Governing Religion and Gender in Anti-Discrimination Laws in Norway and Denmark

2.1 Denmark: The Board of Equal Treatment

In Denmark, the International Convention on the Elimination of All Forms of Racial Discrimination was implemented in the 1971 Law against unequal Treatment due to Race. The law banned the denial of service or access to public places on racial grounds or due to skin colour, national or ethnic descent or belief.¹³ A 1987 amendment added sexual orientation to the list,¹⁴ yet the law interestingly mentions belief, but not religion. The law also does not consider unintended behaviour. Protection against discrimination on the basis of gender was legally sanctioned from 1978 with the Act of Gender Equality. In the period between 1978 and 2000, violations of this law could be tried before the Gender Equality Council (Ligestillingsrådet), and between 2000 and 2009 before the Gender Equality Board (Ligestillingsnævnet).

A law specifically directed towards differential treatment on the labour market, the Act on the Prohibition of Differences of Treatment in the Labour Market, was introduced in 1996. According to this law, an employer may not treat employees or job applicants differentially whether at the time of employment, dismissal, transfer, promotion or in terms of pay and working conditions.¹⁵ The law covers differential treatment with reference to race, skin colour, religion, political views, sexual orientation, age, disability or national, social or ethnic origin. An amendment introduced in 2004 adds belief¹⁶ after the reference to religion. The amendment was introduced to ensure alignment with EU Directive 2000/43/EC on anti-discrimination. The definition stated in the bill was that ‘belief’ is broader than religion and covers something which is clearly defined yet not restricted to the recognised religious communities.¹⁷ Violations of the law are tried in the general civil rights system.

The 2003 Act on Ethnic Equal Treatment concerns all public and private enterprise in the field of social protection, including social security and health care, social benefits, education, and access to and supply of goods and services, including housing available to the public.¹⁸ This law protects against differential treatment due to race and ethnic origin, but not discrimination due to religion or belief.¹⁹ The background to the adoption of this law was concerns about integration and attention to inclusion on the labour market. When the law was discussed in parliament, the spokesperson from the Social Democrats, Lise Hækkerup, directly stated that ‘[w]e need the employers to take the responsibility to ensure the integration of all minorities on the labour market and the first step is to end discrimination’.²⁰ The Complaints Committee for Ethnic Equal Treatment (Klagekomitéen for Etnisk Ligebehandling) was established to handle complaints in relation to this law and worked to this effect from 2004–2009.

The Board of Equal Treatment was established in 2009 through the merging of two boards, the Gender Equality Board and the Complaints Committee for Ethnic Equal Treatment. Overall, the Board of Equal Treatment hears complaints in accordance with the Act of Gender Equality, Act on Equal Pay to Men and Women, Act on Equal Pay to Men and Women under Occupational Security Schemes, Act on Entitlement to Leave and Benefits in connection with Childbirth and Act on the Prohibition of Differences of Treatment in the Labour Market (§1.2; §1.3). It is stated that the Board should furthermore consider complaints according to the Act on Ethnic Equal Treatment (§1.4). The Board considers discrimination in general for some types of discrimination, while limiting its field of expertise to the labour market in others:

This construction, where the Board adjudicates according to both the Act on the Prohibition of Differences of Treatment in the Labour Market (which includes religion and belief) and the Act on Ethnic Equal Treatment (which does not), complicates the Danish support for non-discrimination on the basis of religion, as the resolution of the issue will depend on which of the relevant legal provisions a case is considered under.

2.2 Norway: The Equality and Anti-Discrimination Ombudsman and Tribunal

The Norwegian Gender Equality Ombud, the predecessor to the Equality Ombudsman and Tribunal (nemnd) was created with the adoption of the 1978 Equality Act, which mandated under § 9 that an office to monitor the implementation of the Act should be established. Unlike the Danish system, the mandate of the Norwegian Ombud has never been restricted to employment and education in regard to religion, but has been applicable for all walks of life, as mandated by § 2 of the Act.

