The vast majority of the 27 EU Member States have adopted legislative measures to prohibit sex discrimination86 and some of these measures are applicable in the field of compulsory education. Such legislative measures include:
▪
The constitutional protection of gender equality;▪
The constitutional protection of the right to (access to) education and the protection of gender equality in education;▪
General antidiscrimination legislation (which in some cases applies to compulsory education); and▪
Provisions on antidiscrimination (in some cases including gender equality) in education acts. Table 3.2 summarises the legislative provisions in each Member State. The specific situation in countries is presented in Sections 3.3.1 to 3.3.2 of the report. For a detailed presentation of the legislative provisions by country please see the country fiches in Annex 5 of the report and detailed legislation tables in Annex 6.
86
In the following sections of this chapter the prohibition of sex discrimination and the protection of gender equality are used interchangeably in the analysis of the legal provisions of the Member States.
40
Table 3.2 Legislative framework to assure equality of opportunity in EU Member States in education (general non-vocational schools)
Constitutional protection of gender equality
Constitutional protection of gender equality in the field of education.
General antidiscrimination legislation that covers the field of compulsory general education
Prohibition of sex discrimination in education acts
Austria Yes
Explicit reference to
protection of gender equality
No No Yes
Explicit reference to the prohibition of sex discrimination
Belgium Yes
Explicit reference to
protection of gender equality
BE federal level- yes, implicit reference BE federal level – no reference to education
BE Flemish community– implicit reference to education
BE French community– explicit reference to education
Yes
Explicit reference in the Flemish and French communities
Bulgaria Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Explicit reference
Cyprus Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
No
Czech Republic Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes,
41
Constitutional protection of gender equality
Constitutional protection of gender equality in the field of education.
General antidiscrimination legislation that covers the field of compulsory general education
Prohibition of sex discrimination in education acts
Denmark No No Yes
Explicit reference to education
Public schools – implicit reference
Private schools – explicit reference
Estonia Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes, Explicit reference
Finland Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes, explicit referencebut compulsory education is explicitly excluded in some articles
Yes
Implicit reference
France Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes, Explicit reference
Germany Yes
Explicit reference to
protection of gender equality Yes
Explicit reference
Yes
Explicit reference to education
Yes,
Explicit reference
Greece Yes
Explicit reference to
protection of gender equality Yes
Implict reference
Yes
Explicit reference to education
Yes
42
Constitutional protection of gender equality
Constitutional protection of gender equality in the field of education.
General antidiscrimination legislation that covers the field of compulsory general education
Prohibition of sex discrimination in education acts
Hungary Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Implicit reference (equal treatment)
Ireland Yes
Implicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Implicit reference (prohibition of any discrimination)
Italy Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
No (vocational education only) Yes
Implicit reference (promotion of equal opportunities) In some regional Laws, explicit reference
Latvia Yes
Implicit reference to
protection of gender equality Yes
Implicit reference
Yes, explicit reference to education Yes,
Explicit reference
Lithuania Yes
Explicit reference to
protection of gender equality
No Yes
Explicit reference to education
Yes
Explicit reference
Luxembourg Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
No (does not cover education) Yes
43
Constitutional protection of gender equality
Constitutional protection of gender equality in the field of education.
General antidiscrimination legislation that covers the field of compulsory general education
Prohibition of sex discrimination in education acts
Malta Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Explicit reference
Netherlands Yes
Explicit reference to
protection of gender equality
No Yes
Explicit reference to education
Yes
Implicit reference
Poland Yes
Explicit reference to
protection of gender equality Yes Explicit reference No Yes Implicit reference Portugal Yes Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Explicit reference
Romania Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Explicit reference
Slovakia Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
44
Constitutional protection of gender equality
Constitutional protection of gender equality in the field of education.
General antidiscrimination legislation that covers the field of compulsory general education
Prohibition of sex discrimination in education acts
Slovenia Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Explicit reference
Spain Yes
Explicit reference to
protection of gender equality Yes
Implicit reference
Yes
Explicit reference to education
Yes
Explicit reference
Sweden Yes
Explicit reference to
protection of gender equality Yes
Explicit reference
Yes
Explicit reference to education
Yes
Explicit reference
United Kingdom No No Yes
Explicit reference to education
Yes
45 3.3.1 Constitutional protection of gender equality
The UK is the only Member State that does not have a written constitution. Gender equality is constitutionally protected in 25 out of the 26 Member States that have constitutions. The Danish constitution does not contain direct references to the equality of citizens. The constitution in Denmark dates from 1849, and was last revised in 1953 and it deals primarily with the division of powers between the actors in the political system. It contains provisions dealing with personal liberties and the rights of citizens; however, these do not contain any references to equality and gender equality.
The existing references to gender equality and equality issues in general in the constitutional provisions have been analysed and classified as follows:
▪
Member States where the constitution has an explicit and direct reference to the protection of gender equality – e.g. „no citizen can be discriminated on the basis of sex‟. The constitutional provisions in 23 EU Member States are explicit and direct and prohibit in most cases sex discrimination among other grounds of discrimination.▪
Member States where the constitution has an explicit reference to equal treatment, such as for example „all citizens are equal before the law‟, though no direct and explicit reference to the protection of gender equality exists. This type of constitutional provision is evident in two EU Member States, Ireland and Latvia.▪
Member States where there is no (explicit or implicit) protection of gender equality either in the constitution (Denmark) or in the absence of a constitution (the UK).Further information about constitutional protection of gender equality across the 27 Member States is outlined in Annex 6.
3.3.2 Constitutional protection of gender equality in the field of education
As detailed in Table 3.2 above, references to the constitutional protection of gender equality in the field of education have been analysed and classified as follows:
▪
Member States where the Constitution explicitly states that gender equality in education is protected.▪
Member States where there is a reference in the Constitution to the right to (accessto)education for all citizens, but no explicit reference is made to gender equality in education.
