Press release no. 10/2019 of 31 January 2019

Hair and Beard Decree requires basis for authorisation

The Joint Service Regulation (ZDv, Zentrale Dienstvorschrift) A 2630/1 "The External Appearance of Female and Male Military Personnel of the Bundeswehr" (Das äußere Erscheinungsbild der Soldatinnen und Soldaten der Bundeswehr) lacks a sufficient legal basis. For a transitional period, this Service Regulation, which is generally known as the "Hair and Beard Decree" (Haar- und Barterlass), but which also contains other rules, for example on tattoos and piercings, is to continue to be applied until a corresponding new regulation has been introduced. This was decided today by the 1st Military Affairs Senate (Wehrdienstsenat) of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig.


The case is based on the military complaint of a Stabsfeldwebel who, according to his own statements, is a follower of the Gothic culture and wants to wear long hair. He considers the provision in no. 202 of the ZDv A-2630/1, according to which male soldiers must wear their hair cut short, to be discriminatory. He argues that the same Service Regulation allows female soldiers to wear their hair long and tied at the back of their heads. The Federal Ministry of Defence did not remedy the complaint.


The Federal Administrative Court ultimately rejected the soldier's application to repeal the Service Regulation. As already shown in an earlier decision, the equal rights principle does not preclude the provision of different rules for female and male soldiers with regard to uniforms and hairstyles when performing their duties (BVerwG, decision of 17 December 2013 - 1 WRB 2.12, 1 WRB 3.12 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 149, 1). However, rules that interfere with the freedom of the individual to individually shape the external appearance require a sufficiently specific legal basis. This follows from the general freedom of action guaranteed in article 2 (1) of the Basic Law (GG, Grundgesetz), which also protects the soldier from having to accept restrictions through official instructions without a legal basis regarding his personal appearance which also affect the soldier's appearance when not on duty.


Such a sufficient legal basis is not contained in section 4 (3) second sentence of the Legal Status of Military Personnel Act (SG, Soldatengesetz) - as the 1st Military Affairs Senate has now decided. In any event, the provision, in the new version that has been in force since 2017, only contains an authorisation for rules relating to the uniform and the pieces of clothing worn with it. Neither the wording of the provision nor the legislative materials clearly indicate that the issuer of the decree is also authorised in the factual connection of the determination of a dress code to adopt rules concerning the styling of body parts of female and male soldiers that necessarily also have an effect in the private sphere.


However, as the previously applicable provision of section 4 (3) second sentence SG had been interpreted in a broader sense, and as a standardised appearance of the Bundeswehr is required in the interest of its functioning, the Service Regulation will continue to be applied provisionally until a new legal provision has been introduced. The legislature will also have to decide whether different rules regarding the hairstyle of men and women in the Bundeswehr is still required in the future. 


Footnote:

Section 4 (3) SG, old version:


"Unless otherwise provided by law, the Federal President shall determine the rank designations of soldiers. He issues the rules regulating soldier's uniforms. He may delegate the exercising of these powers to other bodies."


 section 4 (3) SG, new version:


"Unless otherwise provided by law, the Federal President shall determine the rank designations of soldiers. He issues the rules regulating soldier's uniforms and determines the articles of clothing which may be worn with the uniform without being uniform parts. He may delegate the exercising of these powers to other bodies."


From the ZDv A 2630/1 "The External Appearance of Female and Male Military Personnel of the Bundeswehr":


202. Male soldiers' hair must be cut short. Ears and eyes must not be covered. The hair must be worn in such a way that the uniform and shirt collars are not touched when the head is in an upright position.


204. Female soldiers' hair must not cover their eyes. Hair that would touch the shoulder in an upright body and head position is to be completely plaited at the back of the head (footnote) and worn down the back or pinned up. The shape and colour of hair clips/ribbons must be discreet."


The footnote defines:


"A plait is a strand of hair created by weaving, knotting or tying together. Even an open plait held together by a hair band at the base of the plait (so-called "ponytail") can fulfil the general principle of a "clean" and "groomed" hairstyle (no. 201 second sentence). This is to be decided in each individual case, also considering the respective hair length."


BVerwG 1 WB 28.17 - decision of 31 January 2019


Decision of 31 January 2019 -
BVerwG 1 WB 28.17ECLI:DE:BVerwG:2019:310119B1WB28.17.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, decision of 31 January 2019 - 1 WB 28.17 - para. 16.

