Law and emotional belonging. The doubleness of inclusion and exclusion in Swiss mixed-gender swimming classes

Abstract

ABSTRACT In a judgment that attracted much media attention, the European Court of Human Rights (Court) ruled on 10 January 2017 that obligatory mixed-gender swimming for schoolgirls against the will of their Muslim parents did not violate the right to religious freedom, because the obligation was justified given its integration function. However, the applicants’ claim that such an obligation undermines their sense of belonging to Switzerland was left without reply in the government’s response and the Court’s judgment. This article asks whether and how the Court could have included the applicants’ ‘affective’ claim in its considerations on integration. More broadly, the article aims to discern the Court’s general approach to emotional claims of belonging and where it might be improved. It is argued, drawing from empirical findings in the social sciences, that there is a non-linear relation between different processes of integration. These findings show that while performing an act might improve someone’s cultural integration, it might diminish their emotional integration. The Court should be more aware of these complexities when using the term ‘integration’, as its current linear understanding of integration tends to overlook the importance of belonging.