A recent European Court of Human Rights (ECHR) ruling in favor of Switzerland puts to test democratic and secular principles in Europe.
In a judgment handed down on Tuesday, the ECHR rejected a claim brought by a Muslim couple in Basel, Switzerland, who had refused to allow their daughters to attend compulsory mixed swimming lessons at school.
The ruling itself is unsurprising, and doesn’t come in a vacuum. The European court has been called upon to weigh in on issues of religious freedom before – and a pattern has emerged, which is difficult to ignore.
Two basic trends have materialized – the first is one where the court has adopted a more neutral kind of secularism, and where the judges have prioritized the individual consciences of the plaintiffs over that of the different authorities that, invariably, call to notions of “public order” to justify certain restrictions.
But this trend has typically been associated with religious freedom cases lodged by members of Christian communities, including, for example, the British Airways employee who had been told by her employers that she couldn’t wear a crucifix. Indeed, even state authorities have, in order to protect a visible manifestation of Christian heritage, appealed to the court to allow for crosses to be openly displayed in state schools – and were successful in doing so.
There is, nevertheless, another trend at work – one which is far more aggressively secularist, and which has, invariably, affected Muslim communities. French and Turkish citizens have applied to the court to protect their right to use certain types of clothing – particularly the head-scarf or hijab and the face veil or niqab.
In light of such cases, as a former employee of the European Court has pointed out: “… some consider that the Court has more frequently sustained a form of strict secularism, or even a sort of intolerant secularism or enlightenment fundamentalism. This is especially so in cases when individual religious manifestations do not display any signs of political intentions but are performed bona fide making these prohibitions difficult to reconcile with the necessity to protect a democratic society.”
In that trend, the court has prioritized the state’s rights over individual freedom of conscience – to the point where it seems that the court has taken the state’s arguments around what it considers as legitimate aims as a given.
It’s not quite clear cut, though. In this particular case, the girls were children – they hadn’t even met the age of puberty – and the school had said that a full length wetsuit, popularly known as a “burkini”, could be worn. One would have thought that a compromise might have been found. But the precedent has now been set – and the court is clear.
Burkini, no burkini – below or above the age of puberty – it seems that Muslim parents who wish to withdraw their children from mixed swimming lessons will be unable to do so.
The ramifications of the case are more than just a swimming lesson issue. The reasoning mentioned by the court enshrines much more than that. It claimed, in a rather sweeping statement, that Switzerland’s right to facilitate “successful social integration according to local customs and mores” took precedence.
Further, “The Court observed that school played a special role in the process of social integration, and one that was all the more decisive where pupils of foreign origin were concerned,” the statement read.
It’s a very sensitive and delicate argument – and not one made very well by the court in this regard. How “social integration” is served by forcing families to put their children into a very specific type of sporting activity – one that only a few years ago would have been segregated according to gender in many European countries – is unclear.
Islam in Europe
It is difficult, also, to separate this ruling from the wider anti-Muslim sentiment in terms of “visible Muslim-ness” across Europe. Remember: Switzerland was the country where a few years ago a national referendum was held on mosque minarets (though there were barely any minarets in the country) – and the Swiss banned minarets as a result.
But this isn’t simply about the Swiss – generally a tolerant nation and accepting of diversity – far from it. The Swiss are part of a wider discussion, where three things are being hammered out across Europe. The first is how to recognize religion in an increasingly secularized Europe, a continent where there are now only eight recognized state-churches. Norway, for example, just disestablished their own national church a few weeks ago. Religion is no longer considered as important in the national sphere in most European countries as it once was.
Secondly, how is Europe to acknowledge Islam as a religion in the European public sphere? There is a great deal of resistance to that, historically and today, but whether we like it or not, Islam is a European religion, and its adherents are not excluded from being European just because they are Muslim. Europe as a whole has to come to grips with that.
Finally, how does Europe incorporate Muslims as individuals and as communities, visible ones or not, even when they are different from what is now more commonly acceptable? Even when reluctance to engage in mixed-gender sports has only recently went “out of vogue”?
Where does it end and who decides? Are Muslim Europeans actors in that decision, with as much a European voice as any other European? Or are they simply subjects to be told that this is the way it is and if they don’t like it, their European-ness is rejected and they can “leave”? To where, nobody knows because, like it or not, they are Europeans.
All of that is taking place against the backdrop of major issues such as terrorism and migration – and while these should be segmented out, they’re not going to be. The fears of Eurarabia remain, as preposterous as they may be.
Right-wing populists – and even many on the left – make a good deal of political hay on these issues. That is very likely to continue – and, alas, this court ruling just makes the situation all the more difficult.
Europe is going through a very challenging period and Muslims and non-Muslims alike need to be creative about how best to move forward. This latest outcome isn’t a good example of that at all.
This article was originally published in aljazeera.com
* Dr HA Hellyer is senior non-resident fellow at the RH Centre for the Middle East at the Atlantic Council and at the Royal United Services Institute in London. He is also author of “The ‘Other’ Europeans: Muslims of Europe”.
