Constitutional Approaches to Gender Equality

Constitutional Approaches to Gender Equality, May 2012

CONSTITUTIONALAPPROACHESTOGENDEREQUALITY:COMPARATIVESTATEPRACTICE

Legal Memorandum

May 2012


CONSTITUTIONAL APPROACHES TO GENDER EQUALITY

Executive Summary

The purpose of this memorandum is to analyze, through comparative state practice, how state constitutions address gender rights and equality. The memorandum examines and compares gender provisions in the constitutions of Scandinavian states (Norway, Iceland, and Sweden), Balkan states (Croatia, Slovenia, and Serbia), and other federalist states (Switzerland, Germany, and Belgium). Constitutions address gender in three major ways. First, constitutions contain clauses that prohibit discrimination based on gender and related characteristics such as pregnancy and marital status. Second, many constitutions affirmatively declare gender equality, either as a general matter or with respect to particular areas such as marriage or work. Third, constitutions may permit or require the state to take affirmative action to advance gender equality. In general, non-discrimination provisions and declarations of equality provide similar protection against adverse treatment on the basis of gender. It is critical that these provisions explicitly mention gender rather than simply declaring all persons equal. The basic principle of equality is not absolute, but merely requires similar treatment of similar cases, and different treatment of different cases. If a government decides that men and women in otherwise identical circumstances are “different cases,” due to their genders, they need not be treated equally. Specific mention of gender in non-discrimination provisions and declarations of equality forbids the government from distinguishing cases solely on the basis of gender. Despite the absolute language of non-discrimination and equality provisions, in practice the law usually permits exceptions. Some constitutions provide a test to determine whether men and women may be treated differently. In Croatia, for instance, the constitution permits different treatment if justified on objective and reasonable grounds, rather than based on irrational stereotypes. The Swiss constitution permits exceptions that “satisfy the principle of proportionality” and are “justified by the public


interest or by the protection of fundamental rights of others.”1 If the constitution does not provide this type of guidance, then the judiciary will determine when different treatment is permissible. In practice, a strongly worded non-discrimination or gender equality provision usually functions only to forbid arbitrary discrimination. Tensions sometimes arise between the principle of non-discrimination and provisions for affirmative action. Non-discrimination generally means that the state cannot differentiate between men and women solely on the basis of their gender. Affirmative action provisions, on the other hand, authorize different treatment of men and women. Constitutions may avoid this tension by clearly and specifically explaining when affirmative action is permissible. In Serbia, the constitution clearly eliminates this tension in favor of affirmative action, by stating that “[s]pecial measures…to achieve full equality of individuals or group of individuals in a substantially unequal position compared to other citizens shall not be deemed discrimination.” In most states, however, constitution is less clear and the issue is typically resolved by the judiciary.

State practice reveals several themes. First, constitutional provisions do not wholly determine state policy towards gender equality. Norway and Iceland have older constitutions with few references to gender, yet both states developed strong social and political norms of gender equality, adopted gender equality laws, and ratified international treaties guaranteeing gender equality. In several states that do not permit affirmative action in electoral politics, political parties have voluntarily adopted gender quotas for their candidate lists. Conversely, Serbia’s recently drafted constitution contains numerous provisions for gender rights, which have not yet produced substantive equality among Serbian men and women. These cases demonstrate that constitutional provisions do not define the floor or the ceiling of women’s equality. Second, courts interpret gender provisions in the context of the entire constitution rather than in isolation. Identical provisions may be interpreted differently based on a state’s constitutional history and principles. For instance, the German and Slovenian constitutions declare them to be welfare states. Courts in both states later interpreted these provisions to permit

1Laura E. Lucas, Does Gender Specificity in Constitutions Matter?, 20 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 133, 136 (2009).


affirmative action, since promotion of disadvantaged groups is a core principle of the welfare state. In contrast, Swedish and Swiss constitutional traditions impose limits on affirmative action. Sweden does not have mandatory gender quotas in politics because this conflicts with the Swedish tradition of party independence. Likewise, the Swiss constitution’s emphasis on direct democracy prevents the establishment of gender quotas in elected office. Because gender provisions are interpreted in the broader constitutional context, the adoption of another constitution’s language may not guarantee similar results.

State constitutions sometimes expressly identify the principles of constitutional interpretation. In Croatia, for instance, the constitution defines gender equality as a principle of constitutional interpretation. This might help to ensure that old or unwritten constitutional principles do not impede gender equality.

Third, social and political norms impact constitutional interpretation and change. Amendments, reinterpretations, and the incorporation of international standards are usually the products of evolving societal values. Belgians, for instance, changed the constitution in response to a court ruling that forbade gender quotas in elected offices. The German high court radically changed its mind about the legality of affirmative action in the late 1980s, as support for the policy grew. Thus, while constitutional provisions do not wholly determine gender equality in a state, the state’s attitudes towards gender equality often impact the contents of the constitution.


TABLE OF CONTENTS

Statement of Purpose 1 Introduction 1 Norway 3 Iceland 4 Sweden 5 Croatia 7 Slovenia 8 Serbia 10 Switzerland 13 Germany 14 Belgium 16 Conclusion 18


1

CONSTITUTIONAL APPROACHES TO GENDER EQUALITY Statement of Purpose

The purpose of this memorandum is to analyze, through comparative state practice, how state constitutions address gender rights and equality. Introduction Nearly every constitution developed since the end of World War II has addressed gender in some manner.2 The content of gender provisions varies depending on the state’s culture and history. The practical impact of the provisions often depends on its specificity, its clarity, and whether the language requires action or simply permits action. This memorandum reviews the constitutional role of gender in Scandinavia (Norway, Iceland, and Sweden) and the Balkans (Croatia, Slovenia, and Serbia), as well as other federal states (Germany, Belgium, and Switzerland). Gender provisions can be broadly categorized as (1) bans on gender discrimination, (2) affirmative statements of gender equality, and (3) affirmative action provisions. First, nearly all constitutions forbid discrimination on the basis of gender. Many also ban discrimination based on related characteristics, such as marital status or pregnancy. Some constitutions explicitly prohibit both direct and indirect discrimination, while others leave this open to interpretation by the judiciary or implementing legislation. While the language of anti-discrimination clauses is often absolute, in practice exceptions are made if the law in question has legitimate grounds for differentiating between men and women. Anti-discrimination provisions therefore usually operate as bans on arbitrary discrimination. Second, affirmative statements of gender equality serve to put women on equal legal footing with men. These provisions may apply generally or to particular areas such as political participation, social arrangements, and economic opportunity. Constitutional drafters often design these clauses to transform particular institutions or end past discrimination. For instance, a

