Why a hijabi Muslim convert challenged Germany’s neutrality law

Mariam* was a teacher at a preschool in the German city of Hamburg until the day she chose to wear the hijab. 

Born to a working-class family in a troubled neighbourhood of the city, Mariam, who is now 32-years-old, socialised with immigrant children from all over the world. It was no surprise for her parents when she converted to Islam at the age of 22.

In 2014, after completing her training course in teaching, Mariam started her dream job at a kindergarten, also known as Kita in Germany.

“I had specialist training in teaching children with learning disabilities and using my certification the Kita started a new specialised program for disabled children,” says Mariam.

“It was a very satisfying job, all was well, everybody was happy, my best friend worked there, all my colleagues were happy, the parents of all the children I taught were also happy with my performance,” she says.

A couple of years after that, wedding bells rang and Mariam married a man from Lebanon. 

But in 2017, “while I was on parental leave, I decided to start wearing the hijab. I wanted to start a new chapter in my life”, she says. 

But her lifestyle decision did not fare well with her employers. 

'Neutrality'

The employer cited the controversial neutrality regulation and said there could also be complaints from parents about Mariam's hijab, and that if she continued to teach there while wearing her hijab they might stop sending their children to that Kita.
The neutrality law, which has been widely criticised by rights groups and is in stark contrast to Germany's constitutional freedom to religious practice, suggests that teachers, judges, or anyone in public life cannot wear anything which might suggest religious symbolism.

Mariam was first asked to remove the hijab by the school management, which she refused, she was then given warnings and eventually suspended in 2018.

According to a Berlin-based NGO Insaan, the neutrality law was a reaction to the Federal Constitutional Court’s decision in 2003, which said that rejecting employment to a woman with a headscarf is only compatible with the constitution if there is a corresponding law at the state level in Germany. As a direct result of this, several states in Germany drew up the neutrality law to hide their discrimination towards Muslim women and appear ‘constitutional’.

Contradicting the neutrality argument, Mariam says “I saw other people wearing symbols of their faith and no one objected. At the school, we also celebrated all the religious festivals such as Christmas and the Hindu festival of Holi and others. Also in my contract, there was no neutrality clause, only after I informed them that when I return I will be wearing my hijab, that's when they (school management) made everyone sign onto the neutrality clause”.

“It was a big shock for me, I had no idea that a small piece of cloth on my head, for strictly religious reasons, would cause such a major disruption,” says Mariam, “it was obviously discriminatory".
So Mariam, who had been on a string of happy life decisions over the last few years, took the matter to the German labour court in 2018, which eventually forwarded the case to the European court in Luxembourg – the ruling of which in July 2021 sent shock waves across minority groups in Europe. 

'The Ruling'

After years of wrangling, the European court ruled that there was no direct discrimination in Mariam’s case because of the neutrality act but it is possible that she faced indirect discrimination. The ruling explained that Muslim women can face indirect discrimination when compared to Christian women because Muslim women cannot hide their hijab while Christian women can hide their crucifix under their clothes.

Gabriele Boos-Niazy, who is a social scientist and board member of the largest association of Muslim women in Germany, the Action Alliance of Muslim Women, says the European court has also set strict legal stipulations on employers if they have to fire someone for their religious clothing. 

According to Boos-Niazy, although an employer might now have the right to relieve a woman from her job once she starts wearing a hijab, “the employer must demonstrate a specific threat to their entrepreneurial freedom, they need to prove that they would be in economic loss. Just fearing that fewer customers will come is not enough.”

Boos-Niazy adds, “that since the anti-discrimination protection is stronger in Germany, we are hopeful that there will be no blanket ban on religious and ideological symbols in the private sector either." 

Boos-Niazy, however, fears a wave of restrictive laws towards Muslims following this ruling in the rest of Europe. “It all depends on the political situation - the more societies move to the right - as in France, the more difficult it will be for minorities to get the rights they are entitled to.”  

“As long as you can win votes with anti-Muslim slogans, there will be more and more bans. In addition, it is not yet possible to estimate how badly Corona has had a negative impact on economic growth. We are already seeing that in times of crisis, anti-Semitism and racism increase overall and that attacks, including physical attacks, on women with headscarves are becoming more frequent. Unfortunately, even when they have their children with them, it is typical that those who are least able to defend themselves are always the first victims in uncertain times,” she adds.

Referring to Mariam's case, she says, “We hope, however, that the German courts will now decide very quickly and clearly because there is a great danger that employers will be misled by the headlines 'Headscarves can be banned' into adopting neutrality regulations. 

Back in Hamburg, the European court has left a silver lining in its judgement for Mariam, the Kita which suspended her now has to prove that they would have lost a considerable number of students if Mariam continued to wear the hijab.

According to her legal team's assessment, the Kita will find it very difficult to do so and Mariam, who is now a mother of three children, will likely get to keep both her hijab and her job.

[NOTE: The 32-year-old teacher was identified by her pseudonym Mariam because she had filed the court petition anonymously for security reasons and wished her real identity to be protected in this story as well]