The Constitutional Court in Austria on Friday said the ban on girls wearing headscarves in primary schools was unconstitutional, annulling the rule enacted by the Austrian government in 2019. Christoph Grabenwarter, the head of the Constitutional Court, said the ban violated the principle of equality and the state’s obligation to religious neutrality because in practice it only affected Muslim students and was therefore discriminatory.
The Austrian Constitutional Court is the tribunal responsible for reviewing the constitutionality of statutes, the legality of ordinances and other secondary legislation, and the constitutionality of decisions of certain other courts. The country’s Supreme Court of Justice is the final court of appeal for criminal and civil lawsuits other than administrative.
Two schoolchildren and their parents appealed the ban, arguing that it only applied to scarves that cover the entire head, but not to the smaller head covers worn by religious Jewish students, and therefore constituted a disproportionate infringement on religious freedom, the religious upbringing of children, and the principle of equality.
The law had been passed last year by a majority of conservative and far-right legislators who said the ban protected female students from sexist oppression and politicized Islamist ideology. The court responded to those claims saying, “Concerning the protection of schoolgirls against social pressure from their classmates, which was brought up by the federal government, the Constitutional Court does not fail to recognize that in schools there can also be ideological and religious conflict situations. However, this circumstance cannot justify the selective prohibition, because the prohibition affects precisely those schoolchildren who do not disturb the school peace themselves.”
The court then rebuked the lawmakers who had enacted the ban, saying, “It is incumbent on the legislature to create suitable instruments for conflict resolution, taking into account the principle of neutrality and the constitutional educational mandate, should the legally provided educational and security measures for the maintenance of the school rules not be sufficient to resolve such conflict situations and to end forms of gender-related or religiously justified bullying.”