2


2

constitution may guarantee gender equality with respect to marriage or property ownership. Third, affirmative action provisions permit or require the state to actively advance gender equality rather than merely refrain from discrimination. These provisions often contain gender-neutral language and apply to whichever gender is disadvantaged in a particular context. Such provisions may also specify particular goals (for instance, political participation or economic achievement) and establish quotas. In the absence of an explicit authorization of affirmative action, judiciaries may nevertheless permit it based on broader constitutional principles.

Tension sometimes arises between the principles of non-discrimination and affirmative action. The ban on discrimination may be interpreted as forbidding laws that differentiate between people on the basis of sex. Conversely, affirmative action provisions may require the state to treat men and women differently in the pursuit of equal outcomes. Unless the constitution specifically indicates the appropriate times to apply affirmative action, the judiciary may resolve this tension by applying broader constitutional principles. International law also limits gender-based affirmative action. The European Convention on Human Rights (“ECHR”) sometimes forbids affirmative action measures that are legal under the state constitution. Sweden and Germany, for instance, both passed laws to promote gender equality that the European Court of Human Rights rejected as incompatible with the Charter. The practical impact of gender provisions often depends on how they are written. A provision that unambiguously requires specific action is most likely to be implemented as written. On the other hand, if a provision uses ambiguous or general language, courts may have varying interpretations of the provision. Implementation is more likely if the language requires state action rather than just permitting it (for instance, “the state will…” is stronger than “the state may…”).


3

Norway Drafted in 1814, the Norwegian constitution is Europe’s oldest constitution still in force. Norway does not have specific constitutional provisions pertaining to gender. Nevertheless, legislation has established strong protections for women’s rights and equality. Norway’s constitution does not directly address gender. While it does guarantee equality before the law,3 it contains neither a non-discrimination provision nor an affirmation of gender equality. However, the constitution’s inclusive language permits an egalitarian interpretation of gender rights. The constitution primarily uses gender-neutral terms such as “persons” and “citizens.” Amendments later added the clarifying term “men and women” to three constitutional clauses to guarantee that women could not be excluded by stricter interpretations of those terms.4 For instance, Norway extended suffrage to women in 1913 by adding “men and women” to the following clause: “Those entitled to vote in elections to the [Parliament] are Norwegian citizens, men and women, who, at the latest in the year when the election is held, have completed their eighteenth year.”5 The sole exception to this egalitarian text is the provision that males take precedence over females in the inheritance of royal titles.

Because the constitution contains little on the subject of gender, legislation and treaties define gender equality in Norway. The Gender Equality Act of 1979 encourages the public and private sectors to use affirmative action, and requires it in some instances.6 Most political parties voluntarily use affirmative action in compiling candidate lists, and every Prime Minister since 1986 has reserved 40% of cabinet positions for women, even though this is not required.7 In 1994, Norway adopted an amendment requiring the state to enforce human rights,8 and international human rights treaties such as CEDAW have been incorporated into domestic law.

3 NORWAY CONST., art 95 (1814). 4 NORWAY CONST., arts 29, 50, and 92 (1814). 5 NORWAY CONST. art. 50 (1814). 6 Gender Equality Act, art. 3 and 21. 7 Meg Russell and Colm O’Cinneide, Positive Action to Promote Women in Politics: Some European Comparisons, 52 THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 587, 597 (2003). 8 NORWAY CONST., Art. 110(c) (amend. 1994) (“It is the responsibility of the authorities of the State to respect and ensure human rights.”)


4

Norway demonstrates that the constitution does not wholly determine state legal and societal norms around gender. Norway adopted strong gender protections through legislation and eventually through adopting international human rights protections. Iceland The constitution of Iceland, like many others that were drafted before the end of the Second World War,9 did not originally address gender. In 1995, at the prompting of the Committee on the Elimination of Discrimination Against Women, Iceland incorporated its existing norms of gender equality into constitutional revisions.10 Today, the constitution includes an anti-discrimination provision and an affirmative statement of gender equality, but no affirmative action language or concepts. Iceland formally incorporated the equality principle into the constitution in 1995. This occurred later than in many European countries in part because the Icelandic constitution, essentially a duplicate of the Danish constitution, is difficult to change.11 Iceland had previously demonstrated commitment to gender equality by adopting the 1985 law on Equal Status and Equal Rights of Men and Women. Likewise, the Icelandic Supreme Court had recognized the equality principle as a constitutional tenet.12 The impetus to amend the constitution came from the CEDAW, which required that the state constitution embody gender equality. In 1995, Iceland adopted both an anti-discrimination clause (“Everyone shall be equal before the law and enjoy human rights irrespective of sex…”)13 and an affirmative statement of gender equality (“Men and women shall enjoy equal rights in all respects.”).14

9 While adopted in 1944, the Icelandic constitution simply duplicated the Danish constitution, drafted in 1849. It was hastily adopted in order to render Iceland independent of Denmark after the latter was occupied by Germany. 10Margret Vala Kristjansdottir, Gender Equality and Access to Employment, THE UNIVERSITY OF ICELAND INSTITUTION FOR HUMAN RIGHTS 55 (May 2005).11 Paul Blokker, Grassroots Constitutional Politics in Iceland, 4 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 12 Margret Vala Kristjansdottir, Gender Equality and Access to Employment, THE UNIVERSITY OF ICELAND INSTITUTION FOR HUMAN RIGHTS 50 (May 2005). 13 ICELAND CONST., art 65 (amend. 1995). 14 ICELAND CONST., art 65 (amend. 1995).


