2017

• 10 January 2017: According to the ECHR, compulsory mixed-gender swimming lessons do not violate the right to freedom of religion

The case of Osmanoğlu and Kocabaş v. Switzerland arose when Muslim parents refused to allow their two underage daughters to take part in mixed-gender swimming lessons at school. In the Canton of Basel-City, swimming lessons are among the compulsory classes for which only pubescent pupils may be exempted. The school’s senior management met with the parents several times, notably suggesting that their daughters wear burkinis. However, it was not possible to reach an agreement and a fine of CHF 1,400 (approx. €1,292) was imposed on the parents for failing to meet their parental responsibilities. The applicants alleged that the requirement for their daughters to take mixed-gender swimming lessons at school is contrary to their religious beliefs. They also considered that the refusal of the competent authorities to grant them an exemption and the fines imposed on them constitute interference with their right to religious freedom.
The European Court of Human Rights considered that this case involves a situation in which the applicants’ right to express their religion is at stake and that the authorities’ refusal to exempt their daughters from compulsory mixed swimming lessons constitutes interference with exercising their right to religious freedom (pt. 42). However, it ruled that the disputed measure was based on an adequate legal basis and "shared the Government’s view that the aim of this measure was to integrate foreign children from different cultures and religions, while also ensuring proper delivery of education, compliance with compulsory education, and gender equality. The measure was aimed in particular at protecting foreign students from any phenomenon of social exclusion" (pt. 64). As such, exemption of the applicants’ daughters from compulsory swimming lessons was declined in pursuit of legitimate aims within the meaning of Article 9§2 of the Convention.
The Court further noted that the authorities made significant allowances for the applicants, including the option of the girls covering their bodies during swimming lessons by wearing burkinis. It also noted that they could undress and shower without boys being present. It considered that “these supportive measures were sufficient to reduce the disputed impact of the children’s participation in mixed-gender swimming lessons on their parents’ religious beliefs” (pt. 101).
In view of the above, "the Court considers that, by prioritising the obligation for the children to complete their schooling and successfully integrate over the applicants’ private interest in having their daughters exempted from mixed-gender swimming lessons on religious grounds, the domestic authorities did not exceed the considerable discretion they had in the present case, which concerns compulsory education" (pt. 105).