect and stressed the structural discrimination in the employment sector on the basis of gender and religion and the right to free choice of employment as the main human rights concern in the veil debate. When exploring Germany’s federal and international human rights commitments to non-discrimination on the basis of gender and religion, as well as the right to free choice of employment, we find that there are discrepancies between Germany’s human rights commitments in the noted human rights aspects and the state-based unveiling policies that perpetuate structural discrimination in the employment sector. The unveiling policies hence encompass prolonged social, religious, and political issues in Germany. With the continuous diversification of German society, migration flows, and the currently debated veil bans for students, Germany may face further policy propositions that could endanger minority and women’s rights which hopefully won’t end in a further crucial ultimatum-Unveiled or uneducated? For now, however there is hope. The Berlin labor court recently granted a young female Muslim compensation in recourse for the denial of a trainee position – Certainly a good sign, but a long way to go.

Endnotes

(1) In this context, a brief overlook on the particular state-laws discussing the highlighted human rights concerns is crucial in this context. Article 31 of the Basic Law declares that constitutional law supersedes state law.Nevertheless there are certain areas in the legislation where constitutional and state law differ. Article 74, for example, notes that these areas may include civil law and penal law, amongst others.While this stipulation is rather vague, it allows  states in Germany to formulate particular laws within these areas that may vary from Basic Law. In the focus area of this article, non-discrimination in the employment sector, Baden-Wuerttemberg’s state law does not discuss any further specifics beyond the discriminatory grounds noted in the Basic Law, and the enacted school law cited earlier.
Article 31
Article 74
Baden-Wuerttemberg state law 

Bibliography

  • Hoeglinger, Monika. Verschleierte Lebenswelten: Zur Bedeutung des Kopftuchs fuer muslimische Frauen. Vienna, Austria: Roesner, 2002.
  • Oesterich, Heide. Der Kopftuch-Streit: Das Abendland und ein Quadratmeter Islam. Frankfurt, Germany: Brandes &Aspel Verlag, 2004.
  • Sardar Ali, Shaheen. Gender and Human Rights in Islam and International Law: Equal before Allah, Unequal before Man? The Hague, Netherlands: Kulwer Law International, 2000.

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Lara-Zuzan Golesorkhi's research emphasis lies in the field of governance and human rights. Her primary research groups are women and marginalized groups, including ethnic/religious minorities, migrants, domestic workers and sex workers.

   

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