On 18 December 2018, the Antwerp court of first instance held that the burkini ban in the Antwerp Police Regulations does not constitute discrimination based on religion. As opposed to the prior two Ghent rulings, the court held that any potential discrimination was justified by hygiene and safety reasons. Earlier, Antwerp had announced it would invoke gender equality to justify the burkini ban. However, the judgment only considers hygiene and safety. While the latter arguments seem purely pragmatic, there are good reasons to apply searching scrutiny to these grounds of justification.
As in the Ghent cases, the women concerned had been refused an exception on religious grounds which would have allowed them to wear the burkini. They claimed this was discrimination prohibited by the Flemish Antidiscrimination Decree.
Like the judge in the Ghent cases, the Antwerp judge accepted that the plaintiffs might want to swim in a burkini for religious reasons. However, where the Ghent judge found a direct distinction on the grounds of religion in one case and an indirect distinction in the other, the Antwerp judge skipped this step and immediately considered potential justifications for the ban. This phase was perhaps skipped because the consequences of finding a direct or indirect distinction are not material in relation to the applicable standard of review as the justification test is the same for direct and indirect discrimination based on religion.
However, the qualification as direct or indirect might have been significant had the case been treated as an intersectional one, as potential discrimination against women of a certain religion – qualifying as discrimination on the intersecting grounds of sex and religion. This could have attracted the stricter standard of review applicable to sex based discrimination. Unfortunately, this road was not taken as the court moved straight to possible justifications for limiting the women’s right to religion.
In relation to the hygiene justification, the defendants claimed that the ‘multilayered’ fabric of burkinis would attract more dirt and thus require more chlorine to be added to the water. Moreover, people might wear other clothing, like underwear, underneath the burkini. In accepting this justification, the judge rejected a government report stating that burkinis, when used correctly, do not compromise hygiene. He instead held that the ‘multi-layeredness’ of burkinis would make it impossible to check whether they were being used correctly, whether the swimwear was made from the right materials, and whether any other clothes were worn underneath the swimwear.
The judge lost sight of the fact that the burkini was designed as swimwear, using suitable material. The judge also failed to clarify why such a check of the material would be impossible. This seems required, especially seeing that ECJ case law states that the avoidance of practical difficulties (administrative or economical) cannot be a legitimate aim for the restriction of rights protected by EU law.
There is also a more fundamental reason for requiring searching scrutiny of the ‘hygiene’-argument. The stereotypical argument where ‘the other’ is painted as a threat to the hygiene and/or health of ‘normal’ people or as inherently ‘unclean’ has been used time and again, e.g. against those of different creed, different sex, different sexual orientation. For a judge to accept such an argument without requiring further substantiation and despite government advice to the contrary, is cause for concern.
In addition to the hygiene justification, the judge also accepted that the burkini might constitute a safety risk, as it could get caught on protruding parts of the pool and hamper the work of lifeguards. This argument could also have been substantiated further. Proof of an existing risk should have been required. Allowing vague safety concerns to justify human rights restrictions opens the door to serious abuse.
There are several reasons for a critical reading of the Antwerp judgment. In this process, it is important to remember that the right not to be discriminated against belongs to everyone. The fact that a phenomenon in society is not ‘popular’ or familiar, should not suffice to prohibit it. Therefore, it is essential that judges require substantiation of invoked justification grounds and scrutinize the argument when rights are at stake. This judgment, in concluding the opposite from the two prior Ghent rulings makes it likely that burkini bans will continue to make waves in Belgian society for some time to come.