The burkini, bathing suit very covering worn by Muslim women, arouses many reactions since its authorization in the pools of Rennes. Mayor Nathalie Appéré justifies it by referring primarily to the respect of sanitary standards. Users invoke modesty. But what does the law say? We take stock.
Aurélien Rissel is professor-researcher in private law at the Faculty of Law of Rennes 1 University, in charge of the "Individual and Religions" course for the Religions, Law and Social Life university degree. He answers several questions after the controversy that arose in the city council of Rennes, Monday, October 8.
The wearing of burkini in a swimming pool is authorized by the city hall of Rennes. Can respect for the principle of secularism be opposed to it?
The argument seems questionable, because, precisely, secularism is reflected in two fundamental and complementary principles: the neutrality of the State on the one hand, and public or public service agents, and the freedom of religion of on the other hand, which consists of freedom of belief (inwardly) and the freedom of expression of one's convictions.
Even when the expression of a religion is particularly ostentatious?
In principle, the wearing of an outfit affiliated to a religion is more in the principle of secularism than its prohibition: it is indeed an expression of his religion, as far as this is really the case. acting from burkini. One can well imagine that some women - overweight, suffering from anorexia, or having complex - do not wish to reveal the forms of their body and prefer to resort to this solution.
But it is not so much the authorization of the burkini that must be justified, as its prohibition. It is the freedom to dress which constitutes the principle, besides the freedom of expression of its convictions, and the prohibition of an outfit which constitutes the exception!
There would be no legal arguments opposable to the wearing of burkini?
As the women concerned are obviously not in the exercise of an activity as a public service agent, as far as leisure is concerned, they can not be held to an obligation of neutrality. As a user, the expression of their conviction is therefore, in principle, permitted. Nor does it appear that they threaten or make more difficult the execution or organization of a public service.
Remain then the various restrictions to the freedom of religion, limitatively envisaged in article 9 of the European Convention of the humans right (the ECHR): the public safety, the protection of the order, health or morality public, and the protection of the rights and freedoms of others.
However, none of these arguments is really convincing, any more than living together, which the European Court has recently been able to dedicate as a limit resulting from an "immaterial public order".
The mayor of Rennes said that wearing burkini does not violate hygiene. Is it sufficient ?
It is probably on the basis of public health that burkini may have been prohibited until now. For reasons of hygiene. On this point, it is up to the health authorities to decide.
It should be noted that swim shorts and diving suits are, it seems, now allowed in Rennes. From a hygienic point of view, there is probably no way to make a difference with burkini. Subject to this criterion relating to hygiene, which it is therefore for the health authorities to determine, it seems legally difficult, if not impossible, to justify a restriction on the wearing of this outfit in swimming pools.
One might have thought of security, since this is precisely the argument that had been put forward by various mayors to justify the adoption of the so-called "anti-burkini" decrees in the summer of 2016, in the aftermath of the attack in Nice.
However, despite this very particular context, the argument had been rejected by the Council of State, which had identified in this restriction a serious and obviously illegal infringement of fundamental freedoms (including freedom of conscience), since no risk of public disorder was proven. For even more reason, the argument would be rejected today to justify a ban on this dress.
Proselytism? "No more than a hijab, a cross, a yarmulke, a turban"
However, this bathing suit can not be considered to be religious proselytism, in this case Islamic?
Contrary to what is often said, proselytism, when it consists simply of teaching or communicating to others about one's faith, to testify to it, is not as such forbidden. The European Court of Human Rights (ECHR) affirms in this respect that it would be futile to devote a right to change religion if proselytism was to be intrinsically condemned.
It is abusive proselytizing, or "bad language", in the words of the Court, which is condemned (by coercion, abuse of power, moral violence, even physical, etc.). However, it seems difficult to argue that the wearing of burkini is an act constituting an abusive proselytism. There is no reason to think that it is more than a hijab, a cross, a yarmulke, a turban or any other clothing or sign considered religious. As long as we consider these clothes carrying a certain proselytism.
Do women who wear a burkini do not isolate themselves from other swimmers?
It is the "living together" argument that was invoked to justify the so-called "anti-burqa" law of 2010. The solution would nevertheless be particularly curious, since it seems that the burkini is on the contrary part of a totally opposite dynamic.
Indeed, it has been argued that the burqa - and more broadly any concealment of the face, because that is precisely what is forbidden by the 2010 law - isolated the person who wore it from the rest of society, and constituted that is an attack on this living together. This is the argument adopted by the ECHR in a 2014 decision to refuse to condemn France with the 2010 law.
"The burkini seems to be in the sense of living together, in this case, a swimming-together"
But here, the situation is totally reversed: the burkini seems, on the contrary, to be in the sense of living together, in this case, a "swim-together". The name "burkini" is also regrettable, because it suggests that it is a form of "swimming burka", while unlike this one, it does not hide the face. It is perhaps from this confusion that comes a part of the difficulty ...
Why this swimwear would fit in the sense of a "living-together"?
It is likely that, without this outfit, some of these women would not come to the pool, or even try to get specially arranged schedules for women of Muslim faith, which, for once, would be legally much more debatable. This outfit allows them to swim with other people (regardless of age, belief, sex, etc.). It's more of an integrating factor, basically.
This is exactly how the Swiss and German Federal Courts have been considering in recent years (2012, 2013 and 2016 decisions): they have indeed refused any possibility of exempting young Muslim girls from swimming lessons, for, had they thought, the right to education should prevail. And all the more, they added, that the infringement of freedom of religion was minimal to the extent that they were allowed to wear a burkini ...
Thus, in the eyes of senior Swiss and German judges, it is this garment that allowed to reach a fair compromise, forcing girls to participate in swimming lessons, thus promoting their education and especially their integration.
"In the event of an appeal of a swimmer wearing the burkini, it is likely that France would be condemned"
The argument of example, or even influence towards the youngest, is sometimes advanced. What do you answer?
It must be remembered that this risk is not specific to this question, but is much broader: the prevailing principle is that of the freedom of expression of religion in the public space.
There are, however, restrictions designed to protect children from certain influences. In particular, we are thinking of the 2004 law, which prohibits the ostensible carriage of signs of religion in public schools, colleges and high schools, the purpose of which is precisely to preserve the child from any community demand, to shield him possible pressure from third parties, including other students and those around him.
Although the swimming pool is generally not located on the grounds of the establishment, it seems reasonable to admit that this restriction may extend to the wearing of the burkini during swimming lessons practiced in such a school setting. Moreover, a circular of May 2004 issued for the application of this law specifies that the prohibition also concerns activities taking place outside the institution's enclosure, citing for example the educational courses physical and sports. But for the rest, and outside of this framework, the freedom seems well of setting.
Finally, if it is the question of the influence of parents on their children that is in question, it may be useful to recall that it is the parents, as holders of parental authority, who choose education, especially religious and philosophical, of their child - this of course within the limits of respect for the rights of the latter. This is even a fundamental right, recognized in particular in Article 2 of the First Protocol to the European Convention on Human Rights. So from the point of view of fundamental rights, we must not defend ourselves, but defend it ...
Legally, the opposition to burkini would not hold. This is then only cultural field, or even civilizational, so political?
As a lawyer, I can not answer that question. But even if new political choices are made, French law should always meet the international standards that bind France. And in the event of an appeal of a swimmer wearing the burkini, it is likely that France would be condemned ...