The German Women Lawyers Association (Deutscher Juristinnenbund e.V. - djb) welcomes the opportunity to comment on the Federal Republic of Germany's statement[1] regarding the CEDAW Concluding Observations No. 44a[2]. The djb has recently published a policy paper[3] highlighting the discriminatory effects of headscarf bans in the German judiciary and advocating for their repeal, which is in line with the case law of the Federal Constitutional Court.[4]
Building on this position, the djb submits the following report:
1. Blanket Prohibitions on the Wearing of Religious Symbols in the Judiciary Exist at the State Level
The Federal Government's statement remains silent on the issue of headscarf bans for the judiciary, even though the CEDAW Committee explicitly addressed it in its recommendations. By asserting that ‘in Germany, there is no general ban on wearing a headscarf, which is why there is no need to amend the Federal Civil Servants Act’, the government overlooks a significant area of public service.
Within the Federal Republic of Germany, legislative authority for the judiciary rests in certain areas with the federal states. In about half of the federal states, so-called ‘neutrality laws’[5] prohibit the wearing of religious symbols, especially headscarves, for judges, public prosecutors, and judicial officers whenever they perform judicial or prosecutorial duties with external effect (i.e. in the presence of witnesses, experts, or parties in the court room). For example, section 2 of the ‘Law on strengthening the religious, ideological, and political neutrality of the judiciary in the state of North Rhine-Westphalia’ reads:
Ԥ 2[6] Prohibition of religious, ideological, or political symbols and clothing
(1) Employees and honorary judges may not wear any visible symbols or clothing in court proceedings that, when viewed objectively, express a particular religious, ideological, or political opinion.
(2) Even outside court proceedings, employees may not wear symbols or clothing of the type described in paragraph 1 when performing the sovereign activities assigned to them if they are regularly seen by third parties while performing these activities.’
The explanatory memorandum clarifies that this provision is intended to specifically prohibit Muslim headscarves.[7]
In some federal states, the regulatory approach explicitly excludes lay judges and other honorary judges from the prohibition of wearing religious symbols, while in other federal states, wearing a headscarf for honorary judges is considered a ‘gross breach of official duty’ within the meaning of Section 24 (1) No. 2 of the Code of Administrative Court Procedure.
Contrary to the Federal Government's claim, theneutrality laws of the federal states amount to a general ban on wearing a headscarf for civil servants working in the judiciary (including i.e. judges, prosecutors and legal trainees).
The bans on religiously connotated clothing for the judiciary follow an abstract, general, and preventive approach. The possibility of addressing individual cases – where a headscarf might actually conflict with the requirements of judicial impartiality, creating the appearance of bias due to the specific circumstances of a case – is already provided for by national procedural law. Provisions allowing for recusal in cases of perceived partiality can serve as an appropriate remedy in such individual cases, without the need for blanket prohibitions.[8]
2. The Federal Government Neglects the Indirect and Intersectional Discrimination following the bans
The Federal Government fails to recognize that headscarf bans constitute serious infringements on Muslim women’s fundamental rights. Not only do the bans interfere with their religious and professional freedom but also impinge on their equality rights as guaranteed by Articles 3(3) and 33(3) of the German Basic law.
In its statement under para 21, the Federal Government concludes that the relevant provision in the Federal Civil Service Act does not ‘specifically affect only Muslim persons’. In doing so, the Federal Government neglects that what is decisive for legally relevant discrimination (according to the concept of indirect discrimination) is not how a regulation is phrased and whether it explicitly prohibits Muslim women from wearing a headscarf. Rather, what matters is the discriminatory effect of a regulation, i.e. its factual (predominant) impact on a protected group. Accordingly, the German Constitutional Court found with respect to a ban on religious clothing concerning a legal trainee the law ‘in reality is likely to predominantly affect Muslim women who wear a headscarf for religious reasons’[9].
Bans on religious clothing in the judiciary predominantly affect Muslim women who wear a headscarf. The discriminatory effect of these regulations is, for one thing, revealed in the exclusionary mechanism they create: Muslim women are denied access to qualified professional positions such as those of judge or public prosecutor. For another, discriminatory stereotypes form the basis of the laws, denying the affected women their professionalism, assuming that they are not capable of orienting their decisions according to law and justice, the application of which they have trained in for many years.[10]
The bans result in intersectional discrimination, as they specifically affect women who find themselves at the intersection of multiple protected groups – marked by religion, gender, and race – and are therefore particularly vulnerable.
3. The Federal Government has failed to present Awareness-Raising measures
The German government has failed to provide an adequate response to the Committee’s recommendation to raise ‘public awareness so that the wearing of a headscarf by women civil servants does not result in the undermining of trust in the public service’.
The prohibitions as such appear to conflict directly with the CEDAW recommendation. They currently result in a situation where headscarf-wearing women are entirely absent from the judiciary, and therefore unable to demonstrate that they deserve public trust. Rather than strengthening public confidence, the neutrality laws are capable of having the opposite effect – fuelling and perpetuating existing resentment, prejudice, and mistrust toward Muslim women.
The government’s reference to its diversity strategy (‘Gemeinsam für mehr Vielfalt in der Bundesverwaltung – working together for more diversity in the federal administration’) and the reference to the German Diversity Charter (‘Charta der Vielfalt’) fails to address the core concern of the CEDAW recommendation. These initiatives focus exclusively on the federal administration, aiming to improve access and career opportunities for diverse groups. They do not address the issue of religious symbols and clothing, nor do they provide concrete measures to ensure that ‘the wearing of a headscarf by women civil servants does not result in the undermining of trust in the public service’.
