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Sweden: Separate Swimming Hours by Gender Justifiable

(Jan. 12, 2017) The Swedish Diskrimineringsombudsmannen (DO, Equality Ombudsman) has issued two decisions on the legality of separate hours for men and women at public indoor pools. (Press Release, Könsseparerade simhallstider kan vara diskriminering [Gender-Segregated Pool Hours May Be Discriminatory], DO website (Dec. 14, 2016).)

The role of the Equality Ombudsman is regulated by the Act on Equality Ombudsman and the fourth chapter of the Discrimination Act. (Lagen om Diskrimineringsombudsmannen [Act on Equality Ombudsman] (Svensk författningssamling [SFS] 2008:568), RIKSDAG; Lagen om diskriminering [Act on Discrimination] (SFS 2008:567), RIKSDAG.) The Ombudsman enforces compliance with Swedish anti-discrimination law by making violators voluntarily comply with the law. (4 ch. 1§ Discrimination Act.)

In its decisions of December 14, 2016, regarding cases GRA 2016/8 (DO) and GRA 2016/9 (DO), the Equality Ombudsman found that, according to the law, members of each sex should be treated the same way and gender-segregated pool hours are typically a form of discrimination. The Ombudsman went on to state that only rarely could separate swimming hours be considered permissible under Swedish anti-discrimination law.  (Könsseparerade simhallstider kan vara diskriminering, supra.)

The deciding factor for determining whether having such separate hours constitutes permissible discrimination is whether “the measure has a justified purpose and the measure that is used is appropriate and necessary to accomplish the purpose.” (Id.)  According to the Equality Ombudsman, an example of such permissible discrimination is providing separate swimming hours in order to provide an opportunity for women who, because of religious convictions, cannot swim together with men and who, without the segregated swim hours, would not have the opportunity to learn to swim.  (Id.)

In a case involving a related issue, the European Court of Human Rights (ECHR) announced January 10, 2017, that Switzerland could require girls attending school to attend co-ed swim classes over the protests of their parents who objected on religious grounds.  The ECHR found the authorities did not violate article 9 (on the right to freedom of thought, conscience, and religion) of the European Convention on Human Rights, noting that the school had tried to accommodate the parents by allowing the girls to wear burkinis. (Press Release, ECHR, By Refusing to Exempt Two Muslim Pupils from Compulsory Mixed Swimming Lessons, the Swiss Authorities Had Given Precedence to the Children’s Obligation to Follow the Full School Curriculum and Had Not Infringed the Right to Freedom of Religion (Jan. 10, 2017), HUDOC; Osmanoglu and Kocabas v. Switzerland, App. No. 29086/12, Eur. Ct. H.R., HUDOC (in French).)  The German Federal Constitutional Court recently issued a similar ruling. (Jenny Gesley, Germany: Court Declines Case Challenging Mandatory Participation of Female Muslim Student in Co-Ed Swim Class, GLOBAL LEGAL MONITOR (Dec. 15, 2016).)