Compulsory sex education and Article 9 ECHR: AR & LR v Switzerland

Background

In 2011, a Basel primary school refused to grant Ms AR’s request that her daughter LR, then aged seven and about to move up to the second year of primary school, be exempted from sex education lessons.

In AR and LR v Switzerland [2018] (Application no 22338/15), relying on Article 8 § 1 (private and family life) Ms AR and Ms LR argued that there had been a violation of Ms AR’s right to respect for private and family life, and that Ms LR had been subjected to an unjustified interference with the exercise of her right to respect for her private life. They also complained of an infringement of their right to freedom of religion and conscience under Article 9 §1 and of a breach of Article 14 (discrimination) taken together with Articles 8 and 9.

The decision (in French)

As to the complaint under Article 8 §1, the Court recognised that the application of some of the aims pursued by sexual education provided for minor children might be controversial; however, one of the aims of sex education was to prevent sexual violence and exploitation, which posed a real threat to the physical and mental health of children and against which children of all ages had to be protected. It also stressed that one of the objectives of state education was to prepare children for social realities, which tended to justify sex education for very young children at kindergarten or primary school [35]. Under the case-law of the Court in relation to Article 2 of Protocol No. 1, sex education lessons did not affect the right to parental education unless they pursued an aim of indoctrination which might be considered as not respecting the religious and philosophical convictions of the parents [39]. Sex education as practised in the schools of the Canton of Basel-Stadt therefore pursued legitimate aims.

As to the proportionality of the refusal to grant exemption from such classes, the Court emphasised the peculiarity in the present case that Ms AR did not object to sex education classes as such, but only that they were given to children aged four to eight and it shared her view that such young children were particularly sensitive and impressionable and that the relationship between a child and its parents was of particular importance to its development in those crucial years [40]. But even so, it was appropriate to recall that the protection of parental education provided for in Article 5 of the Convention on the Rights of the Child was not an end in itself but always had to serve the well-being of the child. Similarly, Article 19 of that Convention obliged states parties to take “all measures”, including “educational” measures, to “protect the child against all forms of physical or mental violence, injury or abuse”. (…), including sexual violence”. The Court considered that school sex education as practised in Basel-Stadt pursued those aims [41].

The Court also noted that the national authorities had recognised the paramount importance of the parents’ right to provide for the sexual education of their children and that that the sex education lessons in question did not pursue the aim of indoctrinating children. The directive adopted by the Board of Education in 2011 expressly recognised that school sex education should not be used to exercise social control or standardisation and there was no indication that the public authorities did not act in accordance with that requirement [42]. The classes were complementary to that right: they were not systematic because the teachers had to confine themselves to “reacting to children’s questions and actions” in accordance with the 2011 directive [43].

As to the argument that sex education was inappropriate because it might give information on sexuality to children who had never spontaneously raised the subject, the Court held that that was not relevant because it did not take into account the dynamics at work in a school class or kindergarten: to suggest that it was possible to give answers to questions about sex only to the children who asked those questions – while making sure that the other children did not engage with the subject – would be to ignore the realities of a school [44].

In short, the Swiss authorities had not exceed the margin of appreciation granted them by the Convention and the applicants’ complaint was rejected as manifestly ill-founded.

As to the complaint under Article 9, Ms AR had not provided sufficient evidence on which to found her complaint of a violation and that, too, was manifestly ill-founded. As to her complaint under Article 14 taken together with Articles 8 and 9, she had not complained of discrimination before the Federal Court and had therefore failed to exhaust domestic remedies.

The application was rejected.

Cite this article as: Frank Cranmer, "Compulsory sex education and Article 9 ECHR: AR & LR v Switzerland" in Law & Religion UK, 19 January 2018, http://www.lawandreligionuk.com/2018/01/19/compulsory-sex-education-and-article-9-echr-ar-lr-v-switzerland/

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