4. Recommendations to Comply with CEDAW Standards and Submission of Further Questions to the German Government
In view of the serious disadvantages that the so-called neutrality laws impose on the women affected, the djb opposes the enactment of prohibitive regulations. To meet legitimate expectations regarding the distance conveyed by official attire in the judiciary, recourse to the concept of reasonable accommodation offers a way forward. This doctrinal concept of anti-discrimination law allows for a careful balancing of conflicting interests, such as the state’s aim for a uniform appearance of judicial staff on the one hand, and individual religious dress codes on the other.
The ‘self-image of the state’ emphasized by the Federal Constitutional Court, which is also expressed in the official attire of the judiciary and in the particularly formalized situation in court, where public officials assume ‘a clearly defined role emphasizing distance and composure’ through their outward appearance, must be recognized as a legitimate state concern. Public officials in the judiciary can be expected to adapt to this special situation in the courtroom, regardless of their individual religious affiliation.
As a less restrictive alternative to general headscarf bans, however, there is the option of formally integrating headscarf-wearing women into the appearance of the judiciary, by allowing (only those) headscarves on the bench that match the style and colour of the official attire and thus convey a ‘neutral’ appearance in the sense of the person's subordination to the office. A black or white headscarf complements the black robe and the white blouse worn underneath. Corresponding provisions could be incorporated into existing regulations of the state justice administrations on official attire, which currently also regulate the requirement to wear robes, as well as the colour and fabric of the robes and the clothing visible underneath.
This approach would reduce the discriminatory impact of neutrality regulations and safeguard the affected women’s fundamental rights.
Finally, the djb recommends that the Committee request clarification from the German Government on the following points:
1. How does the Federal Government assess the neutrality laws at state level?
2. How does the Federal Government assess the neutrality laws at state level, given that they effectively prevent women judges who wear headscarves from serving at the federal courts, because judges must first pursue a career in the state judiciary in order to qualify professionally for a position in a federal court?
3. What specific measures is the Federal Government taking to promote diversity in the composition of personnel at federal courts and at the federal attorney’s general office (Generalbundesanwaltschaft)?
4. What measures is the Federal Government implementing to foster public trust in civil servants who wear headscarves?
5. Are there any programs for the systematic evaluation of neutrality laws with regard to gender equality and non-discrimination?
Prof. Dr. Susanne Baer, LL.M.
Präsidentin
Dr. Stefanie Killinger, LL.M.
Vorsitzende der Kommission Verfassungsrecht, Öffentliches Recht, Gleichstellung
[1] Available at: https://documents.un.org/doc/undoc/gen/n25/161/29/pdf/n2516129.pdf
[2] The CEDAW Concluding Observation No. 44a reads: ‘Ensure that Muslim women in the public sector, including the judiciary, are not penalized for wearing headscarves, including by further amending the Law on Federal Civil Servants and raising public awareness so that the wearing of a headscarf by women civil servants does not result in the undermining of trust in the public service’.
[3] Available at: https://www.djb.de/fileadmin/user_upload/presse/stellungnahmen/st25-18_Policy_Paper_Kopftuchverbote.pdf
[4] Federal Constitutional Court, 2 BvR 13317. According to the Federal Constitutional Court, the decision for or against regulations prohibiting headscarves in the judiciary lies with the parliamentary legislator, and the Constitution requires neither the enactment nor the omission of such prohibitions. The english translation of the decision is available at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/01/rs20200114_2bvr133317en.html.
[5] See, for Berlin, the law on Article 29 of the Berlin Constitution of January 27, 2005, GVBl. 2005, 92; for Baden-Württemberg, the implementing laws on court regulations, ‘Law on Neutrality in Courts and Public Prosecutor's Offices of the State’, GBl. 2017 of May 31, 2017, p. 265, and the amendments in Section 21 AGGVG, Section 3a III ArbGG BW, Section 6a III AGVwGO, Section 9 III AGSGG, Section 5 III AGFGG, Section 5 AGFWG (voluntary jurisdiction, reference to Section 21 III 1 AGGVG); the neutrality laws in North Rhine-Westphalia or Lower Saxony (‘Law on Strengthening Religious, Ideological, and Political Neutrality of the Judiciary of the State of North Rhine-Westphalia’ of March 9, 2021, GV NRW of March 17, 2021, 271-292 and ‘Law on the Reorganisation of Regulations on the Judiciary’ of 16 December 2014, Nds. GVBl. 2014, 436) and the regulations applicable to all state civil servants concerning ‘external appearance’ in Art. 75 (2) BayBG, § 45 HessBeamtG, § 56 LBG Schleswig-Holstein. See also the most recent Bremen regulation in § 2a BremRiG.
[6] Own translation.
[7] Own translation; parliamentary paper No. 17/3774, p. 13, available at: https://www.landtag.nrw.de/portal/WWW/dokumentenarchiv/Dokument/MMD17-3774.pdf.
[8] See i.a. section 42 of the German Civil Procedure Code: ‘(1) A judge may be recused from a case both in those cases in which he is disqualified by law from exercising a judicial office, and in those cases in which there is a fear of bias. (2) A judge will be recused for fear of bias if sound reasons justify a lack of confidence in his impartiality. (3) In all cases, both parties shall have the right to recuse a judge.’
[9] Federal Constitutional Court, 2 BvR 1333/17, para 113. Official english translation available at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/01/rs20200114_2bvr133317en.html.
[10] For an in-depth analysis of the discriminatory effects of the bans, see Shino Ibold, The Added Value of Equality. Reframing Legal Perspectives on Muslim Veiling Bans (2025).
