On 11 December 2025, just before the Christmas holidays, the Austrian National Council introduced amendments to the School Education Act (Schulunterrichtsgesetz [SchUG]), banning headscarves for students under 14 in the name of protecting children’s freedom of development and fulfillment. It is expected that the Federal Council will give its consent within next few days. This regulation constitutes the second attempt by the Austrian legislature to introduce a headscarf ban. The initial attempt was subsequently overturned by the Constitutional Court on the grounds of its unconstitutionality.

This article therefore examines the extent to which the legislature has taken the requirements of the Constitutional Court into account. Although the legislator has been largely successful in this, two crucial aspects have been overlooked: the resulting stigmatisation and the underlying patriarchal structures.

The (renewed) headscarf ban

The primary component of this “protection of children’s freedom” entails the compulsion that students up to the age of 14 are prohibited to wear a headscarf that covers the head in accordance with Islamic traditions. The ban applies to all public and private schools in Austria. Parents or guardians are obliged to ensure that the ban is observed. The objective is to facilitate optimal development and fulfilment of all pupils, with a particular emphasis on self-determination, equality, and the enhancement of visibility for girls. This approach is deemed to be in the best interests of the child.

In the event of a first violation of the ban, the school management must immediately convene a meeting with the pupil concerned and her legal guardians in order to clarify the background to the violation. It is evident that this aims at persuading parents to adhere to the headscarf prohibition. In the event of a subsequent violation of the headscarf ban, the school management must inform the responsible school authority, whereupon a further discussion is held with the parents or guardians. Should this discussion also prove unsuccessful, the legal guardians are threatened with an administrative fine ranging from 150 to 800 euros, and the youth welfare authority must also be informed.

The headscarf ban, which was passed with the votes of all parties represented, except of the Greens, is the second edition of an attempt that was first made in 2019. The law was introduced by the then center-right ÖVP/FPÖ coalition under massive criticism from the opposition parties (the social democratic SPÖ, the liberal NEOS and Greens) at the time. The legal provisions adopted in 2019 applied, in contrast to the recent attempt, only to public schools and exclusively to girls of primary school age. These provisions were declared unconstitutional by the Constitutional Court (Verfassungsgerichtshof [VfGH]) in 2020.

Judgement of the Constitutional Court

The primary rationale was that a regulation counteracting undesirable gender segregation and thus serving the educational goal of social integration and gender equality generally pursues an important constitutional objective in general (Article 7 para. 2 Bundes-Verfassungsgesetz [B-VG]) and for schools in particular (Article 14 para. 5a B-VG). However, such a regulation must be proportionate and objective, particularly in alignment with the other fundamental values of the school.

The Constitutional Court has stated that the wearing of the Islamic headscarf is a practice that can be carried out for various reasons. For instance, it could simply be an expression of affiliation to Islam or the orientation of one’s own life towards its religious values. Furthermore, the wearing of the headscarf can also be interpreted as a sign of belonging to the Islamic culture or of adherence to the traditions of one’s country of origin. Consequently, the Islamic headscarf is not characterised by a clear and unambiguous meaning. The Constitutional Court’s position is therefore in opposition to the attribution of a fundamentalist significance to the headscarf. However, given that the headscarf is not necessarily an expression of Islamic fundamentalism, the Constitutional Court does not see itself in a position to measure the constitutionality of banning headscarves in state educational institutions against this possible interpretation.

The selective ban, which affected only Muslim girls, under Section 43a SchUG of 2019 prohibited girls from wearing a headscarf until the end of the school year in which they turn ten. The Constitutional Court found that these measures were from the outset unsuitable to achieve the objective formulated by the legislator itself. Rather, the 2019 ban could also have a detrimental effect on the inclusion of Muslim girls and lead to discrimination, as it potentially hinders their access to education or socially excludes them. The 2019 regulation of Section 43a SchUG was identified as a factor that marginalises Islamic origin and tradition. The deliberate prohibition of the Islamic headscarf, predicated on a single religious or ideological clothing regulation, would have – according to the Constitutional Court – a stigmatising effect on a specific group of people.

Furthermore, the Constitutional Court contended that the prohibition on headscarves might result in pupils opting for private schools without the benefit of public rights or to attending lessons at home. This, in turn, could potentially lead to social exclusion and deny affected girls access to other ideological concepts within the meaning of the constitutional educational mandate under Article 14 para. 5a B-VG.

The Constitutional Court acknowledged the legislator’s legitimate concern regarding the protection of Muslim girls who do not wear a headscarf, and thus to ensure a free decision on the practice of religion. However, this circumstance could not justify the selective ban under Section 43a SchUG. For the Constitutional Court, it was not objectively justifiable that the solution to such conflict situations starts with girls wearing headscarves, instead of addressing those persons who exert pressure on them to do so, for example in the form of hostility, devaluation or social exclusion in its decision VfSlg 20.435.The 2019 headscarf ban had, from the point of view of the Constitutional Court, the effect of discriminating against Muslim pupils by creating a distinct separation between them and other pupils. The enforcement of the religious and ideological neutrality of the state could, in principle, also justify restrictions on the individual legal sphere. However, the emphasis on a specific religion or ideology and its particular manifestation in a singular type of attire, which is also comparable to other non-prohibited clothing habits in one way or another, is incompatible with the principle of neutrality.

