Religious Freedom and Neutrality in Belgian Education: About the Ban on Islamic Headscarves in Flanders

Abstract

The Belgian constitution establishes that communities shall dispense neutral teaching that also respects both religious convictions and non-denominational philosophical choices. The application of this article has led to several conflicts with the religiosity of parents and students, among which one stands out eminently: the prohibition of the Islamic headscarf in schools in Flanders and Wallonia. It is precisely in the first of these communities, Flanders, where the collisions between the principle of neutrality and the religious freedom of Muslim women who intend to continue wearing this religious symbol continue to be reproduced, not only for reasons of religiosity, but also of identity. Signally, one of the main problems lies in the difficulties in delimiting the extension of the concept of neutrality as a limit to religious freedom, a task in which there does not seem to be agreement, neither among the main agents of the education system nor even among the courts of justice of the community. The best proof of this are the last two developments in the matter, the European Court of Human Right judgment in the Mykias case and the unsuccessful attempt to ban the Islamic veil in the province of Flanders.

1. Introduction

It is a reality that, as we understand it, no one can doubt that the Western world is undergoing a series of changes as a result of phenomena such as immigration and globalization. This has led to a more pluralistic Western society, richer in the coexistence of cultures and nationalities and, essentially, more diverse. For obvious reasons, the impact of these phenomena is reflected in the religious map of the different European states (Doe 2011). This translates into not only the consolidation of new beliefs, but also the emergence of new practices, rites, and different forms of religiosity that, on occasion, can clash with the established order, giving rise to situations in which either the rights of others or the collective interest may be threatened (S. Ferrari 1998).

One of the practices that highlights this situation of confrontation is the use of religious symbols, particularly dynamic ones. This situation is particularly noticeable in two specific areas: when obligations in the workplace prevent the wearing of such symbols and when the rules of schools prohibit the wearing of clothing with a marked religious character. Belgium is no exception. As we will explain below, we are referring to a country whose diversity is one of its defining characteristics. The presence of different religions is easily noticeable not only in public spaces, but also in any type of center or institution that can be visited, with the significant number of people who profess Islam being particularly noteworthy. In recent years, it is the wearing of the headscarf that has been generating the most controversy (Brems et al. 2017) among legal professionals and, for obvious reasons, among the courts of justice, as the questions raised have often required the intervention of the courts.

Without wishing to go into too much detail in this introductory section, and by way of current examples, we can cite the controversy that arose last June in Schaerbeek, one of the 19 communes surrounding the city of Brussels, when two Muslim students wearing headscarves were banned from taking to the stage to receive their graduation diplomas at the Émile Max high school. The reason for this was the express prohibition contained in the school’s internal regulations. Acts of this nature, as we have said, have aroused the anger of the Muslim community, with the repercussions reaching the political class. The various political forces have sought to position themselves around the conflict arising from the use of these symbols, in some cases gaining the trust of the electorate. Thus, parties such as Team Fouad Ahidar, which are absolutely committed to the rights of minorities, particularly the Islamic minority, have managed to gain representation in some local councils where these minorities represent a high percentage of the population. This is the case in the Brussels-Capital Region, where, as we will see later, the foreign population figures are particularly significant. In these locations, parties such as Team Fouad Ahidar have not only advised allowing such symbols in public spaces, but have even proposed, as a measure to alleviate the shortage of teachers in community schools, that Muslim teachers who wear the veil be allowed access to the education system.

In Flanders, as in other European states1, the situation is quite different. In the last decade, and even before, most schools have opted to ban the headscarf as a way of guaranteeing neutrality in community education imposed by the Belgian Constitution of 1831 (hereinafter CB1831). This decision inevitably affects the religious freedom of those who wish to continue wearing this type of clothing and, ultimately, their schooling, as the debate is more relevant than ever in light of recent events. The two most recent developments, the European Court of Human Right (ECHR) ruling in Mykias v. Belgium on 9 April 2024, in which the court finds that it is lawful to ban the Islamic veil as a sign of respect for state neutrality, and the attempt by the Provincial Council of East Flanders to eradicate such symbols, clearly demonstrate this. For this reason, after conducting research at the Faculty of Law of the University of Leuven and detecting this discussion, which is not only social but also legal, we considered it appropriate to focus on what has happened in recent months in education in Flanders. To this end, we will analyze community educational principles, the concept of neutrality that is being asserted, and, of course, both the regulatory provisions and the jurisprudential decisions related to our subject of study.

2. Background and State of the Affair in Europe: A Comparative Vision

2.1. Problem Statement

In recent decades, we have seen how the use of certain religious garments linked to Muslim tradition has become a major challenge for the authorities in different European countries. Among these challenges are problems identifying those who wear full-face veils (burqa and niqab). This is closely related to the authorities’ obsession with safeguarding security within their borders (Mazzola 2005; Howard 2012).

For this reason, this type of symbol is widely regulated in European countries. France was the first to ban them in 2010, followed by Belgium in 2011, Bulgaria in 2016, and Austria in 2017. In 2018, the Netherlands and Denmark decided to ban garments that cover the entire face and prevent people from being identified. Switzerland approved the same measure in 2021 following a referendum, and Portugal has taken the same decision in 2025. Germany deserves special mention, as there is no general ban, but since 2017, restrictions have been in place for judges, military personnel, and other civil servants. In Italy, as in Germany, there is no national legislation, but there are regional regulations, such as Delibera 4553 of 10 December 2015 (Delibera 4553). Thanks to this regulation, garments such as the burqa and niqab were banned in hospitals, town halls, and other public spaces in Lombardy.

However, the issue of Islamic religious symbols does not end with the full veil. There are other types of garments, such as the hijab, which do not conceal the identity of the wearer, but still raise questions about the protection of women’s dignity and rights. This is another aspect that has not gone unnoticed (Vakulenko 2012). In this scenario, we find two opposing positions. On the one hand, there is the right to religious freedom of those who have freely decided to wear the veil. On the other hand, there is the dignity of those who do not decide freely and wear these garments as a result of imposition.

2.2. Islamic Veil in European Education

In addition to questions about women’s safety and rights, there is a third dilemma that we could add to the previous two. We are referring to the insistence of some states on preserving the principle of neutrality (A. Ferrari 2005). This attitude generally translates into the adoption of a series of solutions (regulatory and jurisprudential) aimed at suppressing these types of symbols in public buildings and spaces. Public educational centers are, as we will see below, one of the locations that best represent this trend. For all these reasons, in the following section, we will devote special attention to analyzing the problems that arise when the use of the Islamic veil conflicts with the requirement of neutrality emanating from national constitutions. Since France amended its education code in 2004 to ban conspicuous religious symbols in primary and secondary schools (Ciáurriz 2009; Félix Ballesta 2004), other European states have introduced a series of measures that limit the use of such symbols and, therefore, the right to religious freedom of those who wear them, in order to preserve the neutrality of the state.

France is particularly combative when it comes to the Islamic veil, an attitude that it seeks to impose even in sport2. As we mentioned earlier, Law 2004-228 of 15 March turned classrooms in French public schools and high schools into spaces where the religiosity of students and teachers has no place. The measure, although unsuccessful, attempted to be extrapolated to other locations such as the vicinity of these centers, imposing the same ban on mothers when dropping off and picking up their children (Valero Estarellas 2016). To reinforce this ban, just nine years later, in 2013, the “Charter of Secularism” was approved. It is a decalogue displayed on the walls and doors of the country’s public schools, consisting of fifteen principles that reflect what is meant by secularism in the field of education. It specifies which actions are not permitted on the grounds of students’ religiosity in order to preserve the constitutional principle of Article 2 of the Constitution. To this end, and also with regard to education, the latest directive (August 2023) was to prevent the use of certain items of clothing not only for Muslim women, such as the abaya, but also for men, such as the qamis. This measure was described by the then Minister of Education, Gabriel Attal, as “necessary and fair, taken in the name of secularism”3, and was endorsed by the Council of State on 7 September of the same year. According to this body, the ban on this attire “does not seriously and illegally undermine the right to respect for private life, freedom of worship, the right to education, and respect for the best interests of the child or the principle of non-discrimination,” since its use is part of a “logic of religious affirmation” that exceeds the atmosphere of neutrality that should prevail in French public spaces.