While the original Act only concerned gender equality, parallel legislative changes in the Penal Act and the acts on housing cooperatives and the working environment have increased the remit of protections against discrimination to a wider range of people.²¹ This catalogue has gradually been expanded to go well beyond the group of protected persons in human rights treaties like the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).²²

Despite a broad range of protections across the legal framework, Norwegian law lacked a specific act against discrimination until the passing of the Discrimination Act in 2005, which also inaugurated the present office of the Equality and Anti-Discrimination Ombudsman and Tribunal. After a brief period of amendments, including a short-lived tripartition of the Act into three different pieces of legislation from 2013, a new and more comprehensive Anti-Discrimination Law entered into force in 2018, replacing both the Equality Act and the earlier discrimination acts.

From 1978 to 2018, the Ombud could make decisions, both acting on complaints from the public, and acting on its own initiative, with the Tribunal as a more ad hoc institution to manage appeals against the decisions of the Ombud. With the new law in 2018, however, the Ombud was stripped of its decision-making capacity, rendering it an office for information and consultation. The Tribunal, on the other hand, has been expanded and professionalised to become a court-like entity.

The overall change in the two countries seems to suggest a cross-border convergence between the equality bodies as the Danish Board of Equal Treatment is a ‘[p]redominantly tribunal-type (quasi-judicial) body’,²³ which co-exists with the 1987-founded Danish Institute for Human Rights, which is a ‘[p]redominantly promotion-type and legal support body’²⁴ similar to the (post-2018) Norwegian Ombud. This division of labour means that the Board of Equal Treatment is not engaged in advocacy or awareness-raising activities, but only focuses on deciding formally on complaints, similar to the Norwegian Tribunal. In this article, however, we mainly consider cases from before 2018 and decisions from both the Tribunal and the Ombud are therefore covered. While these cases may be of limited jurisprudential significance for a normative legal analysis, we believe they constitute important sources of data on the ‘vernacularisation’ of international human rights norms in the two different settings.

4.1 Hijab cases

Discussing the hijab as a ‘paradigmatic symbol of intersectionality’,²⁷ Halrynjo and Jonker argue that the pre-2009 existence of two separate equality boards in Denmark, the Gender Equality Board and the Complaints Committee for Ethnic Equal Treatment, meant that discrimination on the basis of wearing the hijab was construed as either an issue of gender or race/religion – but not both. Yet, this did not prevent hijab cases from being ‘recognized as discrimination’.²⁸ However, with the establishment of the Board of Equal Treatment, it was supposed to become easier to address intersectional discrimination.

Though often presented as the most prominent example of the intersection between religion and gender, there is only one Danish hijab case and this was only considered as a potential case of religious discrimination, not of gender equality. In this case, the applicant was asked during a job interview whether she would be willing to take off her veil while at work (J no 7100083-12). She refused, and was subsequently not hired. The company was not convicted, even though the Board has consistently sanctioned questions about religion in job interviews in its earlier case law (cf J no 2016-6810-02947; J no 7100072-12). In this case, however, the question from the employer if the applicant would consider removing her veil was considered legitimate, as the issue was stipulated in a pre-existing clothing regulation. In this decision, the Board referred to the so-called ‘Føtex decision’, a Danish Supreme Court verdict handed down in 2005. ²⁹

In this famous case, a Muslim woman working in a supermarket (Føtex) was fired when she decided to start wearing a hijab. She had already been working in Føtex for some years. She was offered another position in the company without customer contact, but was fired when she declined. The Court found that the supermarket was entitled to fire her, as (relatively vague) company clothing regulations, based on a company wish that employees appear neutral, justified a ban. The case set a strong precedent for private employers to institute a formal dress code, which the employees are not eligible to be exempted from on account of their religion. There have been no cases regarding public institutions, but a 2008 Amendment of the Administration of Justice Act restricts the right of judges to wear anything that reveals their political or religious affiliations or conviction.³⁰ Similarly, a Danish police officer is not allowed to wear a hijab or other religious, political or sexual symbols.³¹ The Føtex case is not just a landmark case in Denmark, but also seems to have provided strong legal precedent and is interestingly also referred to by one Tribunal case from Norway, where the Føtex decision is cited as legalising the prohibition of the hijab as part of the uniform for employees (case 2/2014, see below).

