The burkini in German legal discourse: individualised integration, belonging, and the role of the state

ABSTRACT

This article uses critical discourse analysis to examine how the German legal system ruled on a case about coeducational public-school swimming lessons and burkini-wearing from the court of first jurisdiction through the country’s supreme court. It asks: How do the judiciary’s decisions construct, maintain, or reproduce the notion of what it means to belong in Germany and, by extension, how is integration marked through individual participation in activities that are defined as culturally significant? Scholarship on the burkini is limited compared to other forms of Islamic dress. The article helps to rectify this imbalance by indicating how legal discourse about the burkini marks group boundaries and manages difference within society. The analysis suggests that the concept of integration is applied to individual bodily practices in educational contexts and burkini-wearing, in particular, as a way of validating a gendered form of sociopolitical belonging with the burkini framed as a compromise. The findings show how a garment designed to meet the needs of Muslim women is recontextualised by the courts as a physical expression of German liberalism and tolerance even as the guidelines for when and how it is worn remain at the direction of the state and thus, limit individual agency.

KEYWORDS:

• Legal discourse
• Islam and veiling practices
• integration
• politics of belonging
• Germany

1. Introduction

What does it mean to be German? This question was put to the test when the German state of Baden-Württemberg introduced an exam designed to assess allegiance to liberal-democratic values as part of federal statutory requirements regarding naturalisation (Orgad 2009). It asked among other things: ‘In Germany, sport and swim classes are part of the normal school curriculum. Would you allow your daughter to participate?’ (Wulff 2006). The question is telling in its sentence construction and the importance it places on naturalisation applicants adhering to specific social norms, such as coeducational physical education in public schools. The adjective ‘normal’ (normal) implies that to answer in the negative would be considered extraordinary, at best and at worst, contrary to German norms and values, while an emphasis on gender signals concern for women’s rights. Moreover, it reflects the ‘moral panic’ that has often characterised concerns about Islam in Germany (Prantl 2010; Shiffauer 2006, 94). In fact, the thirty-question exam was initially only given to migrants from Organisation of Islamic Cooperation member countries or those ‘appearing to be Muslim’ (Orgad 2009, 725). As immigration continues to transform German society, such questions are manifestations of the state’s need to maintain sociocultural boundaries as part of the politics of belonging and point to a ‘precise, racialized understanding of proper Europeanness that continues to exclude certain migrants and their descendants’ (El-Tayeb 2011, xii). They are also indicative of the institutionalisation of individualised integration, or the requirement of immigrants, especially Muslims and those from non-Western backgrounds, to ‘demonstrate their personal integration through cultural participation’ (De Waal 2021, 105; Schinkel 2017).

In this article, I show how judicial decisions frame coeducational swimming lessons in public schools as a site where such cultural participation is required of school-aged Muslim children, particularly girls. Specifically, I seek to understand how the court validates a specific form of sociopolitical belonging in which the concept of integration is applied to bodily practices in an educational context. As such, the main questions this paper seeks to address are: How do judgments construct, maintain, or reproduce the notion of what it means to belong and, by extension, how is integration marked through individual participation in activities that are defined as culturally significant? In order to answer these questions, I employ critical discourse analysis to examine judgments from different levels of the German court system, ranging from the court of first instance to the country’s highest judicial authority, the Federal Constitutional Court. All of the analysed discourse stems from a case brought to court by a secondary school pupil and her parents after the school’s principal denied her request to be exempted from mandatory coeducational swimming lessons due to her religious beliefs, in part, because the school allowed full-body burkini swimsuits to be worn.¹ The plaintiff likewise lost all of her appeals, including at the supreme court, as the judiciary framed the burkini as an acceptable compromise between conflicting constitutional rights. The article proceeds as follows: I first review the case itself and contextualise it within key rulings by German courts on Islamic dress in schools and recent legislation on German integration and naturalisation policy. Next, I provide a brief methodological overview before providing an in-depth analysis of how the court’s rulings can be understood through the theoretical lens of the politics of belonging and recent work on integration in the European context with a focus on how the German state seeks to govern Islam. As scholarship on the burkini is limited compared to other forms of Islamic dress in Europe, the empirical findings of this article contribute not only to how legal discourse acts to mark the boundaries around specific groups and manage difference within society, but also adds to scholarship on how the veil is framed and regulated by nation-specific narratives (Korteweg and Yurdakul 2014; Rosenberger and Sauer 2012).

2. Context and methods

2.1. The case in context

The dispute at the heart of the case at hand began when the principal of a high school (Gymnasium) with a diverse student body in Frankfurt am Main rejected a student’s request to not attend coeducational swimming lessons due to her religious beliefs.² The student was a Muslim, who was born in Germany, but had also lived and attended school in Morocco. At the time of the initial request, during the 2011–2012 school year, her fifth-grade class was scheduled to attend coeducational swimming lessons as a mandatory part of the physical education curriculum. The student’s parents submitted an application for an exemption based on their belief that the Muslim faith forbids such lessons due to clothing regulations. They made clear that the objection was not to swimming itself. They welcomed participation in gender-separate swimming lessons and coeducational physical education classes, generally. To support their request, a handout from a legally-registered organisation (eingetragener Verein) listing two passages from the Qur’an and information from Islamic scholars was included with the parents’ application. The principal rejected the application arguing that the student’s conflict of conscience was not adequately documented. He questioned why the student, unlike other Muslim girls at the school, was unable to wear a burkini. The parents objected. They countered that such swimwear was neither possible nor reasonable, and cited a Federal Administrative Court decision that affirmed that if a school could not offer gender-separate physical education classes, then students should be exempted for religious reasons if they or their parents request it (BVerwG, Judgment of 25 August 1993–6 C 8/91). However, the State Education Authority for the City of Frankfurt am Main agreed with the principal and argued that the student had not provided a viable ‘special reason’ in accordance with the Hessian School Act of 2005 for the exemption (§ 69 Abs. 3 HSchG). The student appealed the decision at the lowest court for administrative jurisdiction (i.e. the Administrative Court of Frankfurt am Main) arguing that she had a right to freedom of conscience and thus, in denying her request, the principal and State Education Authority had acted unlawfully. As a result, while the student participated in regular, coeducational physical education classes wearing a headscarf, tunic, and pants, she did not attend swimming lessons and consequently received a failing grade for that portion of the course. She also did not learn how to swim.