In the same line as France, Austria has also taken steps to ban the Islamic headscarf in schools. At this point, we would like to recall that Austria recognizes different denominations such as the Catholic Church, certain evangelical communities, the Orthodox Church, Islam, the Jewish Community, and other minority religious groups4. This recognition grants the status of public law corporations and, at the same time, several privileges such as the collection of ecclesiastical taxes and the possibility of teaching religion classes in public schools. Despite this, the Lower House of the Austrian Parliament (Nationalrat), on 11 December, approved a rule that will prevent girls under 14 years of age from attending class wearing the hijab5. This controversial decision has been strongly criticized by groups close to the Islamic community and human rights defenders. Its adoption, as pointed out by Austria’s Minister for Integration and Family, Claudia Plakolm (Austrian People’s Party, ÖVP), is due to the need to “protect minors from the repression they suffer for religious and cultural reasons.” The new rules even provide for the imposition of administrative sanctions in the form of fines. Furthermore, these new guidelines are not limited to action against the veil. They also tighten the requirement to attend compulsory integration programs for three years, under threat of cutting social benefits, and provide for blocking accounts and banning Islamist influencers. In fact, this is not the first time this issue has made headlines in Austria. In December 2020, the Austrian Constitutional Court declared unconstitutional (on the grounds that it was discriminatory against Muslim girls) the measure that sought to impose this same ban, approved for 2025, on girls under the age of 10.

In neighboring countries, such as Germany, where certain denominations are also granted the recognition of public law corporations6, some authorities, like the Minister of European Affairs of the Land of Hesse, Manfred Pentz (Christian Democratic Union, CDU), have expressed their desire to establish a rule similar to that of Austria. In Pentz’s words, “in Germany, we should seriously consider adopting this regulation”7. He argued that it is common to see “very young girls wearing veils” and that this may be due to “pressure to conform in certain environments or the attitudes of the families themselves”. At a time when some regions such as Hamburg are beginning to introduce the formula of contractual governance, introducing accommodations in certain matters as a way of responding to the needs and integration of religious minorities (Körs 2019), the opinion of the Minister of European Affairs in Hesse may seem anachronistic, especially if we take into account the importance of the negotiations at the local level that are taking place in Germany, with very successful concrete results, such as the process that concluded with the opening of the first Christian–Muslim kindergarten in Gifhorn, in the north of the country. This solution not only puts an end to the economic and infrastructure problems for Muslim communities to found this type of center, but also values dialog with religious authorities and its benefits for effective integration (Emmerich 2022). But the reality is different in some states in southern and eastern Germany, where the governors consider the “Austrian model” a way to address integration while responding to social concerns about religious symbols in public schools8. Apart from the possibility to stablish a general ban in German education, restrictions on the full veil have been recognized in some states such as Rhineland-Palatinate, Hamburg, and Bavaria, which have banned its use in public educational spaces. This measure also applies in countries such as Denmark and the Netherlands,

Finally, it should not be forgotten that Germany has a long tradition of jurisprudence regarding the Islamic veil when it is worn by teachers. In September 2023, the German Federal Constitutional Court (Bundesverfassungsgericht), in the historic Ludin case, ruled that a general and absolute ban on the wearing of the veil by teachers was not admissible without a specific state law on the matter. This decision led several German states to enact their own specific laws on the matter. However, the Federal Constitutional Court wanted to preempt this trend. In March 2015, as a result of the ban on headscarves for teachers in North Rhine-Westphalia, this court ruled that general bans on the wearing of headscarves by teachers in public schools were unconstitutional. These prohibitions could only be imposed if it could be demonstrated that the veil caused a specific disturbance or “a threat to peace in the school”. The court emphasized that privileging Western Christian values (e.g., allowing Christian habits or symbols but banning the hijab) infringed the Bonn Basic Law (German Constitution). Despite this ruling, we must also mention other judgments such as that of the Berlin Labor Court in May 2018. This court ruled that Berlin’s Neutrality Act (Neutralitätsgesetz, published in 2005) provided the basis for preventing teachers from displaying symbols or any clothing that manifested their membership of a particular religious community during their working hours. However, in August 2020, the German Federal Labor Court (Bundesarbeitsgericht) ruled that a general ban on wearing the Muslim headscarf at work “disrupts freedom of religion”, the exercise of which is protected by Article 4 of the German Constitution. This decision was upheld in January 2023 by the German Federal Constitutional Court in line with the March 2015 ruling. For this reason, in March 2023, the Berlin Senate Department of Education (Senatsbildungsverwaltung), after imposing the neutrality law for almost 20 years, was forced to send a circular letter to all public school directors in Berlin. The circular letter stated that the Berlin government would no longer enforce the law of neutrality with regard to symbols worn by Muslim teachers in public schools. The general ban on religious symbols (in force until then) was thus lifted. This measure could only be reinstated “in cases where there is a specific threat to school peace or if it jeopardizes the neutrality of the state”.

Finally, there are other educational models, such as that of Spain, where there is currently no constitutional basis for prohibiting such symbols. This is mainly because educational institutions do not have the competence to legislate on actions that form part of fundamental rights such as religious freedom. In fact, in March 2013, the Supreme Court invalidated municipal ordinances in some municipalities in Catalonia that sought to ban the full veil for this reason. Even so, there are schools that prohibit the Islamic veil in their internal regulations. This has recently been the case in some schools in Malaga and Logroño. Unfortunately, this leads to a situation of uncertainty for the rights of the girls and their families, with the final decision resting with the school directors. This situation is very similar to the educational model in the United Kingdom, especially after the High Court of Justice ruling in March 2007, which recognized the legality of prohibiting a 12-year-old Muslim girl and a teacher from wearing the full veil during classes. At the same time, the Court argued that each school had full autonomy to establish internal regulations on school uniforms that had to be complied with. During that same year, the British government regulated school clothing in educational institutions, agreeing that the management of each school would have the power to decide whether the use of the Islamic veil would be an obstacle to the safety or academic education of students. Along these lines, David Cameron said that in the United Kingdom, people should be free to wear the symbols they deem appropriate, which is why there is no rule prohibiting the wearing of the Islamic veil; respect for religious freedom takes precedence over prohibitions (Llorent-Bedmar et al. 2023).

In November 2025, the rules on school uniforms in the UK have been revised to preserve the provisions of the Human Rights Act (1998) and the Equality Act (2010). Thus, the website of the Department of Education of the Government of the United Kingdom indicates how the Equality and Human Rights Commission, with the support of the Racial Equality Unit, has published guidelines on the prevention of discrimination on the basis of religious dress9. Based on what is stated on the aforementioned website, “schools should consider that some religions and beliefs require their adherents to conform to a particular dress code or otherwise outwardly manifest their belief. This could include: wearing or carrying specific religious artifacts; not cutting their hair; dressing modestly or covering their head”.

In addition, “schools should be sensitive to the needs of different cultures, races, and religions, and act reasonably to accommodate these needs without compromising important school policies, such as safety or discipline. Most religious requirements should be able to be met within the school uniform policy, and the governing board should act reasonably, through consultation and dialogue, to accommodate them”.

However, just as schools are called upon to be sensitive to religious clothing and symbols, it is also noted that limitations and restrictions on the use of such clothing may occur if there are reasons that warrant it. The text states that “when a school has good reasons to restrict a person’s freedoms—for example, to promote cohesion and good order in the school, or for genuine reasons of health, safety, or security—restricting a person’s rights to manifest their religion or beliefs may be justified”.

2.3. Islamic Headscarf in the Council of Europe

The European Convention for the Protection of Human Rights and Fundamental Freedoms was signed on 4 November 1950, in Rome, thanks to the efforts of the signatory states, all of them members of the Council of Europe, to guarantee rights and freedoms in post-war Europe. In addition to its importance in terms of the wide range of rights recognized at such a delicate time for the European continent, the convention stands out for the creation of an original system for the protection of recognized rights, the European Court of Human Rights (ECHR) based in Strasbourg. This is a system to which citizens would have access once all domestic avenues for the protection of fundamental rights had been exhausted. Although in the early years the Human Rights Commission acted as a filter for cases to be resolved, in order to judicialize the system and streamline proceedings, since 1994 the court itself has been responsible for resolving all cases received at the ECHR headquarters.

