The European Court of Human Rights Upholds Ban on Visible Religious Symbols for Belgian Students

Seized by three young Muslim women from Belgium who wished to retain their Islamic headscarves in their school despite a ban on visible religious symbols, the European Court of Human Rights (ECHR) ruled on April 9, 2024, that this prohibition was legitimate and proportionate to ensure the protection of the rights and freedoms of others and public order. Despite contrary recommendations from UN Committees, the Court's jurisprudence remains consistent.

In Mikyas and Others v. Belgium case on April 9, 2024 (No. 50681/20), the ECHR held that the prohibition on students wearing visible religious symbols in the name of educational neutrality "does not in itself violate" Article 9 of the European Convention on Human Rights (freedom of religion), even if other conceptions of this neutrality might exist. The case involves three young Muslim women who assert that they wear the Islamic headscarf in accordance with their religious beliefs.

In 2009, the Flemish Community's Council for Official Education decided to extend the ban on visible religious symbols across its entire network, aiming to combat "segregation, not only between schools but also among students within the same institution." The Council deplored pressures on young girls to wear certain religious symbols and regretted that the choice of school was determined exclusively by the authorization or prohibition of religious symbols. In 2017, the parents of the applicants, enrolled in schools within the Council's network, asked the Belgian judiciary to declare this ban illegal, arguing it was contrary to religious freedom.

Accusations of Islamophobia and Misogyny: The Bad Faith of the Applicants Encouraged by the UN but Condemned by the ECHR

Before the ECHR, the applicants challenged the legitimate aim of such a prohibition. According to them, the measure is actually intended to "dissuade young Muslim girls from enrolling in the schools involved." In their submissions, the Human Rights Centre of Ghent University, and the Equality Law Clinic of the Université libre de Bruxelles argue that the contested ban reflects "growing hostility towards Muslims" and “call upon the Court to adopt an intersectional approach to the vulnerability of young Muslim girls, considering not only their religion but also their gender, age, and race”.

This "intersectional approach" finds its justification in the observations of various UN Committees. In 2014, the Committee on the Elimination of Racial Discrimination warned that the ban on "religious symbols in all schools" of the Flemish community was "likely to lead to acts of discrimination against members of certain ethnic minorities." Similar positions were held by the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of the Child, the Human Rights Committee, and the Committee on Economic, Social, and Cultural Rights, the latter even mentioning in 2020 "the risk of school dropout caused" by this ban.

The Court dismisses the positions of the UN Committees wholesale. On the one hand, the question concerns the "compatibility of the contested ban with the European Convention on Human Rights, which it ensures compliance with," and not compatibility with the International Covenant on Civil and Political Rights (ICCPR), which belongs to the UN system. On the other hand, although Articles 18 of the ICCPR and 9 of the Convention are remarkably similar in substance, the Court naturally prefers to refer to its own "established case law on the issue at hand." In this respect, it notes that it "has not been established that the contested ban was inspired by any form of hostility towards Muslims." In fact, "the contested ban does not target only the Islamic veil but applies without distinction to any visible religious symbol." Finally, the Court highlights that the applicants had freely chosen their schools, could not ignore the requirement to respect the principle of neutrality, and had agreed to comply with the applicable rules.

The Legitimacy of the Ban on Visible Religious Symbols for Students

In its jurisprudence, the Court has already recognized that the prohibition for students or university students to wear the veil in the school or university environment can pursue the legitimate aims of protecting the rights and freedoms of others and public order. In this case, the Court admits that "the contested ban aims to protect students from any form of social pressure and proselytism" and recalls the importance that "the manifestation by students of their religious beliefs within schools does not become an ostentatious act that could constitute a source of pressure and exclusion." Due to their "greater degree of vulnerability," minor students can therefore be legitimately prohibited from wearing religious symbols, similar to teachers, who are "symbols of authority towards them." The Court thus considers it legitimate to create a "school environment free from religious symbols worn by students," under the margin of appreciation of Article 9 of the Convention granted to Belgian national authorities.

Furthermore, for the Court, "pluralism and democracy must be based on dialogue and a spirit of compromise, which necessarily involve various concessions from individuals to safeguard and promote the ideals and values of a democratic society." On this point, the European Centre for Law and Justice (ECLJ) highlights the paradox where the Court justifies the ban on visible religious symbols in the name of "pluralism," giving the impression that “the Court promotes religious pluralism without wanting its consequences” (commentary on Osmanoğlu and Kocabaş v. Switzerland (No. 29086/12) concerning the obligation for parents to send their daughters to mixed swimming lessons despite their religious beliefs). Nevertheless, it remains that the prohibition of visible religious symbols for students is a legitimate means to ensure the protection of students' freedom of conscience, particularly young girls, against proselytizing pressures from their peers, often initiated and supported by their families.

The ECHR Also Validates the French Conception of Secularism, Contrary to the UN

In the present case, the Belgian government compares the importance of the neutrality of public education with that of secularism in other countries. France, which has made secularism a constitutional principle, is also not exempt from reprimands from UN Committees regarding its bans on ostentatious religious symbols, reprimands sometimes directly contradicting ECHR decisions in favor of France. The ECLJ has already explained how the opposition of Geneva experts to Strasbourg judges weakens religious freedom (commentary on the Baby-Loup and burqa cases). In March 2022, the Human Rights Committee once again criticized France for violating the ICCPR, accusing it of committing "intersectional discrimination based on gender and religion." France had prohibited a woman from wearing the veil during a continuing education course for adults held in a high school.

The Court, however, prefers to leave States a margin of appreciation regarding limitations on religious freedom. Thus, in a succession of cases in 2008 and 2009 that set a precedent, it did not condemn France for banning students in public schools, colleges, and high schools from wearing "signs or clothing by which they conspicuously manifest a religious affiliation," a general prohibition or one limited only to physical education and sports classes, and the subsequent exclusion of students for wearing an Islamic headscarf, a turban, or a Sikh "keski" (under-turban) within the school premises. The Court considered that the safeguarding of the constitutional principle of secularism, consistent with the underlying values of the Convention, was sufficient to justify the ban.