5

The constitution does not contain an affirmative action provision, and Iceland has not adopted quotas for women’s participation in political life.15 However, gender-based affirmative action is a prominent feature in Icelandic employment law, and the Constitutional Court has not objected to such provisions.16 In politics, Iceland’s major political parties have independently and voluntarily established quotas for female candidates on electoral lists. In the 2009 election, women secured 43% of parliamentary seats.17 As in Norway, Iceland’s societal and political norms of gender equality have proven more decisive than constitutional provisions. While the Icelandic constitution does not obstruct gender equality, it also did not explicitly support equality until 1995. Nevertheless, Iceland developed robust legal mechanisms for promoting equality of men and women. Sweden Sweden’s constitution, drafted during the feminist movement of the 1970s, obligates the government to promote gender equality through affirmative action. Today, Sweden places high in most gender equality indicators, and enjoys the second-highest level of women’s representation in government in the world.18

Sweden has broad constitutional provisions for gender equality. The constitution consists of four fundamental laws, passed between 1810 and 1991. The third fundamental law, the Instrument of Government, was enacted in 1974 and addresses matters of equality and political participation. Like most post-WWII constitutions, it contains a general ban on discriminatory laws. 19 Unlike earlier constitutions, however, the Swedish constitution has an explicit exception to the anti-discrimination provision for 15 Iceland, QUOTAPROJECT: GLOBAL DATABASE OF QUOTAS FOR WOMEN (Nov. 30, 2009), available at http://www.quotaproject.org/uid/countryview.cfm?id=109. 16 Margret Vala Kristjansdottir, Gender Equality and Access to Employment, THE UNIVERSITY OF ICELAND INSTITUTION FOR HUMAN RIGHTS 56 (May 2005). 17 Iceland, QUOTAPROJECT: GLOBAL DATABASE OF QUOTAS FOR WOMEN (Nov. 30, 2009), available at http://www.quotaproject.org/uid/countryview.cfm?id=109. 18 Meg Russell and Colm O’Cinneide, Positive Action to Promote Women in Politics: Some European Comparisons, 52 THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 587, 588 (2003). Rwanda has the highest proportion of women in government, at 52%, due to reserved seats in both parliamentary chambers. Rwanda, QUOTAPROJECT: GLOBAL DATABASE OF QUOTAS FOR WOMEN, (Sept. 14, 2009), available at http://www.quotaproject.org/uid/countryview.cfm?ul=en&country=192. 19 SWEDEN CONST., art 16 (1974) (“No act of law or other provision may imply the unfavorable treatment of a citizen on grounds of gender, unless the provision forms part of efforts to promote equality between men and women or relates to compulsory military service or other analogous official duties.”)


6

laws that discriminate in order to promote equality.20 The constitution obligates the state to “promote the opportunity for all to attain participation and equality in society,”21 and combat gender discrimination.22 Gender-based affirmative action is therefore compulsory in Sweden. Despite the affirmative action requirement, Sweden’s long-held constitutional principles prevent certain gender equality measures. Swedish tradition demands that parties have absolute autonomy to select candidates without government interference.23 Consequently, Swedish election law cannot require gender parity in parliament.24 Instead, as in Iceland and Norway, public pressure from Swedish women’s groups has compelled parties to voluntarily adopt gender quotas. Two of Sweden’s five major parties alternate men and women on candidate lists, and the remaining parties consistently select women for at least 30% of their candidate lists.25 As a result, women comprised 45% of parliament in 2011.26 The European Convention on Human Rights (“ECHR”) has also limited Sweden’s gender equality laws. The European Court of Justice has invalidated laws that comply with the Swedish constitution but violate the ECHR. In one case, a male scientist challenged a university’s hiring of an objectively less-qualified woman who also fulfilled the criteria for the position.27 Swedish law required preferential treatment to remedy the under-representation of a sex, so long as the difference in qualifications was not so great that it violated the requirement of objectivity in hiring decisions.28 The European Court of Justice invalidated the law, holding that while employers may give preference to a woman where both candidates have equal qualifications, they could not give automatic preference to a woman of lesser 20 SWEDEN CONST., art 16 (1974) (“No act of law or other provision may imply the unfavorable treatment of a citizen on grounds of gender, unless the provision forms part of efforts to promote equality between men and women or relates to compulsory military service or other analogous official duties.”) 21 SWEDEN CONST., art 2 (1974) (“The public institutions shall promote the opportunity for all to attain participation and equality in society.”) 22 SWEDEN CONST., art 2 (1974) (“The public institutions shall combat discrimination of persons on grounds of gender…etc.”) 23 Meg Russell and Colm O’Cinneide, Positive Action to Promote Women in Politics: Some European Comparisons, 52 THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 587, 597 (2003). 24 Meg Russell and Colm O’Cinneide, Positive Action to Promote Women in Politics: Some European Comparisons, 52 THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 587, 595 (2003). 25 Meg Russell and Colm O’Cinneide, Positive Action to Promote Women in Politics: Some European Comparisons, 52 THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 587, 596 (2003). 26 Press Release from Statistics Sweden, STATISTICS SWEDEN, (March 30, 2011), available at http://www.scb.se/Pages/PressRelease____310893.aspx. 27 Abrahamsson v. Fogelqvist, ECR I-05539, I-05573 (2000). 28 Abrahamsson v. Fogelqvist, ECR I-05539, I-05571 (2000).