In terms of religious symbols, the ECHR has established a consolidated line that has rarely allowed variations. Cases such as Dahlab v. Switzerland in 2001 (Ciravegna 2012), Layla Sahin v. Turkey in 2006 (Relaño Pastor and Garay 2006; García-Pardo 2009), and Kervanci v. France in 2008 are some of the first rulings in which the ECHR ruled on the use of the hijab in public spaces. All of them had a common component: they considered the restrictions imposed on the use of the veil in public schools to be necessary in order to preserve public neutrality. To this end, the Strasbourg court recognized that banning religious symbols could constitute an interference with the right to religious freedom, but justified it with two arguments: the margin of appreciation that states have, determined by the rules of their domestic law (Martín Sánchez 2014), and the proportionality of the measure adopted. That is, if situations beneficial to the community arise from this alleged interference, the measure causing this interference must be considered proportionate. Today, more than twenty years later, the ECHR continues to issue rulings that remain faithful to the jurisprudential line set by the first cases. The ECHR ruling Mykias v. Belgium of 9 April 2024, is a good example. All the above allows us to identify two key aspects. The first is that education is precisely one of the areas with the longest tradition within the court, where the discussion is most deeply rooted. The second is that for the ECHR, the principle of neutrality continues to prevail over the religious freedom of Muslim students.

This type of solution validates the policies of states that prohibit the veil in schools, and not only in these locations, but also in other public spaces. This is the case of the ECHR rulings that recognize the legitimacy of bans on the full veil in countries such as France and Belgium10. This is the judgment in the case of S.A.S. v. France, of July 2014, declaring the ban on the full-face veil in France to be in accordance with the law. The same court, in July 2017, endorsed the arguments used in the case of S.A.S. v. France in the judgments Dakir v. Belgium and Belcacemi et Oussar v. Belgium, in relation to the Belgian legislation that prohibits these symbols (Casuscelli 2017; Camassa 2018).

Regardless of the interpretation of the ECHR, it is worth highlighting the work of the Council of Europe in relation to the debate on the use of the Islamic veil in public spaces. Among these, we would like to emphasize a document that is not recent, but whose guidelines continue to play an essential role. This is Parliamentary Assembly Resolution 1743, from 2010, “Islam, Islamism and Islamophobia”. Enacted at the height of radicalization in European countries, the Council of Europe sought to warn of the dangers of prejudice and the suppression of the rights of the Muslim community, as these could lead to discrimination on religious grounds. One of the most notable aspects was the suppression of religious symbols. It should be noted that this was the moment when France banned the full veil and most of the surrounding countries considered implementing similar policies. In this sense, recital number 15 of the document11 wanted to value the freedom of women who wish to use this type of symbol, in contrast to the general tendency to conceive of it as a symbol contrary to the dignity of women. In addition to discouraging the establishment of general prohibitions in recital 16, the Parliamentary Assembly warned that the suppression of this type of garment may cause Muslim women to only interact with their relatives or members of the community in their homes or private spaces, which may cause obvious situations of uprooting and integration difficulties. To this end, states are urged to place special emphasis on avoiding discriminatory situations at their different educational levels. This implies eliminating any stereotypes that may arise as a result of the use of these symbols12.

3. Governance and Religious Diversity in Belgium

3.1. Demographic Aspects

The consequences of factors such as immigration and globalization on Western societies are one of the characteristics that best define Belgium. Furthermore, the reality of Belgium shows us that it is perhaps one of the best examples, at least in Europe as a whole. Its geographical location, embodying the meeting point between Latin and Germanic Europe, has contributed significantly to the multicultural character of its society. This situation can also be considered the trigger for its diversity, not only linguistic but also cultural. Currently, there are four regions that make up the country’s territory. In the north, there is the Dutch-speaking region of Flanders; in the south, the French-speaking region of Wallonia; the Brussels-Capital Region, made up of the capital and the 19 communes surrounding it; and finally, the small German-speaking community in the east, right on the border with Germany.

Regarding to its population, there is one factor that undoubtedly influences the formation of its social structures: migration. Belgium has a large immigrant community, as evidenced by data presented in June 2025 by Statsbel, the national statistics office. This data shows that approximately 36% of the country’s inhabitants were of foreign origin at the beginning of 202513, which represents a significant increase (15%) compared to the measurement taken twenty years earlier, in 2004. The data provided varies depending on the region. As the portal itself points out when publishing the survey, “in general, one in five Belgians is of foreign origin. The lowest percentage is in Flanders, at 17.1%, rising to 25.2% in Wallonia and reaching 40.8% in the Brussels-Capital Region. The proportion of non-Belgians in the Flemish and Walloon regions is around 11%. In the Brussels-Capital Region, the figure is 37.2%.” In light of the data, the situation in the Brussels-Capital Region is particularly relevant, where only 22% of the population are Belgian citizens without foreign ancestry.

The percentages we mentioned above suggest that, in terms of religion, the melting pot of beliefs and conceptions presents us with a pluralistic and essentially diverse picture that corresponds to the data we have just reproduced. This situation can be seen more clearly in locations with the highest number of immigrants. In fact, there is some evidence to support this assertion. As can be gleaned from the latest edition (2023) of the report periodically produced by the US State Department on religious freedom in the world14, according to KU Leuven sociologist Jan Hertogen, 24.2% of the population of the capital, Brussels, and 7.5% of the population of Belgium’s most populous city, Antwerp, are Muslim. According to the 2023 edition of the report, we can say that Belgium has a large Catholic majority (57.1%), which contrasts with a very high percentage of non-believers, atheists, and agnostics (30.1%). The rest of the population is divided between a significant following of Islam (6.8%), the various evangelical denominations (5.7%), Buddhism (0.3%), Judaism (0.3%), and other beliefs not specified in the study (0.5%).

3.2. Law and the Religious Factor

This religious diversity described by official data must be reconciled with the system of religious freedom and recognized religions established by the CB1831. In this system, although CB1831 does not expressly recognize the separation of public power and religious denominations, or even state secularism (Vázquez García-Peñuela 2023), no religion can be conceived as the state religion. On the contrary, Article 20 states that the authorities cannot compel citizens to participate in religious ceremonies specific to a particular denomination, nor to observe days of rest15. The autonomy of religious denominations is also recognized, with the State undertaking not to interfere in the appointment and designation of ministers of religion16. What CB1831 does recognize and guarantee is freedom of worship, with the limitations and precautions that derive from the possible abusive use thereof. This is stated in Article 19, which “guarantees freedom of worship, its public practice, and the freedom to express one’s opinion on all matters, but crimes committed when exercising that freedom may be punished.”

It is also worth noting the support provided to ministers of recognized religions, as provided for in Article 1831 of the CB. 188.117^., a practice that the framers of the Constitution also provided for representatives of philosophical, non-denominational organizations18^.. The aim is to equate them, at least in economic terms, with the representatives of these organizations appointed by religious denominations. However, before all this, it is worth asking which religions are considered recognized in Belgium, as this recognition is a sine qua non requirement for the Belgian State to proceed with funding (Wattier 2014). Since 1802, as a result of being under French law, the Catholic and Protestant religions have been recognized19. In 1870, through the Law of 4 March on the secular property of religions, this status was extended to the Anglican Church and the Jewish Community. A century later, in 1974, the Islamic religion was recognized, and in 1985, the Orthodox religion was recognized, through amendments to the Law of 1870. Finally, on 17 March 2023, the Committee of Ministers agreed to approve by law the recognition of Buddhism, although not as a religion, but as a non-denominational philosophical organization.

In this initial section, it should also be noted that Article 11 CB1831 establishes the principle of equality and non-discrimination in the country20 and that regulations such as the 2007 Anti-Discrimination Law combat not only certain forms of discrimination, but also hate speech. The objective is none other than to grant special protection to a series of characteristics, among which, fortunately, is the religiosity of individuals.

Regardless of the advantages in relation to the financing of ministers of recognized religious denominations, these denominations obtain free airtime on public radio and television (known as le droit à l’antenne). As Torfs points out, although radio and television have become regional matters since 1964, this has not prevented the Flemish, French, and German public broadcasting systems from offering airtime to recognized religious groups. It should also be noted that denominations considered to be recognized religions have the possibility of appointing army and prison chaplains, whose salaries, as one might imagine, are paid from the general state budget (Torfs 2015).