The State Education Authority’s reasoning set the stage for how the case would be viewed by the courts. They affirmed the need to balance between the constitutional right of the individual to religious freedom with that of the state to administer education. This is the foundational conflict at the root of the case as both are guaranteed by the Basic Law in Article 4 and 7, respectively (§ 4 GG; § 7 Abs. 1 GG). The case was made that the state’s educational mandate included socialisation, and coeducation was viewed as a necessary part of this process. The constitutional rights of the parents in Article 6, and their corresponding religious rights were also noted (§ 6 Abs. 2 S. 1 GG; § 4 Abs. 1 GG). The state educational authorities concluded that the rights afforded in the Basic Law could only be guaranteed if the student participated in coeducational swimming lessons in a burkini. They reasoned that irrespective of what the student or her parents said, the garment fulfilled religious regulations regarding clothing in Islam and its availability nullified the Federal Administrative Court’s earlier decision to allow exemptions.

The framing of the burkini as a compromise is indicative of the underlying tensions in legal regulations regarding religion in schools and forms of Muslim head and body coverings in Germany. While the German state is secular and religiously neutral, it also allows for religious symbols and expressions in public space, including schools. ‘Positive neutrality’ accommodates religion and understands state support as fostering religious freedom (Haupt 2012; Stepan 2011). However, this approach has led to inconsistencies, especially regarding Islam (Rostock and Berghahn 2009). For example, while Article 7 of the Basic Law (§ 7 Abs. 3 GG) mandates the inclusion of confessional-sectarian religious instruction in public schools less than half of the federal states currently offer classes on Islam,³ in part, because until 2013, no Muslim religious communities had achieved the special legal status of public corporation (Körperschaftsstatus) required to do so (Barb 2019; Krämer 2013).⁴ Yet even as the principle of ‘positive neutrality’ has enabled the development of Islamic religious education, instructors wearing Islamic dress remains contested. For example, following the Federal Constitutional Court’s 2003 decision to allow teachers to wear headscarves in schools (BVerfG, Judgement of the Second Senate of 24 September 2003 2BvR 1436/02), half of the states adopted legislation prohibiting religious expression by teachers, including through clothing. Items of a Christian or Occidental nature, like the Roman Catholic nun’s habit or the Jewish yarmulke, were exempted by those states, such as Hessen, where the case analysed in this article originated, which instigated a ‘Christian-Occidental’ model of regulation (Berghahn 2012; McGoldrick 2006). Thus, while the federal courts have tended to expand the rights of minorities by subordinating the rights of the state in favour of the individual’s right of conscience (Joppke 2009; Klusmeyer and Papdemetriou 2009), such gains have also been stymied by the view that Judeo-Christian symbols and values are cultural expressions while those associated with Islam should be managed under the rubric of state neutrality (Vakulenko 2012).⁵

Although Germany’s definition of state neutrality embraces religious difference, it also ‘understands itself as a secularised product of Christianity’ (Baldi 2021, 77). As a result, the law must not only contend with the question of veil-wearers’ constitutional right to religious freedom versus state neutrality, but also the right of others to ‘negative religious freedom’ (die negative Glaubens- und Bekenntnisfreiheit).⁶ The latter has a long tradition in German constitutional jurisprudence as support for those rights outlined in the Basic Law are seen ‘as values sometimes requiring positive state action’ (Caldwell 1996, 264). Cases about veiling highlight the tension between ‘positive’ and ‘negative’ religious freedom, including debates about liberal-democratic values and questions of civic or sociocultural integration. For example, in 2015, the Federal Constitutional Court split over whether states could ban teachers from wearing headscarves with the majority agreeing only if a legal basis could be proven (i.e. that a teacher’s religious expression through clothing or conduct constituted a specific danger) and the minority arguing that an abstract danger was a justifiable reason to ban the garment in order to protect parental rights and students’ negative religious freedom (BVerfG, Judgement of the First Senate of 27 January 2015 1 BvR 471/10, 1 BvR 1181/10).

The need for the court system to balance conflicting constitutional rights, results, in part, from an acknowledgement that Germany is an increasingly diverse and pluralistic society as a result of immigration (Böckenförde 2009). While these concerns have a long history in German politics, they have become more pronounced with increased immigration since 1955, reunification in 1990, the introduction of jus soli principles in citizenship regulations in 2000, and integration legislation in 2016; with the latter’s premise to ‘support and challenge’ (Fördern und Fordern) tying integration regulations to government benefits.⁷ Notably, between 2015 and 2017, the federal government accepted over 1.3 million new applications for asylum, including over 500,000 from children under the age of 18 as part of the ‘migration crisis’ (BAMF 2018; Eurostat 2018). These developments have brought attention to the issue of German identity, the ways in which it is constructed, maintained, and reproduced, and the role of the state in the integration process.

