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The Constitutional Court has lifted the controversial ban on the turquoise veil in primary schools as unconstitutional.
The Constitutional Court (VfGH) has lifted the ban on headscarves in Austria’s primary schools since autumn 2019 as unconstitutional. The controversial law was passed during the ÖVP-FPÖ government. The constitutional judges justified the decision that the regulation singled out a certain religion, Islam, without further justification, which contradicts the state’s requirement of religious and ideological neutrality.
As VfGH President Christoph Grabenwarter explained in his statement on Friday, the principle of equality in relation to the right to freedom of thought, conscience and religion justifies the religious and ideological neutrality of the state. The ban introduced by the turquoise blue government does not explicitly refer to the wearing of an Islamic headscarf. However, in the legal materials on the School Education Act, the legislature’s intention is expressed that the wearing of an Islamic headscarf be specifically prohibited.
The lifting of the ban on the veil had required that two children and their parents be educated in accordance with the Sunni or Shiite legal school of Islam. They saw it as a disproportionate invasion of religious freedom and religious education, and also a violation of the principle of equality because the hijab was prohibited, but the Jewish kippah or the patka of the Sikhs was not.
“The Islamic tradition is marginalized”
As President Grabenwarter explained, the elementary school veil ban that has been in effect since fall 2019 violates the principle of equality and freedom of religion. “The regulation (…) excludes Islamic origin and tradition as such,” criticized Grabenwarter when the highest judge announced the decision. Written knowledge is not yet available and will be delivered later.
The ban on the veil decided by the ÖVP and the FPÖ in 2019 is formulated in a religiously neutral way for the moment. Until the end of the school year in which they turn ten, it prohibits schoolchildren from “wearing clothing of ideological or religious influence that implies head covering. However, the ÖVP and FPÖ law was explicitly justified as a ban on the Muslim veil.
“The school is based on basic values of openness and tolerance”
Grabenwarter also referred to this in reasoning. He stressed that the text of the law did not specifically target the Islamic veil. However, this intention of the legislator is expressed in the legal materials. That is why the Constitutional Court has interpreted the law, which allows several possible interpretations.
With this, however, the ban on the veil violates the religious and ideological neutrality of the state, as Grabenwarter explained. This requirement must be met by treating the different religions in schools on the basis of the principle of equality. “The school is based, among other things, on the basic values of openness and tolerance.” Therefore, interventions must be objectively justified and proportionate.
Banning the headscarf as a stigma
With the prohibition of the veil, “Islamic origin and tradition as such are excluded,” Grabenwarter criticized: “The prohibition of the Islamic veil, which is applied selectively to a single religious or ideological regulation of clothing, deliberately stigmatizes a certain group of people”.
Furthermore, constitutional judges warn that a “selective prohibition regulation” could have a detrimental effect on the inclusion of affected schoolgirls: “it carries the risk of hindering Muslim girls’ access to education or marginalizing them from society.”
“Ban beats up schoolgirls who don’t disturb the school peace”
The government’s argument that school-age girls should be protected from social pressure (wearing the headscarf, note) is insufficient for a ban from the point of view of the Constitutional Court. The fact that ideological or religious conflicts may arise in schools does not justify a selective ban on the veil. Because: “This prohibition applies to female students who do not disturb the school order.”
It is up to the legislature to find instruments for conflict resolution upholding the principle of neutrality and the constitutional educational mandate and to provide the necessary resources to end religion-based harassment, explained Grabenwarter. The written decision of the highest judges should follow in the next few days.
Education Minister Heinz Faßmann (ÖVP) regretted the lifting of the ban on Friday. The Ministry of Education would not say anything about a possible new regulation. “Of course, we will take note of the highest judgment of the court and deal with the arguments,” Fassmann said in a statement. “I regret that this does not give girls the opportunity to make their way through the educational system free from coercion,” the minister said.
IGGÖ: “Against coercion of any form”
For the Islamic Religious Community in Austria (IGGÖ), the lifting of the veil ban marks the end of the populist banning policy. The decision shows “that our confidence in the rule of law and our patience have paid off,” President Ümit Vural said in a broadcast on Friday. At the same time he stated: “The IGGÖ is against any form of coercion.”
“The application of equal opportunities and self-determination for girls and women in our society cannot be achieved through prohibitions,” said Vural. “We do not condone a contemptuous attitude towards women who decide against the veil out of personal conviction, nor can we accept the restriction of religious freedom for those Muslim women who understand the veil as an integral part of their religious practice.
In addition, the president of IGGÖ appealed to policy makers to take action “to curb the increasingly racist trends in Austria that are hampering social cohesion.”
SPÖ locates the “disinterest in the constitution” turquoise
“The decision of the highest court must be respected, now it is the turn of the government factions,” the SPÖ club said on Friday. The high number of repeals shows the “serious disinterest of the Turquoise governments in complying with the Austrian constitution,” he said in a written statement from the SPÖ club. The task now is to develop a general concept of integration “that no longer regards integration as a populist toy, but as a socio-political task.”
Club boss Sigrid Maurer of the Greens emphasized that instead of banning the headscarf, what is needed is encouragement for girls, parenting education and strong role models: “and no girl he should have to wear a headscarf against his will. ” With its ruling, the VfGH made it clear that banning the veil is not constitutionally possible. “We will pursue the goal of encouraging girls in their self-determination in the federal government with other measures,” Maurer announced.
“I regret the decision of the highest judges,” FPÖ chief Norbert Hofer said via broadcast. Now it is the turn of the parliament: a two-thirds majority in the National Council will allow the regulation to be restored through a constitutional law, he hopes. “The FPÖ is available for this and invites all parliamentary parties to a joint approach.”
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