In the Norwegian material, cases concerning the hijab, which tend to highlight the tensions between gender equality and religious freedom, illustrate the extent to which Norwegian discrimination law is interwoven with international law. In case 07/627, an employee in a mall lost her job because she wore a hijab. According to management, the issue was not one of discrimination, but a general policy on headgear that was the same for everyone, regardless of religion. Unlike the Danish cases cited above, the Ombud found the dismissal to be discriminatory on the basis of religion. Discussing the claim that the headgear ban was ‘unrelated to religion’, the Ombud referenced the Leyla Sahin case (elaborated below) to observe that it was for the claimant to determine what motivated her to wear the headgear in question. Additionally, the Ombud observed that it ‘evidently’ could not discuss the nuances of the religious obligation to wear headgear. The decision was later upheld by the Tribunal.

The case of Leyla Sahin v Turkey (Application no 44774/98) is one of the most paradigmatic and often-cited decisions of the European Court of Human Rights. In this case, the Court allowed a prohibition of religious headgear in Turkish universities, citing the strong tradition of secularism and the ‘margin of appreciation’ of States in contentious issues with no European consensus as its main grounds. While the claimant lost the case both before the regular Chamber and the Grand Chamber, the Court in both instances recognised her autonomy in deciding for herself what constitutes a ‘manifestation’ of her religious belief –  a principle that has been widely cited in later jurisprudence.

The importance of this principle is evident in several subsequent cases before the Norwegian Ombud. In case 08/363, a bus driver who wished to use a regular turban for religious reasons was required by his employer to use a small turban in combination with a hat. Citing its decision in case 07/627, the Ombud declared that the religious motivation of wearing the turban was to be determined by the claimant, and that it had no competence to review his reasons for doing so. Finding no reasonable cause to refuse the wearing of a regular-size turban, the Ombud found that the bus company had violated the law.

In case 08/1528 concerning the use of religious headgear in the Norwegian police force, the Ministry of Justice argued against such use, highlighting the political overtones of using the hijab. Citing Leyla Sahin once more, the Ombud dismissed the argument, finding that it was for the claimant to determine the motivations for her choice to wear the hijab, and faulting the Ministry of Justice for not elaborating the necessity of a ban. In its consideration of the case, the Tribunal, in decision 8/2010, supported the Ombud, but reasoned differently on the precedent set by Leyla Sahin. Citing the importance of the margin of appreciation for the ECtHR’s decision, the Tribunal observed that ‘no clear resolution of the issue’ was available from the international materials. With this starting point, the Tribunal went on to discuss the interwoven identities signified by wearing the hijab, observing that it could have ethnic, cultural and political connotations. On the basis of this reasoning, the Tribunal underlined its greater ‘understanding’ for potential high risk situations developing on the basis of police officers wearing the hijab. Despite this extended understanding of the potential downsides to allowing the hijab, the Tribunal supported the Ombud’s assertion that the decision violated the discrimination law.

In case 26/2009, the Tribunal found that a laboratory worker had been discriminated against when she was asked to quit her position following her decision to start wearing a hijab at work, thereby upholding a similar decision by the Ombud.³² Citing Leyla Sahin, the Tribunal avoided any further discussion of the religiosity of wearing the hijab.

In case 13/1837, the clothing regulations of the security company G4S were found to be discriminatory because they prohibited the wearing of religious headgear. Unlike its earlier decisions, the Ombud did not reference international precedent in its decision, settling with the travaux préparatoires of the Norwegian Anti-Discrimination Law, which observes that wearing turbans or hijabs constitute manifestations of religion for certain groups in Norway. The company appealed the decision, and in decision 2/2014, the Tribunal overturned the findings of the Ombud. In its decision, the Tribunal went to some length in its consideration of international materials, citing both the EU anti-discrimination directive, which is not binding for Norway, and the obligation for State Parties to the Convention on the Elimination of Discrimination against Women (CEDAW) to take steps to prevent gender discrimination (see Articles 2(f) and 5(a) CEDAW). Citing the possibility to limit religious manifestations in Article 18(3) ICCPR, the Tribunal went on to cite a selection of the hijab decisions of the ECtHR. Notably, the Tribunal highlighted ‘the stereotypical perceptions of gender roles that the use of the hijab formally [sic] rests upon’.