7

qualifications.29 In this way, Sweden’s liberal constitutional provisions for gender equality are no longer wholly decisive. Sweden illustrates that the text of the constitution impacts but does not wholly determine gender policies. While Iceland and Norway apply gender rights more broadly than their constitutions suggest, Sweden’s gender-based affirmative action has been limited by constitutional principles and international law. Croatia Croatia drafted its constitution in 1990 and added gender rights and equality provisions in 2001. The Croatian constitution emphasizes gender equality but also allows exceptions under certain circumstances. The Croatian constitution identifies gender equality as among the “highest values of the constitutional order” alongside freedom, equal rights, and national equality.30 Uniquely, the Croatian constitution also declares gender equality a guiding principle for constitutional interpretation.31 Additionally, Article 14’s anti-discrimination clause guarantees that gender will not impede equal rights and freedoms.32 Without addressing gender specifically, the constitution states that rights and freedoms may be restricted under limited circumstances.33 The Constitutional Court decided in 2007 that Article 14 “does not forbid the legislator to regulate the rights and obligations of certain corresponding or similar groups in a different way if this corrects existing inequalities among these groups or if there are other justified, constitutionally-based reasons for doing so.” Differential treatment must be based on an “objective and

29 Abrahamsson v. Fogelqvist, ECR I-05539, I-05587 (2000). 30 CROATIA CONST., art 3 (2001) (“Freedom, equal rights, national equality and equality of genders…are the highest values of the constitutional order of the Republic of Croatia and the ground for interpretation of the Constitution.”) 31 CROATIA CONST., art 3 (2001) (“Freedom, equal rights, national equality and equality of genders…are the highest values of the constitutional order of the Republic of Croatia and the ground for interpretation of the Constitution.”) 32 CROATIA CONST., art 14(1) (2001) (“Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, color, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.”) 33 CROATIA CONST., art. 16(2) (1990) (“Every restriction of freedoms or rights shall be proportional to the nature of the necessity for restriction in each individual case.”)


8

reasonable justification.”34 In short, laws that distinguish between men and women must be tailored to a legitimate goal and must use measures proportional to that goal.35 A month after that decision, the Constitutional Court found no constitutional justification for a law permitting women to retire five years before men, and required that the retirement age be equalized by 2019.36 The Croatian constitution explicitly declares gender equality and bans discrimination, but also provides a constitutional basis for affirmative measures to advance gender equality. Slovenia The constitution of Slovenia contains specific provisions for gender equality. In addition to declaring equality and banning gender discrimination, the Slovenian constitution specifies certain rights that women enjoy in private and public life. The Slovenian constitution states that “everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of…sex,”37 and stipulates that emergency restrictive measures may not create inequality solely on the basis of gender.38 Unlike many other constitutions, it also sets forth specific rights for women in both private and public life. The constitutional guarantee of women’s rights in the private sphere reflects Slovenia’s legal history. Under communism, men and women had formal equality under state law but some patriarchal traditions persisted in private realm.39 With respect to marriage, the Yugoslav constitution

34 Constitutional Court Decision No. U-I-764/2004, U-I-2578/2004, U-I-3006/2004 and U-I-1452/2005 (2007) Official Gazette no. 34/07. 35 Constitutional Court Decision No. U-I-764/2004, U-I-2578/2004, U-I-3006/2004 and U-I-1452/2005 (2007) Official Gazette no. 34/07. 36 Decision of the Constitutional Court of the Republic of Croatia, Broj: U-I-1152/2000, U-I-1814/2001, U-I- 1478/2004, U-I-3137/2004, U-I-3760/2005 (2007), Official Gazette no. 43/07. 37 SLOVENIA CONST, Art. 14. 38 SLOVENIA CONST., Art 16 (“Human rights and fundamental freedoms may be suspended or restricted only for the duration of the war or state of emergency, but only to the extent required by such circumstances and inasmuch as the measures adopted do not create inequality based solely on race, national origin, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance.”) 39 Milica G. Antic, Gender Equality in Socialist Slovenia, in DEMOCRATIC TRANSITION IN YUGOSLAVIA: VALUE TRANSFORMATION, EDUCATION, AND MEDIA 215, 215-220 (Sabrina Ramet and Danica Fink Hafner, eds., 1st ed., 2006).


9

provided that both parties must agree to marry in accordance with free will.40 The Slovenian constitution goes much farther, declaring that “[m]arriage is based on the equality of spouses.”41 The inclusion of abortion rights in Slovenia’s constitution also reflects the Yugoslav constitution, which deemed abortion a human right. The Slovenian constitution does not declare abortion a human right, but states that, “everyone shall be free to decide whether to bear children.”42 Moreover, the state must guarantee the opportunity of women to make this choice.43 The socialist constitutional legacy thus strongly informs the gender rights provisions in the Slovenian constitution. The constitution also obligates the state to promote equality in the political sphere. A constitutional amendment, adopted in 2004 to increase women’s representation,44 states that “[t]he State must encourage equal opportunity to serve as representatives.”45 Shortly thereafter, the Act on Equal Opportunities for Women and Men passed, obligating the government to respect the principle of balanced representation when appointing and nominating members of public bodies.46 All political parties must develop a plan every four years for the promotion of balanced gender representation within the party and on candidate lists.47 Women must constitute 35% of candidate lists.48 40 SOCIALIST FEDERAL REPUBLIC OF YUGOSLAVIA CONST., art 58 (1963). 41 SLOVENIA CONST., art 53 (1991) (“Marriage is based on the equality of spouses”). 42 Abortion Policies: A Global Review, 91-92 UNITED NATIONS POPULATION DIVISION DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS (2002), available at www.un.org/esa/population/publications/abortion/doc. 43 SLOVENIA CONST., art 55(2) (1991) (“The state shall guarantee the opportunities for exercising this freedom and shall create such conditions as will enable parents to decide to bear children.”). 44 National Report of Slovenia: UN Questionnaire to Governments on Implementation of the Beijing Platform for Action (1995) and the Outcome of the Twenty-Third Special Session of the General Assembly (2000), 17 SLOVENIA OFFICE FOR EQUAL OPPORTUNITIES (July 2004), available at http://www.unece.org/fileadmin/DAM/Gender/documents/question/Slovenia.pdf. 45 SLOVENIA CONST., art 43 (amend. 2004) (“The law shall provide measures for encouraging the equal opportunity of men and women in standing for election to state authorities and local community authorities.”) 46 National Report of Slovenia: UN Questionnaire to Governments on Implementation of the Beijing Platform for Action (1995) and the Outcome of the Twenty-Third Special Session of the General Assembly (2000), 17 SLOVENIA OFFICE FOR EQUAL OPPORTUNITIES (July 2004), available at http://www.unece.org/fileadmin/DAM/Gender/documents/question/Slovenia.pdf. 47 National Report of Slovenia: UN Questionnaire to Governments on Implementation of the Beijing Platform for Action (1995) and the Outcome of the Twenty-Third Special Session of the General Assembly (2000), 18 SLOVENIA OFFICE FOR EQUAL OPPORTUNITIES (July 2004), available at http://www.unece.org/fileadmin/DAM/Gender/documents/question/Slovenia.pdf. 48 Slovenia, QUOTAPROJECT: GLOBAL DATABASE OF QUOTAS FOR WOMEN (Sept. 25, 2009), available at http://www.quotaproject.org/uid/countryview.cfm?ul=en&country=200.


