September 01, 2021
The Human Rights Centre of Ghent University (Belgium) submitted a joint third party intervention (TPI) before the European Court of Human Rights (ECtHR or the Court) in the communicated case of Mikyas and others v. Belgium together with the Equality Law Clinic of the Université Libre de Bruxelles. In this case, the Court is asked to rule on the impossibility for two Muslim girls to wear the headscarf in Belgian public high schools. In our submission, we highlight various elements of the legal and societal context of the case and suggest possible pathways of legal reasoning under the European Convention of Human Rights (ECHR or the Convention) that we hope may be relevant to both lawyers and Judges working on this case as well as for the further development of case law.
Facts of the case
The case concerns a ban on the wearing of religious symbols in the context of school activities of the public school network of the Flemish Community (GO! onderwijs van de Vlaamse Gemeenschap) and its impact on the ability of two Muslim girls to wear the headscarf. The ban by the GO!-network was implemented in the school regulation of the two high schools at which the applicants were students at the time.
On the 23th of February 2018, the Court of First Instance of Limburg declared the ban contained in the school regulation inapplicable but dismissed the applicants’ claim for compensation. On the 23th of December 2019, the Court of Appeal of Antwerp overturned this decision of the first judge and ruled the applicants’ claim to be unfounded. In two opinions on 13th and 18th of May 2020, a lawyer at the Court of Cassation assessed the chances of an appeal negatively.
The applicants argue that the ban violated Articles 8, 9, 10 of the Convention and Article 2 of Protocol No. 1, both taken alone and in conjunction with Article 14 of the Convention.
Issues raised in the third party intervention
Our third party intervention consists of two main parts. First, we highlight the relevant legal and societal context of the case. Second, we propose potential pathways for the legal reasoning under the Convention.
1. Legal and societal context
1.1. Bans on religious signs/dress worn by pupils in Belgian schools and their impact
Headscarf bans in schools can have dramatic consequences on the education of young Muslim girls as it may influence their choices of schools, higher studies and employment and even cause them to opt for home education. Following the same idea, the ban inevitably narrows Muslim women’s professional perspectives. Indeed, a recent study in Flanders showed that a grand majority will look for another place to study or work at if the place they would have chosen in the first place did not accept their wearing the headscarf, even if that means turning down a dream job/career.
1.2. The broader context of bans on religious signs/dress in Belgium
We affirm that it is highly relevant to situate bans on religious signs/dress in schools in the broader societal context in which bans that affect mainly the Muslim headscarf are widespread, to the effect that the headscarf itself is de-normalized and almost automatically problematized. Every year, the Belgian National Equality Body receives numerous reports concerning bans on wearing the Islamic headscarf in places such as school or work. In fact, most of their case files related to the right to wear certain clothes involve Muslim women wishing to wear the headscarf. As such, headscarf bans are spreading in many areas of life and they can deeply affect women in their career opportunities. We state that the present case offers an opportunity to the Court to address the problematic nature of the continuously widening sphere in which limitations are placed on Muslim women. It is an opportunity to emphasize that limitations should not be the rule, but the exception.
1.3. The broader context of hostility against Muslims in Belgian society
In the third party intervention, we consider that the Court cannot detach the targeting of Muslim women who wear a headscarf from the context of rising Islamophobia. Feelings of irrational hostility, fear or hatred toward Muslims have exacerbated in recent years by the rise of populist nationalist politicians and the terrorist attacks in Brussels. This negative attitude has seemingly resulted in a sustained and continued growth of explicit and measurable physical and verbal attacks toward Muslims as well as other forms of discrimination, for instance on the housing market.
1.4. Church/state relations and neutrality in Belgium
We flag to the Court the importance of taking into account the particularities of the Belgian context when relying on secularism and neutrality to allow restrictions on religious dress. The Court has earlier stated that a uniform conception of the significance of religion in society cannot be discerned among member states but, instead, that the regulation on wearing of religious symbols in educational institutions will vary in accordance with a country’s national traditions. An important distinctive feature of the present case compared to previous cases that have reached the Court in this context is that Belgium is not a secular state in the same way as France, Turkey or Switzerland.
Where, in France, secularism is part of the constitutional order of the Republic, in Belgium, voices to constitutionally entrench secularism or state neutrality have failed to gather sufficient political support. In France, religion remains almost entirely absent from public education. There is no Islamic religious education in French public schools. In Belgium, on the other hand, confessional religious education is organised in public schools. An approach that is mirrored throughout the majority of European countries. Thus, in states such as Belgium, in which the principle of secularism is far less entrenched than in France, the Court cannot rely on the same argument as a basis for a wide margin of appreciation in the context of far-reaching restrictions of religious freedom.
1.5. Bans on religious signs/dress in international human rights law
In the intervention, we submitted that five United Nations human rights treaty bodies (the Human Rights Committee, the Committee on the Rights of the Child, the Committee on the Elimination of Discrimination Against Women (CEDAW), the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination) have unanimously expressed concern over Belgian bans of religious dress in education and other contexts, with most of them expressing specific concern over the application of bans in schools. The consensus among these UN treaty bodies about the problematic character of banning the wearing of headscarves, amongst others in schools, and amongst others in Belgium, is of great relevance for the ECtHR as experts have suggested that supranational human rights bodies should adopt a dialogical attitude that takes the output of other bodies into account. For the present case, this means that the ECtHR would have to justify an outlier position.
