From September 2026 onwards, girls up to the age of 14 will be prohibited from wearing Islamic headscarves in Austrian public and private schools. Although the ECtHR allows states to establish schools as religiously neutral places of encounter and to prohibit pupils from visibly displaying religious symbols, it remains doubtful whether this new legislative attempt will be upheld by the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH), as it narrowly targets only Muslim headscarves. Already in 2020, the VfGH ruled that a comparable law was unconstitutional. The girls’ freedom of religion, as well as the principle of equality and neutrality, pose significant obstacles to the constitutionality of such a selective restriction. Although the legislator must protect the young girls’ autonomy from external pressure to wear a headscarf, and is justified in ensuring integration and combating radicalisation, it is meeting its obligation to protect at the expense of those girls who voluntarily choose to wear one. However, this “collateral damage” may prove necessary in view of many reports from teachers and sociologists stating that the autonomy and determination of many girls’ identities in schools are increasingly threatened by societal forces. These significant social changes may induce the Constitutional Court to reassess its jurisprudence and adapt it accordingly.

The headscarf as a subject of controversy

Even though wearing the Islamic headscarf is primarily an expression of religious belief and identity, it is often attributed with strong political and cultural significance. This appears to be leading to a new “culture war” which has also reached the European Parliament (on hijabs). Unlike in the context of equal treatment in employment and occupation, where the EU has adopted secondary legislation and the ECJ, in principle, accepted the prohibition on wearing headscarves imposed by employers, there is no respective legislative competence related to the situation in schools that could trigger the applicability of the Charter of Fundamental Rights under its Article 51. Wearing clothing with religious connotations is, however, undoubtedly protected by the freedom of religion, as enshrined in constitutions and the ECHR, which enjoys constitutional rank in Austria. Courts in Europe are regularly confronted with questions related to headscarves and have upheld restrictions, inter alia, for teachers, legal trainees and judges, in particular to maintain peace in schools or to protect confidence in the judicial system. The ECtHR has also accepted the ban of full-face veils in public to protect the right of others to “live in a space of socialisation”, as it has accepted headscarf bans in educational institutions for university students and teachers.

The fact that all these decisions have met considerable criticism highlights the growing concerns over religious symbols in increasingly diverse, yet secular societies, as well as the difficulties of balancing individual freedoms with conflicting – and often controversial – public interests. A rather recent twist is the extension of bans on religious symbols in schools also to pupils, i.e. persons not serving a public function, including schoolgirls who wear headscarves. Yet, such bans must not intend to protect a woman from herself or impose an abstract concept of dignity against her will. Accordingly, the Austrian legislator – with a broad majority in the parliament – invoked several other grounds, including the protection of the child’s best interests and the girls’ autonomy, the prevention of segregation, and the promotion of integration and gender equality.

Beyond the absolute – striking a fair balance

The measure particularly interferes with the freedom of religion, the parental rights to education, and equality. Even though the legislator doubts that girls under the age of 14 have the intellectual capabilities and maturity to fully assess the various dimensions of wearing a headscarf, it has to be stressed that the Convention on the Rights of the Child does not set a strict age limit for exercising the freedom of religion. Consequently, the headscarf ban can also restrict the rights of very young girls (see also CRC Committee Concluding Observations Austria para. 37). Freedom of religion, however, is not an absolute human right and does not confer the right to always and everywhere fully comply with one’s own religious beliefs (see also here). Moreover, the principle of equality allows for differentiation, provided it is based on objective grounds. The intention behind the headscarf ban in Austrian schools serves legitimate public aims, which, in principle, can justify limitations and differential treatment.

Proportionality reloaded

Overturning the first headscarf ban in 2020, the VfGH argued that the measure was not even capable of serving the integration of girls as they could withdraw from public schools and attend private schools instead, to which the ban did not apply, and thus become even more marginalised. The new legislation extends to private schools as well; therefore, only raising the question of whether its objective could be prevented by a substantial shift towards homeschooling (which in Austria is guaranteed by constitutional law). Due to the strict requirements for homeschooling, a mass shift is unlikely, as evidenced by other countries that have introduced a headscarf ban in schools. This also minimises concerns regarding the girls’ right to education, which, in principle, is not infringed by such a ban.