In addition to the privileged status of recognized religions in the areas mentioned above, other aspects that reflect the impact of religiosity on Belgian society should be noted. Thus, Belgium’s permanent and widespread diversity, and the sensitivity of the public authorities to this reality, has led them to adopt a series of measures aimed at preventing situations of integration that, at the same time, act as barriers to possible situations of discrimination on religious grounds. Perhaps the workplace is one of the sectors where the consolidation of new beliefs, and with them, their rites and practices, has become most evident. In this regard, it is appropriate to refer to the concept of reasonable accommodation. This concept emerged from the field of disability in the second half of the 20th century to protect the labor rights of people with disabilities, but in recent decades, it has spread to other sectors, such as labor disputes arising from religious grounds. In Belgium, Article 20.5 of the Law of 3 July 1978 on Employment Contracts sought to maintain the provision that already appeared in its predecessor, the Law on Employment Contracts of 11 March 1900, which, in our opinion, contains a positive assessment of the religiosity and acts of worship of employees. This article, which must be linked to the provisions of the Anti-Discrimination Act of 10 May 2007 (Hendrickx 2022), imposes on the employer “the obligation to grant the employee the time necessary to fulfill his or her religious obligations, as well as the civil obligations imposed by this law.” Thus, we would agree that Belgium’s legislation could be considered ahead of its time. Moreover, we might ask ourselves (albeit rhetorically) if, at the beginning of the 20th century, it already showed the necessary sensitivity towards employees and their religious practices, how much more appropriate it is, in the current circumstances, to continue to emphasize the application of this precept. The answer seems obvious.

However, despite the provisions of the contract law, it should not be forgotten that reasonable accommodation is not an obligation for the employer (Woehrling 1998 and Seglers Gómez-Quintero 2004). It should be remembered that, although the principle of equal treatment and the 2007 anti-discrimination legislation exclude discrimination on the grounds of religion in labor relations, there is no obligation on the employer to take measures to enable employees to fulfill their religious obligations, especially if the measure implemented to achieve this could affect the normal running of the company’s business.

Although so far we have only referred to the employer–employee relationship, this formula is also applied in the public sector (Bribosia et al. 2011). Generally, the most common example is the granting of public holidays. Traditionally, and as a result of its religious tradition, official holidays are marked by those on the Catholic calendar. This does not prevent the Federal Government, the Government of the Walloon Region, and some provinces and municipalities in Flanders from extending the rights to obtain personal leave for religious holidays to civil servants and public employees belonging to religious denominations included among the so-called recognized religions.

More controversial is the use of religious symbols in the workplace in public spaces. This was highlighted in one of the latest rulings of the Court of Justice of the European Union on this matter, handed down on 28 November 2023, which denied a Muslim employee of the City Council of Ans, in Wallonia, the right to wear a veil while performing her duties in the workplace. It should be remembered that, thanks to Belgium, we have a unique event: in March 2017, in the Achbita case (Bankel 2017), the Court of Justice of the European Union referred for the first time to the ban on the Islamic veil in workplaces (Leal Adorna 2023).

In addition to the above, and given the (constantly) growing diversity of Belgian society, reasonable accommodation cannot be limited to the concessions provided for in labor legislation. There are other areas where the concept of accommodation could be applied. In fact, this is already the case, mainly in public institutions and bodies such as prisons. In such centers, Muslim and Jewish inmates may request meals that exclude pork products. This ensures that meals can be prepared in accordance with one of the fundamental prohibitions of Islamic and Jewish dietary laws, although they cannot demand Halal- or Kosher-certified food from such public bodies. It should be added that it was not until 2020 that Muslims and Jews were forced to stop slaughtering animals in accordance with their religious rites21, without the need to comply with the general obligation of prior stunning (Valencia Candalija 2019, 2021)22.

4. Religious Diversity Management in Education

4.1. General Considerations

Before analyzing the religious issue in Belgian education, it is necessary to remember that Belgium is a federal system in which educational powers are transferred to the communities23. For this reason, these powers are managed by the country’s different linguistic communities. In Wallonia, the Wallonia–Brussels Federation; in Flanders, the Flemish Community; and the German-speaking Community in the east of the country. In all three, there are up to three types of schools: those belonging to the free education network, which are privately run, generally religious, and not subsidized by the state; schools known as “official community schools,” which are managed and subsidized by the different communities; and “official subsidized schools,” which are managed and financed by the provinces of each of these communities.

With regard to the regulation of education in the constitution, it is essential to note that Article 24.1 CB1831 states that “education is free; all preventive measures are prohibited; the punishment of crimes is regulated solely by federal law or state law.” The second paragraph establishes that “the community offers parents free choice.” The third paragraph ensures that “the community organizes education that is neutral. This implies, in particular, respect for the philosophical, ideological, or religious beliefs of parents and students.” The principles of legality, freedom of education, and neutrality of education are thus established in Belgium. The fourth paragraph of Article 24.1 then states that “schools administered by public authorities offer, until the end of compulsory education, the possibility of choosing between the teaching of one of the recognized religions and the teaching of non-denominational ethics.” This necessarily implies that it is possible to choose religious education in any of the recognized religions and any of the non-denominational ethics, such as Buddhism or Buddhism, which have passed the state acceptance filter. This education is financed by the communities since, as we have announced, education is the responsibility of the communities and, secondly, education is free until the end of compulsory schooling. At the same time, Article 24.3 states that “everyone has the right to education with respect for their fundamental rights and freedoms. Access to education is free until the end of compulsory schooling.” This decision leads us to conclude that community budgets must also cover the financing of religious education in private schools (Loobuyck and Franken 2011).

However, managing religious diversity in education does not end with the recognition and funding of religious education. We could also cite some examples of accommodation in the field of education. As can be seen in the document Reasonable Accommodation beyond Disability in Europe, published by the European Commission in 2013, in 2003 the Flemish government, through a decree published in 2003, authorized nursery and primary school pupils to take a day off to celebrate “in accordance with the philosophical beliefs of the pupil recognized by the Constitution.” In Wallonia, on the other hand, students tend to resort to ad hoc measures. This was the case in December 2008, when the Muslim holiday of Eid al-Adha (Feast of Sacrifice) coincided with the exam period in primary and secondary schools. Practices in schools in the Brussels region varied from one school to another: some agreed to postpone exams by one day, sometimes even organizing a pedagogical day on that date. Others asked students to justify their absence on family grounds, in strict application of school regulations24.

As far as higher education is concerned, it is worth highlighting the particular sensitivity of some public universities to the beliefs of their community. This is an exemplary trend that other higher education institutions would do well to emulate. Students, teachers, and other members of the university community not only study, work, research, and teach, but also have religious feelings, beliefs, and needs derived from these. This dual role, as university student and believer, is undoubtedly shaped by the recognition of the fundamental right to religious freedom. However, the symbols of this freedom are not always well accepted by the administrative rules governing these institutions. Faced with this type of situation, one of the most traditional European universities (celebrating its 600th anniversary this year), KU Leuven, located in the heart of Flanders, has chosen to focus on respect and care for its religious diversity. This giant of European academia has been able to connect with its human capital, opening its doors to pluralism, integration, and respect for the beliefs of its members. Thus, in an effort to make the institution’s facilities feel like home, it has implemented a series of accommodation mechanisms, including the possibility of rescheduling exams or tests due to incompatibility with weekly rest days or religious holidays, the allocation of certain spaces for prayer or medit, and the permission of dynamic religious symbols, whose recognition is particularly highlighted on the website dedicated to the philosophical and religious diversity of the aforementioned university25.

