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Alex Geert Castermans in Het Parool on the right to swim topless

In Berlin, regulations have recently been amended to allow everyone to swim topless. In swimming pools in Amsterdam, women are still required to wear a top piece. Dutch newspaper Het Parool investigates whether Amsterdam swimmers also have the right to dive into the pool without wearing a top.

Berlin: 'oben ohne' for everyone

In Berlin, a disgruntled swimmer took her case to the Ombudsman. She wanted to be treated equally and allowed to swim without being required to wear a top. The Ombudsman ruled in her favour. The Parool writes that the Ombudsman 'ruled that the requirement of a bikini top prevents equal treatment of men, women, and non-binary persons. The Berlin municipal council adopted that recommendation and, as a result, everyone has been allowed to swim 'oben ohne' in the German capital since March'.

Is the Dutch topless ban discriminatory?

Swimming pools in Amsterdam have dress codes, just like in the rest of the Netherlands. Women must wear a bathing suit or a bikini top. A so-called bikini top obligation. Or vice versa: a topless ban.

Whether the topless ban is discriminatory is difficult to say, thinks Castermans, professor of civil law at Leiden University. 'It depends on how the ban is formulated, who is disadvantaged by it, and whether this involves direct and discriminatory bias based on gender.'

While it is not a foregone conclusion yet, Castermans agrees there are arguments as to why the current dress code could be discriminatory. 'It seems to me that there is quite some leeway to set rules on clothing in a swimming pool. 'Everyone a swimsuit' seems quite straightforward to me. It is a lot more difficult to say 'everyone with breasts a top'. If busty men are allowed to walk around with no tops on, it is probably because men's breasts are not perceived as offensive. Therein lies the problem. By doing so, a topless ban quickly makes a direct distinction between men and women, which nowadays could also be seen as imposing a ban that would compel someone to present as female whether they want to or not.'

You can read the whole article (in Dutch) in Het Parool here (€).

Photo swimming pool: Clark Tai via Unsplash. 
Photo bikini top: Kristen Plastique via Unsplash.

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