In addition, the VfGH emphasised that where autonomy is threatened, measures must be directed against those persons exercising coercion. To ensure proportionality, such measures should be pursued as the least intrusive means of protecting the girls’ autonomy, provided that alternatives are equally effective. Yet, referring to the private authors of coercion alone (classmates and parents) arguably risks misjudging the limits of control and the influence of clandestine social power dynamics, as well as paternalistic structures. Peer pressure from boys or other girls may often go unnoticed by teaching staff. This is even more true for coercion exerted by parents endowed with strong authority. Teachers not only lack the competence to intervene in such cases, but family life and the right to raise children enjoy special protection under Article 8 and 9 of the ECHR, as well as under Article 2 of the Protocol to the ECHR. Equipping girls with the possibility to invoke a legal prohibition on wearing the headscarf against individuals and structures that put them under pressure represents a highly effective method of empowerment, guaranteeing their autonomy.

Concession of solidarity

Anyway, the regulation is only problematic insofar as it also prohibits girls from wearing headscarves voluntarily. In such cases, they are denied the exercise of their own freedom to enable others to exercise theirs (self-determination and negative freedom of religion) in a situation where those responsible cannot be effectively prevented from infringing their rights. Nevertheless, the ECtHR has deemed such a restriction permissible in the school context. Such a ban, which also applies to girls who are not responsible for threatening the autonomy of others, constitutes a significant restriction of their freedom, but it can be considered as a concession of solidarity. To ensure proportionality, the ban is strictly limited to the school environment, meaning that girls are not prevented from wearing a headscarf outside of schools.

Furthermore, potential circumvention of the ban must be considered: In countries with headscarf bans, girls often resort to turbans, baseball caps, or wigs. Corresponding pressure could be exerted at least with regard to these alternative forms of head coverings; yet, since the law expressly refers to the traditional Islamic headscarf, no broader interpretation can be considered in this respect. Although these alternative head coverings lack a comparable religious or political significance, the coercion to wear them could still undermine the protection of autonomy under Article 8 of the ECHR. However, beyond questions of decency, manners, and respect, school rules may prohibit all headwear in class.

Thou shalt have no other gods before me – equality and religious neutrality

Even if a restriction of religious freedom were permissible in principle, differential treatment remains and entails two dimensions. First, the VfGH has derived the principle of religious neutrality from the principle of equality in conjunction with the right to religious freedom. In contrast to states with a laic tradition, Austria perceives itself as merely secular, i.e. it does not relegate religion to the private sphere and does not enforce a strict separation. Instead, religious communities in Austria enjoy a special legal status. In some of its pertinent decisions (e.g. here, here, here and here), the ECtHR was seized with situations in states with a laic tradition, a constitutional decision it respected. But the fact that the ECtHR has also granted a corresponding margin of appreciation to Belgium shows that no stricter standard applies to merely secular states. Nevertheless, Austria must treat all religions equally.

Furthermore, and combined with this state-theoretical dimension of the principle of equality, it also has an impact on individual legal relationships, guaranteeing the right not to be treated unequally in similar circumstances without a sufficient objective reason. The respective restriction on wearing the headscarf concerns two instances of differential treatment. First, with regard to the subject matter, it is selective because only one specific religious symbol will be banned. Originally, the draft law referred to head coverings for “cultural reasons”, although it was already clear from the explanatory notes at that time that it was intended to target the Islamic headscarf. The final legal provision no longer conceals this intention. In doing so, it makes it clear that it specifically addresses only one item of clothing and religious symbol of a particular religion. Second, the measure is also selective in terms of gender. Islamic clothing worn by men, such as the caftan or the shekia, is not covered; nor is the kippah worn by Jewish boys, or the patka worn by Sikh boys. This unequal treatment requires justification which, in the case of differentiation based on religious affiliation or gender (so-called “verpönte Merkmale” under Austrian law), requires a higher level of justification.

First question: Is the headscarf even comparable to other religious symbols?

