Draft law to ban headscarves in school
01 November 2003
In Germany, for the first time, strong criticism is being levelled against advocates of banning headscarves, which are often seen as religious symbols of the oppression of women as well as violating (western) democratic principlers, in German schools. The criticism follows a decision by the state cabinet of Baden-Württemberg to allow the regional government to pass a law preventing teachers from "wear[ing] symbols that could also be seen as a political statement" (head of Baden-Württemberg regional state Erwin Teufel, CDU). Bavaria has announced it will follow suit. The new paragraph 38 of the regional Education Act, drawn up by a former judge with the Federal Constitutional Court, states that a teacher's behaviour that gives the impression that he or she stood against human dignity, equality and basic rights, should be forbidden.
Baden-Württemberg's Christian Democrat cultural minister Annette Schavan believes that wearing a headscarf "undoubtedly" constitutes such behaviour because the scarf is seen "also as a symbol of cultural self-isolation (Abgrenzung) and as part of the history of the oppression of women". The Conservative Schavan said during the presentation of the draft law in regional parliament, that the headscarf was less of a religious symbol than a sign of "political oppression practised within Islam" (Spiegel online 28.10.03). The same could not be said for Christian or Jewish symbols, she said, without further explaining her questionable statement. Christian symbols will therefore explicitly remain legal and the law states that nuns, for example, will be able to continue teaching in their vocational outfits.
With this proposal, which is expected to enter into law by the end of this year, the regional states were reacting to an earlier decision by the Federal Constitutional Court of 24 September which declared the banning of headscarves illegal. The ban had been practised in Baden-Württemberg without a legal basis and this had been challenged by a headscarf-wearing teacher. However, the latest ruling also laid down that each regional state has the freedom to create a law which would stop teachers from wearing religious symbols.
The former deputy president of the Federal Constitutional Court, Ernst Gottfried Mahrenholz (Christian Democrat) strongly criticised the Baden-Wurttemburg decision, pointing out that it deliberately misinterprets the Constitutional Court decision. He explains that although the Constitutional Court allowed regional states to ban the expression of religious symbols, it also laid down that the law could not discriminate between different religious convictions (ie. it was constitutional only) "if members of different religions are treated equally". The regional government "completely" failed to consider this because it did not fit their "concept".
Mahrenholz also criticised Baden-Württemberg's use of the concept of "aptitude" for people in public office. The German Basic Law (Article 33 Para 2) lays down that every German citizen has "equal access to every office according to his aptitude, ability and qualifications". Mahrenholz points out that the term aptitude is a "very personal term" which could not be reduced - as is done by those who interpret the headscarf as unconstitutional - as symbolic of fundamentalism. It is not those wearing the headscarf that are the problem, he argues, but those that advocate unconstitutional fundamentalism. Hence,
Such a legally enshrined suspicion towards a particular group of people, without any evidence of the same within the group, is the political discrimination of this group, for which I do not see any parallels in German legislation.
Alongside Mahrenholz, women from the political and cultural spectrum have stated their opposition to the ban and have called for an objective debate. The 780 signatories to the statement include members of the Green party, the former head of the German state Rita Süssmuth (Christian Demo