Head-Covering Bans in Belgian Courtrooms and Beyond: Headscarf Persecution and The Complicity of Supranational Courts

HUMAN RIGHTS QUARTERLY
Head-Covering Bans in Belgian

Courtrooms and Beyond:
Headscarf Persecution and the
Complicity of Supranational Courts
Eva Brems,* Corina Heri,** Saïla Ouald Chaib,***

Lieselot Verdonck****
ABSTRACT
The Islamic headscarf is banned in an increasing number of contexts in Bel
gium. According to the authors, this pattern can be characterized as “head
scarf persecution.” A topical example relates to access to courtrooms, which
is evidenced by Lachiri v. Belgium, a case pending before the European Court
of Human Rights. This article first reviews the interpretation of the ban on
head-coverings in the courtroom. On the basis of a poll conducted among
judges, their approach toward religious and non-religious head-coverings
in courtrooms is discussed in practice. The matter is then considered within
the broader Belgian social and legal context, and lastly analyzed in light of
the case law of the European Courts.
I. INTRODUCTION: THE CASE OF HAGAR LACHIRI
Hagar Lachiri is a Belgian national living in the Brussels area. As a Muslim

woman, she wears an Islamic headscarf (hijab). When her brother was killed
* Eva Brems is a Professor of Human Rights Law at Ghent University. She thanks Evgenia
Antoniadou for research assistance on the reception of the Achbita ruling.
** Corina Heri is a Ph.D. candidate at the University of Zurich and a visiting scholar at Ghent
University. Her research is supported by grants from the Swiss National Science Foundation
and the Janggen-Pöhn Foundation.
*** Saïla Ouald Chaib is a Postdoctoral Fellow at the Human Rights Centre of Ghent University.
**** Lieselot Verdonck is a doctoral researcher at the Human Rights Centre and fellow of the
Research Fund Flanders (Belgium).
Human Rights Quarterly 39 (2017) 882–909 © 2017 by Johns Hopkins University Press
2017 Head-Covering Bans in Belgian Courtrooms and Beyond 883
in a crime of passion, Ms. Lachiri intervened as a civil party in the crimi

nal trial together with other relatives. In this context, she sought to attend
a hearing of the Brussels Appellate Court in June 2007. When Ms. Lachiri
entered the courtroom, the presiding judge asked her to either remove her
headscarf or leave the courtroom. She left.
Because the Appellate Court did not accept the appeal by Ms. Lachiri
and her relatives on its merits, the civil parties lodged a further appeal to
the Court of Cassation. They used this opportunity to argue that the fact
that Ms. Lachiri had to leave the Appellate Court proceedings in light of
her decision not to remove her headscarf constituted a violation of her right
to freedom of religion. The Court of Cassation rejected the civil parties’
appeal, however, without examining the alleged violation of the right to
freedom of religion. Therefore, Ms. Lachiri submitted an application to the
European Court of Human Rights, arguing that Belgium had violated her
right to freedom of religion.1
The Lachiri case triggered the research that is presented in this article.2
We conducted a legal analysis into the correct interpretation of the provi
sion of the Belgian Judicial Code that was applied in this case, concluding
that it cannot be used as the basis for a ban on religious head-coverings in
the courtroom (Section 2). In addition, we conducted a poll among Belgian
judges to find out whether or not Lachiri is an isolated case and to explore
the attitudes of Belgian judges toward this issue (Section 3).3 Moreover, this
article analyzes the head-covering ban in court within a broader legal and
societal context in Belgium, which continuously shrinks the space in which
Muslim women wearing a headscarf are allowed to move (Section 4). We
consider that the term “headscarf persecution” adequately captures this
situation. Finally, we discuss the failure of the regional supranational courts
that are designed to be the ultimate protectors of equality and fundamental
rights in Europe, the European Court of Human Rights (ECtHR), and the
1. ECtHR, Lachiri v. Belgium, App. No. 3413/09, communicated on 9 Oct. 2015.

2. Id. The research that is presented here is part of the third party intervention by the Hu
man Rights Centre in the Lachiri case. See European Court of Human Rights (ECtHR),
Third Party Intervention by Human Rights Centre of Ghent University (n.d.), available
at http://www.hrc.ugent.be/wp-content/uploads/2016/02/Amicus-Brief-Lachiri-HRC.pdf.
3. For the full results of the study, see Eva Brems, Corina Heri and Lieselot Verdonck, Hoofd
deksels in de Rechtszaal: Een Kwestie van Respect voor de Rechter of Tolerantie door de
Rechter? (in Dutch), available at http://www.hrc.ugent.be/wp-content/uploads/2016/04/
Centrum-voor-Mensenrechten_Onderzoek-rond-hoofddeksels-in-de-rechtszaal.pdf. An
executive summary in English is available at http://www.hrc.ugent.be/wp-content/up
loads/2016/04/Head-Coverings-in-the-Courtroom.pdf. The findings were communicated
to the Belgian Equality Body, the Ministry of Justice, and the High Council of Justice .
Asked about the follow-up they would give to the report, the latter body replied that they
would not give any follow-up, as it was not within their power to advise the judiciary
on the interpretation of the law, nor to undertake any sensitisation initiative. See Email
from Eric Staudt, Chair of the Committee for Advice and Research of the High Council
of Justice, to Eva Brems (23 June 2016) (on file with author).
884 HUMAN RIGHTS QUARTERLY Vol. 39
Court of Justice of the European Union (CJEU), to protect Muslim women

against headscarf persecution (Section 5).
II. HEAD-COVERINGS IN BELGIAN COURTROOMS: THE LAW
This article focuses on religious head-coverings worn by individuals other

than judges, clerks, and attorneys who attend court sessions. Judges who
ask these individuals to take off their head-coverings generally believe this
to be a matter of decorum. Only in case of a refusal do they invoke Article
759 of the Belgian Judicial Code (BJC), which stipulates that “[t]he audience
attends the sessions with uncovered heads, reverently and silently; whatever
the court ordains to maintain order is executed punctually and instantly.”4
Some Belgian judges use this provision to ban religious head-coverings
from their courtrooms. However, upon closer analysis, such interference with
the fundamental right to freedom of religion cannot be justified. First, with
regard to its spirit and purpose, Article 759 BJC never intended to cover
religious head-coverings. Second, assuming arguendo that there is a legal
basis to extend Article 759 BJC to religious head-coverings, this restriction
of religious freedom cannot be considered to be necessary in a democratic
society, and hence it constitutes a violation of that freedom.
A. The Lack of a Legal Basis
Article 759 BJC finds its origins in the early nineteenth century, its wording
being identical to that of Article 88 of the former Code of Civil Procedure
of 1806. At that time, it was expected that one take off one’s cap or hat,
for example upon entering a church or a private home, as a sign of respect
and as a recognition of the authority of a person or institution.5 This social
convention did not apply to head-coverings worn by Catholic nuns.
During the Napoleonic reforms that led to the codification of the law,
the social practice of removing one’s head-coverings was transposed into
civil procedure and adopted as a legal rule in the courtroom context.6 The
4. Original translation by the authors. The original text reads, in Dutch and French: “[d]e
toehoorders wonen de zittingen bij met ongedekten hoofde, eerbiedig en stilzwijgend;
alles wat de rechter tot handhaving van de orde beveelt, wordt stipt en terstond uitge
voerd” and “[c]elui qui assiste aux audiences se tient découvert, dans le respect et le
silence; tout ce que le juge ordonne pour le maintien de l’ordre est exécuté ponctuel
lement et à l’instant,” respectively.
5. Thomas Scheir, De Politie van de Terechtzitting: “Contempt of Court” Naar Belgisch
Recht, 9 Rechtskundig Weekblad 346, 346–47 (2009).
6. Koen Lemmens, Chapeau voor de Antwerpse Correctionele Rechtbank, 2 Nederlands
Tijdschrift voor Rechtsfilosofie en Rechtstheorie 53 (2007), available at http://www.eleven-
purpose of this rule was to ensure that judicial proceedings are conducted
in a serene environment and that everyone is respectful of the office of the
judge; there was thus no relation to expectations concerning “neutrality”
from individuals.7 In short, Article 759 BJC is meant to safeguard the proper
course of judicial proceedings and to maintain order in the courtroom.
For many years, judges considered that ordering disruptive people to
remove their (non-religious) head-coverings and to behave well was simply
justified by decorum.8 Thus, Article 759 BJC was largely otiose, but the
convention as such that people should take off their hats and caps in the
courtroom remained strong, with many Belgian judges holding the opinion
that not taking off one’s hat or cap is a sign of a problematic attitude.9
With the rise of multiculturalism, a new dynamic was injected into Article
759 BJC. As the number of people wearing religious head-coverings—in
particular Islamic headscarves10—accrues, some judges apply the provision
to demand the removal of those head-coverings, even if the person con
cerned neither disturbs the order of a courtroom nor behaves disrespect
fully towards the judge. Banning religious head-coverings ipso facto in this
manner is tantamount to positing that people wear religious head-coverings
to “express a form of contempt against those they encounter or otherwise
to offend against the dignity of others,”11 which is not supported by any
indications, let alone evidence.
There is thus no basis in Belgian law for banning religious head-coverings
as such in courtrooms. Article 759 BJC only applies when a person pres
ent in the courtroom actually disturbs the proper course of proceedings.
Furthermore, because only a small minority of Belgian judges demand that
religious head-coverings be removed before entering the courtroom, the ap
journals.com/tijdschrift/rechtsfilosofieentheorie/2007/2/RenR_2007_037_002_005.pdf; cf.
Bob van den Broeck, Rechter Moet Neutraal Zijn, Burger Niet, 147 De Juristenkrant 2, 3
(2007). While the Code for Civil Procedure of the Netherlands also originates from the
French code, there is currently no legal prohibition in Dutch law to wear any type of
hat. As a result, the discussion in the Netherlands rather focuses on attorneys wearing
religious head-coverings, and proponents argue that this should be allowed because
attorneys do not have to be impartial, as opposed to judges.
7. Lemmens, supra note 6, at 53–54; Scheir, supra note 5, at 347; Van Den Broeck, supra
note 6, at 3; Patricia Popelier, Procederen voor het Grondwettelijk Hof 281 (2008); Rudy
Verbeke, Column: Met Ongedekten Hoofde, 147 De Juristenkrant 2 (2007).
8. As claimed by several individual comments made in response to the poll.
9. The poll conducted among Belgian judges (see infra Section 3) showed that 51.8 percent
of Dutch-speaking and 72.9 percent of French-speaking judges polled responded that
they would require the removal of hats or caps.
10. Compare with Lemmens’s writing that there are no known cases of nuns or beguines
being asked to take off their headscarves and that it is common knowledge that several
lawyers wear a yarmulke while pleading. Lemmens, supra note 6, at 53–54.
11. Cf. ECtHR, Grand Chamber, S.A.S. v. France, App. No. 43835/11 (1 July 2014), ¶
120, available at http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-
145466&filename=001-145466.pdf&TID=fuwrctbtiu.
plication of Article 759 BJC, which is left to the discretion of the individual
judge, lacks any guarantee of foreseeability.12
B. Unnecessary in a Democratic Society
Even if a person who is wearing a religious head-covering behaves disruptively

