OP v. Commune d’Ans: When equality, intersectionality and state neutrality collide
| Published date | 01 June 2024 |
| DOI | http://doi.org/10.1177/1023263X241260739 |
| Author | Nozizwe Dube |
| Date | 01 June 2024 |
OP v. Commune d’Ans:
When equality, intersectionality
and state neutrality collide
Nozizwe Dube*
Abstract
In OP v. Commune d’Ans, the Court of Justice of the European Union (CJEU) held that exclusive
neutrality policies in public administrations do not constitute indirect religious discrimination
provided that the policies are appropriate, necessary and proportionate in light of the context
and interests at stake. This is the first headscarf case concerning a public administration.
Consequently, the state neutrality principle was of importance in this judgment. Additionally,
OP v. Commune d’Ans reawakened the urgent question of intersectional discrimination as the
CJEU was asked whether exclusive neutrality policies constitute indirect gender discrimination,
seeing as they disproportionately affect women. In Parris, the CJEU rejected the possibility of
acknowledging intersectional discrimination. Though headscarf cases raise the intersectionality
question, the CJEU has not revisited it. This case note discusses how while the CJEU managed
to accommodate different iterations of the state neutrality principle by introducing a margin of
discretion for diverse neutrality policies in OP v. Commune d’Ans, it fell short in safeguarding the
general framework for equal treatment by disregarding how the conceptualization of state neutral-
ity also impacts gender equality. A different reading of Directive 2000/78 that foregrounds this
instrument’s connection to the EU’s gender equality directives would have enabled such an inter-
sectional approach.
Keywords
Intersectional discrimination, Court of Justice of the European Union, OP v. Commune d’Ans,
religious discrimination, gender discrimination, Directive 2000/78
*
PhD candidate in EU Law of Maastricht University, Maastricht, Netherlands
Corresponding author:
Nozizwe Dube, PhD candidate in EU Law at the Department of International and EU Law of Maastricht University,
Bouillonstraat 3, Maastricht, 6200 MD, Netherlands.
Email: nozizwe.dube@maastrichtuniversity.nl
Case Note
Maastricht Journal of European and
Comparative Law
2024, Vol. 31(3) 433–444
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X241260739
maastrichtjournal.sagepub.com
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