Adetunji Afeez YinkaJanuary 16, 2017 - - 8:13 am
Why have a gender seperated toilets then?
Annie FerrerJanuary 16, 2017 - - 2:43 pm
Actually gender separated toilets but mixed kids swimming lessons make a lot of sense from an Islamic point of view. Since we are not allowed to show our Awra at any age (exceptions apply), toilets need to be private. However, there is no command to separate genders or wear hijab before puberty and hence there shouldn´t be an issue with children swimming together. I actually feel those parents are doing a disservice to their daughters by imposing a more strict version of Islam than what is required. Life for a Muslim kid is hard already, why make it harder?
Jafar Ahmed MustaphaJanuary 16, 2017 - - 10:11 pm
So you teach your daughters to mix with boys. You teach them gender mixing and then expect them to obseve hijab when they grow up. Get a bloody life.
Jafar Ahmed MustaphaJanuary 16, 2017 - - 10:12 pm
And toilets are privat spaces. Weather mixed or not mixed, nobody can see your awrah there
Fa RiJanuary 16, 2017 - - 11:31 pm
^Um, girls will be mixed with boys their whole lives. Whether it would be at a job, public transport, shops, walking down the street, restaurants, classes,….Better teach them young than never acknowledging it.
Adetunji Afeez YinkaJanuary 17, 2017 - - 1:38 am
Annie Ferrer I don’t know where you got the idea that mixed swimming pool makes lot of sense from an Islamic point of view.If you know a little islam islam,you will know that the prophet commanded children’s bed to be separated at age 10,how more of a swimming pool? And it seem you are insinuating ppl don’t expose awrah at swimming pool?what a joke!
Adetunji Afeez YinkaJanuary 17, 2017 - - 1:42 am
Fa Ri since girls will mix with boys why not create a single toilet for both to teach them integration.The parent never requested for a separate class or school for girls.Hope you can pick the difference?
Jafar Ahmed MustaphaJanuary 17, 2017 - - 1:49 am
People who believe in hijab have an issue with the mixed swimming. Not the shameless femenazis who rub sholders with men and seek the company of men. So your point is invalid prattle, Fa ri
Amy FaroukJanuary 17, 2017 - - 1:55 am
Annie Ferrer and were given accommodation and at puberty to opt out.
Fa RiJanuary 17, 2017 - - 1:58 am
Bathroom business is definitely not the same as every day gender mixing, so you can stop using that example. I live in Canada, and swimming is mandatory for a high school diploma. What are we, muslim girls, supposed to do? Not get an education???? Come on. Swimming with boys is the least of our worries when still our own muslim men are trying so hard to control the muslim girls out of their own will.
Adetunji Afeez YinkaJanuary 17, 2017 - - 2:32 am
And swimming pool biz is like an office?More so,no one says Muslim children shouldn’t get an education cos of that but an alternative is better and if you have an opportunity to request for it being changed,why not? Swimming and unrestricted interaction with boys by our girl growing up and learning the norms is part of our worries and muslim should continue to speak about them.Where is the freedom?
Adetunji Afeez YinkaJanuary 17, 2017 - - 2:34 am
Murtala Alade Adedokun Kabir Al Asfaryour attention is needed here.
Jafar Ahmed MustaphaJanuary 17, 2017 - - 7:15 am
When faced with an option to choose between immorality and a stupid education degree, femenazi louts will choose education. Because they have no shame
Fa RiJanuary 17, 2017 - - 7:29 am
“A stupid education degree”….Interesting point of view; education is not stupid– it also teaches girls *and* boys how to behave when around each other, especially since many schools are mixed. Also, there is no alternative offered, I got in the pool with my burkini and that was it. Boys are not the scum of the Earth, girls should not avoid them like the plague- and I’m not saying to always be around them at all times, I’m just saying that it’s much better to educate and explain that sometimes a woman has no choice, especially in western countries where it is impossible to change rules and regulations. So, a woman should be prepared about such situations and understand that men, much like herself, are human beings and are not out there to eat her, but she should also not act too opened up around them, for modesty.
Jafar Ahmed MustaphaJanuary 17, 2017 - - 7:37 am
This lady was more noble and intelligent then you. Your kufr education has taken over your brains it seems
Jafar Ahmed MustaphaJanuary 17, 2017 - - 7:38 am
Look what the prophet says. Nothing like your gender equal femenazi klaptrap
Yasmiin OmrJanuary 17, 2017 - - 7:42 am
Jafar Ahmed Mustapha I’m sorry but why are you being so mean to a fellow muslim. Especially when she’s making a legit point. Why can’t you just be polite and not lash out on her? Is this what the prophet did? Of course not! Have a little bit shame and behave.
Jafar Ahmed MustaphaJanuary 17, 2017 - - 7:45 am
No use being civil with mutants and feminaziz.