Such a requirement for justification would not even emerge if comparability were already denied so that a claim to equal treatment would not arise. As an expression of religious belief, the headscarf is comparable to other items of clothing with religious connotations. Comparability could only be denied if one were to reinterpret the headscarf in such a way that it was primarily attributed political or cultural significance, which would largely emancipate it from its religious meaning. However, the VfGH (e.g. here and here), the ECtHR (e.g. here, here and here) and other courts emphasise that the religiously neutral state cannot claim interpretative authority in this regard. It seems highly unlikely that the Austrian Constitutional Court would accept a legislative reinterpretation of the headscarf this time.

The crucial question: Can a clearly selective measures be exceptionally justified?

If there is a right to equal treatment, the question arises as to whether it is permissible to address only girls and only the headscarf worn in accordance with Islamic tradition. The legislator assumes that boys are not subject to comparable social pressure. Obviously, this still needs to be substantiated with facts because prima facie, it does not appear impossible that young men are also under considerable pressure, for example from their parents or classmates, to dress in accordance with religious norms. Even if boys are not subject to the same cultural expectations and forms of sexualisations, their autonomy is no less important. With regard to the unequal treatment of Islam and girls, justification can also only come from a changed factual situation. There is an increasing number of reports from teachers and sociologists (e.g. here, here and here) stating that the climate in schools has changed: Girls who are perceived as Muslim are pressured by male and female classmates to conform to orthodox religious practices, to distance themselves from (ostensibly) Western and “corrupting” values through their clothing, and thus to consciously adopt an ideology that makes integration more difficult. If this is sufficiently proven, it may not only result in an obligation to protect the autonomy (Article 8 of the ECHR) and negative freedom of religion (Article 9 of the ECHR) of the girls, but also to enforce the state’s core interest in fighting radicalisation and facilitating integration in order to ensure a peaceful, tolerant coexistence. Reaching out to young people in the school context is of utmost importance. Although the parental right to religious education and teaching their children must be respected, this right has to be balanced and protected particularly against indoctrination. It is precisely this that should be ruled out. Of course, the teaching and school environment must not be geared towards arguing in favour of or against a certain religion, and stigmatisation must be avoided.

Accordingly, it is mostly the unequal treatment of persons and religions that raises questions about the measure’s compliance with human rights. On the one hand, the ECtHR has stressed the neutrality of the ban on religious symbols in schools to justify a respective law, while also referring to the domestic constitutional principle of neutrality (also see here and here). On the other hand, it also accepted limitations – at least de facto – confined to women. The VfGH has not only stressed equal treatment in religious matters, but it has also invoked the risk of stigmatisation as a consequence of the differential treatment. This could only be rejected if the legislator were able to prove a real and factual problem with Islamic headscarves worn by schoolgirls. To be on the safe side and to leave no doubts about its neutrality, however, the legislator should have opted for a full ban on the wearing of visible symbols of belief.

To have or not to have … a margin of appreciation

The decisive factor will be the margin of appreciation that courts grant to politics to strike a fair balance between conflicting rights and interests. What makes the debate on headscarves in schools special is that the boundaries are less clear-cut than is often the case. It is not simply a matter of the state versus civil society. Instead, there are also women’s rights NGOs, feminists, and religious representatives who argue in favour of the ban. In diverse, multi-ethnic, and multi-religious societies, the role of the state as an arbitrator is becoming increasingly important. In particular, in the context of the state’s educational mandate, this requires leeway, which must be filled through a process of social deliberation; and the number of states banning religious clothing in schools shows that there is no consensus among the parties to the ECHR going in one direction. At best, schools are places of encounter, experimentation, and identity formation, and possibly the only safe space where young people can experience freedom, personal responsibility, and self-efficacy, enabling them to make truly autonomous decisions as they mature. In Austria, there has been a response to the concerns of teachers and sociologists that girls perceived as Muslim are under considerable pressure to behave in accordance with religious norms. This is not generally problematic in terms of human rights, but rather a necessity. However, it may prove problematic that the full step has not been taken to design schools in a manner reflecting full equality, where the visible display of all religious symbols is prohibited, where pupils can meet without becoming an object of projection for social conflicts, and where they can savour a glance of freedom.