Assia is going on vacation to the south of France with her children. Having booked a rental near the beach, she would like to go swimming there with her children but fears that wearing a full-coverage swimsuit might be prohibited. She also wonders if the same applies to the leisure center she will visit afterwards.

What is a full-coverage swimsuit?

A full-coverage swimsuit, also referred to by some as a “burkini”, is a three-piece swimsuit designed to allow swimming while respecting hygiene and safety rules. Its specificity lies in the fact that it is composed of three pieces. Like all other swimsuits, its composition includes a mixture of elastane (lycra) and polyamide (nylon).

What does the law say?

• No law prohibits wearing a full-coverage or three-piece swimsuit

Wearing such attire does not contravene any legal provisions. Indeed, it is not mentioned in the legislative and regulatory provisions of the Public Health Code (articles L. 1332-1-1 et seq. and D. 1332-1 et seq.) or the Sports Code (art. L. 322-1 et seq. and R. 322-1 et seq.), which relate to hygiene and safety rules applicable to bathing establishments.

• The prohibition of a full-coverage swimsuit infringes on fundamental freedoms such as freedom of movement and freedom of dress.

Freedom of dress is a liberty guaranteed by French domestic law, but it is also a right protected by several international and European texts.

For example:

1. Article 10 of the Declaration of the Rights of Man and of the Citizen states that “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.”
2. This freedom of dress is guaranteed by the fundamental right to privacy under Article 8 of the European Convention on Human Rights, which encompasses ” the physical, psychological and social identity of an individual” as well as individuals’ choice of clothing, (ECHR 1 July 2014 (GC) S.A.S v. France, no. 43835/11 / Commission decision in McFeeley and Others v. United Kingdom, no. 8317/78, / Commission decision of 15 May 1980, DR 20, p. 44, § 83, and Kara v. United Kingdom, no. 36528/97) .

Freedom of dress can only be restricted under certain conditions:

• These restrictions must be imposed for a specific, legitimate purpose and be proportionate to the aim pursued. They must thus be based on :

1. reasons of hygiene and safety or
2. reasons related to maintaining public order.

• These restrictions must not be discriminatory: they cannot target, directly or indirectly, a particular religion.

Consequently, the principle is that wearing a full-coverage swimsuit is legal in public spaces, particularly beaches.

What about municipal or private swimming pools, municipal bathing establishments?

It is not uncommon to see the prohibition of wearing a three-piece swimsuit in the internal regulations of these establishments, particularly on the basis of hygiene and safety reasons. Such a prohibition is not justified and can be challenged regardless of the bathing establishment, regardless of size, whether private or public, except for pools reserved for personal family use, thermal pools, or strictly medical pools. All the regulatory standards in force relate to water quality and not to bathers’ attire.

Consequently, there is no justification for prohibiting the wearing of a full-coverage swimsuit for reasons of hygiene and safety.

Moreover, the prohibition of full-coverage swimsuits based on the principle of secularism or neutrality is also questionable.

Indeed, in a letter dated May 15, 2018, the Legal Affairs Department of the Ministry of Sports indicated regarding establishments organizing aquatic activities and bathing that: ” People using these pools can be considered as users of a public service for whom there is no restrictive legislation regarding the wearing of attire that could be associated with a religious motive. The manifestation of freedom of conscience thus takes precedence, as long as it does not disturb public order. ». (Decision of the Defender of Rights No. 2018-303 of December 27, 2018).

Thus, neither reasons related to safety or hygiene, nor a principle of neutrality that is not applicable to users of a public service, can justify banning these covering swimsuits.

What to do in case of a ban?

• Verify the legal basis of the ban: internal regulations, municipal decree, or other.

Some municipal decrees restricting the wearing of covering swimsuits on beaches are based on Article L. 2213-23 of the Code of Local Authorities, which states that “the mayor exercises control over bathing and nautical activities…“.

• Check the reasons related to the ban (security, hygiene, disturbance of public order, neutrality, etc.).
• File an administrative appeal with the author of the refusal decision:

1. By printing and presenting the Council of State’s decision which consistently reminds that decrees banning access to beaches due to wearing burkinis are illegal. While specifying that these swimsuits are not, by themselves, likely to constitute a disturbance to public order or lead to deficiencies in hygiene and safety (Council of State, August 27, 2016, No. 402742; Council of State, September 27, 2016, No. 403578). Moreover, the Council of State denounced a serious and manifestly illegal infringement of fundamental freedoms such as freedom of movement, freedom of conscience, and personal freedom.
2. By also bringing the decision of the Defender of Rights: in a case concerning VVF Villages of Montagnac which refused a customer to swim in the establishment’s pool wearing a three (3) piece swimsuit, the Defender of Rights concluded that: ” even if it covers a large part of the body, the burkini cannot be likened to street clothing, such as swim shorts, since it was precisely designed for swimming: thus, neither the safety nor the hygiene of bathers appear a priori threatened (…). Moreover, several pools allow the wearing of burkinis. (…) “. (Decision of the Defender of Rights No. 2018-303 of December 27, 2018).

• File a hierarchical appeal

The hierarchical appeal is addressed to the administrative authority superior to that of the author of the decision.

Example: a hierarchical appeal can be addressed to a prefect against a decision made by a mayor.

It is possible to file a hierarchical appeal without having first made an administrative appeal or without waiting for the response to the administrative appeal.

You must act within the prescribed time limits so that your request is not rejected. Generally, the appeal must be filed within two (2) months following:

1. The notification of the contested decision, when it is an individual act of which the applicant is the recipient; or
2. The publication in the case of a regulatory or individual act whose beneficiary is a third party (example: publication of an “anti-burkini” decree).

• In case of failure, proceed with either a summary procedure or an appeal for abuse of power to the administrative court only if the ban concerns a public beach or a public bathing establishment.
• Refer to the Defender of Rights to report discrimination: Complaint Form | Defender of Rights
• File a complaint for discrimination.
• Contact Equitas who can assist you in your proceedings.