or disrespectfully in the courtroom, an order to remove the head-covering
so as to restore order constitutes an unjustified interference with the af
fected person’s right to freedom of religion. Under Article 9 of the European
Convention on Human Rights (ECHR), restrictions on the manifestation of
religion are subject to the requirement of being necessary in a democratic
society for the realization of a legitimate aim, a criterion which the measure
in casu does not meet.
First, demanding the removal of religious head-coverings on penalty
of exclusion from the courtroom is unrelated to the purported objective
pursued, that is safeguarding the orderly course of judicial proceedings—to
the contrary, its effect is likely to be counterproductive.
Second, a measure that obliges individuals who behave disrespectfully
or disruptively to take off their religious head-covering is disproportionate.
Judges should first and foremost consider alternative measures.13 Moreover,
treating religious and non-religious head-coverings equally in this matter is
discriminatory: the fact that their wearers find themselves in different situ
ations requires a difference in treatment.14 The obvious difference between
religious and non-religious head-coverings is, of course, the fact that the
former falls under the wearer’s right to freedom of religion.
Finally, while Article 759 BJC on its face seems to affect all religious
head-coverings equally, the risk of indirect discrimination amongst religions
is high given that only religious head-coverings fall under Article 759 BJC,
and not other religious symbols such as religious crosses, bracelets, shawls,
rosaries, collars or dresses, haircuts, or forehead decorations.15
12. Van Den Broeck, supra note 6, at 2.

13. For instance, in Georgia (US), religious head-coverings are explicitly allowed, but in case
of security searches the wearer can ask that the search is conducted in a private area by
an officer of the same sex. Joseph W. Tucker, No Hats in Court: Michigan’s Justifications
for Free Exercise Indifference, 41 Univ. Toledo L. Rev. 1061 (2010).
14. Lemmens, supra note 6, at 55; cf. Popelier, supra note 7, at 281; Tucker, supra note 13,
at 1040. Tucker even argues that in the US a ban on face veils (in particular the niqab)
will only exceptionally pass constitutional muster.
15. Lemmens, supra note 6, at 57.
III. HEAD-COVERINGS IN BELGIAN COURTROOMS: PRACTICE AND

ATTITUDES OF JUDGES
In early 2016, we conducted a poll among Belgian judges concerning their

approach to the wearing of religious and non-religious head-coverings in
practice.
A. Background and Methodology
The research was conducted by means of an anonymous online poll using the
SurveyMonkey® platform, which garnered responses by 255 Dutch-speaking
and 263 French-speaking Belgian judges on various levels of jurisdiction.16
The Dutch-language version of the poll was opened for responses on 1
January 2016 and closed on 10 March 2016. The French-language version
of the poll was opened on 1 February 2016 and closed on 22 March 2016.
Respondent judges were contacted by e-mail, both through personal contacts
using internal e-mail lists of judges and through an e-mail list obtained from
the High Council of Justice. Responses were provided anonymously with no
identifying information about the respondents being gathered.
While the poll was disseminated to as many judges as possible, the
emphasis was not on obtaining representative data for statistical analysis.
Instead, we pursued the more modest aim of understanding how Article 759
BJC is applied in practice and gaining an overview of judges’ approaches to
the matter. To this end, the judges who responded to the poll were asked a
series of questions and provided with the opportunity to explain their answers.
The first question concerned the type of court of which the respondent
was a member. The second question asked whether the judges had previ
ously applied Article 759 BJC in their courtrooms to require the removal of a
head-covering that did not cover the face, thereby purposely excluding those
head-coverings that pre-empt the identification of the wearer. The answer
given in response to the second poll question determined which follow-up
questions were shown to the respondents.
If the answer to the second question was affirmative, respondents were
asked to choose the function of the person concerned—as a member of the
public, as a party in a civil case, as a civil party in a criminal case, as the
accused in a criminal case, as a witness, as counsel, in another role, or in
an unknown role—from a list. They were also asked to indicate regarding
16. This is more than 25 percent of the total number of judges in Belgium. The last available
figures, for 2011, mention a total of 1604 judges. See Federal Department of Justice
(Belgium), Justitie in Cijfers 2012, at 8, available at https://justitie.belgium.be/sites/default/
files/downloads/0210_JIC2012__NL.pdf.
what type of head-covering—religious, non-religious, or both—for which

they had invoked Article 759 BJC.
If the answer to the second question was negative, judges were asked
to indicate why they had not applied Article 759 BJC to require the re
moval of a head-covering. The respondents could tick one or more of the
following options: you purposely do not require the removal of religious
head-coverings, you purposely do not require the removal of non-religious
head-coverings, you are not confronted with religious head-coverings, you
are not confronted with non-religious head-coverings, and for other reasons.
Judges had the opportunity to explain their answers.
Independently of their answer to the second question, judges were then
asked to indicate in the sixth and last question of the poll whether they would,
in the hypothetical event that they would be confronted with them, require
the removal of a number of religious or non-religious head-coverings. The
different options were a hat or cap, a scarf to cover hair loss brought on by
illness, a yarmulke, a turban, a Muslim headscarf, a Catholic nun’s head-
covering, or “I would not ask this.” It was possible to select multiple answers.
Incomplete responses to the poll—providing an answer only to one or
two of the main questions, and none to the ensuing sub-questions—were
removed. The remaining responses obtained came from 518 judges in a
diverse range of functions, including 225 judges of first instance, seventy-
one justices of the courts of appeal, seventy-one civil magistrates (justices
of the peace), twenty magistrates (judges of a police tribunal), fifty-three
judges of the labor tribunals (arbeidsrechtbank), twenty-two justices of the
labor court (arbeidshof), one member of the Council of State (staatsraad),
fifty-three judges of the commercial court (rechtbank van koophandel), and
two justices of cassation.
B. Results of the Poll
The responses provided by these judges allowed some preliminary insights

concerning the manner in which Belgian judges understand and apply Article
759 BJC. For one, it emerged that an absolute majority of respondent judges
had never applied Article 759. Only 23.5 percent of the Dutch-speaking
respondents (sixty judges) and 38 percent of the French-speaking respondents
(100 judges) answered in the affirmative to the question about their past
application of that provision.
Among these, 80 percent of Dutch-speaking and 79 percent of French-
speaking judges responded that they have only applied the provision to
non-religious head-coverings. By contrast, a small minority—3 percent of
the Dutch-speaking and 7 percent of the French-speaking judges who had
already applied Article 759—stated that they have only required the removal
of religious head-coverings. Finally, of the 160 judges (sixty, or 23.5 per

cent, were Dutch-speaking and 100, or 38 percent, were French-speaking)
who responded that they have previously applied Article 759, 16 percent
of Dutch-speaking and 14 percent of French-speaking judges answered that
they have required the removal of both types of head-coverings.
Overall, of the 518 judges polled (255 Dutch-speaking and 263 French-
speaking), 5 percent of the Dutch-speaking respondents (twelve individuals)
and 8 percent of the French-speaking respondents (twenty-one individuals)
stated that they have already applied Article 759 BJC to require the removal
of a religious head-covering.
Furthermore, the responses showed that, when Article 759 BJC has been
invoked, it has most commonly been applied to members of the public, to
parties in a civil case, and to the accused in a criminal case, but has also
occasionally been called upon vis-à-vis a range of persons in other functions,
including a trainee attorney present in court for the oath-swearing ceremony,
victims in criminal cases, witnesses, and translators.
Read together, the judges’ responses allowed for the identification of
some general trends and problem areas. First, it became apparent that many
judges are aware of the ratio legis of Article 759 BJC and invoke the provi
sion or its spirit in order to require persons who behave disruptively during
the proceedings to remove their head-coverings. For example, a number of
judges explicitly stated that they rely on the provision to require the removal of
non-religious head-coverings, particularly caps, worn by disruptive attendees.
Second, it emerged that many of the poll respondents are aware of the
distinction to be made between religious and non-religious head-coverings
in this context. Among those who have already applied Article 759 BJC, 80
percent of Dutch-speaking and 79 percent of French-speaking judges only
disallowed non-religious head-coverings. In response to the sixth question,
which inquired about the judges’ behavior in the hypothetical scenario
that they would be confronted with head-coverings in their courtrooms, 41
percent of all Dutch-speaking respondents and 55.5 percent of all French-
speaking respondents stated that they would require the removal of non-
religious head-coverings but not of religious head-coverings. One judge,
for example, stated that:
I expect that the members of the public will not disturb my courtroom, other
wise I will ask them to leave. Given the average level of elegance of the audi
ence, I don’t begin making comments. However, I do require accused persons
to remove their caps when they appear in my court. It is necessary to recall
that this is a rule of basic courtesy. I do not ask women who are veiled in the
usual way to remove their veils, because I don’t consider this to be a sign of
disrespect towards me.17
17. Original translation of poll response by the authors.