10

The judiciary has interpreted the constitution to allow for non-specified affirmative action measures. The Constitutional Court decided in 1999 that the anti-discrimination provision in Article 14 does not completely forbid all differential treatment of men and women.49 Rather, the principles of the welfare state, codified in Article 2 of the Slovenian constitution, allow and even obligate the government to protect disadvantaged members of society.50 Legislation could therefore differentiate between men and women in order to establish actual gender equality in areas of objective biological or functional difference.51 This allows laws that seek to (1) eliminate disadvantage arising from traditionally distinct social roles, or (2) provide compensation for differences that arose from such roles.52 For instance, the law includes a discrepancy between the female and male retirement ages, in order to compensate women for lower wages and family responsibilities.53

The Slovenian constitution contains broad provisions for gender equality in the private and public arenas, partially as a legacy of socialist law and values. The judiciary has inferred from Slovenia’s welfare state foundations that the state may promote women’s collective welfare even without explicit authorization in the constitution. Serbia The Serbian constitution has stronger and more specific gender equality provisions than the other countries examined in this memorandum. In addition to declaring gender equality and banning gender discrimination, the constitution requires the state to take affirmative action to advance gender equality in political and economic life, and guarantees state-funded socioeconomic benefits. As in Slovenia, many Serbian gender rights originate in the socialist era.

49 Decision taken by the Constitutional Court, No. U-I-298/96, 11 November 1999, Official Gazette RS 1999, No. 98. 50 Arne Mavcic, Equality Between the Sexes in Slovenia, 10 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (2006), available at http://www.venice.coe.int/docs/2006/CDL-JU(2006)020-e.pdf. 51 Arne Mavcic, Equality Between the Sexes in Slovenia, 10 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (2006), available at http://www.venice.coe.int/docs/2006/CDL-JU(2006)020-e.pdf. 52 Decision taken by the Constitutional Court, No. U-I-298/96, 11 November 1999, Official Gazette RS 1999, No. 98. 53 Decision taken by the Constitutional Court, No. U-I-298/96, 11 November 1999, Official Gazette RS 1999, No. 98.


11

The constitution forbids both direct and indirect discrimination on the grounds of sex,54 and stipulates that emergency measures that restrict rights cannot create differences solely on the basis of sex.55 The constitution further rejects gender discrimination by permitting asylum56 and forbidding expulsion57 when a foreign national faces the threat of gender-based persecution at home.

Serbia provides strong assurances of gender equality in the

constitution. Article 15 pledges that “the State shall guarantee the equality of men and women.”58 In Article 62, the constitution states that all decisions regarding marriage (including dissolution thereof) must be “based on the free consent”59 and “based on the equality of man and woman.”60 These provisions came on the heels of other advances for women in the non-public sphere: marital rape and domestic violence were criminalized in 2002 and 2005, respectively.61

Gender-based affirmative action features prominently in the Serbian constitution. Article 21 states expressly that “special measures” intended to “achieve full equality of individuals or groups of individuals in a substantially unequal position compared to other citizens shall not be deemed discrimination.”62 The constitution specifies two such measures. First, the state must develop an “equal opportunities policy.”63 Second, the

54 SERBIA CONST., art 21(3) (2006) (“All direct or indirect discrimination based on any grounds, particularly on race, sex…shall be prohibited.”) 55 SERBIA CONST., art 202(2) (2006) (“Measures providing for derogation shall not bring about differences based on race, sex, language, religion, national affiliation or social origin.”) 56 SERBIA CONST., art 57(1) (2006) (“Any foreign national with reasonable fear of prosecution based on his race, gender…shall have the right to asylum in the Republic of Serbia.”) 57 SERBIA CONST., art 21(3) (2006) (“All direct or indirect discrimination based on any grounds, particularly on race, sex…shall be prohibited.”) 58 SERBIA CONST., art 15 (2006) (“The State shall guarantee the equality of women and men and develop equal opportunities policy.”) 59 SERBIA CONST., art 15 (2006) (“The State shall guarantee the equality of women and men and develop equal opportunities policy.”) 60 SERBIA CONST., art 62(2)-(3) (2006) (“Marriage shall be entered into based on the free consent of man and woman before the state body. Contracting, duration or dissolution of marriage shall be based on the equality of man and woman.”) 61 USAID/Serbia & Montenegro Gender Assessment and Recommendations for a Draft Gender Action Plan, UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT (May 2005), available at http://www.usaid.gov/our_work/cross-cutting_programs/wid/pubs/ga_serbia.pdf. 62 SERBIA CONST., art 21(4) (2006) (“Special measures which the Republic of Serbia may introduce to achieve full equality of individuals or group of individuals in a substantially unequal position compared to other citizens shall not be deemed discrimination.”) 63 SERBIA CONST., art 15 (2006) (“The State shall guarantee the equality of women and men and develop equal opportunities policy.”)


12

National Assembly must contain “representatives of different genders” in accordance with legislation.64 Implementing legislation now requires that women comprise 40% of party candidates and appear in every fourth spot on candidate lists.65

The Serbian constitution also contains specific socioeconomic

guarantees for women, retained from the socialist era. Under socialism, state policy accommodated biological differences between the genders in order to achieve uniform economic outcomes.66 The Serbian constitution reflects this legacy in mandating special work protections and conditions for women.67 It also requires state-funded health care for pregnant women, new mothers, and single parents with children under the age of seven, as well as children and the elderly.68 With these guarantees, the Serbian constitution specifies more gender-specific policy than the other constitutions explored in this memorandum.