As articulated in the country’s national narrative of belonging, national identity discourse continues to emphasise homogeneity along with the principles of state neutrality and gender equality (Korteweg and Yurdakul 2014) – key sociocultural values assessed in the naturalisation exam question which began this article. However, scholars argue that as an ideologically-informed political practice, such discourse systematically institutionalises discriminatory practices aimed at certain migrants and their descendants (Ha 2010; Ha and Schmitz 2006). By framing German society as the unmarked norm upholding liberal values regarding gender and sexuality (Castro Varela and Dhawan 2016; Lewicki 2018), discourse about the integration of migrants rearticulates ‘the racialized profile of national belonging … into a more acceptable modern form’ based upon perceived sociocultural difference (Ha 2010, 351). As a result, the ‘symbolic border line’ marking inclusion and exclusion also reframes the myth of national homogeneity along these lines (Schmidtke 2008, 96). It is part of an unspoken ‘strategy that relies on a shared iconography’ to denote unbelonging (El-Tayeb 2011, xxvi), in which race is implicitly rather than explicitly referenced in the discursive constructions of migrant identities. Accordingly, terms such as ‘leading culture’ (Leitkultur) and ‘parallel societies’ (Parallelgesellschaften) have entered the political lexicon, particularly among conservatives, and in 2010, Chancellor Angela Merkel declared that multiculturalism, a term heralded by German liberals, had ‘failed utterly.’⁸ Islam has provoked particular attention as ‘integration policy initiatives further sharpened the racialized boundaries of the nation and added a specific focus on Muslim religiosity to the regulatory framework’ (Lewicki 2018, 507). The phrase ‘Islam belongs to Germany’ alone has caused controversy: first, in 2006 when it was uttered by Federal Minister of the Interior Wolfgang Schäuble at the first German Islam Conference, then, in 2010 by Federal President Christian Wulff in a speech commemorating German reunification, and finally, in 2015 by Angela Merkel at a press conference with the Turkish Prime Minister (Detjen 2015). Muslim cultural alterity is expressed especially through the discursive positioning of veiling practices as misogynistic and by extension, the perception that Islam and immigrants, specifically from Muslim-majority countries, pose a threat to what are seen to be a distinctly European set of liberal-democratic values, namely, secularism and gender equality (Hadj Abdou 2017).

National identity discourse is informed by gender (Thomson 2020), in part, because women act as ‘signifiers of ethnic/national differences’ (Yuval-Davis and Anthias 1989, 7), and the significance attributed to Muslim head and body coverings in European public discourse reflects this point. Designed to legitimise exclusion (Hadj Abdou 2017), nationalist discourse about Islamic dress marks and defines the parameters of national identity in terms of gender. This is apparent in the portrayal of Muslims not as citizens, but immigrants and ‘outsiders’ and the way in which veiling practices are singled out to construct ‘a different "Other"—"the" Muslim’ (Ataç, Rosenberger, and Sauer 2012; Kılıç, Saharso, and Sauer 2008, 403). Specifically, the perceived ‘irruption of Islam within European publics reveals new boundaries of exclusion but also public doxas, namely a set of shared secular imaginaries and feminist presuppositions’ (Göle 2010, 110), which, in turn, are reasserted through a new gendered politics of belonging that defines inclusion in terms of specific bodily practices and habitual behaviour (Sauer 2016). References to gender equality, in turn, serve to ‘(re)constitute the nation through demarcating “us” from the “women-oppressing [sic] Muslim immigrants,”’ according to Hadj Abdou (2017, 87). German integration discourse follows this pattern by emphasising gender equality in relation to Muslims and those from non-Western backgrounds. Notably, the integration of Muslim women is a focus of conservative party manifestos (Hertner 2022), part of the Federal Ministry of the Interior and Community-initiated German Islam Conference’s position on gender and sexuality (Amir-Moazami 2011), and the National Action Plan on Integration’s emphasis on self-determination and equal rights. Such political discourse positions Muslim head and body coverings as ‘symbols of disintegration’ (Andreassen and Lettinga 2012, 25); a position also reflected in judicial decisions. For example, the Federal Constitutional Court has described the headscarf as, ‘a political symbol of Islamic fundamentalism that expresses the separation from values of western society such as individual self-determination and in particular the emancipation of women’ (BVerfG, Judgement of the Second Senate of 24 September 2003 2BvR 1436/02, para. 51).

2.2. Research design

The analysis relies upon four judgments, which together represent the opinion of the German judicial system on the case at hand from the initial ruling by the court of primary jurisdiction for administrative justice for the city in which the case originated (i.e. Frankfurt am Main) to the country’s supreme constitutional court. Specifically, the rulings include those made by the following courts: (1) the Administrative Court of Frankfurt am Main (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F), (2) the Hessian Administrative Court in Kassel (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12), (3) the Federal Administrative Court in Leipzig (BVerwG, Judgment of 11 September 2013 - 6 C 25.12), and (4) the Federal Constitutional Court in Karlsruhe (BVerfG, Judgment of the 2nd Chamber of the First Senate of 8 November 2016 - 1 BvR 3237/13 – Rn. (1 - 35)). This selection provides a broad scope as it includes judgments at the local, state, and national level of the country’s court system. As no additional supporting documentation (e.g. amicus curiae) is publicly available for analysis, these four judgments form the corpus, which, in the original German, consists of 18,281 words in total. Prior to a discussion of the results, the following paragraphs further detail the judgment structure and outline the methodology.

Each judgment follows a similar format and contains a headnote, the ruling (Tenor), the substantive facts of the case (Tatbestand), and the legal grounds upon which the court’s decision is based (Entscheidungsgründe). The headnote identifies the case docket number, designated court, judgement date, and, in the case of the Federal Administrative Court and Federal Constitutional Court-issued judgments, the presiding judges. The latter also lists the plaintiff and her legal counsel; however, personally identifiable information about the student and her parents has been redacted in all judgments. The ruling specifies the student’s claim, the court costs, and the provisional enforceability of the judgment. The substantive facts of the case follow with a detailed procedural history and information about the dispute, including the specific claim and relief sought. It establishes how the dispute unfolded, the argument put before the court by the student’s counsel, and does not substantively change throughout the appeal process; however, only the Hessian Administrative Court judgment notes the student was screened for stress-induced depression caused by the case. Next, the court provides a detailed, point-by-point explanation of why the student’s action is admissible, but fails on appeal. This section provides a comprehensive explanation of the court’s decision and as such, reveals how it ultimately balanced conflicting constitutional rights. All the judgments end with a second statement regarding costs and provisional enforceability; and the Federal Administrative Court and Federal Constitutional Court again name the presiding judges. There are no dissenting opinions. With the exception of the headnote, which is distinctly annotated, each judgment is divided into numbered paragraphs. The average length of each judgment is 40 numbered paragraphs.

