By Gunnar Schupelius
Teachers should be allowed to wear a headscarf on duty, but not judges and police officers. Nobody understands this case law anymore, says Gunnar Schupelius.
It’s a long story that can be summarized as follows: In 2005, the SPD and the Left Party (then PDS) passed the Neutrality Act in Berlin. According to this, women in the police, judiciary and school service are not allowed to wear a headscarf.
All other religious symbols are also forbidden, such as the cross, the Star of David or the Kippa. Religion teachers are excluded. The intention behind the law is that the state should be recognizable as independent, uninfluenced by any political or religious trend.
On the other hand, in 2018 a teacher complained that she wanted to teach with a headscarf and felt discriminated against by the neutrality law. She gets justice before the regional labor court and compensation of 5159 euros.
The verdict is confirmed by the Federal Labor Court and on January 17, 2023 also by the Federal Constitutional Court. The senior judges ruled that the headscarf should only be banned if peace in schools is specifically at risk, but not in general.
What should that look like in practice? How is one to prove a threat to school peace for each individual school? The judges don’t care about that.
The verdict has been made, so the neutrality law for teachers must be repealed.
Judges, public prosecutors and police officers are not affected. The ban remains in place for them. The Federal Constitutional Court also ruled on this in February 2020, but exactly the opposite.
A judicial trainee from Hesse, on the other hand, complained that she was not allowed to wear a headscarf during training. The Federal Constitutional Court ruled that the ban interfered with their freedom of belief (Art. 4 para. 1 and 2 of the Basic Law), but considered this interference to be “justified” because the “ideological-religious neutrality” of the state also had constitutional status.
In summary: The Federal Constitutional Court does not allow a judge wearing a headscarf to pass judgment, a public prosecutor with a headscarf to lead the lawsuit or a police officer with a headscarf to go on patrol. A teacher should be allowed to teach with a headscarf. The judge, the public prosecutor and the policewoman can be expected to restrict their freedom of belief, but not the teacher.
This jurisprudence is difficult to understand. If the representatives of the state are committed to ideological neutrality, then this also applies to children and young people.
The headscarf is a strong statement and highly controversial. Some claim that it is worn voluntarily, others consider it an instrument for the oppression of women. In Iran, it is fought as a symbol of disenfranchisement and state arbitrariness.
Of course, in the face of such controversy, school peace is in jeopardy. It is therefore correct to restrict the freedom of belief for female teachers at this point, so as they are also restricted for judges, prosecutors and police officers.
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