OP v. Commune d’Ans: When equality, intersectionality and state neutrality collide

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 neutrality 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 intersectional approach.