The accommodation of religiosity in higher education can also be seen in the French-speaking region of Wallonia. At least, in the will of its leaders. In January 2021, regional authorities sought to follow in the footsteps of KU Leuven, reacting to the ruling of 81/2020 of June 4 by the Belgian Constitutional Court. The court had ruled that the ban on wearing religious symbols in place at the Haute École Francisco de Ferrer university centers26, based in Brussels, did not disturb students’ right to religious freedom (Wattier and Vanbellingen 2021). One of the main reasons for this was based on the principle of neutrality in public education. In response to this decision, in January 2021, the Wallonia–Brussels Education Council (WBE), the organizing authority for public education in the Wallonia–Brussels Federation of Belgium, sought to promote the possibility of reversing the concept of neutrality derived from CB1831. In this regard, with a view to the publication of a new regulation by the federation, the aim was to introduce a new decree that would come into force in September of the same year, at the start of the academic year. This would be a more pluralistic decree, committed to inclusive neutrality, seeking to prevent any student from being excluded from educational structures simply because they wear religious symbols of identity. Julien Nicaise, general administrator of WBE, stated the following in the local media: “We are reversing the principle, in the name of the inclusion of the greatest number, of emancipation and the fight against inequalities.” He added that restrictive measures would only be adopted with regard to religious symbols “in cases where security is threatened or for reasons of hygiene”. In Nicaise’s words, “the general interest must come first. We can no longer refuse these young women on the pretext that they wear a veil, prevent them from studying. A diploma is their passport to inclusion through employment”.

Despite the passing of the years, as we have learned from the Legal Support Service of the French Community Ministry, the draft decree in question is currently under consultation with the organizing authorities and trade unions. The Government of the Wallonia–Brussels Federation has approved, at first reading, a draft decree aimed at clarifying, strengthening, and harmonizing the application of the principle of neutrality in all establishments within its jurisdiction. As stated in the press release Principe de neutralité dans les écoles: “Un contenu unique et une neutralité d’apparence”27 published on 20 October of this year by Mouvement réformateur (MR), the majority party in the government of the Wallonia–Brussels Federation, “the draft decree merges the provisions of the Basic and Secondary Education Code relating to neutrality, which were previously classified separately between organized education and officially subsidized education. This harmonization, justified by the similarity of the existing texts, seeks to simplify the legal framework and make the obligations relating to neutrality clearer and more understandable for all educational actors.” In this regard, the new decree seeks to establish “neutrality in the appearance of the staff of these establishments, prohibiting the use of visible religious symbols. This measure also extends to CPMS, boarding schools, and outdoor centers dependent on these centers.” But at the same time, it reaffirms “neutrality in the transmission of knowledge and avoids the tendency toward self-censorship among teachers: classes must be taught objectively, while guaranteeing students’ freedom of expression.” In short, the draft decree provides a ban on wearing visible religious symbols for all staff in establishments where the principle of neutrality applies (official, organized, and subsidized education, as well as free non-denominational education adhering to it). This applies to all staff (teachers, administrators, teaching staff, administrative staff, workers, cooks, paramedics, and interns) in schools, CPMS, boarding schools, and outdoor centers within these networks. Teachers of religion and ethics are exempt, exclusively within the framework of their courses. Any item of clothing or accessory that expresses a political, ideological, philosophical, or religious conviction or identity is considered a visible sign of conviction.”

This is therefore a ban on wearing religious symbols for teachers and other staff in public schools, but not for students, who, as can be seen, are guaranteed their right to freedom of expression. In our opinion, if the draft bill is approved in the near future and published in the Moniteur Belge, there would be nothing to prevent Muslim students from wearing the hijab in the federation’s network of schools. Although we do not have the original text of the draft bill, the political statement issued by the Walloon Community on 11 July 2024, Avoir le courage de changer pour que l’avenir s’éclaire28, states on page 14 that the future law “will prohibit the wearing of religious symbols by all teachers in the public compulsory education system, with the exception of religion teachers.”

4.2. Educational Principles of the Flemish Community

Despite the examples given above, which in principle represent a positive sign for young Muslim women, as in other areas such as the workplace, we can say with certainty that the Islamic veil remains one of the most significant challenges to diversity. As we said at the beginning of our paper, what is happening in schools in Flanders is the best proof of this. The latest decisions on this matter by the ECHR and the attempt by the province of East Flanders to eradicate this type of symbol from public schools attest to this. With regard to school policy on the right to wear the headscarf, the position of Saïla Ouald-Chaib, coordinator of the Human Rights and Migration Law Clinic at Ghent University, is quite clear. This author states that of the 134 schools (located in the main Flemish cities), 81.29% (113 schools) clearly stated that they prohibit the use of the veil29, and only 17.14% (24 schools) stated that its use is permitted in their school (Ouald-Chaib 2024).

As education in Flanders is one of the core aspects of our work, we have decided to devote an entire section to it. This section includes certain content that must be present, in particular that set out in the educational project published by the GO! Council on its website30.

Among its guidelines, there are four fundamental principles: values, learning to live together, active citizenship, and equal opportunities for all. If we begin our analysis with values, we must point out that there are six that preside over the GO! educational project, interaction, commitment to the environment, openness to other cultures and opinions, equal opportunities, honesty, and respect for people who are different, which inevitably involves the elimination of prejudice in the classroom. These values must be connected with those that, in our opinion, are of particular interest to our work: learning to live together and active citizenship. Both items refer to neutrality, but it is understanding how to live together that sheds more light on the controversial concept of neutrality. In the section on active citizenship, the website merely states that “in the GO! project, active citizenship plays a central role in making ‘learning to live together’ a reality. Neutrality is our starting point, as it is a prerequisite for enabling coexistence based on equality. Equality is a prerequisite for shaping democratic coexistence.” It was therefore to be hoped that the project would be more explicit in its description of the objectives of learning to live together. On this point, it is noted that “since 1989, GO! has meticulously fulfilled its mission of providing neutral education, as enshrined in its constitution. Over the years, the meaning of the term ‘neutrality’ within GO! has broadened. The diversity of our society has evolved into superdiversity, which creates tensions and poses new challenges for our educational institutions. That is why we are now transforming neutrality into active neutrality. Neutrality at GO! means that we do not favor any particular position. No philosophical, ideological, or religious conviction predominates; all are of equal value. There is no such thing as “absolute truth.” Furthermore, dialog entails responsibilities. Young people are given space and are not required to take the truth for granted. We teach them to encourage openness, making it clear that those who participate in the dialog speak on an equal footing and respect each other, but at the same time also have the right to demand respect from others, in reciprocity, for its part, with regard to active citizenship.

Finally, we would also like to refer to the Decree on Equal Opportunities in Education of 28 June 2002, which, according to Article 1.2, applies to regular and special primary education and secondary education, including full-time regular secondary education, special secondary education, apprenticeships, and part-time vocational secondary education, financed or subsidized by the Flemish Community and school guidance centers. We consider it crucial to note the objectives of this decree, detailed in Article 1.3 following the amendment made to the text of the decree in September 2012. These objectives play a hermeneutic role in the interpretation of the various provisions. According to the wording of this section, the provisions of this decree must be interpreted in the light of the prevention of exclusion and discrimination31 on the one hand, and the promotion of coexistence and social cohesion32 on the other. However, at the end of the wording of the objectives, it is clarified that “the rights established in this decree must be exercised while respecting the fundamental freedoms of the school, in particular the right to develop its own educational project and its own school regulations, the interests of the school community, and the right to education of each student.” In this way, this final note establishes the primacy of the educational project, the ideology, and the regulations over individual rights. This situation could inevitably affect the exercise of students’ right to religious freedom.

5. The Ban on the Islamic Veil in Education in Flanders

5.1. The Judgment of 9 April 2004, of the ECHR, in the Case of Mykyas and Others v. Belgium)

The main issue in the case of Mikyas and Others v. Belgium concerns the scope of the principle of neutrality and its application in education in Flanders. This principle was established by Article 24.1 of the CB1831 in its third paragraph. Fundamentally, the case sought to clarify whether the neutrality imposed by the GO! Council’s regulations on religious symbols violated the plaintiffs’ right to religious freedom and, therefore, Article 9 of the Rome Convention.

Among the factual circumstances that gave rise to the dispute, one stands out in particular: the refusal of the Flemish education authority to allow the wearing of the Islamic veil in public schools under the jurisdiction of the community. On 11 September 2009, the Official Education Council organized by the Flemish Community (GO! Onderwijs van de Vlaamse Gemeenschap, hereinafter GO!) decided to extend the ban on wearing visible religious symbols and clothing to its entire school network. This measure was to be applied to all teaching activities with the sole exceptions of religion and non-denominational ethics classes. Among the reasons given by GO! for promoting this strategy are, first and foremost, the conclusions of the Diversité working group of 23 November 200433; the right to legality imposed by Article 24 of CB1831 on education34; and the right to freedom of expression, conscience, and religion as democratic principles. It also takes into account that the use of certain religious symbols “can create segregation, not only between schools, but also between students in the same school; that the Council intends to combat segregation based on visible signs of belief”.

