In 2008, a couple living in Basel, Switzerland, forbid their young daughters from attending school swim class. The Muslim parents didn't want their kids, 7 and 9, in the pool with boys.
Officials made some accommodations — the girls could wear burkinis, they said, and they could change without boys present. But they had to come to class.
Still, the parents refused. So the city ordered them to pay a fine of 1,400 Swiss francs (about $1,380) for “acting in breach of their parental duty.” In response, the parents sued, arguing that their right to freedom of thought, conscience and religion had been violated.
The European Court of Human Rights heard their case. This week, it decided that schools can force parents to send their kids to co-ed swimming lessons. It argued that “the full school curriculum” was essential for children's “successful integration” into society. It also said that the measure “protect[ed] foreign pupils from any form of social exclusion.” And it noted that Switzerland should be able to design its education system according to its particular needs.
“The children's interest in a full education, thus facilitating their successful social integration according to local customs and mores, prevailed over the parents' wish to have their children exempted from mixed swimming lessons,” the court said.
The court did acknowledge that religious freedom was being interfered with but said that didn't make it a violation.
The ruling fits into a much larger debate in Europe, one that pits the religious rights of minorities against a commitment to integration and secularism. In 2013, a German judge ruled that a 13-year-old girl must attend swim lessons but that she had the right to wear a burkini. Last year, France banned women from wearing burkinis in public spaces, a law eventually overturned by French courts. France, Belgium and the Netherlands have each banned, to varying degrees, the wearing of Muslim veils in public. And after two teenage Muslim brothers refused to shake hands with female teachers, Switzerland suspended the family's citizenship process.
But experts say there's more at work than simple Islamophobia. Americans tend to privilege the rights of the parent. But in Europe, children have their own rights, ones that the state takes an active role in enforcing. For example, children have a right to an education and an obligation to go to school, no matter what parents say.
The ECHR also believes strongly in protecting the “culture” of particular countries. In 2011, the court found that Italian public schools did not have to remove crucifixes from their walls. In a concurring opinion, one judge explained that to remove the crucifixes would inappropriately curtail Italian “culture.” “A European court should not be called upon to bankrupt centuries of European tradition,” the judge wrote. “No court, certainly not this court, should rob the Italians of part of their cultural personality.”
Sometimes, though, these efforts have enabled the ECHR to uphold some member countries' more xenophobic legislation, NYU professor Elayne Oliphant said in an email. In 2008, Switzerland banned the construction of minarets through referendum. The ECHR upheld the measure in 2011. In 2014, the court allowed the French ban on Muslims' full-face coverings to stand, accepting the government's argument that French culture put a high value on “living together.”
“Such bans or regulations are ostensibly aimed at enforcing 'integration,' but instead confirm Muslims' status as second-class citizens in Europe. That the ECHR has continually supported such efforts in the name of protecting majority 'cultures' — which are often equated with the majority religion of Christianity — suggests that the cultural and religious practices of Muslims are simply unworthy of similar protections. At a time when Islamophobia is rampant, the lack of national and European level support for Muslims exacerbates very difficult and painful experiences of exclusion.”