Drawing on the legacy of socialism and recent legal gains for women,

the Serbian constitution gives the state relatively clear, specific, and obligatory responsibilities with respect to gender. Like Norway and Iceland, however, Serbia illustrates that constitutional provisions alone may not automatically establish gender equality. Despite constitutional progress, Serbian women currently constitute less than one quarter of parliament69 and Serbia recently ranked 58th in the Gender Empowerment Measure.70

64 SERBIA CONST., art 100(2) (2006) (“In the National Assembly, equality and representation of different genders and members of national minorities shall be provided, in accordance with law.”) 65 Serbia, QUOTAPROJECT: GLOBAL DATABASE OF QUOTAS FOR WOMEN (Sept. 14, 2009), available at http://www.quotaproject.org/uid/countryview.cfm?ul=en&country=190. 66 USAID/Serbia & Montenegro Gender Assessment and Recommendations for a Draft Gender Action Plan, UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT 8 (May 2005), available at http://www.usaid.gov/our_work/cross-cutting_programs/wid/pubs/ga_serbia.pdf. 67 SERBIA CONST., art 60 (2006) (“Women, young and disabled persons shall be provided with special protection at work and special work conditions in accordance with law.”) 68 SERBIA CONST., art 68 (2006) (“Health care for children, pregnant women, mothers on maternity leave, single parents with children under seven years of age and elderly persons shall be provided from public revenues unless it is provided in some other manner in accordance with the law.”) 69 Serbia, QUOTAPROJECT: GLOBAL DATABASE OF QUOTAS FOR WOMEN (Sept. 14, 2009), available at http://www.quotaproject.org/uid/countryview.cfm?ul=en&country=190. 70 HDI Statistical Update: Serbia Ranked 65 out of 179 countries, UNITED NATIONS DEVELOPMENT PROGRAMME 9 (Dec. 22, 2008), available at http://www.undp.org.rs/index.cfm?event=public.newsDetails&revid=27C3C151-3FF2-8C75-275F37DEA605B1C1.


13

Switzerland

Switzerland’s constitution was written in 1999 and contains more specific and clear provisions for gender equality than those of Norway and Iceland. The constitution expressly bans discrimination and proclaims equality, and provides a framework for allowing the suspension of fundamental rights. Like the constitutions explored above, however, Switzerland has unwritten but widely recognized constitutional principles that impact gender equality measures.

The first chapter of the Swiss constitution includes a general ban on gender discrimination,71 as well as an affirmative statement of gender equality that emphasizes family, education, and work.72 The constitution specifies only one exception to gender equality: military service and civil defense service are obligatory for men but voluntary for women.73

Switzerland’s gender equality provision is not absolute. The constitution permits laws that limit fundamental rights, provided that they “satisfy the principle of proportionality” and are “justified by the public interest or by the protection of fundamental rights of others.”74 “Serious” limitations must be explicitly established by statute, and legislation may under no circumstances violate the “essence of fundamental rights.”75 For instance, the Supreme Court found that limitations on the number of people permitted to attend prayer in an Islamic cultural center were justified by and proportional to legitimate safety concerns.76 Swiss laws that differentiate between men and women create a presumption of discrimination, which can be overcome by demonstrating that the law is justified and proportional. In applying this framework, Swiss courts assess the law’s justification and proportionality in the context of the constitution as a whole. For

71 SWITZERLAND CONST., Art 8(2) (1999) (“No one may be discriminated against, in particular on grounds of origin, race, gender, age, language…”) 72 SWITZERLAND CONST., Art 8(3) (1999) (“Men and women shall have equal rights. The law shall ensure their equality, both in law and in practice, most particularly in the family, in education, and in the workplace. Men and women shall have the right to equal pay for work of equal value.”) 73 SWITZERLAND CONST., Art 59(1)-(2) (1999) (“Every Swiss man is required to do military service. Alternative civilian service shall be required by law. Military service shall be voluntary for Swiss women.”); Art 61(3) (1999) (“It may declare civil defense service to be compulsory for men. For women, such service shall be voluntary.”) 74 SWITZERLAND CONST., art 36(2)-(3) (1999). 75 SWITZERLAND CONST., art 36(1) and (4) (1999). 76 BGer Mar. 19, 2003, docket no. 1A_69/2002, para. 3.3, available at http://www.bger.ch.


14

instance, the Supreme Court rejected a cantonal initiative to require equal participation of men and women in the canton’s legislative, executive, and judicial branches.77 The law reserved seats for the underrepresented gender so that men and women were represented in proportion to their percentage of the canton population.78 Because the law differentiated on the basis of gender, it was presumptively unconstitutional unless shown to be justified and proportional. The Supreme Court held that, because direct elections play an absolute and fundamental role in Swiss constitutional democracy, the government could justify intervention in elections only to ensure an orderly process.79 The Court concluded that the law on gender representation did not relate to the orderliness of the election process. This constitutional principle has prevented Switzerland from establishing gender quotas for political office. Like Norway and Iceland, however, Switzerland has a significant number of female parliamentarians (29%), and one major party has adopted a 40% quota for women on its candidate lists.80 Switzerland has fairly clear constitutional guidance about state promotion of gender equality, which hinges on the concept of proportionality and protection of the public interest. However, long-standing constitutional principles, as defined by the judiciary, have nevertheless played an important role in shaping the contours of gender equality law. Germany The German constitution, like the Swedish constitution, requires gender-based affirmative action and provides wider latitude for such measures than the ECHR permits. The German case also demonstrates the impact of social change on constitutional interpretation.

77 Blanca Rodriguez-Ruiz and Ruth Rubio-Marin, On Parity, Independence and Women’s Democracy, in FEMINIST CONSTITUTIONALISM: GLOBAL PERSPECTIVES 188, 191 (Beverley Baines, Daphne Barak-Erez and Tsvi Kahana, eds., 1st ed., 2012). 78 Blanca Rodriguez-Ruiz and Ruth Rubio-Marin, On Parity, Independence and Women’s Democracy, in FEMINIST CONSTITUTIONALISM: GLOBAL PERSPECTIVES 188, 191 (Beverley Baines, Daphne Barak-Erez and Tsvi Kahana, eds., 1st ed., 2012). 79 Blanca Rodriguez-Ruiz and Ruth Rubio-Marin, On Parity, Independence and Women’s Democracy, in FEMINIST CONSTITUTIONALISM: GLOBAL PERSPECTIVES 188, 191 (Beverley Baines, Daphne Barak-Erez and Tsvi Kahana, eds., 1st ed., 2012). 80 Switzerland, QUOTAPROJECT: GLOBAL DATABASE OF QUOTAS FOR WOMEN (July 8, 2010), available at http://www.quotaproject.org/uid/countryview.cfm?ul=en&country=42.