Another judge wrote that:

Removing an [ordinary] cap or hat is a sign of courtesy and should be expected
from everyone. The [religious] head-coverings [listed in the sixth question of
the poll] are an element of the wearer’s identity and I consider it lawful for a
party or audience member to wear them, if verification of the wearer’s identity
remains possible and safety is ensured.18
By contrast, a number of judges considered that both types of head-

coverings—the religious and the non-religious—should be treated equally.
The reasons given for this approach vary, and include the argument that both
types of head-coverings are alike, the existence of problems in distinguishing
religious head-coverings from non-religious ones, concerns about public and
press reactions, and the separation of church and state.
The belief in the equality of all head-coverings, religious and non-
religious, manifests itself in two approaches. On the one hand, some judges
stated that they would never require the removal of any type of head-covering.
This was the case for 18 percent of all Dutch-speaking respondents and
9.5 percent of all French-speaking respondents. On the other hand, some
judges applied this approach to argue that they would equally require the
removal of both religious and non-religious head-coverings. This was the
case for 10 percent of all Dutch-speaking respondents and 25 percent of all
French-speaking respondents.19 In their explanatory comments, some mem
bers of this latter group of judges expressed a belief that treating religious
and non-religious head-coverings differently constitutes unequal treatment,
with tolerance of the Islamic headscarf, in particular, being singled out as
discriminatory.
Third, it became apparent that some of the judges who do or would
require the removal of a religious head-covering make a distinction ac
cording to the type of covering concerned, to the detriment of Islamic
headscarves. Thus, in response to the hypothetical question, 2.4 percent
of the Dutch-speaking and 7.4 percent of the French-speaking judges said
that they would require the removal of an Islamic headscarf, but not of a
Catholic nun’s head-covering.
Furthermore, three Dutch-speaking and four French-speaking judges
further indicated that they would require the removal only of the Islamic
headscarf, but not of any other religious head-covering. The explanatory

19. The fact that the number of judges who would hypothetically require the removal of
religious head-coverings is much higher than the number of judges who have in fact
already required the removal of religious head-coverings is explained in part by the fact
that the Muslim population is unevenly distributed over the Belgian territory, so that a
significant number of judges are rarely or never confronted with the issue. For example,
while a number of the judges polled explained that they had never been confronted with
head-coverings in their courtrooms, another stated that “all the women are veiled.”`
comments provided by these latter judges provide insight into the reasoning
behind this position. Some of these judges explained their approach as based
in their “anger” at Muslim headscarves, their belief that such head-coverings
are not worn voluntarily, or their feeling that the women who wear them
are “hiding something.” These statements join a number of others which
target Islam as a religion, arguing for example that “Muslims do not have a
multi-religious mind-set,” that they consider themselves above the law, or
that “[w]hat we require of men wearing a cap (removing it out of respect),
we dare not ask a Muslim: one yields gradually to the invasion.”20
Fourth, many explanatory reactions by judges reflected a desire for
clearer guidance on the application of Article 759 BJC in order to eliminate
inconsistencies and remove the need for judges to decide in individual cases
whether a head-covering is religious or not. Some also considered the provi
sion archaic, either calling for it to be abrogated or for the words “with their
heads uncovered” (met ongedekten hoofde / découvert) to be struck out.
IV. HEADSCARF PERSECUTION IN BELGIUM
The banning of Muslim headscarves from Belgian courtrooms has to be

situated in a broader societal context in which 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 prob
lematized. 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 have gradually become outlaws.
This section will give a brief overview of different spheres in which re
ligious signs21 are banned in Belgium and the domains in which additional
bans are still under discussion. Bans that affect religious signs are sometimes
formulated in general terms encompassing all head-coverings. Such bans
may or may not be intended to mainly target religious head-coverings. In
other cases, however, regulations explicitly ban religious signs. We will
also elaborate on the different motivations that are advanced in support of
such bans.
A. Bans on Religious Attire in Educational Institutions
In most Belgian schools for primary or secondary education, the wearing

of religious signs is prohibited both for pupils and teachers. The network

21. The expression “religious signs” refers to both religious dress and religious symbols.
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 teach
ers of religious education classes.22 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 au
thorities. 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.23 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.
Indeed, Unia, the Belgian Interfederal Centre for Equal Opportunities, was
confronted with several complaints by adult Muslim students in Brussels
and Wallonia who are prohibited from wearing a hijab in institutions of
higher education.24 Another limitation on the wearing of religious signs in
the educational field concerns the difficulties experienced by students in
finding companies or schools which allow them to conduct an internship
while wearing religious signs.25
One of the reasons advanced to justify limitations on the wearing of
religious signs in schools, particularly public schools, is the neutrality of the
public service. Additionally, schools also invoke the need to protect pupils
from pressure by pupils and teachers who wear religious signs. Further,
schools also argue that not banning religious signs would threaten diversity
22. Public schools in Belgium are obliged to offer classes on religion for all six recognized
religions (including Islam) as well as secular humanism. Pupils are obliged to choose
one of these options.
23. Didier Swysen, Port du Voile: Pas Plus de 10% des Écoles ne L’autorisent, Sudinfo.
be, 2 Sept. 2015, available at http://www.sudinfo.be/1366596/article/2015-09-01/port-
du-voile-pas-plus-de-10-des-ecoles-ne-l-autorisent. The schools in the Brussels Region
belong either to the Flemish Community or to the Walloon Community, depending on
the language of education.
24. Interfederal Centre for Equal Opportunities, For Equality, Against Discrimination (n.d.),
available at http://www.diversite.be/port-des-signes-religieux-dans-lenseignement-
superieur-et-dans-lenseignement-de-promotion-sociale.
25. Marie-Ange, 30 ans, Voilée, Galère Pour Trouver un Stage: “Ils me Sortent des Prétextes
Bidons,” LaMeuse.be, 25 Aug. 2013, available at http://www.lameuse.be/792213/article/
regions/namur/actualite/2013-08-23/marie-ange-30-ans-voilee-galere-pour-trouver-un-
stage-ils-me-sortent-des-prete.
in their schools, because they fear attracting a large group of those pupils
who are affected by the bans in other schools.
In 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. The Council observed that the arguments
concerning peer pressure and neutrality advanced by the school were too
hypothetical, and it concluded, amongst other findings, that “the litigious
ban might lead to a denial of access to education for students for the sole
reason that they exercise a fundamental right, without it being adequately
demonstrated that they disrupt the public order or endanger the rights and
freedoms of others.” 26 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. 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 cloth
ing. In 2015, several schools both in Wallonia27 and in Flanders28 prohibited
Muslim girls to wear long skirts.
B. Bans on Religious Attire in the Workplace
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 Mus
lim 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. At
the local level, several municipalities have introduced a ban on the wear
26. Council of State, X and Five Others v. het Gemeenschapsonderwijs (14 Oct. 2014),
¶ 53, available at http://www.raadvanstate.be/Arresten/228000/700/228752Dep.
pdf#xml=http://www.raadvanstate.be/apps/dtsearch/getpdf.asp?DocId=32742&Ind
ex=c%3a%5csoftware%5cdtsearch%5cindex%5carrets%5fnl%5c&HitCount=2&
hits=13+14+&06202920171310; see Yousra Benfquih & Saïla Ouald Chaib, Re-
ligious Signs in Public Schools: Belgian Council of State Shows Judicial Bravery,
Strasbourg Observers, 4 Nov. 2014, available at http://strasbourgobservers.com/
2014/11/04/religious-signs-in-public-schools-belgian-council-of-state-shows-judicial-
bravery.
27. Controversy in Brussels: Some Thirty Girls are Forbidden to Return to Their School Due
to Skirts Too Long!, RTL Info, 29 May 2015, available at http://www.rtl.be/info/regions/
bruxelles/polemique-a-bruxelles-une-trentaine-de-jeunes-filles-interdites-de-rentrer-dans-
leur-ecole-pour-cause-de-jupes-trop-longues-727158.aspx.
28. School in Mechelen Prohibits Long Skirts or Dresses, De Morgen, 31 Mar. 2015, available
at http://www.demorgen.be/nieuws/school-in-mechelen-verbiedt-lange-rokken-of-jurken-
bf07aa2c/.
ing of religious signs for employees, especially for those who have a public
function that involves contact with clients. This is, for example, the case in
Antwerp, one of the major Flemish cities.29 Meanwhile, several initiatives
have (unsuccessfully) been taken to the Flemish parliament to introduce a
general ban for Flemish public employees.30 De facto, several public institu
tions already prohibit the wearing of religious signs by their employees. In a
2015 judgment, the Brussels Employment Office was convicted for its internal
regulation prohibiting its own employees from wearing religious signs.31
Religious clothing has also led to discussions in the private sector. In
2009, for example, a woman who wanted to practice law as an attorney
was not admitted to the Bar of Brussels because she was wearing a hijab.32
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.33 Amnesty International has reported other cases of
discrimination against Muslim women wearing a hijab, including women not
being allowed to wear a hijab (or alternative such as a sterile cap) in medical
laboratories, and women wearing a hijab not being allowed to work in a
call-center or a cleaning company.34 In 2016 alone, the Interfederal Centre
for Equal Opportunities received thirty-five complaints involving prohibitions
on the wearing of a hijab in the workplace.35
Moreover, members of majority parties36 in the federal parliament have,
in recent years, introduced proposals to ban the wearing of religious signs
29. Other cities in Flanders that ban the wearing of religious signs by employees include
Sint-Niklaas, Lier, Lokeren, and Ninove. The city of Ghent also used to ban religious
signs for public officials, however it retracted this rule in 2013 after a citizen initiative
collected 10,000 signatures asking for the abolishment of the ban.
30. Headscarf Ban for Officials is Killed in Flemish Parliament, Knack, 29 May 2013, available
at http://www.knack.be/nieuws/belgie/hoofddoekenverbod-voor-ambtenaren-sneuvelt-in-
vlaams-parlement/article-normal-96201.html.
31. Labor Court of Brussels, R.K v. Office Régional Bruxellois de l’Emploi (16 Nov. 2015),
available at http://www.diversite.be/tribunal-du-travail-bruxelles-16-novembre-2015.
32. No Scarf on the Gown, RTBF, 6 Oct. 2009, available at http://www.rtbf.be/info/regions/
detail_pas-de-foulard-sur-la-toge?id=5359393.
33. Hema Feature: Ending a Professional Collaboration Because of the Wearing of the
Headscarf Constitutes Discrimination on the Basis of Religious Belief, UNIA, 2 Jan
2013, available at http://unia.be/fr/articles/dossier-hema-mettre-fin-a-une-collaboration-
professionnelle-en-raison-du-port-du-foulard-constitue-une-discrimination-sur-base-de-
la-conviction-religieuse.
34. Amnesty Int’l, Choice and Prejudice: Discrimination Against Muslims in Europe (2012), available
at http://www.amnesty.eu/content/assets/REPORT.pdf.
35. Unia, unpublished data (data available with Imane El Morabet: Imane.elmorabet@unia.
be).
36. We are not including the bills proposed by members of the opposition, in particular the
racist Vlaams Belang party.
by all federal public servants,37 by members of electoral bureaus,38 and even

