September 16, 2016
By Eva Brems
What is at Stake? The Hijab Wearer as an Outlaw
The corporate anti-headscarf policy that is challenged in the Achbita case has to be situated in the context of a country that has seen headscarf bans expand like an oil stain from one sector to the next. This results in a situation which can, without exaggeration, be termed ‘headscarf persecution’. Bans that affect mainly the Muslim headscarf are popping up in all sorts of environments, to the effect that the headscarf itself is de-normalized and is almost automatically problematized. In any context whatsoever, a real risk exists that someone will question whether the headscarf can be allowed, and a real risk exists that the answer to such a question will be negative. As a result, Muslim women who wear a headscarf in Belgium gradually become outlaws.
Belgian courts do not necessarily protect against headscarf-based discrimination, and when they do, their judgments have more than once remained without implementation. The stakes of Achbita for hijab wearers in Belgium are clear: can the expansion of the oil stain be stopped or not? Is there or is there not a limit to the activities or places from which headscarf wearers can be excluded, and to the grounds that can be invoked in support of such exclusion?
Where it Started: Headscarf Bans in Schools
The first Belgian headscarf bans were put into place in schools in the 1990s. Today, most Belgian schools for primary or secondary education ban the wearing of religious signs, both for pupils and teachers. The network of public schools of the Flemish (i.e. Dutch-speaking) Community (GO!) introduced a general ban on the wearing of religious signs in primary and secondary schools for all pupils and for teachers, with an exception for teachers of religious education classes. In the private school network, mainly consisting of the network of Catholic schools, the decision about whether or not to prohibit religious signs is left to the discretion of the individual school authorities. In practice, however, this means that a lot of schools prohibit the wearing of religious signs on their premises. In the French-speaking part of Belgium, both the public school system and the private networks leave the decision to prohibit religious signs in schools to the individual school authorities. Yet, similar to the situation in Dutch-language schools, the majority of French-language schools de facto prohibit the wearing of religious signs in schools both for pupils and for members of their personnel. This means that, in practice, the very large majority of primary and secondary schools in Belgium forbid the wearing of religious signs both for pupils and teachers. While, for a long time, the debate on religious signs in schools was limited to primary and secondary education, the debate is now expanding to other fields, such as higher educational institutions and adult education.
On 14 October 2014, the Belgian Council of State ruled that the ban on religious signs imposed on pupils in a Flemish public school (in accordance with the general ban imposed by the public school network) is not compatible with the right to freedom of religion. Until now, however, despite this important judgment of the Council of State, the network of public schools has not changed its policy, and most of the public schools have upheld their ban. Such blatant defiance of a ruling of the highest administrative court is extremely rare in Belgium. It testifies to the strength of public opinion, which simply refuses to see headscarf discrimination as discrimination. What is more, while until recently most debates on religious signs in the field of education mainly concerned the wearing of a hijab by Muslim girls and the wearing of a turban by Sikh boys, the debate is expanding to other items of clothing. In 2015, several schools banned long skirts worn by Muslim girls.
There is More than one Achbita: Headscarf Bans in the Workplace
Ms Achbita’s case is not an isolated one. Limitations on the wearing of religious signs in the workplace occur both in the public and in the private sector. This is particularly the case for Muslim women who wear a hijab. In the public sector, at present, no general ban on the wearing of religious signs exists. Instead, each public authority decides whether or not to allow its employees to wear religious signs, and several public institutions have opted for a ban. At the local level, several municipalities have introduced a ban on the wearing of religious signs for employees, especially for those who have a public function that involves contact with citizens. In a 2015 judgment, the Employment Office of the Brussels Region was convicted for its internal regulation prohibiting its own employees from wearing religious signs. Religious clothing has also led to discussions in the private sector. In 2009, for example, a lawyer who wanted to practice law as an attorney was not admitted to the Bar of Brussels because she was wearing a hijab. In 2010, a Muslim woman’s contract was not renewed because she refused to comply with the new requirements to remove her hijab in the retail shop where she was working. Amnesty International has reported other cases of discrimination against Muslim women wearing a hijab, including women working in medical laboratories, in a call-center and a cleaning company. As the Achbita case and several others show, Belgian courts have developed a line of case law in which they extend the possibility to justify headscarf discrimination on grounds of neutrality from the public to the private sector: they accept headscarf discrimination against employees by private sector employers as soon as the company has a ‘neutrality’ charter or policy.
There May be no Limit: Headscarf Bans in Access to Goods and Services
Belgium does not have a strong litigation culture, which results in many cases of discrimination remaining under the radar. Yet several cases of women being refused access to services because of the fact that they are visible Muslims wearing a hijab have come to public attention. In recent cases, women were denied access to an ice-cream parlour, to the terrace of a restaurant, and to gym facilities, and they experienced difficulties in the housing market because of the fact that they wear a hijab. Only some of these bans have been challenged in court. In some cases, discrimination was found. Yet in other cases, the domestic courts have accepted headscarf bans as legitimate. A Belgian appeal court held on 8 September 2015 that the refusal of a fitness centre to admit a woman as a client on account of her headscarf was not discriminatory, and a court of first instance held on 2 July 2014 that the refusal to admit two women as clients in an ice cream parlour on account of their headscarves was not discriminatory. The latter case was overruled on appeal on 8 October 2015, yet just last week, we noticed that the ice cream parlour still advertises internal rules than ban clients from donning headwear unless this is justified by ‘medical reasons’. Even though courts found discrimination in the 2009 case of a woman who was refused access to the summer terrace of a bar, and the 2011 case of a woman who was refused access as a client in a bowling alley, the result is an atmosphere in which headscarf wearers know that any type of discrimination against them may pass judicial scrutiny.
For the population at large, Islamic headscarf wearers are fair game, and removing Islamic headscarves from as many societal spheres as possible is a respectable goal, if not an act of good citizenship.
This climate is, of course, strengthened by the Belgian criminal ban on face-covering in the entire public sphere, which was adopted to specifically target the Islamic face veil (niqab). This is the case, inter alia, because many people – including journalists, lawyers, and politicians – see the ‘headscarf issue’ and the ‘face veil issue’ as one and the same thing. The word ‘veil’ (sluier/voile), which is often used in these discussions, can refer to either garment.
For international observers, the link with racism and Islamophobia may seem obvious. Yet in discussions in Belgium, that link is usually dismissed and arguments based on ‘neutrality’ continue to get a lot of credit, both in the media and in court. This has evolved from the idea of neutrality as a duty of public authorities to neutrality as a duty of the users of public services. Once the idea had gained traction that a business can also legitimately rely on a neutrality policy, the neutrality obligation was extended to potentially all employees. From there, it was a remarkably small step to claiming obligations of neutrality even for the clients of certain businesses. What is next? When the ban on face covering in the entire public sphere was introduced in Belgium in 2010, we interviewed women who wore the niqab in the country, and who told us that they feared that the next step might be a general ban on the hijab in public. Back then, this seemed absurd. But in the summer of 2016, when ‘burkini’ bans have been enforced on French public beaches, and when contemplating the steady advance of hijab bans in an increasing number of contexts, I am no longer sure that this could never happen. When does this creeping proliferation stop? Will it go on until the ban is generalized and the exclusion of Muslim women is complete? Or will a supranational court have the courage to set some clear legal limits?