Hadjar is enjoying the nice weather by doing some outdoor activities with her children. She wants to spend her afternoon at the beach with her family. However, after settling in, a lifeguard asks her to leave the beach, citing the following reason: wearing a burkini or a more covering swimsuit is prohibited.
What Does the Law Say?
Several municipal decrees emerged during the summer of 2016 and the controversies that followed. It should be noted that first and foremost, mayors must reconcile the fulfillment of their mission with respect for freedoms guaranteed by law. Police measures must be:
and this, in view of the sole necessities of public order. It is not the mayor’s role to base decisions on other considerations, and the restrictions they impose on freedoms must be justified by proven risks to public order.
Decrees banning the wearing of burkinis or more covering swimsuits have no legal basis. Indeed, this restriction is not justified by particular circumstances, nor are religious symbols or swimwear alone likely to constitute a disturbance to public order or lead to deficiencies in hygiene and safety.
The Council of State (CE) has consistently reiterated this position, specifying that the wearing of a headscarf alone does not in itself constitute an act of pressure, proselytism, or disturbance to public order. Moreover, the High Court has denounced a serious and manifestly illegal infringement of fundamental freedoms such as freedom of movement, freedom of conscience, and personal freedom. It also recalls that such decrees are in no way justified by any material evidence revealing a risk of disturbance to tranquility, health, or public safety.
Indeed, associations have already contested the legality of municipal decrees issued in 2016, which restricted beach access to people wearing “outfits that ostensibly manifest religious affiliation while swimming”. All of these decisions, rendered by both administrative tribunals and the Council of State, have validated the manifest illegality of the municipal decrees brought before the administrative judge (CE, August 27, 2016, No. 402742; TA Nice, September 12, 2016, No. 1603701; CE, September 27, 2016, No. 403578, TA Nice, June 19, 2018).
Furthermore, the legal affairs department of the Ministry of Sports, in a letter dated May 15, 2018 addressed to the Defender of Rights, reiterated that people using these pools should be considered as users of public services for whom there is no restrictive legislation regarding the wearing of attire for religious reasons, and that the manifestation of freedom of conscience thus takes precedence, as long as it does not disturb public order.
Finally, in a legal opinion on the wearing of full-body swimsuits, the Belgian counterpart to the Defender of Rights, UNIA, concluded that no argument based on hygiene and safety, living together, gender equality, or even ecology allowed for the prohibition of this type of clothing.
What Should I Do?
REFERENCE TEXTS
CE, November 27, 1996, Mr. and Mrs. Jeaouit
CE, August 26, 2016, No. 402742; 402777; CE, September 26, 2016, No. 403578
CE February 19, 1909, Abbé Olivier, No. 27355
CE, ass., October 27, 1995, Cne de Morsang-sur-Orge, No. 136727