On the other hand, in the rationale for this new trend in education in Flanders, it was also stated that “the right to religious freedom is compromised when the use of certain religious symbols is presented as an obligation, thus creating discrimination between those who wear these symbols—whether or not they are followers of the religion in question—and those who do not”. As GO!’s document mentioned, students who refused to support religious symbols or dress could be considered inferior by those who wanted to use them. For this reason, it was necessary to avoid putting unacceptable pressure on them, forcing them to wear a religious symbol. Further, the text of the document added, “whereas one of the fundamental principles of the GO! educational project is precisely the acceptance of the equal value of all people; Considering, furthermore, that the wearing of religious symbols is sometimes imposed only on members of one sex, which is irreconcilable with equality between men and women, which is also one of the fundamental principles of a democratic society; Whereas, after carefully weighing the various rights and freedoms, both against each other and in light of the GO! educational project, the Council has concluded that the ban on wearing symbols of belief in GO! establishments contributes to the defense of constitutional freedoms. The above considerations, in particular those relating to moral pressure and influence on the choice of school and studies, can only be effectively supported by such a ban, that this does not in any way affect religious freedom, but is intended to protect it”.

Following GO!’s decision, the Raad van State (Council of State), in various decisions, questioned the legality of the ban on Islamic headscarves in schools. Specifically, on 18 March 2010, the Council of State decided to suspend the measure approved by GO! on 11 September 2009, and to refer a preliminary question to the Constitutional Court. This ruling should be viewed in conjunction with other rulings issued by the same body in the same vein during 2010. Particularly significant was the ruling of the General Assembly on 21 December, in which the Council of State sought to clarify that the imposition of the principle of neutrality in community education under Article 24 of CB1831 should not be confused with state secularism. As was added, in Belgium, the separation between religious denominations and the state is not absolute, as evidenced by the funding of recognized religions and non-denominational philosophical entities. Another particularly illuminating example, closely related to the subject of our work, is the possibility that all these recognized organizations (religious or ethical–non-denominational) have a place in community education and, moreover, are subsidized by the community budget.

For its part, the Constitutional Court, as a result of the preliminary ruling requested by the Council of State, referred in its analysis to a concept of neutrality that was less rigid than that which could be inferred from the GO! guidelines. It was a flexible concept that even sought to highlight elements that are crucial to Belgian society, such as diversity. Judgment 40/2011 of 15 March stated that “the principle of neutrality implies, for the competent authority, not only an obligation of abstention—in the sense of a r prohibition on discriminating, favoring, or imposing philosophical, ideological, or religious convictions—but also, in certain circumstances, a positive obligation, derived from the freedom of choice of parents guaranteed by the Constitution, to organize community education in such a way that the positive recognition and appreciation of diversity of opinions and attitudes is not compromised.” Despite this dynamic concept of neutrality, the ruling stated that the text of Article 24 CB1831 did not prevent the GO! Council from imposing a general ban on students wearing visible signs of belief in Flemish schools. This allowed the GO! Council to approve Circular 2013/1/omz on 1 February 2013, which definitively prohibited the wearing of visible religious symbols in schools in Flanders.

The application of the aforementioned circular meant that, in some cases such as those at issue here, some students found themselves at a crossroads, having to give up wearing symbols of identity in order to continue attending classes. This is the case of the three plaintiffs in the case at hand. Two of them were students at the Ateneo (secondary school) in the municipality of Maasmechelen, in the province of Limburg, and the third student attended secondary school at the Nikola Tesla Institute in the same town. These are three young Muslim women who, despite the general ban, wished to continue wearing their headscarves. They also considered that the 2013 circular violated their right to religious freedom, which led their parents to file a lawsuit before the Court of First Instance of Tongeren in the spring of 2017. In a ruling dated 23 February 2018, that court declared the 2013 circular inapplicable, but a year later, following an appeal filed by GO!, the Antwerp Court of Appeal, in its judgment of 23 December 2019, did not uphold the ruling of the court of first instance, reinstating the validity of the circular prohibiting religious symbols.

The Antwerp Court of Appeal understood that its application was based on respect for the principle of neutrality that must prevail in the country’s education system. To this end, it referred to a series of incidents detected in various educational centers in the community, so much so that the Antwerp court’s ruling went so far as to state that “incidents in community educational centers have shown that open pluralism is not up to the challenges posed by increasing religious diversity in society. The use of religious symbols has led to public disturbances and group pressure.” In view of these circumstances, the court’s ruling argued that “noting that the GO! is part of the constitutional requirement of neutrality in community education, on the one hand, and that it aims to safeguard parents’ free choice of school, on the other, the Court considers that pupils can be expected to make concessions in terms of expressing their religious beliefs through the use of signs of conviction in order to protect these constitutional values and to remove such signs when they are in a school context”. It added that “if parents choose for their children a community school, which, in accordance with the Constitution, must be neutral and respect the parents’ free choice of school, they can be expected to point out to their children that life in such a school community implies a certain reserve on the part of each individual in the affirmation of their own religious identity, which justifies the prohibition of wearing signs of conviction in the school context”.

These social tensions and pressures referred to by the Antwerp court were one of the triggers for the ECHR ruling. While the government argued that the use of symbols such as the Islamic veil and the support of Muslim groups for the plaintiffs had caused disturbances that affected the neutrality that should prevail in community education, the plaintiffs denied that these claims corresponded to the reality of the facts, but rather that everything was part of a community strategy to prevent the enrollment of minors. In any case, government sources understood that the ban on religious symbols was an appropriate measure for achieving a legitimate aim. In the words of the ECHR, “this application of the principle of neutrality makes it possible, in particular, to guarantee equality between pupils and to protect them from the pressure that could be exerted on them both by classmates who wear visible signs of their beliefs and by their own families”. The government also used as an argument the decisions of the ECHR in similar cases in other countries such as France, Turkey, and Switzerland35, where secularism is one of the essential characteristics of the relationship between public authorities and religious denominations operating in the national territory.

In addition to the conflicting positions of the plaintiffs and the Belgian government, it is necessary to refer to the involvement of a third party, the Human Rights Center at Ghent University and the Equality Law Clinic at the Université Libre de Bruxelles. Above all, the Ghent center has been publishing reports36, and a Muslim advising women for years on wearing the headscarf in their workplaces or schools has led to a problem that required the intervention of the courts37. This research center also wanted to express its position on the application of the principle of neutrality. Firstly, it stated that neutrality is not included in the Rome Convention itself among the elements that could limit the fundamental rights of minors and, secondly, that the supposed neutrality that Flemish education seeks to establish is considered to be a requirement that should be imposed on teachers and other public education workers, as part of the institution, but not on individual students. It supports this latter reasoning with a judgment of the ECHR in the case of Hamidović v Bosnia and Herzegovina of 5 December 2017. Thus, in the intervention recorded as the third party in the case in question on 25 May 2021, it is argued that in paragraph 40 of the aforementioned judgment, “the Court stated that—in democratic societies—private citizens are normally not under a duty of discretion, neutrality, and impartiality. Instead, the focus is on the public service as such (including religious signs in buildings, etc.) and on the behavior of public servants. Hence, “we submit that when restrictions on the Convention rights of pupils are argued to be necessary in the name of neutrality, the conventionality control should carefully establish whether such restrictions are necessary in light of a real threat to the rights and freedoms of others.”

In addition to the previous aspects, another feauture that the Ghent center wanted to highlight was the convenience of facing the analysis of the case from the point of view of intersectionality. We would like to remember that intersectionality is a concept coined by Kimberlé Crenshaw, in her 1989 article “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics”, and reiterated in her 1991 article “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color”. Following Crenshaw, we could say that intersectionality is an analytical framework that examines how different social categories (gender, race, class, disability, sexual orientation, etc.) intersect and interact, creating unique experiences of oppression, privilege, and discrimination, where a person does not suffer from just one form of inequality, but rather a combination that reinforces itself and is not simply the sum of its parts. This concept, in our opinion, is crucial to understanding that disadvantages are not isolated, but rather reinforced. In Bouchard and Meyer-Bisch’s words, “the absence of an intersectional approach of inequalities and oppressions can lead to a lack of attention for the least privileged members of a marginalized community, and to inadequate redress for the human rights violations they suffer (Bouchard and Meyer-Bisch 2016).”