Headnote

The rules for the hairstyle of soldiers in no. 202 of the Joint Service Directive A-2630/1 do not have a sufficiently specific basis for authorisation in section 4 (3) second sentence SG which would meet the requirements arising from the principle that calls for a specific enactment of a statute. However, they may continue to be applied for a transitional period.

  • Sources of law
    Basic LawGG, Grundgesetzarticles 2 (1), 3 (2)
    Legal Status of Military Personnel Act SG, Soldatengesetzsections 4 (3), 6
    Act on Equal Opportunities for Military Personnel SGleiG, Soldatinnen- und Soldatengleichstellungsgesetzsections 1, 4

Summary of the facts

As a non-commissioned officer (Unteroffizier), the applicant is obligated to wear uniform when on duty, and is also subject to the Joint Service Regulation (ZDv, Zentrale Dienstvorschrift) A 2630/1 "The External Appearance of Female and Male Military Personnel of the Bundeswehr" (Das äußere Erscheinungsbild der Soldatinnen und Soldaten der Bundeswehr, as of January 2016). This Service Regulation, known as the "Hair and Beard Decree" (Haar- und Barterlass), contains, among others, the following passages:

"106. The gender-specific differences in the treatment of female and male soldiers are in line with the current legal situation. Differentiating approaches to the assessment of female and male soldiers' hairstyles also take into account social customs and values. The following rules take account of the fact that women consider wearing jewellery and long hair to be a special expression of their femininity.

202. Male soldiers' hair must be cut short. Ears and eyes must not be covered. The hair must be worn in such a way that the uniform and shirt collars are not touched when the head is in an upright position.

204. Female soldiers' hair must not cover their eyes. Hair that would touch the shoulder in an upright body and head position is to be completely plaited at the back of the head (...) and worn down the back or pinned up. The shape and colour of hair clips/ribbons must be discreet."

With his letter of 17 January 2017, the applicant lodged a "complaint of discrimination". He argued that no. 106, 202 and 204 ZDv A-2630/1 cause a discrimination against men that is unconstitutional and unlawful; that just like wearing long hair is an expression of their femininity for women, it may be an expression of their virility for men; and that he as a follower of the Gothic culture also wished to wear his hair long. After a clarifying enquiry, the Federal Ministry of Defence classified the complaint as an application for a judicial decision and referred the matter for a decision.

Reasons (abridged)

17 2. The soldier's request to be permitted to wear his hair long is (...) unsuccessful. Even though the rules provided in no. 202 ZDv A-2630/1 interfere with his right to free development of one's personality (article 2 (1) of the Basic Law (GG, Grundgesetz)), section 4 (3) second sentence of the Legal Status of Military Personnel Act (SG, Soldatengesetz) without containing a normative basis for this that meets the requirements arising from the principle that calls for a specific enactment of a statute (Vorbehalt des Gesetzes), these rules may continue to be applied for a transitional period without causing an unreasonable burden for the applicant.

18 a) The requirements for soldiers' hairstyles in no. 202 ZDv A-2630/1 directly interfere with the applicant's right to free development of one's personality pursuant to article 2 (1) GG (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), decision of 17 December 2013 - 1 WRB 2.12 et al. - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 149, 1 para. 43 with further references). On the one hand, they restrict his right to determine under his own responsibility the style of his external appearance, also when on duty (section 6 SG). On the other hand, they consequently at the same time restrict his right to make his external appearance, including the hairstyle, an expression of his individual identity as part of his private lifestyle off-duty. The rules force soldiers to wear short hair, also during their leisure time, and thus impact their privacy. They have special significance for those affected - as for the applicant in the present case - who wish to wear long hair in their leisure time for fashionable-aesthetic reasons or who understand longer hair as an expression of their private affiliation to a group or cultural scene linked by common attitudes towards life.

19 b) The basic right under article 2 (1) GG is only guaranteed subject to the reservation of the constitutional order. It can therefore be restricted on the basis of an act which complies with the competence provisions of the Basic Law and is sufficiently specific in terms of content, provided that the interference is based on reasons of public interest and satisfies the principle of proportionality (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decisions of 6 June 2006 - 1 BvR 921/85 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 80, 137 <153> and of 9 March 1994 - 2 BvL 43/92 et al. - BVerfGE 90, 145 <171 et seq.>; established jurisprudence). This is not the case here, as the parliamentary legislature had not in a sufficiently specific manner authorised the body issuing the decree to interfere with the right of soldiers to style the external appearance of their bodies according to their own ideas.