The analysis was conducted using critical discourse analysis, a politically-engaged and problem-oriented framework defined by the idea that discourse is a form of social practice, which is socially constitutive and conditioned (Fairclough and Wodak 1997; van Dijk 1997). By focusing on the dialectical relationship between discourse and sociocultural practice (Fairclough 2010), this method reveals how power operates through language (Wodak 2011). It allows for the examination of how discourse (re)produces ideological formations – some discriminatory and steeped in prejudice (Martínez Guillem 2018; Reisigl and Wodak 2001) – in order to marginalise the essentialised ‘other.’ Consequently, the approach is particularly well suited to analyse specific types of data like government policy and legal discourse (Blommaert and Bulcaen 2000; Cheng and Machin 2022), as well as topics especially pertinent to this study, including discourses of nationalism and national identities (e.g. Wodak 2018), migration and integration (e.g. Bennett 2018; Griebel and Vollmann 2019), and representations of the ‘other’ (e.g. Baker and McEnery 2019). Positioning texts as situated within multiple social networks, allows for the study of interdiscursivity, specifically, the mixing, transformation, and recontextualisation of discourse across different contexts. Thus, the method aims to expose how these ‘social practices are networked together, the way semiosis relates to other elements of social practices, and features of discourse itself’ (Fairclough 2001, 125–126).

Methodologically, the analysis relies upon a two-pronged approach. After the corpus was assembled, each judgment was inductively studied for repeated statements, phrases, or words referencing the same overarching constructs, which were then collated. This systematic approach allowed for dominant themes and sub-themes, or the most topically salient arguments made in the corpus, to emerge directly from the dataset as a whole. Next, these discursive formations were analysed in terms of wider social discourse and practice. With this in mind, the article now proceeds to a discussion of the results.

3. Results and discussion

The analysis of the judicial decisions indicates that the court sought to balance two conflicting constitutional rights, namely, that of the individual to freedom of conscience and the state educational mandate. A key theme manifested in the corpus is the role of the public school in the socialisation process and the importance of the concept of integration. The latter is also found in political rhetoric and official government policy. The judiciary’s argument on the matter is relatively straight-forward: in the judgments the courts assert that the public school is not an isolated entity; it plays a role in teaching appropriate social behaviour and functions to integrate individuals into German society. Thematic classification resulted from use of the term ‘integration’ (Integration) and its cognates (Integrations-; integrieren), as well as the use of a synonym (einbinden) in the texts. This overarching theme is also evident in the use of terms to mark perceived sociocultural difference. These include, for example: ‘cultures’ (Kulturen) and its cognates (Kultur-), ‘society’ (Gesellschaft), and ‘dissenters’ (Andersdenkenden). While the theme manifest in all four texts, it is particularly salient in the judgments issued by the Hessian Administrative Court and the Federal Administrative Court.

From the main theme of ‘integration,’ three interconnected sub-themes emerged, which further clarify how the judiciary views integration as a function of the public school under the state educational mandate. The discursive sub-themes include: (1) individualised integration, (2) belonging, and (3) the role of the state. These are further expanded and discussed using examples from the texts as follows.

3.1. Individualised integration

The German Federal Ministry of the Interior and Community’s definition of integration stresses the need for immigrants to be given the same socioeconomic and general societal opportunities as others while underscoring that they are required to adapt to the sociocultural reality of life in Germany. It notes that society must provide opportunities for integration, while also clarifying that there is a normative standard towards which immigrants should aim and by which their acceptability and membership in society may be assessed. The approach ‘posits a static object ("society") over against individuals whose being signifies a certain degree of "integration" as an individual-level trait’ and consequently, can lead to the ‘moral monitoring’ of those viewed a priori as ‘outsiders’ (Schinkel 2018, 3). Evidence of this is found, for example, in the unproblematised representation of cultures as discreetly-bounded entities in which groups are demarcated according to their sociocultural attributes. This perspective is not one-sided; both the plaintiff, in making her case before the justices that she should be exempt from swimming lessons on religious grounds (Example 1) and members of the judiciary, in establishing their legal reasoning why she must attend such classes (Example 2), categorise sociocultural difference in terms that delineate social groups and index identity.

1. there is a risk that her classmates would laugh at her and put her in an outsider role, since wearing a burkini is unusual in German culture (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F, para. 18)

2. The Federal Constitutional Court emphasised the importance of the educational goal of the integration of different cultures … This educational goal also requires the plaintiff's presence in coeducational swimming lessons (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, para. 3)

As the examples illustrate, these primarily include general terms (i.e. ‘cultures’) and more specific nomenclature (i.e. German ‘culture’ or ‘cultural complex’ (Kulturkreis)). However, more ideologically-loaded terminology (i.e. ‘parallel societies’) is used, as well. Most notably, the Hessian Administrative Court emphasises that one of the goals of the public school is to foster integration and curb the development of ‘parallel societies’ (Example 3).

3. The general public has a legitimate interest in counteracting the emergence of religiously or ideologically motivated "parallel societies" and integrating minorities. Integration not only presupposes that the majority of the population does not exclude religious or ideological minorities; it also demands that [minorities] do not delimit themselves and engage in a dialogue with people who think differently (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, para 43)

In this example, the court argues against the student’s claim that requiring her to participate in coeducational swimming lessons in a burkini would violate her fundamental rights, instead claiming that ‘the continued encroachment of the plaintiff’s freedom of belief is reasonable given the issues also and especially being pursued through coeducational swimming lessons’ (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, para 42). The court contends that such lessons provide an opportunity to practice ‘lived tolerance’ as part of ‘a school activity that promotes integration, where children from different cultures come together outside of everyday school life and can learn to know and tolerate differences, but also to overcome them’ (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, para 41, 44). The term ‘parallel societies’ has a negative connotation and its use in a legal text, even with the addition of quotations to set it off as potentially problematic, is striking. Overall, its use suggests a ‘massive criticism of migrants’ way of life and includes the demand for cultural assimilation’ (Belwe 2006, 2). It rhetorically ‘appeals to a German sense of unity and portrays German society as a victim’ of a too lenient approach to immigration while simultaneously obscuring the structural mechanisms of marginalisation and exclusion (Ha and Schmitz 2006, 242). Rather than imagining ‘society’ as encompassing multiple ways of being, the term frames integration as a one-way process by emphasising that there can only be one acceptable ‘society’ into which a migrant may integrate. Its recontextualisation in a legal text grants greater legitimacy and acceptability than if the same statement was made by a member of the general public or a politician.