In its assessment of the rationale for the hijab ban, the Tribunal stressed the physical interaction between security officers and travellers, and the potential for a gender-segregated security control as a corollary of allowing the hijab, as the ‘indication of women’s Islamic faith by wearing the hijab may result in greater conflict situations than today’. Continuing its reasoning, the Tribunal observed that allowing the hijab as part of the uniform ‘may transmit signals of acceptance of a particular perception of gendered decency in public space’. Crucial to its balancing act on whether the ban was proportionate, the Tribunal returned to its self-constructed argument that the security control would have to be divided on the basis of gender, which would violate the objectives of the Equality Act.

In decision 15/2036, the Ombud found a hairdresser to be in violation of the law for her dismissal of a customer because she wore a hijab. Without further discussion, the Ombud found the rationale for wearing the hijab to be a manifestation of religion. As in earlier cases to come before the Ombud, the ‘actual’ meaning of the hijab was questioned, as the claimant alleged that she viewed the hijab as a political, rather than purely religious symbol, and that her refusal to allow customers wearing the hijab to enter her salon was protected by her freedom of expression. The Ombud did not address these issues, and found her refusal to be in clear violation of the law. The case was later brought to trial under the penal law, and the hairdresser was fined.

In decision 16/2271, the Ombud found that a private nursing home violated the law when they adjusted their dress regulations to prohibit ‘religious or political garments, such as the hijab or Palestinian scarves’. The ban was intended to provide protection to patients suffering from dementia, who could have difficulties with new impressions. Because the prohibition was of a general nature, prohibiting all religious garments, it constituted indirect discrimination, whereby a seemingly neutral rule disfavoured a specific group. Referring to Leyla Sahin, the Ombud observed that while some may choose to wear headgear such as the hijab or the turban for other reasons than religion, most do so for religious purposes. On this basis, moreover, the Ombud pronounced that wearing the hijab was ‘not only a way to indicate religious allegiance, but constituted a manifestation of religion in its own right’.

Following the appeal from the nursing home, the Tribunal came to the same conclusion in its decision 2/2017. In the appeals round, the nursing home stressed that ‘religion’ in the framework of the discrimination law was distinct from ‘manifestation of religion’, which could not possibly enjoy the same protections as ‘religion’. This claim was unilaterally dismissed by the Tribunal, which observed that religious manifestations were covered under the law. In its decision, on the other hand, the Tribunal was split in a majority and a minority (4-1). The majority found no clear guidance from the case law of the ECtHR or the CJEU, and found no legitimate rationale from the nursing home for the ban. The minority, on the other hand, cited the ECtHR decisions Eweida and Ebrahimian, and earlier decisions of the Tribunal and Ombud that stressed the need for a ‘certain corporate image’ and neutrality, and found the hijab ban to be well within the confines drawn up in these earlier decisions.³³

In decision 17/623, the Ombud found that prohibiting religious headgear that covers the ears does not constitute illegal discrimination on the basis of religion, as the requirement was based on legitimate concerns with secure identification of passport holders, and was not disproportionate. Referencing the considerable margin of appreciation that dominates the jurisprudence from the ECtHR, the Ombud observed that the applicable margin for Norway was ‘uncertain’ in comparison with more clearly secularist countries like France and Turkey, but that it was still likely to be fairly broad. Additionally, the Ombud found that its competence when faced with decisions and regulations from expert organs was limited. Reviewing the decision, the Tribunal came to the same conclusion in its decision 65/2018, without entering any new premises.