15

The German constitution came into force in 1949 with three clauses explicitly addressing gender. Article 3 affirmatively declares gender equality (“Men and women are equal,”) and bans discrimination based on gender (“No one may be disadvantaged or favored because of his sex…”).81 Article 12 established an exception to gender equality, excluding women from any obligation to bear arms for the state.82

For decades, judges and scholars interpreted the constitution as forbidding laws from differentiating between men and women.83 This interpretation began to shift in the 1970s, when academics and lawyers argued that the principles of the welfare state, also codified in the constitution,84 allowed action to protect disadvantaged members of society.85 They asserted that the state must balance the obligation to create a just social order, including gender equality, with the right of individuals to be free from discrimination.86 This principle eventually became incorporated into German constitutional law. In 1987, the Constitutional Court upheld the constitutionality of a law that set different retirement ages for men and women. Relying on the welfare state principle, the Court upheld a lower retirement age for women in order to compensate for the burden of balancing family and work.87 Expanding this decision into a general constitutional theory, the Court declared in a seminal 1992 case that, “factual disadvantages which are typically borne by women can be compensated through promotional actions.” In 1994, an amendment to the constitution codified this principle88 by adding the following “compensation clause”: “The state supports the effective realization of the equality of women and 81 GERMANY CONST., art 3(2)-(3) (1949). 82 GERMANY CONST., art 12(4) (1949) (“Where, during a state of defense, civilian service requirements in the civilian health system or in the stationary military hospital organization cannot be met on a voluntary basis, women between eighteen and fifty-five years of age can be assigned to such services by or pursuant to statute. They may in no case be obliged to render service involving the use of arms.”) 83 Anke J. Stock, Affirmative Action: A German Perspective on the Promotion of Women’s Rights with Regard to Employment, 33 JOURNAL OF LAW AND SOCIETY 59, 62 (2006). 84 GERMANY CONST., art 20(1) (1949) (“The Federal Republic of Germany is a democratic and social federal state.”) and 28(1) (“The constitutional order in the Lander must conform to the principles of a republican, democratic, and social state…”). 85 Anke J. Stock, Affirmative Action: A German Perspective on the Promotion of Women’s Rights with Regard to Employment, 33 JOURNAL OF LAW AND SOCIETY 59, 62 (2006). 86 Anke J. Stock, Affirmative Action: A German Perspective on the Promotion of Women’s Rights with Regard to Employment, 33 JOURNAL OF LAW AND SOCIETY 59, 62 (2006). 87 Decision of the Federal Constitutional Court, BVerfGE 74, 163 ff., 28 January 1987. 88 Anke J. Stock, Affirmative Action: A German Perspective on the Promotion of Women’s Rights with Regard to Employment, 33 JOURNAL OF LAW AND SOCIETY 59, 64 (2006).


16

men and works towards abolishing present disadvantages.”89 German laws may now differentiate between genders in order to promote equality. The ECHR has sometimes limited Germany’s liberal affirmative action laws. In a 1995 case, the ECJ rejected a German law that gave women automatic preference for civil service jobs when their credentials matched those of a male candidate.90 The Court found that while employers may not select the male candidate for discriminatory reasons, they must be permitted to consider objective factors that weigh in favor of the male candidate.91 Two years later, the ECJ upheld a similar German law because it contained an assurance that all candidates would receive a holistic, individualized and objective assessment.92 Germany demonstrates the importance of judicial discretion in implementing gender equality provisions. Because the constitution allowed more than one interpretation of gender rights, contemporary social norms informed the court’s conclusions. Belgium The Belgian constitution dates to 1831 and, like those of Norway and Iceland, initially contained no reference to gender. Public opinion and social values propelled the adoption of gender equality provisions in 2002.

Belgium incorporated gender equality provisions into the constitution relatively recently, in 2002. Unlike most constitutions, Belgium’s does not contain a non-discrimination clause. Instead, the constitution contains two affirmative declarations of gender equality, one general (“Equality between women and men is guaranteed”)93 and one specific to political rights (“women and men may equally exercise their rights and freedoms, and in particular promotes their equal access to elective and public mandates,”).94

89 GERMANY CONST., art 3(2) (amend. 1994). 90 EckhardKalanke v. Freie HansestadtBremen (1995) ECR1-3051. 91 EckhardKalanke v. Freie HansestadtBremen (1995) ECR1-3051. 92 HellmutMarschall v. LandNordrhein-Westfalen (1997) ECR1-6363. 93 BELGIUM CONST., art 10 (amend. 2002). 94 BELGIUM CONST., art 11bis (amend. 2002).


17

The most controversial 2002 amendment requires women’s participation in a variety of listed public entities and committees.95 This amendment originated in Belgium’s electoral and jurisprudential history. Although Belgian women have been eligible for elected office since 1921 (twenty-seven years before they acquired the right to vote), their percentage of parliament remained between 5-10% for decades.96 Women’s groups began advocating policies that would increase women’s representation in the 1970s, but Belgium’s highest administrative court rejected a law that required women to comprise one-fourth of party candidate lists as unconstitutional. The court held that gender quotas violated the constitutional principle of equality.97 Despite this setback, popular support for minimum gender quotas rose steadily over the 1980s and 1990s. Many women’s groups embraced an even stronger policy of gender parity, requiring equal representation of men and women in governing bodies.98 The notion of parity had particular resonance in Belgium due to the state’s long history of accommodating linguistic and cultural diversity by ensuring parity. French and Dutch speakers, for instance, have automatic representation in parliament in proportion to their numbers.99 By 1994, several political parties across the ideological spectrum had independently adopted binding rules that gave women minimal representation or parity on candidate lists. In 1994, despite the court ruling, Belgium enacted a law requiring women to comprise one

