A significant ruling emerged on the 10th of January from the European Court of Human Rights (ECHR). A Swiss-Turkish couple had challenged a fine handed down to them by Swiss courts, as a result of declining to a school’s demand that their daughters must attend mixed swimming lessons with their class. The parents of the girls, who were aged 9 and 11 at the time, had refused as they believed it would violate their interpretation of their religious values. The school had offered the parents the chance for their girls to wear a burkini, rather than a typical swimsuit, but the parents had declined this. The school also accepted that once girls reach the age of puberty, they should not be forced to attend such events (with the school having determined that the girls had not yet reached puberty). The school warned the parents that if they miss these lessons, they could be fined 1,292 Euros. The girls did miss the lessons and so the school imposed the fine.
The parents had two appeals declined by Swiss courts, in May of 2011 and March of 2012, after which they lodged their appeal with the ECHR. Unlike the Swiss courts, the ECHR did recognise that the decision to impose the fine might have interfered with the parents’ rights for freedom of religious practice. However, the presiding judges ruled that what was more important in this case was protecting the children from the chance of social exclusion, due to their parents decision to not have them attend the lessons. The parents now have 3 months to appeal the ECHR’s decision.
There is a lot of pick over on this ruling. On one hand, it might be said that the Swiss school did attempt to compromise with the parents, offering to ensure that the girls would be changing in a single-sex environment, as well as allowing for the wearing of Burkinis. There was in this a dialogue and an opportunity for the parents to seek an appeal to 3 different courts. That in itself is an indication of something about the system being in good shape.
However, dig a little deeper and you would be forgiven for wondering just how significant weekly or monthly swimming lessons will be for a child’s social inclusion. Are they really crucial? Does the child who misses physical education altogether, due to physical ailments, end up being socially excluded? What about the many children, from a range of religions, who miss religious education classes; are they finding themselves divorced from the main body of pupils?
Many Muslims would not agree with the need to segregate girls at such a young age. It would not fall under the realm of something that the religion unambiguously proscribes. Despite this, many would still begin taking steps towards protecting children from around this age, partly to get their child accustomed to the years ahead. Others would not, and would allow their children to mix freely, as they see fit, through to adulthood. Ask three Muslims about this and you’ll likely find that each one’s parents took a slightly, or strongly, different approach to this.
Are the Courts Overstepping their Boundaries?
There are many amongst us who would not do as the parents in this case have done, in withdrawing their young girls from swimming lessons. However, the aspect of this case that would alarm even the most liberal individuals is the path by which a court rules on a relatively benign parenting matter. The harm being done in terms of social exclusion in this case seems negligible, if there is indeed any harm stemming from it at all.
On the back of the Swiss ban on minarets in 2009, and the French ban on religious symbols in 2014, as well as the more recent (and absurd, on both sides of the argument) case that seen a Swiss court order Muslim pupils to shake hands with their teachers, it can feel that these are steps being taken against Islam. We can often find ourselves lumping everything together, be it these cases, Palestine/Israel, Afghanistan, Iraq and so on, and reacting in a consequently emotive and scattered fashion. These rulings are concerning, and they might be indicative of the way the path is flowing, however, it is early to say that with assurance. Rather, these might be teething problems, as Europe learns to grapple with a Muslim population who are not as quick to assimilate as they are used to. On their best days, the courts have acted above tribalism and populism to protect the rights of the vulnerable. In doing so, they have been at times our most stringent protectors. In the seemingly coming age of populist, post-truth politics, we will need them more than ever.