The examples contextualise integration from a dualist approach as a process in which those perceived to be culturally ‘different’ (i.e. immigrants, especially Muslims and those of non-Western backgrounds) are responsible. The court’s statement in Example 3 clarifies that the integration process includes all members of society (i.e. the ‘well-integrated’ majority must not exclude the ‘less well-integrated’ minority). Yet, as these three examples show, the onus is placed on those framed as ‘less well-integrated.’ As ‘outsiders’ they are obligated to provide evidence of their inclination to integrate through personal participation (i.e. through attending coeducational swimming lessons; wearing a burkini; engaging with those who think differently). Thus, while the court reiterates the importance of integrating different cultural perspectives, it is primarily through the actions of the minority that the inclusivity of the majority is indicated. However, in this regard, it should be noted that the judiciary is reiterating the federal government’s emphasis on migrants adapting to life in Germany.

In its judicial summary of the court’s position, the Hessian Administrative Court characterises Germany as a diverse, accommodating, and secular society where a variety of different sociocultural and religious perspectives coexist (Example 4).

4. The integration mandate of the Basic Law requires students to be prepared for an existence in a secular and pluralistic society in Germany where they will encounter a variety of values, beliefs, and behaviours, of which they may personally disapprove (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, headnote 4)

By highlighting the country’s social heterogeneity, the court presents integration as a two-way process, or one in which the host country adapts to the needs of migrants just as migrants adapt to their new environment (Penninx and Garcés-Mascareñas 2016). Also emphasised in the court’s summary is the requirement of public schools to serve an integrative function in society according to the Basic Law. The court argues that social integration is something that the German state oversees (i.e. through education) and to which individuals (i.e. the students under the state’s care) must acquiesce regardless of their personal beliefs. While emphasising secularism and inclusivity as defining characteristics of life in Germany, the court casts the student as a social actor in the role of integrating agent (i.e. it is the student who actively encounters and adapts).

Similarly, the Administrative Court of Frankfurt am Main notes that it is not just that the public school is part of a society in which one finds particular norms and values, but also that the student cannot change the environment to fit her particular worldview (Example 5).

5. Even in everyday life – for example on the way to school – the plaintiff in Germany cannot escape the sight of people who do not dress according to her personal beliefs … the depiction of men dressed in such a way in advertising – for example on billboards at bus stops and train stations – is no longer uncommon today. It is therefore reasonable to demand that the plaintiff endure this sight to a minimum in swimming lessons as well as in everyday life and to take into account her religious beliefs by turning away or suppressing her gaze (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F, para. 37)

The student had argued unequivocally in her claim that ‘according to her understanding of religion, she should not expose herself to the sight of others in bathing suits’ (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F, para. 37). The court questioned her statement, arguing that it was not part of her initial request, but rather ‘only asserted … in legal proceedings’ and that in any case her claim would not lead to an exemption, because the ‘school … is integrated into the complexity and social structure of the type of society lived in Germany’ (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F, para. 37). Again, the court positions the student as the active agent (i.e. turning away or suppressing her gaze) as a way of adapting to an ‘ordinary’ social environment (i.e. one with nude or seminude individuals). The Federal Constitutional Court makes a similar point in response to the student’s claim that her religious beliefs command her to ‘not look at men and boys in tight or scanty swimwear,’ instead characterising such imagery as normal and inoffensive (Example 6); an argument also made regarding the plaintiff’s concerns about coming into physical contact with seminude men, specifically her affirmation of the binding religious commandment ‘not to touch male classmates’ (BVerfG, Judgment of the 2nd Chamber of the First Senate of 8 November 2016 - 1 BvR 3237/13 – Rn. (1 - 35), para 10–11).

6. The complainant cannot demand that she be spared the sight of innocuous and generally accepted clothing practice (BVerfG, Judgment of the 2nd Chamber of the First Senate of 8 November 2016 - 1 BvR 3237/13 – Rn. (1 - 35), para 10)

This trivialises the plaintiff’s concerns and conceivably, the worldview supporting them. It frames the plaintiff as making ‘extraordinary’ demands; and broadly, this aligns with stigmatising tropes of immigrants ‘demanding’ or ‘taking’ more than their due. Therefore, while Example 4 positions the public school as a social institution within society, Example 5 makes clear that it not just within this context that potentially disagreeable images and ideas are found. Instead, the school and the educational activities it oversees are simply a microcosm of the larger public sphere in which it is embedded.

All of the examples indicate that it is the student who is the integrating agent (i.e. by encountering things with which she disagrees; averting her gaze; attending swimming lessons). The text shows how even when integration is framed as a two-way process, ‘the locus of and responsibility for integration are exclusively situated with outsiders’ because this perspective perceives the ‘us’ as part of an institutional context rather than an active agent (Klarenbeek 2021, 909). Thus, while societies, ‘facilitate the integration of others—for example by banning discrimination or by adjusting institutions towards more inclusive ones’ and change as a result of this process, the integration process itself is undertaken by outsiders (Klarenbeek 2021, 909–910).

3.2. Belonging

The politics of belonging constructs, maintains, and reproduces boundaries around collective identities (Yuval-Davis 2006). It is an intersectional strategy of inclusion and exclusion operating at multiple levels of society (Yuval-Davis 2011). Sauer (2016) argues that discourse about Islamic dress comprises a new, gendered politics of belonging that is mapped onto Muslim women’s bodily practices. It formulates inclusion as a ‘precondition for belonging’ in which religious and sartorial differences are tolerated, even as veiling practices are construed as ‘an intentional form of self-exclusion’ (Sauer 2016, 114–115). Synonymous with adherence to western, liberal-democratic values and established social practices, the resulting integration discourse employs argumentative strategies of inclusion and exclusion that support a politics of (un)belonging in which veiled Muslim women embody not only sociocultural difference (Sauer 2016), but also integration policy failures (Andreassen and Lettinga 2012).