95 BELGIUM CONST., art 11bis (amend. 2002) (“The Council of Ministers and the Governments of the Communities and the Regions include both women and men…The law, federate law or rule referred to in Article 134 provides for women and men to sit on the permanent deputations of the provincial councils, the colleges of the burgomasters and aldermen, the councils and permanent committees of the social welfare centers and on the executives of any other inter-provincial, inter-municipal or intra-municipal territorial body.”) 96 Jocelyne Praud and Karl A. Henriques, Constitutionalizing and Legislating Parity Democracy: The Cases of France and Belgium, SASKATCHEWAN INSTITUTE OF PUBLIC POLICY 4 (May, 2008), available at http://www.uregina.ca/sipp/documents/pdf/PPP56_Praud_ONLINE.pdf. 97 Jocelyne Praud and Karl A. Henriques, Constitutionalizing and Legislating Parity Democracy: The Cases of France and Belgium, SASKATCHEWAN INSTITUTE OF PUBLIC POLICY 5 (May, 2008), available at http://www.uregina.ca/sipp/documents/pdf/PPP56_Praud_ONLINE.pdf. 98 Jocelyne Praud and Karl A. Henriques, Constitutionalizing and Legislating Parity Democracy: The Cases of France and Belgium, SASKATCHEWAN INSTITUTE OF PUBLIC POLICY 7 (May, 2008), available at http://www.uregina.ca/sipp/documents/pdf/PPP56_Praud_ONLINE.pdf, (“After the middle of the 1990s, the entire women’s movement without any exception demanded parity democracy.”) 99 Petra Meier, The Belgian Paradox: Inclusion and Exclusion of Gender Issues, in STATE FEMINISM AND POLITICAL REPRESENTATION 41, 55 (Joni Lovenduski, ed., 1st ed., 2005).


18

third of party candidate lists.100 Many political parties went further, attempting to outperform each other in promoting the election of women.101 Belgium incorporated gender-based affirmative action into the constitution in 2002 - eight years after legislation introduced the practice. The text now reads that “[t]he Council of Ministers and the Governments of the Communities and the Regions include both women and men.”102 The revisions required all levels and areas of government to include men and women unless the position is directly elected.103 The provision specifies several types of government institutions, but did not prescribe quotas. Shortly thereafter, the legislature resolved this ambiguity by passing legislation requiring parity.104 Belgium, like Iceland and Germany, illustrates the impact of social norms on constitutional law. In all three cases, public opinion and party rules preceded and propelled constitutional change. While in Germany this change occurred through judicial reinterpretation of the constitution, in Iceland and Belgium it occurred through the democratic passage of constitutional amendments. Robust democracy was therefore able to overcome the constitutional rigidity. Conclusion Constitutional approaches to gender rights and equality vary in their substantive content and specificity. Most modern constitutions forbid discrimination and endorse gender equality, but courts play an important role in shaping the impact of these provisions.

100 Jocelyne Praud and Karl A. Henriques, Constitutionalizing and Legislating Parity Democracy: The Cases of France and Belgium, SASKATCHEWAN INSTITUTE OF PUBLIC POLICY 8 (May, 2008), available at http://www.uregina.ca/sipp/documents/pdf/PPP56_Praud_ONLINE.pdf, 101 Jocelyne Praud and Karl A. Henriques, Constitutionalizing and Legislating Parity Democracy: The Cases of France and Belgium, SASKATCHEWAN INSTITUTE OF PUBLIC POLICY 9 (May, 2008), available at http://www.uregina.ca/sipp/documents/pdf/PPP56_Praud_ONLINE.pdf, 102 BELGIUM CONST., art 11bis (amend. 2002). 103 BELGIUM CONST., art 11bis (“The law, federate law or rule referred to in Article 134 provides for women and men to sit on the permanent deputations of the provincial councils, the colleges of the burgomasters and aldermen, the councils and permanent committees of the social welfare centers and on the executives of any other inter-provincial, inter-municipal or intra-municipal territorial body.”) 104 Jocelyne Praud and Karl A. Henriques, Constitutionalizing and Legislating Parity Democracy: The Cases of France and Belgium, SASKATCHEWAN INSTITUTE OF PUBLIC POLICY 1 (May, 2008), available at http://www.uregina.ca/sipp/documents/pdf/PPP56_Praud_ONLINE.pdf,


19

First, while constitutional provisions impact gender rights and equality, they are not wholly determinative. While Norway’s constitution scarcely addresses gender, Norwegian women enjoy essentially the same rights and status as their counterparts in Sweden, where the constitution requires extensive affirmative action. Conversely, Serbia has not yet fully attained the promise of equality embodied in the constitution.

Second, courts will interpret gender equality provisions in the context

of the constitution as a whole. In several cases, long-standing constitutional principles inform the treatment of ambiguously worded provisions. Icelandic courts applied the “equality principle” before it was formally incorporated into the constitution. Courts in both Germany and Slovenia permitted gender-based affirmative action based on the principles of the welfare state. Conversely, affirmative action is limited by the Swiss concept of direct democracy and Swedish principle on political party autonomy. The Croatian constitution defines gender equality as a fundamental principle for constitutional interpretation, but courts still have discretion to decide whether equality refers to opportunities or outcomes.

Third, social and political norms around gender often influence

constitutional protections. In Germany, for example, changing social values prompted the Constitutional Court to redefine its notion of equality in a welfare state. However, states may experience a long interval between cultural change and constitutional reform. Belgium, for instance, did not incorporate gender equality into the constitution until the past decade.

Gender equality provisions are a relatively recent constitutional

development, mostly appearing after the end of World War II. State practice demonstrates that courts interpret these provisions in the context of broader constitutional principles as well as the state’s social and cultural norms. While constitutional provisions do not completely determine state policy on gender issues, specific and clear requirements are often effective. In several of the states reviewed, detailed requirements with respect to equality and affirmative action have increased gender equality in government and other areas of life.

Constitutional Approaches to Gender Equality

Documents

Transcript of Constitutional Approaches to Gender Equality