20 aa) In view of the principle of the rule of law and the requirement of democracy, the principle that calls for a specific enactment of a statute requires that the legislature itself must take all essential decisions in fundamental normative areas and must not leave them to the actions and decision-making powers of the executive branch (see BVerfG, decision of 27 November 1990 - 1 BvR 402/87 - BVerfGE 83, 130 <142> and judgment of 24 May 2006 - 2 BvR 669/04 - BVerfGE 116, 24 <58>, each with further references). The scope of this principle is defined in more detail by the essential matters doctrine (Wesentlichkeitstheorie) - as it is referred to in abbreviated form (see BVerfG, decision of 26 June 1991 - 1 BvR 779/85 - BVerfGE 84, 212 <226>). The essential matters doctrine not only answers the question of whether a certain issue needs to be regulated by law at all; rather, it is also decisive with regard to the decision on how far such regulations must go in a specific case. In principle, acts which authorise the enactment of ordinances and by-laws may also satisfy the requirements arising from the principle that calls for a specific enactment of a statute; however, the essential decisions must be taken by the parliamentary legislature itself (BVerfG, decision of 21 April 2015 - 2 BvR 1322/12 - BVerfGE 139, 19 para. 54 with further references). The specificity of the authorising provision must correspond to the relevance regarding basic rights of the regulation for which it grants authorisation. The more this regulation interferes with the legal position of the person concerned, the higher the requirements must be with regard to the degree of specificity of the authorisation. An authorisation must therefore not be unspecific to such an extent that it is no longer possible to anticipate in which cases and with what tendency it will be used and what the content of the ordinances adopted on the basis of the authorisation may be. It must therefore already be recognisable and foreseeable from the authorising provision what should be permissible vis-à-vis the citizen (BVerfG, decision of 21 April 2015 - 2 BvR 1322/12 et al. - BVerfGE 139, 19 <47> para. 55 with further references; BVerwG, judgment of 17 November 2017 - 2 C 25.17 - (...) - para. 42).

21 bb) Section 4 (3) second sentence SG does not contain an authorisation of the issuer of the decree to regulate the hairstyle of soldiers which would meet the above requirements. Insofar as the Senate held a different opinion with regard to the old version of section 4 (3) second sentence SG and the earlier "Hair and Beard Decree" ... (BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 49), it no longer adheres to this jurisprudence.

22 aaa) From the first entry into force of the Legal Status of Military Personnel Act of 19 March 1956 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 114), the Federal President has had the authority to issue the rules on soldiers' uniforms (section 4 (3) second sentence SG old version). Pursuant to section 4 (3) third sentence SG, he may delegate the exercising of this authority to other bodies. The Federal President has used this authorisation in part by issuing the Decree on the Designation of Soldiers' Ranks and on Soldiers' Uniforms (Anordnung über die Dienstgradbezeichnungen und die Uniform der Soldaten) of 14 July 1978 (BGBl. I p. 1067, last amended by Decree of 31 May 1996, BGBl. I p. 746) and, moreover, in article 2 (2) of the Decree, transferred the authority to determine the rules on soldiers' uniforms to the Federal Minister of Defence providing that changes or new introductions shall only take place after his consent has been obtained. In the past, the Federal Ministry of Defence has made use of this authorisation several times in the form of Joint Service Regulations, including such concerning the style of soldiers' hair and beards. ZDv A-2630/1 "The External Appearance of Female and Male Military Personnel of the Bundeswehr" has been in effect since 21 December 2015. Section 4 (3) second sentence SG has been recast by article 3 no. 1 of the "Act on Area-Specific Regulations of Veiling the Face and on the Amendment of other Regulations on Service Law" (Gesetz zu bereichsspezifischen Regelungen der Gesichtsverhüllung und zur Änderung weiterer dienstrechtlicher Vorschriften) of 8 June 2017 (BGBl. I p. 1570). According to the new provision, the Federal President now issues the rules governing soldiers' uniforms and determines the items of clothing that may be worn with the uniform. There has been no change in the authority to delegate this power to other bodies in accordance with section 4 (3) third sentence SG.