As the previous sub-theme shows, social actors must increasingly demonstrate that they belong through cultural participation; this participation is indicative of inclusive belonging. For example, in response to her claim that as a Muslim woman she must cover her body when interacting with non-family members (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F, 11), rather than be excused from class, the Administrative Court of Frankfurt am Main states that the student can wear a burkini (Example 7) with a bathrobe to conceal her body (Example 8) in swimming lessons.

7. The conflict between the plaintiff's belief, conscience and freedom to confess, on the one hand, and the state educational mandate, on the other hand, can be resolved in the present individual case by the plaintiff's participation in swimming lessons in a so-called burkini (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F, headnote)

8. Since most of the swimming lessons also take place in water, the body contours are diffuse and therefore not compromising, and during the theoretical part of the lesson the plaintiff can cover her body with a bathrobe (VG Frankfurt am Main, Judgment of 26 April 2012 - 5 K 3954/11.F, para. 17)

These allowances claim to accommodate rather than exclude; specifically, by permitting burkinis and bathrobes, the court frames integration as a form of social practice in which ‘difference’ is tolerated in order to facilitate integration and in this case, non-participation would be labelled as a form of self-exclusion. However, in the substantive facts of the Hessian Administrative Court’s decision, the student’s counsel challenges this notion directly, stating that, ‘contrary to the opinion of the Administrative Court [of Frankfurt am Main], the plaintiff's participation in swimming lessons in a burkini does not represent a gentle reconciliation of the conflicting constitutional positions’ (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, para 17).

Instead, integration discourse, such as that made by the courts about the burkini, is ‘language that relegates one group to outsider status even as it purports to build a bridge to insider status’ (Korteweg 2017, 434). For example, in response to the court’s position that the case can be resolved by the student wearing a burkini, her counsel makes clear that not only is this contrary to her beliefs, but it would lead to social stigma (Example 9).

9. It is not reasonable for the plaintiff to wear a burkini. It would lead to a considerable stigmatisation and exclusion of the plaintiff not only in swimming lessons but in school as a whole. In the entire xxx school, at most three cases are known in recent years in which girls in a burkini have taken part in swimming lessons (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, para 17)

Thus, even as the judiciary frames the burkini in inclusive terms as a garment that may be worn in swimming lessons, it consigns the student to the status of an ‘outsider’ who must adapt and modify her behaviour in order to align with a specific subjectivity predicated upon her attendance in coeducational swimming lessons. Moreover, the courts employ racialized and gendered notions of difference specific to integration discourse about Muslim head and body coverings that ultimately exclude and mark boundaries of (un)belonging (e.g. Gresch, et al. 2012; Korteweg 2017; Sauer 2016). This can be seen elsewhere in the texts, such as in the construal of ‘parallel societies’ as isolated from the values and social practices of the majority (Example 3) and the framing of situations in which the plaintiff feels uncomfortable as ‘normal,’ ‘everyday,’ or ‘innocuous’ (Examples 4–6), and as such, spaces from which she cannot isolate herself. As these examples reveal, the courts’ language is not always neutral, with the Federal Administrative Court writing that religious freedom claims, such as presented in this case, cannot take priority over the state’s right to oversee education, as ‘the integrative effect of school manifests itself not only in the inclusion of minorities and respect for their particularities’ but must ‘prevent from the outset a confrontation with lessons against which they have religious, ideological, or cultural reservations’ (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, para. 16). Such statements purport to be inclusive even while othering beliefs and social practices perceived as ‘different.’

As the courts (re)construct the boundaries around belonging and inclusively expand the parameters of collective German identity to include burkini-wearing, they cite liberal-democratic values. For example, the Federal Administrative Court lists open-mindedness, tolerance, and gender equality as instrumental in fostering social competence and part of the state’s educational mission (Example 10), and the Hessian Administrative Court makes a nearly identical statement in its judgment (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, para 47).

10. The state educational mission includes education for social competence in dealing with dissidents, on lived tolerance, gender equality and openness (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, para. 3)

This is notable, because legal decisions about veiling are often couched in binary terms of acceptable versus unacceptable norms and behaviours (Baldi 2021). The same occurs in the analysed texts in terms of liberal-democratic values. Rostock and Berghahn (2008, 358) argue that Germanness is defined by ‘German values’ (deutsche Werteordnung), particularly gender equality and secularism, which are understood as those of the ‘Christian Occidental us’ not the ‘Muslim Other’ as a way to ‘secure the image of German society as modern and emancipated.’ Thus, adherence to specific value-systems marks identity and functions as boundary maintenance. Through this lens, the court’s affirmation of the burkini as acceptable is indicative of the state’s allegiance to liberal-democratic values. The invocation of women’s rights not only furthers a policy agenda, but provides legal legitimacy to the argument that Europeans, and in this case, specifically, Germans, are progressive, democratic, and liberated, while Muslims are not, and thus, Muslim women, in particular, are in need of saving – to paraphrase Abu-Lughod (2013). There is a growing attention to the way this occurs, not only in political (e.g. Farris 2017), but also legal discourse (e.g. Ahmed 2020; Baldi 2018, 2021). It is part of what Hadj Abdou (2017, 87) characterises as the ‘nationalist repertoire of exclusion’ in which social values are used to reinforce power differentials. Still, while legal discourse of this type is inherently hegemonic and representative of a macro-level social institution, it does not automatically change the social dynamics around burkini-wearing in public schools, as the plaintiff’s uncomfortableness shows (Example 1, Example 9) or later when the practice became a point of public debate (Goebel 2018).

