United Kingdom: Banning the Jilbab: Reflections on Restricting Religious Clothing in the Light of the Court of Appeal in SB v. Denbigh High School. Decision of 2 March 2005.

European Constitutional Law Review

Volumn 1, Issue 3, 2005, Pages 511-530

  Davies, Gareth ^a  

^a UNIVERSITY OF GRONINGEN   (Netherlands)

Author keywords

Court of Appeal; Equality; European Convention on Human Rights; Muslim Clothes; Regulations on Headscarves; Religious Clothing; Religious Freedom; SB v. Denbigh High School; United Kingdom

Indexed keywords

EID: 85022385600     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019605005110     Document Type: Article

References (34)

1. Law 2004–228 of 15 March 2004 ‘[Loi du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics]’. For full discussion and background see E.T.Beller ‘The Headscarf Affair: The Conseil d'Etat on the Role of Religion and Culture in French Society’, Texas International Law Journal (2004) p. 581
2. T. Jeremy Gunn ‘Religious Freedom and Laïcité: A Comparison of the United States and France’, Brigham Young University Law Review (2004) p. 419.
3. Bundesverfassungsgericht, 2 BverfGE 1436/02 judgment of 24 Sept. 2003.
4. For discussion see O. Gerstenberg ‘Freedom of conscience in public schools’, 3:1 International Journal of Constitutional Law (2005) p. 94–106
5. C. Langenfeld and S. Mohsen ‘The teacher headscarf case’, 3:1 International Journal of Constitutional Law (2005) p. 86–93
6. M. Mahlmann ‘Religious tolerance, Pluralist Society and the Neutrality of the State: The Federal Constitutional Court's Decision in the Headscarf Case’, 4:11 German Law Journal (2003), p. 1099.
7. The Queen on the application of SB v. Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199.
8. E.g., the position in European Community law; see C. Barnard, The Substantive Law of the EU (OUP 2004), p. 112–117.
9. See M. Janis, R. Kay and J. Bradley European Human Rights Law, 2nd edn. (OUP 2000), p. 468–472.
10. European Human Rights Law.
11. Such as in France: See Beller, Jeremy Gunn, European Human Rights Law n. 1.
12. Although see European Human Rights Law n. 19.
13. An argument central to German debate: see Gerstenberg, Langenfeld and Mohsen, Mahlmann, European Human Rights Law n. 2.
14. The European Court of Human Rights has at times apparently included secularity and neutrality within the exceptions found in Art. 9(2), in a decision on admissibility in Dahlab v. Switzerland (15 Feb. 2001, Appln No. 42393/98) and the judgment in Leyla Sahin v. Turkey (29 June 2004, Appln No. 44774/98). However, both cases have special facts which were crucial - the first concerned a ban on all religious clothing in a primary school, and perhaps very young children are likely to be over-impressed by signs of religion generally, and the second concerned Turkey, which has special problems with militant Islamic groups. See Riley, European Human Rights Law n. 38
15. Decker, European Human Rights Law n. 31.
16. See Gerstenberg, European Human Rights Law n. 2, at p. 102–104.
17. See European Human Rights Law n. 21. The Bundesverfassungsgericht found that the ‘meaning’ of a headscarf should be judged not by the subjective intention of its wearer, but by what an ‘objective’ observer would understand.
18. The danger in this formulation is that ‘objective’ becomes conflated with ‘typical’, which allows prejudice to prevail. Nevertheless, the court did also find that ‘the headscarf per se does not in principle impede the teaching of the values of the German constitution’: Mahlmann, European Human Rights Law n. 2, at p. 1104.
19. See Gerstenberg, European Human Rights Law n. 2, at p. 102–106.
20. Mahlmann, European Human Rights Law n. 2, at p. 1116.
21. See Jeremy Gunn, European Human Rights Law n. 1, at p. 465–479 for a condemnatory but convincing discussion of the amateurish and biased approach to evidential questions in the Stasi commission, which led to the formation of the French religious signs law.
22. See European Human Rights Law n. 2.
23. Para. 72. It was for this reason that the court rejected the relevance of ECHR cases where Turkish bans on headscarves had been accepted. Amongst other differences, they had little application to a country where the threat to the state from Muslim fundamentalism was significantly less. See on this D.C. Decker, ‘Leyla Sahin v Turkey’, 6 European Human Rights Law Review (2004), p. 672.
24. See European Human Rights Law Review n. 29.
25. See European Human Rights Law Review 59.
26. See, e.g., F. Jacobs and R. White, European Convention on Human Rights, 3rd edn. (OUP 2002), p. 355–357
27. G. Davies, Nationality Discrimination in the European Internal Market (Kluwer Law International 2003), p. 28–31.
28. There is no legal difficulty with a claim of discrimination against a group which may also form part of a larger group. Discrimination against Catholics is possible. So is discrimination against a sub-group of Muslims. If that sub-group is religiously defined it will be religious discrimination. If it is racially defined, see Nationality Discrimination in the European Internal Market (Kluwer Law International 2003) n. 38.
29. See Langenfeld and Mohsen, Nationality Discrimination in the European Internal Market (Kluwer Law International 2003) n. 2, at p. 91–92.
30. See Riley, Nationality Discrimination in the European Internal Market (Kluwer Law International 2003) n. 38, at p. 4.
31. This raises the question whether the case could have been understood as race discrimination against those of Arabic origin, which is prohibited by Directive 2001/43, which is implemented in the United Kingdom. This would require more origin on the details of the background of those who might wish to wear the jilbab than is available from the judgment alone. See A. Riley ‘Headscarves, Skull Caps and Crosses: Is the Proposed French Ban Safe from European Legal Challenge?’, Centre for European Policy Studies, Policy Brief No.49, available (free) from
32. D.Schiek ‘Just a Piece of Cloth? German Courts and Employees with Headscarves’, 33 Industrial Law Journal (2004), p. 69 at p. 73.
33. On the different approaches taken to Muslim and non-Muslim women, see Schiek, Industrial Law Journal n. 38, at p. 72.
34. And some national laws: see Mahlmann, Industrial Law Journal n. 2, at p. 1112.