Concerning the appreciation of this concept and its consequences for Muslim girls who wear the veil in Belgium’s public schools, researchers from the Human Rights Center at Ghent University and the Equality Law Clinic at the Université Libre de Bruxelles understand that “their gender, age, religion and race interact in a way that places them in a unique position and subjects them to a variety of vulnerabilities at all levels of society. Legal analyses that artificially limit their cases to the religious aspect consequently ignore the ways in which headscarf bans in schools impact Muslim girls not just based on their religion, but on its specific intersection with their gender, age, religion and race”. Moreover, they added that “United Nation Human Right Council embraced such an analysis in no less than four decisions on individual communications. It has explicitly found that bans on head coverings do indeed constitute a form of intersectional discrimination based on gender and religion”. Finally, the intervention of the third party echoes some judgments of the ECHR in which the court itself appreciated the relevance of intersectionality38.

All that remained was the decision of the ECHR, which recognized that the ban on Islamic headscarves for minors constituted a violation of their right to religious freedom and, therefore, an interference with the exercise of the right guaranteed by Article 9 of the Rome Convention. However, for the court, this interference is carried out in accordance with a legal norm, such as the provisions of GO!, pursues a legitimate aim, such as ensuring the neutrality of community education, and ultimately is qualified as necessary to achieve the proposed aim. In its reasoning, the court maintains that both the parents and the children were aware of the ban in community centers and could have chosen another type of public center, such as provincial centers, but still preferred to enroll the children in Flemish centers. It even comments on the differences between teachers and students with regard to the application of the principle of neutrality. It points out that “although the former are symbols of authority for the latter and, as such, may be subject to restrictions on the expression of their convictions”, as already ruled in aforementioned judgements39. Finally, the ECHR makes use of the controversial argument of the margin of appreciation. It thus indicates that, given the margin of appreciation of the States, the neutrality sought in the education organized by the Flemish Community may require “a school environment in which pupils are not required to wear religious symbols. The Court has repeatedly emphasized that pluralism and democracy must be based on dialog and a spirit of compromise, which necessarily implies that individuals must make various concessions that are justified in order to safeguard and promote the ideals and values of a democratic society […]. Therefore, the contested restriction can be considered proportionate to the objectives pursued, namely the protection of the rights and freedoms of others and public order, and therefore necessary in a democratic society”.

The ECHR’s decision has been criticized by authors close to Muslim youth groups. This criticism mainly concerns the refusal to enroll these young women in school, due to the shortage of schools in Flanders with regulations that allow this type of symbol (Ouald-Chaib 2024) and the possible discrimination they face. Paradoxically, this is something that the ruling seems to avoid. For his part, Gupta points out that what the ECHR intends to validate as a neutral measure pursuing a legitimate objective ultimately leads to a clear situation of discrimination (Gupta 2024). According to the author, this is a clear case of indirect discrimination, but one that ultimately proves detrimental to education and development. To this he adds the inadequate treatment of intersectionality. As Gupta points out, intersectionality posits that individuals often face multiple, intersecting forms of discrimination simultaneously. In the context of this case, an intersectional analysis would have recognized that the ban’s impact on Muslim girls cannot be understood solely through the lens of religious discrimination. Instead, it needs an examination of how religion intersects with gender, age, race, and ethnicity to create a unique and often more severe form of disadvantage. For instance, young Muslim girls from minority ethnic backgrounds may face a triple burden: discrimination based on their religious practices, gender-based expectations and limitations, and racial or ethnic prejudices. The ban on religious symbols might exacerbate these existing vulnerabilities, potentially leading to increased social isolation, reduced educational opportunities, and heightened psychological stress. By failing to adopt an intersectional approach, the Court overlooked these compounded disadvantages, potentially underestimating the true extent of the ban’s discriminatory impact. In her opinion, the Court did not meaningfully address the complex interaction of multiple factors that contribute to the discriminatory impact of the ban on visible religious symbols. This oversight not only detracts from the thoroughness of the Court’s analysis, but also fails to reflect the evolution of the concept of discrimination in contemporary legal and human rights discourse. This circumstance had already been denounced in the intervention as a third party, by The Human Rights Center at Ghent University and The Equality Law Clinic at the Université Libre de Bruxelles.

5.2. The Attempt to Ban Religious Symbols Through School Regulations for the 2025–2026 School Year in the Province of East Flanders

On 30 April 2025, following the abstention of the coalition government partner, the socialists of Vooruit, and the decisive vote of the far-right nationalist party Vlaams Belang (Teirlinck 2025), the Provincial Council of East Flanders approved the common text of the school regulations for the 2025–2026 school year and, at the same time, the repeal of the Provincial Council resolution of 26 June 2024. These regulations were set to come into force just a few months later, on 1 September 2025.

The aforementioned regulation sought to regulate all aspects of the education of minors in provincial schools, including those related to religious education and, in particular, the protection of the principle of neutrality. In fact, the introductory section of the regulation stated first and foremost that “Provincial education is part of the official education system. We live in a diverse society, and everyone is welcome in provincial education. We stand for neutral, high-quality, and affordable education that responds quickly to the challenges of today and tomorrow”. Later pages added that “Provincial Education offers neutral, high-quality, and affordable education that responds flexibly to contemporary developments and regional characteristics.” This allowed us to predict that the issue of neutrality would play a relevant role, but not to the extent of posing an insurmountable obstacle to certain symbols and garments of a religious nature. Thus, Article 3.9 of the text approved at the end of April stated that “provincial education is conducted in an atmosphere of philosophical neutrality. Badges, symbols, or clothing that detract from this, that may be offensive or hurtful to others, or that express political or religious beliefs are therefore not permitted during all educational activities, both inside and outside the school. You will wear appropriate attire that takes these principles into account. The prohibition of philosophical symbols does not apply during classes on philosophical subjects. If a controversy arises in connection with your appearance or dress, the Director or his delegate will decide whether or not it is appropriate”.

With this regulation, we encounter a new dimension of neutrality, unknown until now. We have seen many differences in the application of neutrality and its meaning in the educational context, but we were unaware of this concept of philosophical neutrality, especially as it may affect the conceptualization of religion in provincial schools. From the outset, the regulation places religious garments on the same level as all offensive or hurtful garments, on the understanding that they undermine the neutrality that the province’s schools seek to impose. Furthermore, this type of clothing is prohibited, not only within schools, but also in their immediate vicinity (as in France with the prohibition of the abaya and the qamis). There is only one exception: such symbols may be worn during religious education classes, that is, for any of the religions that the Belgian state considers to be recognized cults. Finally, we would like to highlight a circumstance that we believe to be very significant: the full powers granted to directors (or their delegates) in matters of this nature. This makes these individuals ultimately responsible for determining whether or not a religious symbol affects neutrality, and they are therefore the ones who would have to make decisions that could affect the right to religious freedom of minors.

It is true that all religious symbols, regardless of their religious origin, were prohibited. However, when it comes to visible religious garments, the headscarf was substantially singled out. For this reason, the approval of the regulation was not well received by the Islamic community. This was mainly because, as far as we could ascertain, the measure affected hundreds of Muslim minors enrolled in schools belonging to the province’s education network. One of the places where the unrest had the greatest impact was the Richtun Campus in Ghent, where approximately 700 students are enrolled. Of these, at least 100 are Muslim girls who usually wear headscarves to class. This created uncertainty for the month of September. If the regulation had come into force, these girls would have had to choose between their right to religious freedom and their right to education. They would have found themselves at a crossroads with two possible solutions. Either they would have had to accept the regulation and continue studying at their original schools, or they would have had to enroll in schools in other provinces of Flanders or Wallonia where such religious symbols were not expressly prohibited. Some teachers expressed concern that some girls might even drop out of school. For this reason, a group of teachers and parents wrote a letter to the Provincial Council in an attempt to prevent the measure approved at the end of April from ever coming into force (De Liever 2025).

