CAN A PUBLIC SWIMMING-POOL PROHIBIT A MUSLIM WOMAN FROM WEARING A BURQINI?
Summarized: A public swimming-pool may not prohibit a Muslima from wearing a burqini.
In principle, everyone is allowed to bathe in a public swimming-pool. With the establishment and maintenance of bathing facilities, the state assumes a so-called ‘public service of general interest’.1 In doing so, the state is bound to the fundamental rights according to Article 1 paragraph 3 of the Basic Law.
However, the use of bathing establishments is only permitted in compliance with the bathing regulations in force there. According to the bathing regulations of the bathing establishments, the use of the so-called wet area is only permitted while wearing the ‘usual bathing attire’. Cases have come to light in which bathing establishments have occasionally taken the view that the burqini does not constitute ‘customary’ bathing attire. What is meant by ‘customary’, however, must be interpreted with the freedom of religion according to Article 4 of the German Basic Law in mind. A Muslim woman who wears a burqini for religious reasons can invoke her right to freedom of religion under Article 4 of the Basic Law. The ban on burqinis therefore requires a special justification. Such a justification could lie within the protection of public health. Thus, a burqini ban is sometimes justified on the grounds that a burqini is unhygienic or dangerous and therefore not a customary bathing costume. However, both reasons have been refuted in the meantime. The German Bathing Society has clarified that today's burqinis, which are made of non-absorbent materials, are to be classified as "customary bathing attire".2 Bathing establishments are therefore not allowed to ban the wearing of such burqinis.
1 Labour Court Würzburg, case from 11.06.1991, Az. 15 C 813/91, in NJW-RR 1993, page 1332 (1333).
2 Accessible under https://www.dgfdb.de/unser-angebot/haeufig-gestellte-fragen-faq, last accessed 27.07.2023.