The belonging sub-theme reflects tensions in German identity. While the national narrative emphasises homogeneity (Korteweg and Yurdakul 2014), and thus, it could be assumed that burkini-wearing might be discouraged, this is not reflected in the judgments. Rather, the courts argue that the burkini’s availability allows Muslim students to participate. It is true that changing immigration and integration policies have advanced a new politics of belonging in which the veiled Muslim woman embodies ‘otherness’ (Sauer 2016); and the courts’ language can reflect this mindset. However, by stressing participation, the courts reinforce the federal government’s integration policy goal of social adaptation and engagement. For example, the National Action Plan’s stresses sports as an entry point for women ‘with a migration background’ to learn self-determination and equal rights.⁹ This is reflected in the Federal Administrative Court judgment (Example 11) and the Hessian Administrative Court’s argument that schools teach students to be citizens through engaged participation (Example 12).

11. The school should … lay the foundation for their self-determined participation in social life … to help to train individuals to be responsible "citizens" towards the whole and thus fulfil an integration function essential for the polity (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, para. 13)

12. to become responsible citizens who participate equally and responsibly in democratic processes in a pluralistic society (VGH Hess., Judgment of 28 September 2012 - 7 A 1590/12, para. 38)

In this way, the student’s claim of religious freedom is weighed against the state’s right to manage education and ultimately, the school’s place in German society as a social location where participation is viewed as fostering civic engagement, social cohesion, and citizenship as part of enculturation and integration processes.

3.3. The role of the state

The courts make clear that education, including the socialisation of students, is the remit of the state. Consequently, discourse about the integrative function of the public school stresses its institutional place and power. For example, the Federal Constitutional Court speaks of ‘the integrative power of the public school’ (BVerfG, Judgment of the 2nd Chamber of the First Senate of 8 November 2016 - 1 BvR 3237/13 – Rn. (1 - 35), para. 10) and the Federal Administrative Court establishes the role of the state in education vis-à-vis individual freedom of conscience by stating that it is, ‘granted without reservation, but is limited at the constitutional level by the state’s right to determine the school system,’ which gives ‘the state the authority to plan, organise, lead, and structure the content and didactic elements of the school system in detail,’ including ‘the issue of providing lessons in a coeducational or gender-separate format’ (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, para. 11). The courts make clear in these and similar passages that the individual right to religious freedom is guaranteed, but, in this case, the legal threshold necessary to challenge the state’s educational autonomy was not met. Also, the courts clarify that individuals cannot pre-determine what is taught or how lessons are given, because in their view, it would lead the state to ‘align with the ideas of the lowest common denominator involved’ (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, para. 13).

The role of the state’s educational remit has already been covered to a large degree as it overlaps with the other sub-themes. However, responding to the student’s claim that modesty is a binding religious obligation, it is notable that the Federal Administrative Court states that, ‘the potential impairment of her religious interests through participation in coeducational swimming lessons could have been reduced to an acceptable degree if she had taken up the school’s offer to wear a so-called burkini,’ arguing that, ‘it is unclear why the plaintiff would not have been able to adequately adhere to her religious beliefs in a burkini’ (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, para. 24–25). Likewise, the Federal Constitutional Court draws a line under what it characterises as ‘the lack of plausibility of the complainant's pleading’ because she can participate in coeducational physical education class in a headscarf, tunic, and pants, but not in a burkini, as she claims, it does not fulfil Islamic regulations regarding dress or personal conduct (BVerfG, Judgment of the 2nd Chamber of the First Senate of 8 November 2016 - 1 BvR 3237/13 – Rn. (1 - 35), para. 4, 30). By dismissing the student’s position (Example 9), refusing a religious exemption or the option of single-gender physical education classes, and describing the burkini as ‘swimwear that complies with Muslim clothing requirements’ (BVerwG, Judgment of 11 September 2013 - 6 C 25.12, headnote 2), the court acts as the arbiter of what type of clothing should be worn by female Muslim bodies in a public context. This aligns with the German state’s efforts to govern Islam, particularly through the German Islam Conference and its stress on integration, opposition to ‘parallel societies,’ and adoption of German values (Rosenow-Williams 2012; Müller 2017), which are all themes echoed in the judgements. Amir-Moazami (2011, 20) argues that this group seeks to normalise gender roles and social practices, ‘through dialogue and education, and the attempt to smoothly but authoritatively transform Muslims into liberal democratic subjects.’ This analysis indicates that a similar goal informs the positioning of the burkini as acceptable dress. Through the judgments, the judiciary dictates social practice and influences the development of a particular subjectivity around gender and Islam while also stressing integration through socialisation in group activities and enculturation of social norms and values.

4. Conclusion

The four judgments in the analysed corpus come from the foremost German case on a student’s right to freedom of conscience, state control of education, and forms of Islamic dress in the public sphere. Brought to court by a secondary school student and her parents after the school’s principal denied her request to be exempted from mandatory coeducational swimming lessons on religious grounds, the case reaffirmed the supremacy of the state’s educational remit, including control over pedagogical content, method, and practice and overturned established precedence. Specifically, by explicating the public school’s role in integration, the judgments argued that a 1993 Federal Administrative Court decision allowing students to be excused on religious grounds from coeducational physical education classes upon request if a school could not offer gender-separate instruction was no longer valid (BVerwG, Judgment of 25 August 1993–6 C 8/91). Instead, the courts argued that the burkini provided a viable alternative despite the student’s claims to the contrary and, as a result, the student lost her appeals all the way to the country’s supreme court. In all of the judgments, the courts focused the case on integration in terms of Islamic dress in public space by presenting the burkini as a compromise, albeit on the state’s terms. This is notable. The framing of the burkini as an acceptable, alternative form of swimwear in an educational context provides a thought-provoking contrast and challenge to the hegemonic European discourse of the burkini as a provocative garment that signifies Islamic fundamentalism, separation from core liberal-democratic norms and values, such as secularism and gender equality, and, as such, represents a conflict with a particular sense of embodied subjectivity (e.g. Baldi 2018). However, by the same token, the courts have not altogether rewritten or upended discussions surrounding German national identity and its positioning within these parameters. After all, discursive constructions of identity and corresponding struggles over belonging are dynamic, fluid, and in a constant state of context-driven (re)negotiation.