In case 30/2018, the Tribunal determined the case without involvement from the Ombud, which had been stripped of its decision-making powers under the new law from 1 January 2018. The case concerned a temporary employee in a company that provides staff lodging in ships, who alleges she was fired after starting to wear a hijab. Observing that it was ‘beyond doubt’ that wearing the hijab is encompassed by ‘religion’ under the law, the Tribunal found that the company had discriminated against the employee on the basis of her religion, as no legitimate grounds for the ban had been offered.

Taken together, the Norwegian case law is clear evidence that the hijab issue continues to be a paradigmatic case of the intersectionality between gender and religion. Unlike in the Danish setting, where the Føtex decision appears to have resolved the issue once and for all, the hijab, and the motivations for wearing it, continue to be contested in the case law of the Ombud. Whether or not the cases are indicative of a larger pattern in the governance of religious practice in Norway, or if they are simply the result of lacking decisions from a higher level of the court system, however, is difficult to determine on the basis of the available evidence.

4.2 Handshake cases

As in other Northern European countries,³⁴ the reluctance of some Muslims to shake hands with persons of the opposite sex has been a controversial public issue both in Denmark and Norway. While in no way a widespread practice, some abide by it, and this practice tends to generate quite strong reactions. In the Netherlands, for instance, a public dispute evolved in 2004 after an imam from the small town of Tilburg refused to shake hands with the Minister of Immigration and Integration. This was interpreted as implying that she was not ‘equal’ to him.³⁵ A similar interpretation formed the basis of the refusal of the then head of the Senate in Belgium to meet with Iranian parliamentary delegates in 2005.³⁶

Overall, the refusal of cross-gender handshakes is considered a break with two principles of Western European public spheres: first, a lack of loyalty to national customs, and second, insistence upon gender difference, contradicting the ‘universal’ and ‘abstract’ subject fostered by liberal-secular imaginaries.³⁷ In 2006, the Dutch Equal Treatment Commission ruled that suspending a female Muslim teacher who refused to shake hands with men was unlawful.³⁸ This ruling was highly controversial and the Dutch prime minister even admitted that he had ‘great difficulty’ accepting the ruling.³⁹ This reflects a general reluctance to accept the rulings from the Dutch Equal Treatment Commission (especially the concept of ‘indirect discrimination’) and a tension between the Commission’s interpretations of legal equality and the popular conception of equality.

In Denmark, the mandatory handshake at the so-called ‘Constitutional ceremony’ for new citizens (Law no 1735 of 27 December 2018) has generated debate, while in Norway, controversy arose in 2019 when three female representatives of a mosque refused to shake hands with the crown prince, who was visiting a mosque after a shooting attack.⁴⁰

There have been five cases dealing with handshakes in Denmark, and three cases in Norway. Two of the Danish cases have been widely discussed in public. The first of these concerns a Muslim taxi driver, who was de-selected from picking up clients from the airport because he did not want to shake hands with his female supervisor. The taxi driver explained his reluctance to be ‘just a religious thing’, but the Board treated the violation as potential discrimination on both religious and ethnic grounds. The complainant won the case (J no 2015-6810-19566).

The second case regards a complaint from a student who had attended an exam, where the grader had announced that for religious reasons he would not shake hands with female students. The teacher therefore sent a message to the students stating ‘Our grader has informed me that he does not want to shake hands with women. So, it would probably be a good idea not to try to shake his hand. In any case, you are now warned so you will not be confused about it in the exam situation’ (J no 10274-14). One student filed a complaint to the Board on the grounds that

‘in an exam situation, it is the performance which needs to be judged, and considerations regarding the student’s gender, appearance, race or political conviction should not be expressed, as it has nothing to do with academic performance. Therefore, in order to protect the student, a grader must be neutral in the examination situation, regardless of the private attitudes he may have. An examiner should not bring his or her own opinions and views into the examination, but must leave these in private’ (J no 10274-14).

The student received a compensation of DKK 2500. The Board treated the case as a case about gender discrimination but did not also consider it as a question of the freedom of religion of the grader.

A third case regards a female childcare student who was dismissed after the initial meeting in her internship because she announced that she did not shake hands with men (J no 2015-6810-01519). The Board could not adjudicate this case due to insufficient information.