23 bbb) Section 4 (3) second sentence SG does not contain a sufficiently specific basis of authorisation for the aforementioned interference with a basic right, because, taking into account its wording and the legislative materials, it does not have a sufficient connection to the regulation of the hairstyle of female and male soldiers and it furthermore does not contain any standards regarding the type, content and extent of an interference which necessarily co-determines the external appearance of the female and male soldiers' bodies, even in their private sphere.

24 (1) In all versions of section 4 (3) second sentence SG, the scope of the regulatory competence of the body issuing the relevant decree is characterised solely by the term "uniform". In accordance with common linguistic usage, the term "uniform" is defined as "clothing that is standardised in material, form and colour and worn especially by the military and police on duty" (...). The word originates from the French language (uniforme), has a Latin language root (uniformis - standardised) and has become established in Germany since the 18th century as a term for service clothing (...). The term refers to "(service) clothing produced according to standardised guidelines, which, unlike the livery, externally identifies the affiliation of a person to a certain institution (military, police, customs, railway, fire service, post office, etc.)" (...).

25 The use of the term in legal language also corresponds to this common linguistic usage. For instance, "uniform" as used in section 3 of the Act concerning Assemblies and Processions (VersammlG, Versammlungsgesetz) refers to clothing of the same type in terms of shape, colour, cut or equipment, which deviates from the generally customary (civil) clothing (Federal Court of Justice (BGH, Bundesgerichtshof), judgment of 11 January 2018 - 3 StR 427/17 - (...)). The term uniform within the meaning of section 132 (1) no. 4 of the German Criminal Code (StGB, Strafgesetzbuch) also refers to standardised service clothing introduced on the basis of provisions of public law (...). In the same way, rules on the wearing of uniforms by former soldiers apply a purely clothing-related interpretation of the term uniform (...).

26 A further argument in favour of a narrow interpretation of the term uniform is the fact that the authority to issue such decrees was in principle conferred by section 4 (3) second sentence SG on the Federal President who is traditionally granted the "power of defining symbols" (...). One of the symbols of state authority may be the soldier's standardised uniform, clearly distinguishable from civilian clothing, but not the hair.

27 Section 4 (3) second sentence SG in the version of article 3 no. 1 of the "Act on Area-Specific Regulations of Veiling the Face and on the Amendment of other Regulations on Service Law" of 8 June 2017 (BGBl. I p. 1570) refers to pieces of clothing that are not uniform parts but are worn with the uniform, which means that this provision is also based on an interpretation of the term according to which a uniform consists of pieces of clothing. The explanatory memorandum to the recast version (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/11180 p. 11 et seq.) also deals solely with dangers to the function of a uniform by the use of pieces of clothing which do not belong to the uniform and which stand in the way of the uniform wearer communicating in a spirit of trust with citizens, superiors and comrades and which may thus impair the respect and trust which the official position of a soldier requires. It thus explains the purpose of the recast version in relation to clothing components in a way which does not give rise to interpreting the term uniform in a manner other than in common linguistic usage, i.e. as a standardised assortment of pieces of clothing. This suggests that the regulatory competence of the issuer of the decrees should be limited to matters of clothing.

28 Within the framework of this competence, the Federal President and the bodies to which he has delegated his powers may determine in detail the appearance and composition of military uniforms. In addition to determining which soldiers have to wear uniforms on duty or on certain occasions, the regulatory competence of section 4 (3) second and third sentences SG also includes the right to order a standardised manner of wearing such uniform. This includes - as the recast version clarifies - the power to determine which private pieces of clothing may be worn with the service uniform (BT-Drs. 18/11180 p. 11 et seq.). A "uniform" within the meaning of section 4 (3) second sentence SG consists of a set of standardised pieces of clothing of female and male soldiers, the wearing of which guarantees the marking as combatant required under international law and the visible integration into the military community through a standardised external appearance of the person wearing the uniform (see BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 60). However, the uniform wearer's hair is not part of the uniform and thus not an expressly mentioned regulatory object under section 4 (3) second and third sentences SG.

