The Higher Administrative Court [Oberverwaltungsgericht] of Rheinland-Pfalz has granted an interim suspension of Koblenz City Council’s ban on whole-body swimsuits in its municipal swimming pools. The Council had decided by a narrow majority that bathers could only swim in swimming trunks or shorts, swimsuits or bikinis, arguing – somewhat speciously – that a burkini might conceal open wounds, rashes or contagious diseases. The applicant, a Syrian asylum seeker, had said that she had been given medical advice to swim to alleviate her back pain, but that because of her religious beliefs she could only do so in a burkini.
In its order of 12 June 2019, ref 10 B 10515/19.OVG, the Court ruled that the ban on full-body bathing suits for women violated the constitutional requirement for equal treatment. It pointed out that the Council’s bathing regulations permitted wetsuits – which also covered the whole body to a large extent – for competitive swimmers and triathletes during training. That fact negated the argument for the health protection of other bathers and amounted to a difference in treatment for burkini wearers. Further, the burkini was still permitted for school swimming – which rendered the alleged protection against health risks unclear – and the terms of the bathing ordinance would also prohibit, for example, children swimming in shirts and trousers to protect them from UV radiation. Finally, the information available to the Court from the City authorities suggested that only five burkini-wearers visited the municipal swimming pools in any event.
Since the City’s unequal treatment of burkini-wearers as against swimmers in wetsuits was not objectively justified and violated the applicant’s constitutional right to equality, there was no need to examine whether or not the regulation was compatible with the general constitutional guarantees of freedom of action and freedom of belief. The Court suggested that Koblenz City Council should lift its ban; otherwise, the matter would have to go to a full hearing.
Readers may recall that in 2016 the French Conseil d’État struck down a similar ban imposed by the Mayor of Cagnes-sur-Mer.