Navigating the Constitutional Courts’ requirements

In light of the aforementioned context, the question arises as to whether the headscarf ban that will enter into force with the beginning of the upcoming school year on 1 September 2026 fulfils the requirements formulated by the Constitutional Court. The federal government seems to be convinced that it does, and also refers to the accompanying measures, in particular the discussions held with those affected. . However, there is little more detail on this; the measures are not explicitly delineated within the legislative amendment. Instead, they appear to be, at best, support measures intended to prevent the emergence of situations in which Muslim girls are exposed to pressure from young moral guardians at schools.

When the recent legislative regulation is evaluated in this context, it is evident that the legislator has made a concerted effort to mitigate the rigid headscarf ban: The consequence of the offence is a result of discussions with the legal guardians; the sanction ultimately affects them, not the girls concerned. It is acknowledged in the law that wearing a headscarf is a matter of personal preference, and that this choice should be respected. It is evident that the ban does not permit teachers to remove the headscarf. It is also evident that the federal government is keen to establish an environment that is conducive to the integration of Muslim girls into society and that reduces external pressure on them to wear a headscarf.

However, these efforts are now being thwarted by the fact that these girls, or rather their legal guardians, are being pressured to force them not to wear headscarves. The ban, targeting a single religion, criticised by the Constitutional Court in 2020, remains – albeit in a new form – in place, as does the stigmatisation of those affected. Whether this result can be justified by the fact that the sanctions are not disproportionate is questionable. In addition, the accompanying measures are only very vaguely known.

The assertion made by government officials that legislators were as certain of the constitutionality of the new law as they profess to be is questionable. Indeed, there is evidence to suggest that, at least temporarily, there was a degree of discussion about the possibility of ascribing the headscarf ban constitutional status. In such a scenario, with the backing of the FPÖ, it would have been feasible to insulate the headscarf ban from constitutional scrutiny by elevating it to constitutional status. With few exceptions, the Austrian Constitutional Court lacks jurisdiction to review constitutional provisions with regard to contradictions between these provisions and fundamental rights. It is praiseworthy that the ruling parties resisted this temptation, which would have have elevated a fundamental rights restriction to constitutional status and, moreover, would have documented through this constitutional status that the headscarf represents a significant obstacle to integration in Austria.

Addressing the result, not the source of the problem

A constitutional analysis of the law commences with the fact that the obligation not to wear the headscarf – even for children and young people – constitutes a restriction of their freedom of religion in accordance with Article 9 ECHR and Article 10 EU Charter or an interference with the parents’ right to religious education on this basis. Furthermore, it is a restriction of private and family life in accordance with Article 8 ECHR and Article 7 EU Charter. Finally, there is also the question – particularly emphasised by the Austrian Constitutional Court – of unequal treatment in comparison to members of other religious communities, where there is no ban on visible signs of religious affiliation.

In contrast to the classic secular model in France, for example, the Austrian state is not entirely neutral in religious terms, especially not in the context of the education system. Despite the fact that the cross in the classroom is regarded as a symbol of Western culture rather than of Christianity, as established by the case law of the Constitutional Court, it nonetheless represents a significant instance of unequal treatment, particularly in the context of the headscarf ban.

Nevertheless, this distinction is not inherently unconstitutional, provided it can be objectively justified. The legislative documents make such an eloquent attempt at justification when they refer to the number of women wearing headscarves in Austrian schools and the importance of integration. The number of women who choose to wear headscarves is not, in itself, problematic; however, there is an issue when this garment is worn as a result of social coercion, which promotes and perpetuates patriarchal structures. The public interest in counteracting such conditions can also justify treating this religious symbol differently from other religions, where such fears are not justified either due to the small size of the groups concerned or for other reasons.

Conversely, with the extension of the headscarf ban to all schools, the legislator has considered a justified concern of the Constitutional Court regarding the legal situation in 2020 and, additionally has also extended the group of those affected from the age of 10 to the age of 14. This exacerbates the problem. The Constitutional Court’s objection that the headscarf ban could lead to a switch to private schools has at least been countered by the legislator by extending the ban to such educational institutions, but it cannot cover home schooling, which is permitted in Austria. Above all, the legislator does not know how to respond to the Constitutional Court’s indication that – in short – the patriarchal structures should be addressed rather than the result and how to deal with the fact that the headscarf ban stigmatises.

The political elephant in the room

In light of the aforementioned circumstances, the elephant in the room is the question of whether a headscarf ban that is (also) supported by the Austrian political and societal mainstream could induce the Constitutional Court to depart from its previous case law, where it annulled a similar ban adopted by a centre-right government. That the mere breadth of political or societal support for a piece of legislation cannot serve as a constitutional argument requires no further explanation. Yet one may wonder whether such support is truly irrelevant in practice. This question becomes more pressing due to the constitutional concerns in relation to the renewed ban.

I would like to thank Ina Kapusta for her editorial support.