Religious dress in the healthcare setting: Unpacking legal arguments and balancing individual rights
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/09240519241270438 |
| Author | Naoual El Yattouti |
| Date | 01 September 2024 |
| Subject Matter | Articles |
Religious dress in the healthcare
setting: Unpacking legal
arguments and balancing
individual rights
Naoual El Yattouti
FWO Fellow, University of Antwerp Faculty of Law, Antwerpen, Belgium
Abstract
This article explores the complex debate surrounding healthcare providers seeking to express
their religious beliefs through the wearing of religious attire considering critical legal, ethical,
and practical aspects. Drawing insights from the jurisprudence of the European Court of
Human Rights and European Court of Justice, it sheds light on the implications for healthcare set-
tings. The study highlights the sensitivity of the healthcare context, where specific arguments sur-
face, such as the debated significance of religious neutrality given the vulnerability of patients and
concerns about health and safety. Difficulties may arise when patients feel discomfort when trea-
ted by visibly religious healthcare providers. However, patients’preferences regarding the religious
neutrality of healthcare providers cannot be generalised, especially when considering the needs of
certain minoritised communities. Furthermore, questions can be raised about the admissibility of
potentially accommodating prejudice through prohibitions on religious dress. The article further
examines hygiene and safety arguments used by healthcare institutions to restrict religious attire,
arguing that while health and safety standards are crucial, scientific support for outright bans is
limited, especially considering the possibility of reasonable adjustments. The central theme is
the necessity for balanced considerations while upholding religious freedom and prioritising
patient care, with particular emphasis going on the idea that the needs of patients cannot be
generalised.
Keywords
Freedom of religion, healthcare, religious dress, European Court of Human Rights, European
Court of Justice, non-discrimination
Corresponding author:
Naoual El Yattouti, FWO Fellow, University of Antwerp Faculty of Law, Antwerpen, Belgium.
Email: naoual.elyattouti@uantwerpen.be
Creative Commons Non Commercial CC BY-NC: This article is distributed under the terms of the Creative
Commons Attribution-NonCommercial 4.0 License (https://creativecommons.org/licenses/by-nc/4.0/) which
permits non-commercial use, reproduction and distribution of the work without further permission provided the original
work is attributed as specified on the SAGE and Open Access page (https://us.sagepub.com/en-us/nam/open-access-at-sage).
Article
Netherlands Quarterly of Human Rights
2024, Vol. 42(3) 253–275
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519241270438
journals.sagepub.com/home/nqh
1. INTRODUCTION
Healthcare is intimately connected to individuals’well-being and physical integrity, and requires
trust and collaboration between healthcare provider and patient. The increasing religious and cul-
tural diversity in Europe is posing some challenges in the context of healthcare, such as language
barriers, different approaches to information disclosure and decision-making, and requests for reli-
giously motivated interventions. These challenges are usually addressed in terms of the patient’s
rights and perspectives. Nevertheless, it is equally crucial to consider the perspectives and rights
of healthcare providers in the light of cultural and religious diversity. This article will focus on
healthcare providers who wish to express their religious beliefs by wearing religious attire.
This contribution distinguishes itself from the literature on the restriction of religious freedom in
employment through its focus on the healthcare context,
1
which brings specific questions to the
table that are not applicable to just any work environment. First, the healthcare setting emphasises
the patient-healthcare provider relationship, where trust significantly impacts the quality of care.
The level of trust will in large part depend on the patient’s perception, and the question arises
how that perception is impacted when treated by a visibly religious provider. As compared to
retail customers, patients are in a more vulnerable position, setting apart the dynamics involved.
Second, concerns regarding hygiene and safety are context-specific in healthcare. Institutions pri-
oritise health and safety, which may lead to restrictions on certain types of attire, such as jewellery,
headgear, or loose hanging clothing, which could be of a religious nature. However, this reasoning
could potentially be exploited to justify categorical bans on religious dress in absence of genuine
health or safety concerns.
2
Third, the distinction between public and private health institutions
carries implications. In public institutions, healthcare providers can be considered State actors,
potentially required to adhere to policies of religious neutrality. However, also in private institu-
tions, the freedom of religious expression can be constrained by the employer’s neutrality policies.
Moreover, many European healthcare institutions have religious origins or an ethos,
3
which might
influence the balancing of employees’religious freedoms, especially when the employee’s religion
differs from the religious ethos of the institution.
Both the European Court of Human Rights (ECtHR) and the Court of Justice of the European
Union (CJEU) have addressed prohibitions of religious attire in the workplace. In this jurisprudence
the principle of religious neutrality and the employer’s business image have almost consistently
1. See, among others: Lucy Vickers, Religious Freedom, Religious Discrimination and the Workplace (2nd edn,
Bloomsbury Publishing 2008); Marie-Claire Foblets, ‘Freedom of Religion and Belief in the European Workplace:
Which Way Forward and What Role for the EU?’(2012) 13 International Journal of Discrimination and the Law 240;
Julie Ringelheim, ‘Religion, Diversity and the Workplace. What Role for the Law?’in Marie-Claire Foblets,
Katayoun Alidadi (eds), A Test of Faith: Religious Diversity and Accommodation in the European Workplace
(Routledge 2016); Schona Jolly, ‘Islamic Headscarves and the Workplace Reach the CJEU: the Battle for Substantive
Equality’(2016) 6 European Human Rights Law Review 672; Erica Howard, Law and the wearing of religious
symbols in Europe (2nd edn, Routledge 2019); Eva Brems, ‘Discrimination against Muslims in Belgium’in Melek
Seral and Şerif Onur Bahçecik (eds), State, Religion and Muslims (Brill 2020).
2. Amnesty International, ‘Choice and Prejudice Discrimination against Muslims in Europe’(2012), 33.
3. By way of example, it can be indicated that in France nearly 28% of hospitals are private non-profit institutions, generally
with religious or confessional origins, and in Germany hospitals with a Christian affiliation constitute 63% of all non-
profit hospitals. Valentin Petkantchin, ‘Non-profit health care hospitals in France’(2010) IEM’s Economic Note; Lapo
Filistrucchi and Jens Prüfer, ‘Nonprofits are not alike: The Role of Catholic and Protestant Affiliation’(2013) TILEC
Discussion Paper, 2; Ellen Idler and Allan Kellehaer, ‘Religion in Public Health-Care Institutions: U.S. and U.K.
Perspectives’(2017) 56(2) Journal for the Scientific Study of Religion 234.
254 Netherlands Quarterly of Human Rights 42(3)
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