Islam, modesty and mixed bathing: Osmanoğlu

In Osmanoğlu and Kocabaş v Switzerland [2017] ECHR 14, the applicants were Muslim parents who had refused to allow their daughters to take part in compulsory school swimming lessons because they regarded mixed bathing as contrary to their religious beliefs. They were told by the Public Education Department of the Canton of Basle Urban that they would be fined if their daughters did not attend the compulsory lessons because the girls had not yet reached the age of puberty and could not, therefore, claim exemption under the legislation.

In 2010 they were duly fined for acting in breach of their parental duty and their subsequent appeals against the penalty were unsuccessful. Before the Third Section ECtHR they alleged that the requirement to send their daughters to mixed swimming lessons in violation of their religious convictions was a violation of their rights under Article 9 ECHR (thought, conscience and religion).

The Court conceded that the refusal by the authorities to exempt the applicants’ daughters from compulsory mixed swimming lessons had been an interference with their Article 9 rights; however, that interference was prescribed by law and sought to protect foreign pupils from any form of social exclusion. It also pointed out that it was an area in which states parties enjoyed a wide margin of appreciation, particularly where matters of religious manifestation arose in relation to teaching and state education. While refraining from pursuing any aim of indoctrination, states parties were nonetheless free to devise their school curricula according to their needs and traditions.

Schools played a special role in the process of social integration, and` particularly so in the case of pupils of foreign origin. Given the importance of compulsory education for children’s development, an exemption from certain lessons was justified only in very exceptional circumstances, in well-defined conditions and having regard to equality of treatment of all religious groups; and that the fact that the relevant authorities did allow exemptions from swimming lessons on medical grounds showed that their approach was not an excessively rigid one.

Accordingly, the children’s interest in a full education prevailed over the parents’ wish to have their children exempted from mixed swimming lessons. Sports education, of which swimming was an integral part in the school attended by the applicants’ children, was of special importance for children’s development and health. A child’s interest in attending those lessons was not just to learn to swim and to take physical exercise, but above all to take part in that activity with all the other pupils, with no exception on account of the child’s origin or the parents’ religious or philosophical convictions. Moreover, the authorities had offered the applicants very flexible arrangements: their daughters had been allowed to wear a burkini during swimming lessons and had been able to undress with no boys present.

The fines imposed by the authorities on the applicants, after duly warning them of the consequences of their actions, had been proportionate to the aim pursued: to ensure that parents sent their children to compulsory lessons, in the interests of their children’s socialisation and integration.

There had been no violation of Article 9 of the Convention.

Cite this article as: Frank Cranmer, "Islam, modesty and mixed bathing: Osmanoğlu" in Law & Religion UK, 10 January 2017, http://www.lawandreligionuk.com/2017/01/10/islam-modesty-and-mixed-bathing-osmanoglu/

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  1. Pingback: EHRM: Geen schending artikel 9 EVRM door gemengde zwemlessen ook voor moslimkinderen verplicht te stellen op school – europees recht

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