by members of parliament in the course of their parliamentary duties39 or
representative functions.40
The reasons advanced for banning religious signs in the workplace are
manifold. While some employers refer to the principle of neutrality, which is
particularly the case for the public sector, others argue that wearing a hijab
goes against the corporate image of the company or they rely on arguments
about security and hygiene.
C. Bans on Religious Attire in Access to Goods and Services
Although most debates concern the wearing of religious signs in the work
place and in schools, 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 bar,41 to the terrace of a restaurant,42 to gym facilities,43
and they experienced difficulties in the housing market because of the fact
that they wear a hijab.44 The justifications invoked in these cases refer to
the incompatibility of the wearing of a hijab with the atmosphere within
the establishment (in particular in the case of restaurants) or to reasons of
safety and hygiene.
37. Belgian Chamber of Representatives, Session 54 (2014–2016), Resolution proposals

54K1846, available at http://www.dekamer.be/FLWB/PDF/54/1846/54K1846001.pdf;
54K0084, available at http://www.dekamer.be/FLWB/PDF/54/0084/54K0084001.pdf.
38. Belgian Chamber of Representatives, Session 54 (2014–2015), Bill 54K0081, available
at http://www.dekamer.be/FLWB/PDF/54/0081/54K0081001.pdf.
41. Court of Appeal of Ghent, Interfederale Centrum Voor Gelijke Kansen en Bestrijding
van Discriminatie en Racisme v. G. Dick (8 Oct. 015), available at http://www.unia.be/
files/Documenten/Rechtspraak/2015_10_08_Gent.pdf.
42. Court of First Instance of Brussels, Procureur du Roi v. X (22 Dec. 2009), available at
http://unia.be/files/Z_ARCHIEF/RG200912031A.PDF; Court of First Instance of Huy,
Centre pour l’Égalité des Chances et la Lutte contre le Racisme v. X (26 May 2010),
available at http://www.unia.be/files/Z_ARCHIEF/2010_05_26,%20Civ.%20Huy%20
t.%20exploitant%20du%20Bowling.pdf.
43. The rules of a gym prohibited the wearing of head coverings during exercise. Follow
ing an interpellation by the Centre for Equal Opportunities and Opposition to Racism,
the proprietor of the gym agreed to amend the rules. Port du Voile Dans une Salle de
Fitness, Unia (20 Sept. 2012), available at http://unia.be/fr/jurisprudence-alternatives/
solutions-negociees/port-du-voile-dans-une-salle-de-fitness.
44. Court of First Instance of Dendermonde, Openbaar Ministerie v. X and Y (14 Feb.
2011), available at http://unia.be/fr/jurisprudence-alternatives/jurisprudence/tribunal-
correctionnel-de-dendermonde-14-fevrier-2011.
D. The Hijab Wearer as an Outlaw
Ninety percent of the claims concerning religion reported at the Belgian

Interfederal Centre for Equal Opportunities in 2016 concern Muslims. A
significant part of these claims deals in particular with the headscarf.45 This
observation cannot be seen outside of the context of the rise of Islamo
phobia in Western Europe and beyond.46 It seems that this Islamophobia is
searching for a legitimate outlet and has settled on the Islamic headscarf.
Indeed, a number of factors coincide to send the message to the dominant
population of Belgium that shunning headscarf-wearing women and girls
is not wrong, let alone illegal, and that it may even be the right thing for a
good Belgian citizen to do.
Chief among these factors is, of course, the ubiquitous character of
headscarf bans and the fact that the dominant discourse between politi
cians and government actors is in favour of headscarf bans. 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. In particular, 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.47 Moreover, a
45. Unia (Centre for Equal Opportunities and Opposition to Racism), Rapport Chiffres (2017),
available at http://unia.be/fr/articles/en-2016-unia-a-ouvert-20-de-dossiers-en-plus. In
2014, 90 percent of the complaints submitted at the Interfederal Centre for Equal Op
portunities concerned Muslims (268 of the 297 claims). 50 of the dossiers concerned
prohibitions on the wearing of religious attire by Muslim women.
46. See Thomas Hammarberg, Human Rights in Europe: No Grounds for Complacency 36–46
(2010), available at http://www.coe.int/t/commissioner/source/prems/HR-Europe-no-
grounds-complacency_en.pdf.
47. Labor Court of Appeal of Brussels, E. Yamna v. S.A. C (15 Jan. 2008), available at
http://www.unia.be/files/Z_ARCHIEF/2008_01_15,%20C.%20Trav.%20Bruxelles,%20
E.%20Yamna%20t.%20S.A.%20C..pdf (dismissal of a shop assistant on account of her
headscarf is not discriminatory because the company has a neutrality charter); Labor
Court of Appeal of Antwerp, Centrum voor Gelijkheid van Kansen en voor Racismebe
strijding and Samira A. v. NV G. (23 Dec. 2011), available at http://unia.be/files/Z_AR
CHIEF/2011_12_23%20Arbh%20%20Antwerpen.pdf (dismissal of a receptionist on
account of her headscarf is not discriminatory given the existence of a neutrality policy;
this case later came before the Court of Cassation, 9 March 2015, which referred it to
the CJEU for a preliminary ruling (Achbita case)); Labor Court of Tongeren, Joyce V. v.
R.B. NV (2 Jan. 2013), available at http://www.unia.be/files/Z_ARCHIEF/2013_01_02%20
Arbrb%20%20Tongeren.pdf (dismissal of a shop assistant on account of her headscarf
is discriminatory in the absence of a neutrality clause in the company’s internal rules);
Labor Court of Brussels, Amal O. v. SA A. (18 May 2015), available at http://unia.be/
files/Z_ARCHIEF/2015_05_18_trib._trav._bruxelles.pdf (dismissal of a student cashier in
a supermarket on account of her headscarf is not discriminatory—with reference to the
oral argument of Advocate General Kokott in—with reference to the oral argument of
Advocate General Kokott in Samira Achbita and Centrum Voor Gelijkheid van Kansen
Belgian appeal court has held that the refusal to admit a woman as a client
in a fitness center on account of her headscarf was not discriminatory,48
and a court of first instance has held that the refusal to admit two women
as clients in an ice cream parlor on account of their headscarves was not
discriminatory.49 Even though a court of appeal overruled the ice cream
parlor case,50 and even though courts also found discrimination in the cases
of a woman who was refused access to the summer terrace of a bar51 and
of a woman who was refused access as a client in a bowling alley,52 the
result is an atmosphere in which headscarf wearers know that any type of
discrimination against them may pass judicial scrutiny.
Moreover, the most high-profile Belgian headscarf ruling to date, in which
the Council of State found the headscarf ban in Flemish public schools to
be discriminatory,53 has not led to a change of policy in the umbrella orga
nization of those schools. 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. For the population at large, Islamic headscarf wearers54 are
en Voor Racismebestrijding v. G4S Secure Solutions NV); Samira Achbita and Centrum
Voor Gelijkheid van Kansen en Voor Racismebestrijding v. G4S Secure Solutions NV,
Case No. C‑157/15 (31 May 2016), available at http://curia.europa.eu/juris/document/
document.jsf?docid=179082&doclang=en.
48. Court of Appeal of Brussels, Interfederale Centrum voor Gelijkheid van Kansen en voor
Racismebestrijding v. NV S. (8 Sept. 2015), available at http://www.unia.be/files/Z_AR
CHIEF/2015_09_08_brussel.pdf. The Court of Appeal accepted an absolute ban on all
types of headgear as necessary on grounds of safety, despite several proposals by the
applicant for less far-reaching measures.
49. Court of First Instance of Veurne, Interfederale Centrum voor Gelijkheid van Kansen
en voor Racismebestrijding v. Dick G. (2 July 2014), available at http://www.unia.be/
files/Z_ARCHIEF/2014_07_02_rb_veurne.pdf. The ban was an application of an internal
rule of the ice cream parlour that banned all headgear.
50. Court of Appeal of Ghent, Interfederale Centrum voor Gelijkheid van Kansen en voor
Racismebestrijding v. Dick G. (8 Oct. 2015), available at http://unia.be/files/Documenten/
Rechtspraak/2015_10_08_Gent.pdf. However, the Court of Appeal did not impose a
fine. In August 2016, we found that the ice cream parlor still advertised internal rules
than ban headgear worn by clients “except for medical reasons.”
51. Court of First Instance of Brussels, Procureur du Roi v. X (22 Dec. 2009), available at
http://unia.be/files/Z_ARCHIEF/RG200912031A.PDF.
52. Court of First Instance of Brussels, L. and Centrum voor Gelijkheid van Kansen en
voor Racismebestrijding v. NV V (25 Jan. 2011), available at http://unia.be/files/Z_AR
CHIEF/2011_01_25%20Vz%20%20Rb%20%20Brussel.pdf.
53. Council of State, X and Five Others v. het Gemeenschapsonderwijs, supra note 26.
54. In some cases, the intolerance extends to individuals who wear a headscarf for medical
reasons, e.g. to cover up hair loss as a result of cancer treatment. See Court of Appeal of
Brussels, Interfederale Centrum voor Gelijkheid van Kansen en voor Racismebestrijding
v. NV S., supra note 49; Court of Appeals of Bergen, SA J. v. Centre Interféderal pour
l’Égalité des Chances et la Lutte Contre le Racisme (29 Sept. 2015), available at http://
www.unia.be/files/Z_ARCHIEF/2015_09_29_mons_0.pdf (client in a restaurant). In the
poll among judges, we found that, in the hypothetical scenario, seven judges would
require the removal of a head-covering that is intended to cover the effects of disease
or scars.
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).55 In that context, the undesirability of
the Islamic dress item itself is considered sufficient justification for the ban,
without any need to derive other grounds of justification from the context
in which it is worn.56 This type of approach also makes it difficult to restrict
headscarf bans to specific contexts in which they would have to be a pro
portionate measure for the achievement of a legitimate aim, such as safety
or neutrality.57
Overall, hijab wearers in Belgium experience a climate of persecution.
What may be worst of all is that, as will be explained in the next section,
the regional European mechanisms that were created to protect fundamental
rights as a last instance, inter alia, against state persecution of minorities,
have abandoned these women as well.
V. THE COMPLICITY OF SUPRANATIONAL COURTS
Above we have sketched the climate of headscarf persecution in Belgium. It