This article employs critical discourse analysis to reveal how the judiciary situated their decisions not just in terms of integration, but by stressing the importance of individual participation in significant sociocultural activities, realigning of the boundaries of belonging to include the burkini, and asserting the state’s role in socialisation and enculturation. The approach validates a gendered form of sociopolitical belonging in which the concept of integration is applied to bodily practices in educational contexts through individualised integration. It reflects the state’s ‘support and challenge’ approach, which conceptualises integration in personal terms (e.g. Klarenbeek 2021; Schinkel 2018), with society facilitating integration and the plaintiff as the active agent demonstrating integration through personal participation in coeducational swimming lessons. Moreover, in doing so, the judiciary seeks to shape a particular Muslim female subjectivity that aligns with the state’s integration goals. By acknowledging religious and sartorial differences – and, in fact, expecting the student to wear a burkini, the judgments reframe belonging not by excluding veiling practices, but rather by creating a specifically German female body worthy of inclusion in the body politic. This speaks to the tensions inherent in the gendered politics of belonging (e.g. Sauer 2016) and the positioning of liberal-democratic values, particularly gender equality, in gender nationalist discourse (e.g. Hadj Abdou 2017). It also influences individual agency by constricting when and how social actors display their bodies. Significantly, these findings show how a garment designed to meet the needs of Muslim women is recontextualised by the courts as a physical expression of German liberalism and tolerance even as the guidelines for when and how it is worn remain at the direction of the state.

The type of legal disputes described in this article and upon which the court must adjudicate arise from and speak to concerns about identity, integration, and the role of Islam within the larger social order in Germany. While this particular legal dispute is notable, it certainly will not be the last to speak about these issues. In fact, the judgments represent just one of the many ways in which Muslim women’s bodies in Europe have become ‘a battlefield of conflicts over values and identity politics’ not simply in popular discourse or political debates (Sauer 2009, 76), but also as a central focus of public policy and substantive matter of law upon which the court system must deliver judgment. Moreover, even before the 2015–2017 ‘refugee crisis,’ Germany had a sizeable Muslim population, but statistics show that nearly a million more – approximately 5.3–5.6 million Muslims ‘with a migration background’ – now call the country home (Douglas 2021). As this population grows, the courts will continue to face questions that challenge the parameters of inclusion/exclusion and discursive constructions of gendered national narratives.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The term ‘burkini’ is a portmanteau of ‘burqa’ and ‘bikini.’ It was coined by Aheda Zanetti to describe a two-part, full-body swimsuit, or ‘Islamic two-piece bikini’ that she designed to ‘change the Islamic symbol of a veil’ and provide Muslim women with access to modest, functional swimwear (Taylor 2016).

2 A Gymnasium is a type of secondary school that provides in-depth general education designed to prepare students for university. For an overview of the German education system, including an explanation of the subdivision of parallel tracks defined by curricula and school-leaving certification, please see KMK (2017).

3 Confessional-sectarian religious education is the only school subject mandated by the Basic Law. Upon reunification an exemption was made for the former East German states, however, all but Berlin, which requires an ethics and comparative religions course, later made it compulsory. Elsewhere, if students or their parents object, an ethics course may be taken as an alternative. Educators are currently debating the organisation of religious education (Riegel, Zimmermann, and Hohenschue 2020). The need for Islam to be included was first acknowledged by a consortium of state-level education ministers (Kultusministerkonferenz) in 1984.

4 For more detailed information about what public-law status entails and which religious or philosophical groups have achieved this designation, please see BMI (2021a, 2021c).

5 While the Federal Constitutional Court has curtailed the display of Christian symbols in public space, most notably in two judgments restricting crosses or crucifixes in courtrooms (BVerfG, Judgement of 17 July 1973 – 1BvR 308/69) and public school classrooms (BVerfG, Judgement of 16 May 1995 - 1 BvR 1087/91), as with headscarves, these have elicited a mixed reaction. For example, in 1995, the Bavarian parliament wrote legislation to avoid further restrictions and in 2018, state premier Markus Söder decreed that a cross should be displayed (Kreuzpflicht) in the foyer of all public buildings housing state authorities (Dienstgebäude), arguing that it was a cultural, rather than a religious, symbol of Bavarian identity. The latter is being challenged with the Administrative Court of Munich sending the case to the Bavarian Administrative Court for review (VG München, Judgment of 27 May 2020 – M 30 K 18.4955).

6 Religious freedom is guaranteed in Article 4 of the Basic Law (§ 4 Abs. 1 GG). While positive religious freedom refers to the right to express religious or philosophical beliefs, negative religious freedom refers to the right to not be coerced or discriminated against on the basis of religious or philosophical beliefs. For detailed information about state neutrality and religious freedom in Germany, including their application in judicial decisions about veiling, please see Baldi (2021, 71–77).

7 The German Federal Ministry of the Interior and Community defines integration as a long-term process, which involves all members of society. It emphasises immigrants’ equal economic and social opportunities, but also stresses that they must learn German, obey legal regulations, and respect the Basic Law. For more information, please see BMI (2021b).

8 Use of both terms can be traced to the 2000 foreigner policy (Ausländerpolitik) debate in federal parliament. Friedrich Merz, chairman of the CDU/CSU parliamentary faction, used the term Leitkultur to argue that immigrants must adopt the culture-defining liberal-democratic values of the Basic Law (Hertner 2022). Pautz (2005) links this term to neo-racist discourse arguing that it reframed ‘clash of civilisations’ discourse in terms of immigration. Jörg Schönbohn, Ministry of the Interior for Brandenburg set the stage for the ‘Leitkultur debates’ (Leitkulturdebatte) the same year by arguing that immigrants must be required to adhere to common German values in order to avoid the development of Parallelgesellschaften (Pautz 2005).

9 The German Federal Statistical Office defines a person as ‘with a migration background’ if they or one of their parents is born without German citizenship, including: (non)immigrant foreigners, (non)immigrant naturalised citizens, (late)resettlers, and the German-born descendants of such individuals (Destasis 2022).