1.6. The relevance of intersectionality
In the intervention, Mikyas and others v. Belgium is affirmed as a perfect opportunity for the Court to engage with intersectionality. While the importance of intersectionality is beginning to emerge in the Court’s case law, in its precedents at the intersection of gender and religion, it has consistently ignored the gender dimension of the claims of female religious applicants. A study conducted by Castillo-Ortiz and al. shows that, contrary to cases brought by Muslim men and Christian women, Muslim women systematically lose their cases before the Court. This is an important finding: while it is not explicitly tackled by the ECtHR, the intersection of gender and religion clearly plays a role in its assessment of Muslim women’s cases. We therefore respectfully invite the Court to address this combined dimension of inequalities.
2. Legal reasoning under the European Convention on Human Rights
2.1. On the necessity of the measures for a legitimate aim
Firstly, it is argued that when restrictions on the Convention rights of pupils are argued to be necessary in the name of neutrality, the conventionality control should carefully establish whether such restrictions are necessary in light of a real threat for the rights and freedoms of others. One can imagine that individual teachers could, through their behaviour in the school context, infringe upon those rights. It is less evident (though not impossible, see infra under b)) to consider the ‘non-neutral’ behaviour of pupils as a potential threat to the rights and freedoms of other pupils. In the broader context of the neutrality of public services, the behaviour of the users of such service is generally not considered as a potential threat to neutrality. The Court has earlier stated that – in democratic societies – private citizens are normally not under a duty of discretion, neutrality and impartiality.
Secondly, we submit that the mere fact that pupils wear visible signs or dress that identify them as adherents of a particular religion, cannot automatically be considered as a threat to the rights and freedoms of others. A ‘right not to be confronted with the expression of other persons’ religion’ would be difficult to reconcile with the text and purpose of Article 9 ECHR. Hence, we elaborate that for a ban on religious dress worn by pupils to be considered ‘necessary’ for the protection of the rights and freedoms of others, it would have to be demonstrated that in the specific circumstances of the case, the wearing of such signs/dress constitutes a real threat to the rights and freedoms of others. In a context that is rife with anti-minority sentiment and with harmful stereotypes about Muslim women who wear a headscarf, it is particularly important that no ascription of harmful impact to the wearing of a headscarf could be done on the basis of mere assumptions.
2.2. On the proportionality of the measures and the margin of appreciation
Additionally, we urge the Court to take into account that Muslim women ‘who wear a headscarf’ suffer increasing and intense marginalization, rejection, stigmatization and misrecognition in Europe. In addition to physical or verbal aggressions, multiple laws, regulations, company policies and school policies are adopted in order to reject them, as they are, with their (religious) integrity. Despite the prima facie neutral character of such rules, they lead to both public and private spaces being ‘neutralized’ in reaction to their presence and with an effect of exclusion. We submit that Muslim women (who wear a headscarf) constitute a vulnerable group, because they clearly appear today as a minority group that is suffering ‘from widespread stigma and exclusion’. We submit that the jurisprudence on vulnerable groups should therefore apply, and ‘very weighty reasons’ should be needed to justify a prima facie case of discrimination and an infringement of the freedom of religion.
Then, we submit that in some cases, which include restrictions that disproportionately affect Muslim women and girls, intersectional harm is intrinsically more serious than single-axis harm, and that this should be taken into account in the proportionality analysis under the ECHR. Intersectional harm operates amongst others through harmful intersectional stereotypes. We discuss, in particular, the stereotype of Muslim women and girls as deeply oppressed and in need of protection. At a time when it is widely recognized that women’s autonomy is central in the fight for gender equality, it is telling that headscarf bans still assume that what Muslim women need most is not autonomy, but protection. At the same time, Islamophobic stereotypes that picture Islam as a threat are projected onto headscarves and their wearers, and support the assumption that all women who wear the hijab wish to convert others to (fundamentalist) Islam, and to send to non-Muslims an aggressive message.
We tried to draw the Court’s attention to an emerging trend that leads to a strengthening of the proportionality test in cases of intersectional discrimination. Stricter scrutiny in cases of discrimination based on multiple grounds could further develop the Court’s case law.
Finally, we signal to the Court that the situation of school girls affected by a ban on religious symbols typifies the indivisibility of human rights from the experience of the rights holder. These bans affect their religious freedom, their right to be free from (intersectional) discrimination, as well as their right to education (with a significant reduction of the ability to choose the type of education she wishes to receive). We submit that it is important that the Court recognizes all dimensions of an applicant’s experience of injustice that are relevant under the Convention and the indivisibility of and interaction between the infringements on each of these Convention rights. The separate discussion of the infringement of each of these rights is necessary, but not sufficient, as it cannot do justice to the accumulation of harms as experienced by the rights holder. Thus, the extra ‘weight’ that results from the accumulated infringements needs to be recognised.
The full third party intervention can be found on the website of the Human Rights Centre.
 For the Human Rights Centre, the academic team consisted of Eva BREMS, Saïla OUALD CHAIB, Sarah SCHOENTJES, Aurélie VAN BAELEN and Cathérine VAN DE GRAAF. For the Equality Law Clinic, the academic team consisted of Emmanuelle BRIBOSIA, Robin MÉDARD INGHILTERRA, Hania OUHNAOUI and Isabelle RORIVE; the law student legal team consisted of Titouan BERHAUT-STREEL, Abdelhakim BOUHJAR, Aurélie LOMBAERT, Hichem QACHRI and Aude VAN DEN BUSSCHE.