is a context in which judges can freely decide not to allow headscarf wearers
into the audience of their courtroom, in which a fitness center that refuses
55. The Act of 1 June 2011 “to institute a prohibition on wearing clothing that covers the
face, or a large part of it” (Belgian Official Journal, 13 July 2011) entered into force on
23 July 2011. It inserts Article 563 bis into the Belgian Criminal Code. In practical
terms and “subject to legal provisions to the contrary,” this provision punishes persons
“who appear in places accessible to the public with their faces covered or concealed,
in whole or in part, in such a manner that they are not recognisable” with a monetary
fine of EUR 15 to EUR 25 (increased with the legal surcharge factor, i.e. multiplied by
5.5) and/or a prison sentence of one to seven days. An exception applies when face
covering is permitted or imposed by “labour regulations or municipal ordinances due
to festivities.” The law moreover enables continued application of local bans imposing
administrative sanctions in this field. The act was unsuccessfully challenged before the
Constitutional Court, which made only a minor reservation for places of worship (Belgian
Constitutional Court, 6 Dec. 2012, No. 145/2012).
56. Parliament and the Constitutional Court accepted three justifications for the ban: safety,
gender equality, and “living together.” For all three arguments, the face veil itself was
seen as the problem, regardless of the context, and an absolute ban was held to be
necessary. See Jogchum Vrielink, Saïla Ouald Chaib & Eva Brems, The Belgian “Burqa
Ban,” Legal Aspects of Local and General Prohibitions on Covering and Concealing
One’s Face in Belgium, in The Burqa Affair Across Europe: Between Public and Private Space
143 (Alessandro Ferrari & Sabrina Pastorelli eds., 2013).
57. 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. The
word “veil” (sluier/voile), which is often used in these discussions, can refer to either
garment.
headscarf wearers as clients can win its case even on appeal, and in which
a woman with a headscarf, regardless of her academic degrees, knows that
she can be rejected from any type of job, whether in the public or the private
sector, simply on account of her headscarf. We submit that this climate has
been facilitated by the failure of the European Court of Human Rights, the
instance of last resort for the protection of human rights in Europe, to offer
protection against headscarf persecution through its case law.58 Moreover, a
recent judgment of the Court of Justice of the European Union makes clear
that the Court is not willing to offer protection to headscarf wearers either.
We submit that, at least in the Belgian context, the real reason under
lying the majority of headscarf bans is the fact that many members of the
dominant population feel uncomfortable when they are confronted with
visible expressions of Islamic faith. This explains the spread of headscarf
bans in the private sector: a company or service provider does not want to
be shunned by clients who do not wish to be confronted with headscarves.
This is expressed as a desire for a “neutral corporate image.”
In the public sphere, neutrality of the public service is an important
goal. However, it is not clear how this goal could lead to imposing neutral
dress codes also on the users of the public service, such as pupils in public
schools.59 Nor is it necessary to interpret the obligation of neutrality of public
servants in such a manner that it restricts their religious observance through
their dress: the neutrality principle obliges the state to avoid privileging one
religion or ideology over another, which can be done also in an inclusive
manner, by equally allowing the wearing of religious signs to all.60
Hence, one can wonder whether the choice of an interpretation of the
neutrality principle that leads to a headscarf ban may in part be inspired by
the same wish to avoid confrontation with the Islamic other and the feel
ing of unease that such confrontation engenders. With respect to Belgian
courtrooms, the Islamophobic statements made by some of the judges polled
support the hypothesis that the decision to apply a literal interpretation of
58. The Court has not yet addressed any Belgian headscarf cases. Yet the Court’s case law
on cases vis-à-vis other countries counts as authoritative interpretation of the Convention
for all States Parties. Hence, Belgian courts interpret the Convention (which has direct
effect in Belgian law) in the light of all the Court’s case law.
59. This is the reasoning of the Belgian Council of State in the (as yet not implemented)
ruling on the ban of religious signs worn by pupils in Dutch-speaking public schools.
Council of State, X and Five Others v. het Gemeenschapsonderwijs, supra note 26, ¶¶
38.3–38.5.
60. Such is notably the opinion of the German Constitutional Court, which has held that
the wearing of religious dress by teachers does not as such violate the principle of the
neutrality of public schools: BVerfG, 27 Jan. 2015, 1 BvR 471/10, ¶¶ 1–31, available
at https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2015/01/
rs20150127_1bvr047110en.html;jsessionid=F4B770820060269D8875080A266B
CE99.2_cid361.
Article 759 BJC to headscarf wearers is, at least in part, inspired by intoler
ance toward Islam. In the same manner as this archaic provision, concepts
such as neutrality or “living together” are mobilized as a window dressing
to justify headscarf restrictions that are in reality based on intolerance.
It should be clear that Islamophobia, or even simply the aim of avoid
ing the unease that the majority population experiences upon a face-to-face
confrontation with an unpopular minority, are not legitimate aims of govern
ment policy that may justify restrictions of fundamental rights. We submit
that it is in last instance the role of the ECtHR and the CJEU to see through
the window dressing and to distinguish bona fide proportionate restrictions
of fundamental rights from unjustifiable identity-based persecution.
A. THE EUROPEAN COURT OF HUMAN RIGHTS: TOO LITTLE

CRITICAL SCRUTINY
The European Court of Human Rights has dealt with a good number of cases
that concern bans on religious dress or signs worn by individuals. In the
very large majority of cases, including two before the Grand Chamber, the
Court has held that a ban was within the state’s margin of appreciation. Yet,
in two cases, the Court found a violation of applicants’ right to freedom of
religion. The cases in which a violation was found concern the prohibition
on wearing a cross at work imposed by a private employer in the UK61 and
the prohibition of wearing a turban and the distinctive (male) dress of a small
Islamic sect on the street in Turkey.62 With respect to the types of bans that
appear to occur most frequently across Europe in a great variety of contexts,
i.e. bans on religious head-coverings affecting mainly Muslim women and
Sikh men,63 the Court has to date never found a violation.
One rationale that has been accepted by the Court is that of secularism
and the neutrality of public authorities. This rationale has been accepted in the
context of bans on religious dress/symbols worn by students and professors
in public educational institutions, as well as by public servants in general.64
61. ECtHR, Eweida and Others v. UK, App. Nos. 48420/10, 59842/10, 51671/10, 36516/
10 (15 Jan. 2013), available at http://hudoc.echr.coe.int/app/conversion/pdf/?
library=ECHR&id=001–115881&filename=001-115881.pdf.
62. ECtHR, Ahmet Arslan and Others v. Turkey, App. No. 41135/98 (23 Feb. 2010),
available at http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=002-
1131&filename=002-1131.pdf&TID=thkbhnilzk.
63. In principle, such bans also affect Jewish men wearing a yarmulke, yet in practice this
issue does not seem to give rise to a lot of contestation. For example, in the courts of
Antwerp, several Jewish attorneys wear a yarmulke at work.
64. ECtHR, Ebrahimian v. France, App. No. 64846/11 (26 Nov. 2015), available at http://
hudoc.echr.coe.int/eng#{“itemid”:[“001–158878”]} (public servants); ECtHR, Kurtulmus
v. Turkey (dec.), App. No. 65500/01 (24 Jan. 2006), available at http://hudoc.echr.coe.
Yet another rationale is that of public safety. Without much scrutiny, the
Court has accepted that religious clothing needed to be removed on this
ground during safety checks65 and during physical education classes,66 that
a Sikh riding a motorcycle needed to replace his turban with a helmet,67
that a nurse needed to remove jewelry (including a Christian cross) during
work,68 and that a photograph on a driver’s license requires a bare head.69
Yet, in S.A.S. v. France, the Court applied a “less restrictive means reasoning”
stating that public safety did not require a general face covering ban, given
that “the objective alluded to by the Government could be attained by a
mere obligation [on wearers] to show their face and to identify themselves
where a risk for the safety of persons and property has been established.”70
int/eng#{“appno”:[“65500/01”],”itemid”:[“001–72337”]} (university professor); ECtHR,

