Women Between a Rock and a Hard Place: State Neutrality vs. EU Anti-Discrimination Mandates in the German Headscarf Debate

Abstract

Although it guarantees individual religious freedom and the inviolability of “human dignity,” the German Basic Law also infers the principle ofstate neutralityregarding the exercise of religious freedom in public life and civil service domains. TheLänder(states), however, enjoy substantial discretion in matters of religion and education, which has led to major divisions as to whetherMuslimas(Muslim women) can wear headscarves aspublicemployees. In 2006 Berlin adopted its own Neutrality Law (Berliner Neutralitätsgesetz) prohibiting religious attire among teachers, judges, and police. Within weeks, the city-state's first anti-discrimination officer was overwhelmed with new discrimination cases involving private sector employers as well. This essay examines the tensions and paradoxes inherent in Berlin's efforts to uphold religious “neutrality” among civil servants while also meeting the requirements of Germany's General Equal Treatment Act and three recent EU Directives 2000/43/EC, 2000/78/EC, and 2002/73/EG), addressing race, religion and equal treatment in employment, respectively. This article argues that the Neutrality Law not only violates national and supranational anti-discrimination regulations but that local officials are actually drawing upon the latter to undermine the enforcement of their own statute, in the hope that it will be repealed.