The other two cases in the Danish material deal with the handshake in a larger context. One case regards an interpreter who was dismissed because he mixed his translations from Arabic with general counselling regarding handshakes (Muslim men should not shake hands with women) and swimming (Muslim girls cannot show themselves in swimming suits) (J no 2016-6810-36441). A similar case regards a Muslim social worker who was dismissed on the basis of complaints from three of his clients, who found him trying to impose Islam upon them, including the restriction on cross-gender handshakes (J no 18-55315). The Board did not consider whether the firing was legitimate, but assessed that, if legitimate, it was not discriminatory because the firing was due to malpractice.

Even if the handshake has come up in several different cases in the Danish material, the Board tends not to consider it from the perspective of freedom of religion, and there is no reference to other cases and none to international jurisprudence. The cases are not seen as connected and there is therefore no ‘handshake policy’ being developed.

In Norway, on the other hand, the handshake cases have been dealt with over a short period of time, and in a strongly comparable manner. In decisions 108/2018 and 48/2018, the Tribunal decided two cases concerning the refusal of a temporarily employed teacher to shake hands with women for religious reasons: case 108 concerned the decision of the Norwegian welfare authority to reduce the teacher’s social support because of his refusal to shake hands with women meant he was unable to accept a position he was offered, while case 48 concerned the decision of a school in Oslo not to prolong his contract because of his refusal to shake hands with women. Both decisions were split (3-2), but case 108 found in favour of the claimant, while case 48 found in favour of the school.

In both cases, the Tribunal cited Eweida to stress that not all outward expressions of religion are protected under the ECHR, and discussed whether the refusal to shake hands with women should be viewed as a ‘cultural’ or religious precept. Citing a recent decision from the Swedish labour court where a court-appointed expert observed Quranic prescriptions and later interpretations on cross-gender contact, the Tribunal unanimously found the practice to be a manifestation of religion. In case 108, the majority found that the decision to reduce his social support was directly related to his religious manifestation, and as such constituted discrimination. The minority, on the other hand, found that the decision to reduce his social support was not based on his religious manifestation, but rather on his refusal to take a paid job.

In decision 48, on the other hand, the relationship between his religious manifestation and the discontinuation of his contract was not disputed by either the majority or the minority. The majority found that the aim sought by the school – gender equality for all – was legitimate, and that the discontinuation of his contract was not disproportionate to this aim. Central to the reasoning of the majority was the assertion that the limitation ‘did not violate the foundations of the religion, but a violation of what the majority perceives to be a limited and not particularly central expression of the claimant’s religious opinions’. Moreover, the majority hypothesised that accommodating ‘conservative practices within a religion may be unfortunate for the desired development of society’. The minority, on the other hand, found the discontinuation of his contract to be directly discriminatory, and not pursuing a legitimate aim with proportionate measures.

In decision 18/325, the Tribunal found that a job applicant whose job interview was cancelled because he refused to shake hands with women had not suffered religious discrimination. In a split (2-1) decision, the Tribunal cited its earlier assertion that refusal to shake hands with women constituted religion under the law, and that it was this factor that led to the termination of his interview. The majority observed that the decision to terminate the interview was based on internal ethical rules in the company, and sought gender equality as a general aim. The majority distinguished between ‘limiting his religion as such, and limiting an outer expression of religion visualised through the handshake, which can be said to constitute only one aspect of his religious expression’, and other discrimination grounds like gender, which ‘are physically impossible to “lay down” during working hours’. The majority also cited the concerns for a ‘desired development of society’ from decision 48/2018 (see above). The minority, on the other hand, echoed the minority opinion from decision 48/2018, observing that the termination of the interview was directly discriminatory, and lacked a legitimate aim, in particular because the company had not explored how the claimants’ religious manifestation could have been accommodated. The Norwegian cases are narrowly decided (3-2, 2-3, 2-1); the centrality of the practice of not shaking hands with persons of the opposite gender is accepted, but also called into question. Elusive notions of gender equality are promoted as legitimate grounds for limitation. The cases cite ‘societal development’ as a legitimate ground for limitation.