29 (2) To the extent that it has up to now been assumed that the authority to adopt a Hair and Beard Decree that ensures compatibility with the uniform is tacitly included in section 4 (3) second and third sentences SG by virtue of a factual connection, this opinion is not convincing. It is undeniable that the military uniform also serves to ensure the standardised appearance of the armed forces at home and abroad and that strongly varying hair lengths, hair colours, beard styles etc. may massively impair the intended unified appearance of a unit. Therefore, there are rules in almost all armies of the western world regarding the permissible hair and beard style. Since the successful presentation of the Bundeswehr at home and abroad also depends on its appearance, and since a uniform appearance as a visible sign of integration into the military community also serves the internal unity of the troops, the rules on a standardised appearance are merely of functional, but still indispensable importance for the functioning of the armed forces (BVerwG, decision of 17 December 2013 - 2 WRB 2.12. et al. - BVerwGE 149, 1 para. 60).

30 However, it does not follow from this that the authority to regulate uniforms in section 4 (3) second and third sentences SG covers the authority to issue all rules that are deemed necessary for a standardised appearance of Bundeswehr female and male soldiers with regard to hair and beard styles, fingernails, cosmetics, jewellery, tattoos, piercings or other body modifications (see no. 201-604 ZDv A-2630/1). This is because a legal basis for authorisation can only serve to justify interferences with a basic right to the extent that they are sufficiently specified in terms of content, purpose and extent (see BVerfG, decision of 21 April 2015 - 2 BvR 1322/12 - BVerfGE 139, 19 para. 55 and BVerwG, judgment of 17 November 2017 - 2 C 25.17 - (...)). This is not the case here.

31 Neither the wording of section 4 (3) second and third sentences SG nor the legislative materials on the various versions of the provision make it clear that the issuer of the decree is also to be authorised to carry out such interference in the factual connection of or as an annex to rules on service uniforms which - such as rules on soldiers' hair and beard styles - concern not only the duty-related but necessarily also the private sphere of the soldiers. No indications of this can be found in the explanatory memorandum to the Federal Government's draft of a Legal Status of Military Personnel Act (Soldatengesetz) of 23 September 1955 (BT‑Drs. 2/1700 p. 18). The recast version of section 4 (3) second sentence SG by the "Act on Area-Specific Regulations of Veiling the Face and on the Amendment of other Regulations on Service Law" of 8 June 2017 (BGBl. I p. 1570) allows an adoption of rules based on a factual connection to ensure the function of the uniform, but restricts this to pieces of clothing. This is intended to enable the issuer of the decree to prohibit the wearing of private pieces of clothing, and thus to make the official duty to wear the uniform more effective (BT-Drs. 18/11180 p. 11 et seq.). This does not say anything about whether other regulatory areas are also covered by the authorisation, which - like rules concerning the soldier's body parts which cannot easily be changed at short notice - interfere more intensively with the sphere protected by a soldier's basic rights - in particular the off-duty lifestyle - than rules concerning the clothing.

32 In addition, within the framework of this amendment, in section 17 (2) second sentence SG, the legislature itself provided for a ban on veiling the face in official accommodation and facilities but outside the period of duty. This means that the legislature regarded a ban on clothing in the border area between on-duty and private life as so essential that a legal basis was required. Against this background, there is nothing to suggest that the legislature also wanted to authorise the issuer of the decree to provide for interferences which, on the one hand, interfere more intensively with the lifestyle than clothing rules as they constitute rules on body styling and, on the other hand, also have a territorial effect that goes beyond the area of the barracks still attributable to the employer, extending into the area attributable solely to the soldier's private sphere.

33 (3) Accordingly, the predefinition of the regulatory object of the authorising provision by long-standing rules on the external appearance of soldiers (BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 49) is no longer sufficient to satisfy the requirements arising from the principle that calls for a specific enactment of a statute and the essential matters doctrine. From an updated constitutional point of view, the question of essentiality and thus of the basis for authorisation can present itself differently than it did a few years or even decades ago (BVerfG, decision of 21 April 2015 - 2 BvR 1322/12 et al. - BVerfGE 139, 19 para. 57). (…)

34 Against this background, the socio-political question whether the rules on the hair and beard styles of male soldiers in their traditional form still correspond to a model that is widespread in the armed forces and not outdated by social and constitutional developments (see BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 61) and can therefore be demanded of soldiers in order to ensure a standardised external appearance of the armed forces, needs to be clarified in public debate on the basis of current findings (see BVerfG, decision of 21 April 2015 - 2 BvR 1322/12 et al. - BVerfGE 139, 19 para. 53). This means that the essential basic decisions for this regulatory model are assigned to the parliamentary legislature. The legislature not only has the fundamental authority to decide how much individuality each soldier may express in addition to the uniformity of appearance that is characteristic of the armed forces. The public debate on whether the different treatment of male and female soldiers regarding their hair styles is justified by the aim of reducing discrimination against women also has to take place in a pluralistic parliament (...).