I find the concept of women and men mixing nauseating
Aisha KhanJanuary 16, 2017 - - 10:49 am
seriously, these court rulings are emerging as deliberate dismissal of Muslims concerns. Think it’s about time Muslims migrate to their own countries if they want to live according to the principles the west doesn’t welcome.
Amy FaroukJanuary 16, 2017 - - 2:00 pm
Erm, this country provides more security of religious rights and freedom than most Muslim countries. Why do you think they moved there?
Jafar Ahmed MustaphaJanuary 16, 2017 - - 10:15 pm
Those who moved moved for economic opportunities not that silly notion of freedom
Others were born there
Amy FaroukJanuary 16, 2017 - - 1:58 pm
This is way over blown…The single greatest stupid idea that an immigrant can have is the delusion that he/she can carry on with their customs without compromises in a foreign country. So in regards to the nine year old Muslim Swiss girl and swimming with the opposite gender the EU Human Rights judges ruled-
A) the girls can wear a burkini (basically a wet suit, but fabric) and I hate that word (burkini)
B) the girls can opt out once they hit puberty, which is along the lines of Islam
C) quit sexualizing interaction between children these girls were between 7/9 years old
There is no restriction of their freedom of religion (in the European sense, not American 1st amendment)
The EU typically gives far more religious freedom than any said, Muslim country offers. Swimming classes aren’t infringing on worship. So now we can look forward to some spurned lunatic getting pissed off and taking their revenge out on the EU. Thank me for the heads up later! #dealwithyourreality Also, in the North America kids don’t even get P.E. Of any substance. Sports in Switzerland and Sweden are deeply part of educational ethos for males and females. These are not refugees they were economic immigrants, that are being afforded more religious reign and stellar citizen benefits than their said county. LEAVE.
Star HossainJanuary 16, 2017 - - 3:16 pm
Missed the point. The swimsuit case was an example of a trend. Do you have an argument in favor of banning minarets?
Amy FaroukJanuary 16, 2017 - - 3:21 pm
Star Hossain no, I have a problem banning places of worship. Have you even bee there? If not suggest you go. I also most certainly didn’t miss the point as well. The Swiss have been super welcoming in terms of the EU. Once again, go home if it doesn’t fit your mold. They are there by choice and are given more Islamic movement and opportunity than their said country on many levels.
Jafar Ahmed MustaphaJanuary 16, 2017 - - 10:13 pm
Another case of someone bending over backwards to please the kufaar. Shame on you
Star HossainJanuary 16, 2017 - - 10:46 pm
Amy Farouk: I have been there, as a matter of fact. And I did go home, to Texas, where I would easily be able exempt my children from swimming lessons should I chosen to do so. It is saying a lot about Switzerland that Texas has mote religious freedom. The point is that Switzerland is starting to follow a trend throughout Europe. The problem is disturbing, not limited to that one case, and it’s not limited to Switzerland.
Amy FaroukJanuary 18, 2017 - - 2:09 am
And this very common sensical, yet somehow controversial, understanding isn’t said enough, certainly not in public forums. I think it’s fine to want/expect a space for your culture/religion, to criticize the practices/policies of your country or a foreign country. Yet, as I always say: You’re in the west…still…because you Love.The.West. Period. And. We all do. Otherwise, you wouldn’t be…in the West…like this said family. Repeat 3x and then please check your sense of entitlement…because your Muslim…and the “best of all people” at the door…or leave. Not because you should, but because…unlike your ancestors…you CAN. Me included. The explicit (but mostly implicit) belief that Muslim/immigrants get to turn a country’s culture upside down and inside out…on whatever basis…is the root cause of a lot of *earned* hostility. I have to say, as a Muslim and as a lover of ALL cultures, I empathize with a lot of what Europe is facing.
Leila MolaeiJanuary 18, 2017 - - 5:50 am
Why are parents stopping their children swimming, please?
Amy FaroukJanuary 18, 2017 - - 5:53 am
Leila Molaei because of mixed sexes, yet they were accommodated! It is quite reasonable and upon puberty they can opt out! It’s there curriculum The Swiss, Swedes and Norwegians sports are imperative, hard to get out of!
Leila MolaeiJanuary 18, 2017 - - 6:05 am
No, I am still waiting to hear for a reason to stop a child swimming.
Amy FaroukJanuary 18, 2017 - - 6:11 am
Leila Molaei it will be some 17th century dogma, where the child is sexualized ….
Leila MolaeiJanuary 18, 2017 - - 6:12 am
But one can ignore dogma. This is the parent’s warped views making children suffer.
Amy FaroukJanuary 18, 2017 - - 6:20 am
Leila Molaei good point.
Jafar Ahmed MustaphaJanuary 16, 2017 - - 10:18 pm
This is just another attempt to promote western immoral filth amongst Muslims. Not surprised feminist ( defeminised, masculanised mutants will support this crap
Samiul IslamJanuary 18, 2017 - - 11:26 pm
Yasar Akif TuncayMudabbir Ali