After months of rumors and uncertainty, just one month before the start of classes on 24 July, the Minister of the Interior and Coexistence of the Community of Flanders, Hilde Crevits, decided to annul the regulation approved in April because, according to community sources, the regulation had been approved with certain procedural flaws in its processing. Apparently, the problem was that the educational groups and agents involved, such as school boards and parents’ associations, had not been given a hearing. In fact, the annulment of the regulation was not determined ex officio, but was preceded by a complaint filed by a group of 130 people. In a statement issued in early June 2025, it was warned that, in addition to procedural flaws, the regulation “led to discrimination on the basis of religion and gender”. Everything seemed to indicate that the Provincial Council would appeal the annulment of the regulation, but, against all odds, just one week later, First Deputy Kurt Moens announced that the province would not appeal the decision of the Minister of the Interior and Coexistence. As reported by Vrt News, an appeal on procedural issues would only serve to delay a process that, ultimately, would only affect Muslim girls, the main victims of this controversy. This has allowed religious symbols to continue to be used in schools in East Flanders during the current school year, but this does not mean that the debate is over. As Moens himself stated, the Provincial Council’s intention is to resume the ban on the Islamic veil in an attempt to definitively eradicate it from provincial schools (Verstichel 2025).

6. Conclusions

As we have seen, the ban on the Islamic veil in Belgium, in general, and in Flanders, in particular, continues to be a topical issue. This is the reason behind this paper, which has sought to analyze the two most recent developments in the conflict between the right to wear the veil as an exercise of religious freedom and school neutrality as a limit imposed on the recognition of that right.

In our opinion, the conflict will continue to make headlines in newspapers, doctrinal discussions, and heated political debates. Fundamentally, this is because, in light of what has been analyzed, there is a concept whose meaning is not entirely clear: that of neutrality. With what happened in Flanders, and despite the explanatory efforts of the GO! Council, we have observed how, within the same province, different courts (the Court of First Instance of Tongeren and the Court of Appeal of Antwerp) have different concepts of the neutrality that should prevail in community education. The Council of State is clearly in favor of not using neutrality as a weapon against the use of the Islamic veil, unlike the highest interpreter of the Constitution, the Constitutional Court, which, since 2011, has been issuing rulings in which the use of the legitimate purpose argument ends up relegating the Islamic veil to a discreet background.

In general terms, we could point out that it is precisely the weighing of the principle of neutrality that is one of the issues most difficult for us to conceive. Fundamentally, with the interpretations emanating from the courts, the neutrality that seeks to be imposed seems more typical of other legal traditions—traditions in which the separation between politics and religion is the starting point of possible relations with religious denominations. This is the case of France, the secular state par excellence. The Separation Act of 1905 turned religion and the state into a kind of enemy that, theoretically, has difficulty reaching conciliation. It is already difficult for us to assume that in a State where laicity is an essential value of the legal system, it intends to enforce this principle at the cost of prohibitions (such as those referring to religious symbols). This type of attitude entails the violation of the right to religious freedom of the students. Even so, we can come to understand that if what is intended is to establish a real separation from the religious, suppressing the symbols may seem a reasonable option to political authorities, even if only as a formula for justifying the system.

But in Belgium, in our opinion, the concept of laicity and the application of neutrality (which obviously affects public education) should be different. It is strange in a country whose system is not only different from that of separation, but, on the contrary, is one of those that can be considered multi-confessional. This implies that, due to the social function that religious conceptions perform, the public authorities conceive the religious phenomenon positively. The consequence is the attribution to these religious conceptions of a privileged legal regime and a system of advantages and benefits that go beyond the purely economic. In this sense, two conclusions could be drawn: firstly, it is incongruous to grant Islam the category of recognized worship, to subsidize it, and to remunerate its ministers of worship, while understanding that its iconography and symbology are threats to the neutrality of the State; and, secondly, this neutrality that it seeks to impose on itself seems exclusive. Of course, it is far from the inclusive and accommodating formulas that are seen in other areas.

We would like to pause at this point to observe the parallelism with the so-called Austrian model. In reality, there are few differences between the Austrian system of church–state relations and that of Belgium—only the category given to confessions. In Belgium we speak of recognized cults and in Austria of public law corporations. But, in reality, the consequences (and, above all, the advantages) for religious denominations of the two types of recognitions are very similar. Despite this, as we have anticipated, in Austria, just a few days ago, the prohibition of wearing the headscarf for Muslim girls under 14 years of age has been approved. As in Flanders, the Austrian authorities have chosen to introduce prohibitions on the use of the Islamic veil (and Islam is one of those confessions that enjoy the status of Public Law). This leads us to appreciate that the trend is uniform, bad times are predicted for the veil, and there is no better proof than the conception of Belgium and Austria. Countries that have a positive conception of religion have not yet normalized the use of this type of garment in public spaces. A way of proceeding that, in our opinion, reopens the debate on the so-called symbolic borders (Koening 2023). This is a dilemma brilliantly addressed by Koening and which, in our opinion, illustrates, in a significant way, the divergence between legal recognitions and the circumstances that, despite these recognitions, continue to oppose the full integration of religious groups such as Islam.

In addition to these general conclusions, we would like to draw some specifical conclusions about the two main objects of our work. Regarding the first, the ruling in the Mykias case, we are aware that following the June 2020 ruling by the Constitutional Court, given that the circumstances of the specific case were similar, the ECHR had little room to issue a ruling different from the one adopted. Even so, our analysis of the ruling leads us to believe that there are factors that have not been taken into consideration. At the federal level, at the beginning of our work, we referred to the 2007 legislation prohibiting discrimination on religious grounds. We have also devoted many lines to the neutrality in education promoted by Article 24 of CB1831. However, precisely at the EU level, there are guidelines that, in our view, could have played a much more prominent role than the ECHR ruling shows. GO!’s educational project, its values and principles, and the decree on equal opportunities in education in Flanders are values created to prevent situations such as those denounced by the ECHR at the end of its ruling. Pressure on minors, social tension, and unrest in educational environments are incompatible with the values and principles promoted by GO! on its website. Furthermore, this type of incident is precisely the consequence that these values and principles seek to eradicate from the sector. In line with all this, we also mentioned the position of the minor plaintiffs and their respective families, who were fully convinced that, in reality, what the schools wanted was for them not to enroll. This assertion places us in a very different scenario, one that is even more negative for the minors. If this hypothesis were confirmed, it would mean that the community authority would be violating not only the religious freedom of the three minors, but also a key element in their development: their right to be educated on equal terms, without religion being a factor in discrimination.

If we apply everything discussed in the previous paragraph to the Flanders regulation, we can agree that the consequences of attempting to ban religious symbols by modifying school regulations are not far removed from what we warned about in the ruling. In this case, it is much more pressing, as we have been able to witness firsthand and take into account certain information that echoed the uncertainty of the families. The possibility of having to look for schools in places other than their own province loomed large over these families. That was the only alternative to being able to continue wearing the veil in class. This situation affected hundreds of girls throughout the province and, in the end, according to the Flemish Minister of the Interior and Coexistence, it was resolved due to procedural errors. In our opinion, the short time between the approval of the regulation (end of April) and the start of the academic year (September) did not allow the provincial authorities to find viable alternatives to the need to withdraw from schools in East Flanders. In order to avoid a generalized exodus, the political authorities have preferred to maintain the situation as it was until this academic year and to study new regulations for the 2026–2027 academic year. Our opinion is confirmed by the Provincial Council’s refusal to appeal the annulment of the new regulation. This approach by both administrations, at least for this academic year, has given greater weight to the importance of the right to education over the demands of neutrality.

We do not know whether this temporary balance will be extended into the future. What we are sure of is that the debate will continue. The provincial authority has merely postponed the final decision on the matter, which means we will have to wait until the future to know the final outcome of this crossroads. In the meantime, and based on our experience, we can only wait to see if this situation takes the right path, that of solving the problem. We are aware of the risks of diversity and how difficult it can sometimes be to reconcile it with the neutrality of democratic societies. But it is no less true that Flanders is a wonderful land, endowed with unique opportunities, where (personally) we do not perceive religious pluralism as a problem. We trust that, if answers to religious conflicts have been found through accommodation in other sectors, the authorities can draw the lines that will allow this type of action to be transferred to the educational sphere. This is a reflection that is more than a wish and can only bring benefits to democratic societies.