Karaduman v. Turkey (dec.), App. No. 41296/04 (3 Apr. 2007), available at http://
hudoc.echr.coe.int/eng#{“appno”:[“41296/04”],”documentcollectionid2”:[“GRANDC
HAMBER”,”CHAMBER”,”DECISIONS”],”itemid”:[“001–80335”]}; Tandoğan v. Turkey
(dec.), App. No. 41298/04 (3 Apr. 2007), available at http://hudoc.echr.coe.int/eng#{
“appno”:[“41298/04”],”itemid”:[“001–80336”]}; Çağlayan v. Turkey (dec.), App. No.
1638/04 (3 Apr. 2007), available at http://hudoc.echr.coe.int/eng#{“docname”:[“ÇAĞ
LAYAN”],”documentcollectionid2”:[“GRANDCHAMBER”,”CHAMBER”,”DECISIONS”
],”itemid”:[“001–80337”]}; Yilmaz v. Turkey (dec.), App. No. 37829/05 (3 Apr. 2007),
available at http://hudoc.echr.coe.int/eng#{“appno”:[“37829/05”],”documentcollecti
onid2”:[“GRANDCHAMBER”,”CHAMBER”,”DECISIONS”],”itemid”:[“001–80338”]}
(teachers); ECtHR, Bayrak v. France (dec.), App. No. 14308/08 (30 June 2009), avail-
able at http://hudoc.echr.coe.int/eng#{“documentcollectionid2”:[“DECISIONS”],”kpda
te”:[“2009–06–30T00:00:00.0Z”,”2009–06–30T00:00:00.0Z”],”itemid”:[“001–93698”]};
Ghazal v. France (dec.), App. No. 29134/08 (30 June 2009), available at http://hudoc.
echr.coe.int/eng#{“documentcollectionid2”:[“DECISIONS”],”kpdate”:[“2009–06–
30T00:00:00.0Z”,”2009–06–30T00:00:00.0Z”],”itemid”:[“001–93700”]}; Aktas v. France
(dec.), App. No. 43563/08 (30 June 2009), available at http://hudoc.echr.coe.int/eng#{“a
ppno”:[“43563/08”],”itemid”:[“002–1395”]}; Jasvir Singh v. France (dec.), App. 25463/08
(30 June 2009), available at http://hudoc.echr.coe.int/eng#{“documentcollectionid2”:[“
DECISIONS”],”kpdate”:[“2009–06–30T00:00:00.0Z”,”2009–06–30T00:00:00.0Z”],”item
id”:[“001–93701”]}; Ranjit Singh v. France (dec.), App. No. 27561/08 (30 June 2009),
available at http://hudoc.echr.coe.int/eng#{“documentcollectionid2”:[“DECISIONS”],”kpd
ate”:[“2009–06–30T00:00:00.0Z”,”2009–06–30T00:00:00.0Z”],”itemid”:[“001–93702”]}.
65. ECtHR, Phull v. France (dec.), App. No. 35753/03 (11 Jan. 2005), available at http://
hudoc.echr.coe.int/eng#{“docname”:[“Phull v. France”],”documentcollectionid2”:[“GRA
NDCHAMBER”,”CHAMBER”,”DECISIONS”],”itemid”:[“001–77018”]}; ECtHR, El Morsli
v. France (dec.), App. No. 15585/06 (4 Mar. 2008), available at http://hudoc.echr.coe.
int/eng#{“docname”:[“El Morsli v. France”],”documentcollectionid2”:[“GRANDCHAM
BER”,”CHAMBER”,”DECISIONS”],”itemid”:[“001–117860”]}.
66. ECtHR, Dogru v. France, App. No. 27058/05 (4 Dec. 2008), available at http://hudoc.
echr.coe.int/eng#{“appno”:[“\”27058/05\””],”documentcollectionid2”:[“GRANDCHA
MBER”,”CHAMBER”],”itemid”:[“001-90039”]}.
67. ECtHR, X v. UK, App. No. 7215/75 (5 Nov. 1981), available at http://hudoc.echr.coe.
int/eng#{“appno”:[“7215/75”],”documentcollectionid2”:[“GRANDCHAMBER”,”CHAM
BER”],”itemid”:[“001-57602”]}.
68. ECtHR, Eweida and Others v. UK, supra note 61.
69. ECtHR, Mann Singh v. France (dec.), App. No. 24479/07 (13 Nov. 2008), available at
http://hudoc.echr.coe.int/eng#{“itemid”:[“001–89848”]}.
70. ECtHR, S.A.S. v. France, supra note 11, ¶ 139.
It is possible that, after this Grand Chamber precedent, the Court will in
the future apply a similar test to other cases in which a safety rationale is
invoked to curb religious freedom. It is also an open question whether the
“less restrictive means” test might be applied to other rationales as well.
Another rationale that has regularly been accepted by the Court is that
of protecting—supposedly vulnerable—individuals against pressure that
would threaten their freedom of conscience. This argument was upheld in
the context of alleged pressure upon Turkish university students to wear a
headscarf.71 A variant was used also concerning a teacher in a Swiss primary
school who wore a headscarf;72 yet it is not clear whether that rationale would
still apply in the latter case today, as it was tied up with the interpretation
of the headscarf as a symbol of gender inequality, which has since been
abandoned by the Court.
Indeed, in the “French burqa ban” case, S.A.S. v. France,73 the Court
showed that it is capable of critically deconstructing the invoked aim of
a ban. In this case, the Court rejected the ground of gender equality as a
rationale for banning female Islamic dress (and the assumption that female
Islamic dress is irreconcilable with gender equality), which had long been
emphasized by the Court in this type of cases (including in the Grand
Chamber headscarf judgment of Leyla Şahin).74
Finally, there is the “living together” rationale that was accepted by the
Court in S.A.S. v. France. The Court stated that:
It can understand the view that individuals who are present in places open to
all may not wish to see practices or attitudes developing there which would fun
damentally call into question the possibility of open interpersonal relationships,
which, by virtue of an established consensus, forms an indispensable element
of community life within the society in question. The Court is therefore able
to accept that the barrier raised against others by a veil concealing the face is
perceived by the respondent State as breaching the right of others to live in a
space of socialisation which makes living together easier.75
Overall, the Court’s approach to these cases does not allow it to perform
the critical function of distinguishing bona fide proportionate restrictions
of religious freedom, which are necessary in the general interest or for the
protection of the rights of others, from unjustifiable harassment of minori
ties. All of the rationales that the Court has accepted as valid grounds for
71. ECtHR, Grand Chamber, Leyla Şahin v. Turkey, App. No. 44774/98 (10 Nov. 2005),
available at http://hudoc.echr.coe.int/eng#{“appno”:[“44774/98”],”documentcollection
id2”:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-70956”]}.
72. ECtHR, Dahlab v. Switzerland (dec.), App. No. 42393/98 (15 Feb. 2001), available at
http://hudoc.echr.coe.int/eng?i=001–22643.
73. S.A.S. v. France, supra note 11, ¶ ¶ 119–20.
74. Leyla Şahin v. Turkey, 2 July 2002, supra note 71, ¶ 111.
75. S.A.S. v. France, supra note 11, ¶ 122.
headscarf bans are vulnerable to abuse as a window dressing in situations

where the real reason—as suggested above—may be the majority’s unease
or even intolerance in the confrontation with Islam. It is clearly unaccept
able to rely on the prevention of unease, and therefore on the abetment of
intolerance, as the grounds for restricting rights. This is due to the simple
reason that these aims are in themselves discriminatory and that reliance
on them legitimizes discrimination.
We submit that uncovering such unacceptable grounds for rights restric
tions is part of the Court’s core business. And yet, the Court rarely engages in
a critical analysis of the invoked “legitimate aims” of a restriction. The gender
equality argument in S.A.S is a rare exception. And yet, as explained above,
the argument of neutrality may be mobilized as a proxy for intolerance, and
the same holds for the argument concerning the protection of vulnerable
individuals. We submit that the living together argument is the one that
most closely expresses a legitimation of majority intolerance as a basis for
restrictions of minority rights.76 The S.A.S. case also shows how easy it is,
when one proxy rationale has been delegitimized, to find another that will
pass muster. At the domestic level, the proponents of the face-covering ban
started with a neutrality argument. When experts concurred that neutrality
cannot be applied to private individuals in the public sphere, they switched
to other arguments.77 When two of these (gender equality and safety) were
delegitimized, there was still the third one, i.e. living together. Even though
it is hard to fit into any of the categories of Article 9(2) ECHR, the Court
accepted this last argument and linked it to the wide margin of appreciation
that has become a hallmark of its Article 9 case law.
It seems that, when the Court has found that a restriction on religious
dress or symbols violates the Convention or when it has rejected a particular
rationale supporting such a restriction, this has almost78 always been linked
to reasoning that critically examines the link between the facts of the case
and the aim of the restriction, requiring evidence that the interest at stake
was indeed threatened by the wearing of religious dress or symbols.79 On the
76. See Eva Brems, SAS v. France: A Reality Check, 25 Nottingham L. J. 58 (2016), available
at https://www4.ntu.ac.uk/nls/document_uploads/188672.pdf.
77. See Eva Brems, Saïla Ouald Chaib & Jogchum Vrielink, Uncovering French and Belgian
Face Covering Bans, 2 J. L., Religion & State 69 (2013).
78. The exception is the rejection of the safety rationale for the face covering ban in S.A.S.
v. France, supra note 11, which was based on “less restrictive means” reasoning in the
proportionality test, as described earlier in this section.
79. In Ahmet Arslan v. Turkey, supra note 62, ¶¶ 50–51, the Court held that “[i]t does not
appear from the file that the way in which the applicants have manifested their beliefs
through a specific dress, constituted nor risked to constitute a threat for public order
or a pressure on others” and that “no element of the file shows that the applicants had
the intention to inflict abusive pressures on passers-by in the public roads and squares.
(Translation from French by authors.) In Eweida and Others v. UK, supra note 61, ¶
other hand, in the cases in which no violation was found, the Court seemed
content to accept a theoretical link between the wearing of the religious dress
or symbol in question and the interest that the restriction sought to protect,
without critically examining the existence of any real encroachment upon
such interest. This is particularly the case when headscarf bans are motivated
on the grounds of neutrality, “living together,” or the need to guarantee an
environment that is free from religious pressure.
We submit that a natural way of giving more critical bite to the Court’s
mode of reasoning is through evidence requirements. Even when a wide
margin of appreciation is granted, the Court should not be contented with
finding that a plausible general interest (such as neutrality or “living together”)
was invoked, but should also require evidence that such an interest is at
stake in the concrete context of the case. This is exactly what the Court did
in S.A.S. when it dismissed the pursuit of gender equality as a legitimate
aim supporting a general face-covering ban.80 The Court’s reasoning that it
is not sufficient for a minority practice to touch upon an important general
interest (in this case gender equality) simply according to majority opinion,81
but that it should instead be shown concretely that this interest is in fact at
stake, can and should be applied to other legitimate aims.
In the absence of such a tightening of its critical scrutiny of state argu
ments, the Court currently appears unable or unwilling to seriously uncover
and address headscarf persecution.
B. The Court of Justice of the European Union: Denying Discrimination
Disappointed in Strasbourg, some applicants hoped to find a remedy against

