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Germany: Court Declines Case Challenging Mandatory Participation of Female Muslim Student in Co-Ed Swim Class

(Dec. 15, 2016) On November 8, 2016, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) declined to accept for review a constitutional complaint alleging that mandatory participation in a co-ed swim class for a female Muslim student infringed on the applicant’s freedom of religion. In an unusual move, the Court provided reasoning for its refusal to hear the complaint, even though it is not required to do so. The Court said that the applicant failed to substantiate her complaint by explaining why wearing a burkini – a full-body swimsuit for women – would not be in accord with Islamic traditions of modest dress and allow her to participate in the swim class without violating the requirements of her religion.  (BVerfG, Nov. 8, 2016, docket no. 1 BvR 3237/13, BVerfG website (in German); Law on the Federal Constitutional Court, Aug. 11, 1993, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1473, as amended through Aug. 2015, § 93 ¶ 1, sentence 3.)

Facts of the Case

In 2011/2012, the applicant, who is of Moroccan descent, attended fifth grade in a school in Frankfurt, Germany. She received a failing grade in her gym class for refusing to participate in co-ed swim classes that were taught during the first half of the school year.  In the second half of the school year, she participated in the general co-ed gym class and wore long pants, a long-sleeved t-shirt, and a headscarf.  (BVerfG, supra, at 2.)

The school has a large percentage of students who are practicing Muslims, many of them migrants or with migrant parents. It was common practice for many Muslim girls to wear a burkini to participate in co-ed swim classes. (Id. at 3.) The applicant argued that participating in co-ed swim classes violated her Muslim religious beliefs and the Islamic traditions of modest dress. In the applicant’s opinion, wearing a burkini, as some of the other students did, did not constitute a reasonable alternative, because it would still show the shape of her body when it gets wet. (Id. at 20.) In addition, she submitted that she felt bothered by her scantily dressed male classmates. (Id. at 10 & 21.)

Federal Administrative Court Decision from 2013

The constitutional complaint sought to reverse a decision of the Federal Administrative Court from 2013 in which that Court held that attending a co-ed swim class did not infringe the applicant’s freedom of religion. The Federal Administrative Court stated that the state’s educational mandate codified in article 7 of the German Basic Law, the country’s Constitution, included the power to decide to teach co-ed classes to promote integration and social skills.  It said that in today’s pluralistic society, permission to be exempt from school lessons should only be granted in exceptional circumstances.  According to the Court, the possibility of wearing a burkini, which some of the other Muslim students at the school did, constituted a reasonable compromise to abide by Islamic traditions of modest dress.  (Bundesverwaltungsgericht [BVerwG] [Federal Administrative Court] Sept. 11, 2013, docket no. BVerwG 6 C 25.12, BVerwG website (in German); Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation).)

Decision

The Federal Constitutional Court decided not to accept the decision for review, because the applicant did not sufficiently substantiate her complaint and address the lower court’s arguments, as required by the procedural rules. (BVerfG, supra, at 23 & 29; Law on the Federal Constitutional Court, § 23 ¶ 1, sentence 2, § 92.) The Court stated that the applicant herself submitted that there are no mandatory rules in Islam on how to comply with Islamic traditions of modest dress, and she should have therefore elaborated why a burkini would not be in accord with these traditions. (BVerfG, supra at 30.)  In addition, the Court noted the fact that the applicant did not submit any arguments countering the lower court’s finding that the synthetic fiber fabric of a burkini prevents it from clinging to the body, even when it is wet.  (Id.)  Furthermore, the applicant did not explain why her religious beliefs did not prevent her from participating in the general co-ed gym classes.  (Id.)