35 b) However, the lack of a sufficient normative basis must be accepted for a transitional period. Usually, deficiencies in a required legal basis lead to the disregard of administrative regulations based on it. However, the deviation from the consequence of inapplicability comes into consideration above all if the jurisprudence - as is the case here - had assumed in the past that action by administrative decree was lawful, and if the lack of adherence to an administrative regulation in a transitional period would result in a situation which is even further removed from the constitutional order than the previous situation (see BVerfG, decision of 15 January 2019 - 2 BvL 1/09 - juris para. 81 on tax laws and BVerwG, judgment of 17 June 2004 - 2 C 50.02 - BVerwGE 121, 103, 111 on allowance rules). Here, for the duration of the parliamentary procedure, serious impairments of the function of the uniform, which may result from an unregulated situation, must be ruled out. A standardised appearance as a visible sign of integration into the military community is - as shown above - of indispensable importance for the functioning of the armed forces (BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 60). A different assessment is appropriate only if the legislature fails to act within a reasonable period of time (see BVerwG, judgment of 17 June 2004 - 2 C 50.02 - BVerwGE 121, 103, 111). At present, it can be assumed that it will still be possible to amend the basis for authorisation during the current legislative term.

36 c) For this transitional period, the applicant can also reasonably be expected to apply the rules on his hairstyle in no. 202 ZDv A-2630/1, because the contested rule complies with the constitutional requirements in terms of its content and, to date, established jurisprudence has always been based on the assumption that the basis for authorisation for the issuer of the decree is sufficient.

37 aa) The interference with his basic rights associated with the contested rules serves the legitimate requirements of the military service and satisfies the requirements of the principle of proportionality (see BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 52 et seqq.). The arguments put forward by the applicant do not cast any serious doubt on the assumption that no. 202 ZDv A-2630/1 is justified by the regulatory objective of a standardised external appearance and presentation of the German armed forces at home and abroad in the performance of their defence mission, which determines their self-image and public perception. Contrary to the applicant's assessment, the armed forces differ from other state authorities in that they typically act externally in a closed formation and are characterised to a large extent by a standardised external appearance and close internal cohesion among their members (BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 59). The associated differences in the function of the respective uniforms preclude a transfer of the considerations on the proportionality of a restriction on the hair length not below the shirt collar ("Hemdkragengrenze") for uniformed police officers to the situation of soldiers (BVerwG, judgment of 2 March 2006 - 2 C 3.05 - BVerwGE 125, 85 <91>).

38 bb) Moreover, the contested provisions do not violate the principle of equality of men and women (article 3 (2) first sentence GG, section 1 (1) first sentence of the Act on Equal Opportunities for Military Personnel (SGleiG, Soldatinnen- und Soldatengleichstellungsgesetz)). The rule on the hairstyle of female soldiers which deviates from the requirements for male soldiers is a permissible measure for the advancement of women in the Bundeswehr (BVerwG, decision of 17 December 2013 - 1 WRB 2.12 et al. - BVerwGE 149, 1 para. 66 et seqq.). Based on the objective of the rule, it is not required to treat the applicant equally. The rule does not constitute discrimination in the sense of impermissible unequal treatment.

39 According to the statistics on the proportion of women in the armed forces submitted by the Federal Ministry of Defence, this proportion has increased since December 2012 from 9.65% in absolute terms at the time to 12.10% today. Nevertheless, women are still underrepresented in the sense of section 4 (2) and (5) SGleiG. Even taking into account recent developments, the employer's assessment that the regulation on the hairstyle of female soldiers could make a contribution to the objective of an advancement of women in the Bundeswehr in accordance with article 3 (2) second sentence GG and section 1 (1) second sentence SGleiG has not been refuted. Whether - as the applicant argues - there may be other reasons for the increase in the proportion of women in the armed forces - such as a generally difficult labour market situation -, is irrelevant. The co-causality of other factors does not demonstrate that the employer has overstepped its margin of appreciation.