headscarf discrimination in Luxemburg. Recently, two judgments concerning
the dismissal of employees by private employers on account of their head
scarves were issued by the Court of Justice of the European Union.82 These
95, the Court found a violation because “there is no evidence of any real encroach
ment on the interests of others.” In S.A.S. v. France, supra note 11, ¶ 120, the Court
ruled that the rationale of “respect for human dignity” could not be accepted for lack
of “any evidence capable of leading it to consider that women who wear the full-face
veil seek to express a form of contempt against those they encounter or otherwise to
offend against the dignity of others.” The Court thus rejects automatic assumptions about
a certain meaning of a symbol; it refers instead to the intentions of the wearers and
requires evidence before accepting that these would be problematic.
80. S.A.S. v. France, supra note 11, ¶ 119.
81. Cf. id. by the Belgian Council of State in its recent breakthrough judgment on head
scarves at school. Council of State, X and Five Others v. het Gemeenschapsonderwijs,
supra note 26, ¶ 37.2.
82. CJEU, Case C-157/15, Samira Achbita and Centrum voor Gelijkheid van Kansen en voor
Racismebestrijding v. G4S Secure Solutions NV, originating in Belgium (14 Mar. 2017),
available at http://curia.europa.eu/juris/liste.jsf?num=C-157/15; CJEU, Case C-188/15,
cases were the results of requests for preliminary rulings about the interpreta
tion of the Anti-Discrimination Directive 2000/78/EC, which prohibits direct
and indirect discrimination, inter alia, in the sphere of employment and,
inter alia, on grounds of religion or belief. The case of Achbita was referred
by the Belgian Court of Cassation, and the case of Bougnaoui by the French
Court of Cassation. Both cases concerned women working in jobs in which
their employers sent them out to work for client companies. Both women
lost their jobs on account of their refusal to comply with their employers’
requests that they take off their headscarves in the workplace. Ms. Achbita
started wearing a headscarf at work in her fourth year of employment and
was immediately met by her employer’s refusal of permission to wear this
garment, based on the company’s “neutrality” policy, which was only later
(shortly before she was dismissed) incorporated into the employee code of
conduct. Ms. Bougnaoui on the other hand was asked to remove her head
scarf at work after the company received a complaint from a client that her
“veil” had “embarrassed” a number of its employees.
Interestingly, in light of the strong similarity of the cases, the opinion of
Advocate General Kokott in Achbita and that of Advocate General Sharpston
in Bougnaoui reached opposite conclusions, based on diverging interpreta
tions of several aspects of the Directive. For Kokott, there was no discrimi
nation, whereas for Sharpston, there was.83 Thus, while the succinct style of
the CJEU judgments does not betray this, it is clear that the CJEU was aware
that it stood before a principled choice, in a field characterized by strong
differences of opinion, including among experts in EU law.
In the case of Bougnaoui, where the headscarf ban was not part of a
general neutrality policy, but rather was based on client preference, the CJEU
found (indirectly, through its answer to the question of the referring judge)
a violation. It ruled that this was a case of direct discrimination on grounds
of religion, which can only be justified in the case of a “genuine and deter
mining occupational requirement” in terms of Article 4(1) of the Directive.
The CJEU ruled that “[t]he willingness of an employer to take account of
the wishes of a customer no longer to have the services of that employer
Asma Bougnaoui and Association de Défense des Droits de l’Homme v. Micropole

Univers SA (14 Mar. 2017) which originated in France, available at http://curia.europa.
eu/juris/liste.jsf?num=C-188/15. The CJEU issued judgments in both cases.
83. For an analysis of the differences in their interpretations, see Lucy Vickers, ECJ Headscarf
Series (2): The Role of Choice; and the Margin of Appreciation, Strasbourg Observers, 8
Sept. 2016, available at https://strasbourgobservers.com/2016/09/08/blog-series-the-role-
of-choice-and-the-margin-of-appreciation/; Mathias Mahlmann, ECJ Headscarf Series
(3): The Everyday Troubles of Pluralism, Strasbourg Observers, 12 Sept. 2016, available
at https://strasbourgobservers.com/2016/09/12/ecj-headscarf-series-3-the-everyday-
troubles-of-pluralism/; Emmanuelle Bribosia & Isabelle Rorive, ECJ Headscarf Series (4):
The Dark Side of Neutrality, Strasbourg Observers, 14 Sept. 2016, available at https://
strasbourgobservers.com/2016/09/14/ecj-headscarf-series-4-the-dark-side-of-neutrality/.
provided by a worker wearing an Islamic headscarf cannot be considered

a genuine and determining occupational requirement.”84
In the case of Achbita however, the CJEU did not find a violation. It
held that there was no direct discrimination, because:
the internal rule at issue . . . refers to the wearing of visible signs of political,
philosophical or religious beliefs and therefore covers any manifestation of such
beliefs without distinction. The rule must, therefore, be regarded as treating all
workers of the undertaking in the same way by requiring them, in a general and
undifferentiated way, inter alia, to dress neutrally, which precludes the wearing
of such signs.85
The CJEU then continued on to consider the matter of indirect discrimina

tion, which under the Directive can be justified if the measure is objectively
justified by a legitimate aim and if the means of achieving that aim are ap
propriate and necessary.
The CJEU accepts “the desire to display, in relations with both public
and private sector customers, a policy of political, philosophical or religious
neutrality” as a legitimate aim, linked to the freedom to conduct a busi
ness.86 It further considered the ban appropriate for the purpose of pursuing
a policy of neutrality “provided that that policy is genuinely pursued in a
consistent and systematic manner.”87
Finally, the CJEU ruled that the ban can be considered “strictly neces
sary” if two conditions are met. One, it should cover only the workers who
interact with customers. Two, dismissal is allowed only if it is not possible
(taking into account “the inherent constraints to which the undertaking is
subject” and without taking on an “additional burden”) to offer the applicant
a post not involving any visual contact with customers.
While the Bougnaoui judgment is in line with previous case law ruling
that client preference does not legitimate discrimination,88 the Achbita judg
ment surprises—and can be criticized—on a number of points.
In the first place, it is astonishing that, in the eyes of the CJEU, direct
discrimination on grounds of religion or belief exists only when a measure
targets a single religion or a selection of religions, but not when a measure
targets all religions and beliefs. Generalized hostility toward religions can
thus be presented as a manifestation of neutrality. Second, it is problem
atic that the CJEU accepts the expansion of “neutrality” reasoning into the
private sphere without the least degree of scrutiny. The link to the freedom
to conduct a business does not solve the matter, because this freedom is
84. Bougnaoui, supra note 82, ¶ 41.

85. Achbita, supra note 47, ¶ 30.
86. Id. ¶ 37.
87. Id. ¶ 40.
88. CJEU, Case C-54/07, Centrum voor Gelijkheid van Kansen en voor Racismebestrijding
v. Firma Feryn N.V. (10 July 2008).
by no means absolute, and would for example not include the freedom to
conduct a business in a discriminatory manner—which is what is alleged
in the case. The concept of corporate neutrality can be an easy cover-up
for prejudice, in the sense of a preference for a corporate image that is free
from any association with ethnic or religious minorities.
Third, it is hard to understand how the Court can come to the conclusion
that the measure is “strictly proportionate” to achieving the aim of neutral
ity without even considering whether less restrictive measures could have
realized the goal of corporate neutrality. In comparison, the European Court
of Human Rights, in its Eweida judgment, accepts the corporate image as a
“legitimate aim” for rights restrictions, yet grants it only little weight when
balanced against the religious freedom of the applicant.89 The CJEU on the
other hand does not even mention the applicant’s religious freedom or the
importance of the headscarf for her. Moreover, the result of what the CJEU
presents as its proportionality analysis is that headscarf wearers are relegated
to back-office jobs. In other words, they are closeted and made invisible.
Finally—and this is a point of critique of the CJEU’s style that transcends
this case—it is bewildering to read a judgment of a supranational court rul
ing on fundamental rights that discusses the issue of Islamic headscarf bans
without any reference to either the Europe-wide context of Islamophobia,
or the widespread existence of negative stereotypes about Muslim women,
and in particular those who wear Islamic dress.
In terms of impact, the CJEU judgment imposes a uniform interpretation
of the Equal Treatment Directive on this point.90 Across the EU, it will not
be possible to use anti-discrimination law against bans on religious symbols
in the private sector that comply with the conditions set out in Achbita. In
that sense, the judgment can be read as a “how-to” for employers wishing
to discriminate against headscarf wearers: introduce a neutrality policy that
applies to all types of religious dress; apply it consistently; apply it only
to front-office employees; and if you want to dismiss a person, make sure
to motivate why you cannot offer that person a back-office job. This is the
message that is being picked up across Europe. For example in the Nether
lands, where headscarf bans in the private sector were considered legally
impermissible before Achbita, the in-house lawyer employed by an umbrella
organisation of cleaning companies advised its members post-Achbita to
include neutrality clauses banning religious dress in their internal rules as a
matter of principle and to be prepared for clients’ expectations in this regard.91
89. Eweida and Others v. UK, supra note 61, ¶ 94.

90. Elke Cloots, Can Private Undertakings Hide Behind “Religious Neutrality”?, verfassungsblog.
de, 6 Oct. 2016, available at http://verfassungsblog.de/can-private-undertakings-hide-be
hind-religious-neutrality/.
91. Maurice Swirc, Hof van Justitie Lokt Discriminatie uit, Wordt Vervolgd, 23 (July 2017)
available at https://www.amnesty.nl/wordt-vervolgd/wordt-vervolgd-juli-2017.
The Achbita judgment encountered critical reception among human

rights activists,92 as well as among scholars of human rights law and an
ti-discrimination law. Scholars noted that the particular sensitivity about the
Islamic headscarf displayed in Belgium and France seems to have driven a
line of reasoning that is now imposed on twenty-seven European states.93
They expressed concern over what they see as the subordination of religious
equality to employers’ economic interests and clients’ prejudice,94 and about
the potential impact of the ruling on the career choices of religious workers.
Indeed, the license to exclude religious dress in public facing jobs affects
“whole sectors of employment such as health and social care, teaching, retail
and hospitality.”95 In a broader perspective, it is feared that the judgment
“may augment voices calling for further restrictions to minority rights.”96
VI. CONCLUSION
Several of the Belgian judges whom we polled refuse access to their court
rooms to individuals who wear religious head-coverings—in practice mostly
Muslim women wearing a headscarf—whether as members of the audience,
witnesses, or in any other capacity. After explaining that this is done on the
basis of an erroneous interpretation of the domestic law, the present article
92. Chris Chapman, Headscarf Bans in the Workplace: Neutrality at any Price?, Europe’s
World, 12 Apr. 2017, available at http://europesworld.org/2017/04/12/headscarf-bans-
workplace-neutrality-price/#.WT_A0mewfIU; EU Court Decision on Workplace ban on
Headscarf Legitimises Discrimination of Muslim Women, European Network Against Racism,
14 Mar. 2017, available at http://www.enar-eu.org/EU-Court-decision-on-workplace-
ban-on-headscarf-legitimises-discrimination-of; Halim Shebaya, The European Court has
Normalized “’Hijabophobia,” open democracy, 15 Mar. 2017, available at https://www.
opendemocracy.net/halim-shebaya/european-court-has-normalized-hijabophobia.
93. Andrea Pin, Is There a Place for Islam in the West? Adjudicating the Muslim Headscarf
in Europe and the United States, Notre Dame L. Rev. 6 (forthcoming), available at https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=2948765.
94. Gareth Davies, Achbita v. G4S: Religious Equality Squeezed Between Profit and Prejudice,
European Law Blog, 6 Apr. 2017, available at https://europeanlawblog.eu/2017/04/06/
achbita-v-g4s-religious-equality-squeezed-between-profit-and-prejudice/; Saïla Ouald
Chaib & Valeska David, European Court of Justice Keeps the Door to Religious Discrimi-
nation in the Private Workplace Opened: The European Court of Human Rights Could
Close it, Strasbourg Observers, 27 Mar. 2017, available at https://strasbourgobservers.
com/2017/03/27/european-court-of-justice-keeps-the-door-to-religious-discrimination-
in-the-private-workplace-opened-the-european-court-of-human-rights-could-close-it/.
95. Lucy Vickers, Direct Discrimination and Indirect Discrimination: Headscarves and the
CJEU, Oxford Human Rights Hub, 15 Mar. 2017, available at http://ohrh.law.ox.ac.uk/
direct-discrimination-and-indirect-discrimination-headscarves-and-the-cjeu/.
96. Solon Solomon, The Right to Religious Freedom and the Threat to the Established Order
as a Restriction Ground: Some Thoughts on Account of the Achbita Case, EJIL Talk (23
Mar. 2017), available at https://www.ejiltalk.org/the-right-to-religious-freedom-and-the-
threat-to-the-established-order-as-a-restriction-ground-some-thoughts-on-account-of-the-
achbita-case/.
has situated the judges’ reactions in the broader context of hostility against
headscarf wearers in Belgian society. In our analysis, the widespread pat
tern of headscarf discrimination and the absence of an adequate response
by the Belgian judiciary—which indeed is sometimes complicit in this type
of discrimination—justifies the characterization of the situation as one of
headscarf persecution.
In the absence of adequate human rights protection at the domestic
level, Belgians enjoy a double layer of European human rights protection—
based on the Council of Europe’s European Convention on Human Rights,
with the ECtHR in Strasbourg as its ultimate arbiter, and on EU Law, with
the CJEU in Luxemburg as the instance of last resort. In practice, however,
both of these systems risk leaving headscarf wearers unprotected. While
the Strasbourg Court has not yet ruled on headscarf discrimination in the
private sphere, its consistent use of the margin of appreciation doctrine to
the effect of accepting headscarf bans in several other contexts does not offer
much hope to those seeking to end headscarf persecution. Until recently,
many were hoping that the CJEU might take a different stance and would
put a brake on discrimination against headscarf wearers. The opposite now
seems to be the case, as—at least in the employment context—the CJEU’s
Achbita judgment explains to employers across Europe how to legally ban
headscarves from the work floor. What is more, the judgment stands in the
way of EU member states adopting a more liberal stance on this matter. In
all likelihood, headscarf persecution in Belgium and other European states
will continue and may even worsen in the foreseeable future.
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Head-Covering Bans in Belgian Courtrooms and Beyond: Headscarf Persecution and The Complicity of Supranational Courts

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HUMAN RIGHTS QUARTERLY

Head-Covering Bans in Belgian

Eva Brems,* Corina Heri,** Saïla Ouald Chaib,***

I. INTRODUCTION: THE CASE OF HAGAR LACHIRI

Hagar Lachiri is a Belgian national living in the Brussels area. As a Muslim

in a crime of passion, Ms. Lachiri intervened as a civil party in the crimi­

1. ECtHR, Lachiri v. Belgium, App. No. 3413/09, communicated on 9 Oct. 2015.

Court of Justice of the European Union (CJEU), to protect Muslim women

II. HEAD-COVERINGS IN BELGIAN COURTROOMS: THE LAW

This article focuses on religious head-coverings worn by individuals other

A. The Lack of a Legal Basis

B. Unnecessary in a Democratic Society

Even if a person who is wearing a religious head-covering behaves disruptively

12. Van Den Broeck, supra note 6, at 2.

III. HEAD-COVERINGS IN BELGIAN COURTROOMS: PRACTICE AND

In early 2016, we conducted a poll among Belgian judges concerning their

A. Background and Methodology

what type of head-covering—religious, non-religious, or both—for which

B. Results of the Poll

The responses provided by these judges allowed some preliminary insights

of religious head-coverings. Finally, of the 160 judges (sixty, or 23.5 per­

17. Original translation of poll response by the authors.

Another judge wrote that:

By contrast, a number of judges considered that both types of head-

18. Original translation of poll response by the authors.

IV. HEADSCARF PERSECUTION IN BELGIUM

The banning of Muslim headscarves from Belgian courtrooms has to be

A. Bans on Religious Attire in Educational Institutions

In most Belgian schools for primary or secondary education, the wearing

20. Original translation of poll response by the authors.

of public schools of the Flemish (i.e. Dutch-speaking) Community (GO!)

B. Bans on Religious Attire in the Workplace

Limitations on the wearing of religious signs in the workplace occur both

by all federal public servants,37 by members of electoral bureaus,38 and even

C. Bans on Religious Attire in Access to Goods and Services

37. Belgian Chamber of Representatives, Session 54 (2014–2016), Resolution proposals

D. The Hijab Wearer as an Outlaw

Ninety percent of the claims concerning religion reported at the Belgian

V. THE COMPLICITY OF SUPRANATIONAL COURTS

Above we have sketched the climate of headscarf persecution in Belgium. It

A. THE EUROPEAN COURT OF HUMAN RIGHTS: TOO LITTLE

int/eng#{“appno”:[“65500/01”],”itemid”:[“001–72337”]} (university professor); ECtHR,

headscarf bans are vulnerable to abuse as a window dressing in situations

B. The Court of Justice of the European Union: Denying Discrimination

Disappointed in Strasbourg, some applicants hoped to find a remedy against

Asma Bougnaoui and Association de Défense des Droits de l’Homme v. Micropole

provided by a worker wearing an Islamic headscarf cannot be considered

The CJEU then continued on to consider the matter of indirect discrimina­

84. Bougnaoui, supra note 82, ¶ 41.

89. Eweida and Others v. UK, supra note 61, ¶ 94.

The Achbita judgment encountered critical reception among human

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Eva Brems,* Corina Heri, Saïla Ouald Chaib,*

in a crime of passion, Ms. Lachiri intervened as a civil party in the crimi

of religious head-coverings. Finally, of the 160 judges (sixty, or 23.5 per

The CJEU then continued on to consider the matter of indirect discrimina