▪
Member States where the Constitution does not make any reference to the right to (access to) education.There are only three Member States, where there is an explicit reference to the protection of gender equality in the (access to) education in the Constitution (DE, PL, SE).
Most Constitutions ensure the right to (access to) education for all citizens, therefore only implying implicitly the protection of gender equality. This is the case in Belgium (at the federal level), Bulgaria, Cyprus, Czech Republic, Estonia, Finland, France, Greece, Hungary, Ireland, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovakia, Slovenia and Spain.
The research findings indicate that the Constitutions of four Member States make no reference to the right to education (AT, DK, LT, and NL).
3.3.3 General antidiscrimination legislation
General anti-discrimination legislation was analysed to show how it covers the field of education across EU-27. The existing references to education in general anti-discrimination legislation have been classified as follows:
Member States where the general anti-discrimination legislation has an explicit reference to education – for example, there are laws where education is mentioned explicitly as one area where discrimination is prohibited and/or equal opportunities are promoted.
Member States where the general anti-discrimination has an implicit reference to education – for example, there are laws which aim at enhancing equal opportunities and equal treatment in society as a whole, but they contain no explicit reference to education.
46 Member States where there is no explicit or implicit reference to education in the general
anti-discrimination legislation.
In the majority of the Member States (23 out of 27) general anti-discrimination legislation has an explicit reference to education. This is the case in Belgium (French community)87, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland88, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Malta, Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the UK. In Finland, the Law of equality between men and women mandates all educational institutions to ensure that women and men have equal opportunities in education, training and professional development. In particular, instruction and educational materials have to support the realisation of this aim. The Law includes several articles that concern educational institutions other than those delivering compulsory education. This means that some articles do not cover compulsory schools e.g. the article that mandates educational institutions to draw up annual equality plans.
An implicit reference to education in the general anti-discrimination legislation was found in the Flemish-speaking community in Belgium.
Finally, the general anti-discrimination legislation does not cover education in the following Member States – Austria, Belgium (federal level), Italy, Poland and Luxembourg.
▪
The general anti-discrimination legislation covers only vocational education and training in Austria, Poland and Italy.▪
In Belgium, education lies within the competences of the communities and their situation has been described above.▪
In Luxembourg, the general anti-discrimination legislation prohibits discrimination and promotes equal treatment, but it does not apply to education.Further information about the coverage of education in the general anti-discrimination legislation is provided in Annex 6.
3.3.4 Provisions on antidiscrimination in education acts
Education acts were reviewed to identify whether the prohibition of sex discrimination is included in the education acts and laws in EU-27 Member States. The existing references to the prohibition of sex discrimination in education acts have been analysed and classified as follows:
▪
Countries where education acts have an explicit reference to the prohibition of discrimination on the grounds of sex – for example, provisions such as „equal access to education is guaranteed to all irrespective of their sex, race, ethnicity etc‟.▪
Countries where education acts have an implicit reference to the prohibition of discrimination on the grounds of sex – for example, provisions such as „requirement for equal treatment‟ without an explicit reference to sex.▪
Countries where education acts do not contain any references to the prohibition of sex discrimination in the education system.In 19 Member States, education acts have an explicit reference to the prohibition of discrimination on the grounds of sex. This is the case in Austria, Belgium (both French and Flemish-speaking communities89), Bulgaria, Czech Republic, Denmark (applying to private schools only), Estonia, France, Germany, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and UK.
87
The legal situation in Belgium is assessed at the federal level and the level of communities (French and Flemish- speaking), the latter of which have competences in the area of education. Due to its small size, German-speaking community is not covered.
88
There is an explicit reference to education, but compulsory education is explicitly excluded in some articles.
89
In Belgium, linguistic communities have competences in the area of education. Due to its small size, the German- speaking community is not covered.
47 Education acts have an implicit reference to the prohibition of discrimination on the grounds of sex in eight Member States. This is the case in Denmark (public schools), Finland, Greece, Hungary, Ireland, Italy90, the Netherlands and Poland.
There are no references to the prohibition of sex discrimination in the education act in Cyprus. Further information about how provisions for the prohibition of sex discrimination are included in Member States‟ education acts and laws is provided in Annex 6.
3.3.5 Scope of application of the law
Another issue that was investigated in the course of the study was the scope of application of the law. Researchers explored if the legislative provisions of antidiscrimination (general
antidiscrimination legislation and/or Member States‟ educational acts)91
equally apply to public and private schools or whether different rules apply to them. In those cases where the law equally applies to different schools, researchers further investigated if certain exemptions exist (e.g. single- sex schools, schools based on a certain faith etc.). Table 3.3 (overleaf) summarises the research findings of these two Sections. Before presenting the results on the scope of application of the law, two issues warrant clarification:
▪
The definition of private and public schools varies between Member States. For instance, in the UK „public‟ schools are fee-paying private schools and schools in the state sector are referred to as „state schools‟. When we use the term „public‟ schools in this study, we refer to state- funded schools.▪
In some countries the distinction between public and private schools is not clear because some schools can be partly public funded. Table 3.3 presents additional relevant information about the status of schools as required.
90
However, some regional laws on education have explicit references to the protection of sex discrimination in education acts.
91
48 Table 3.3 Scope of application of the legislative framework and exemptions
Member State Scope of the application of the law Exemptions
Public schools Private
schools
Austria Yes Yes Under Para 4 Subsection 3 School Organisation Law (SchOG)92 the provisions of
Subsection 1 on compulsory co-education apply equally to private schools with the proviso that in private faith schools admission criteria on the basis of religion, language as well as sex is allowed. 93
Under Para. 8b Subsection 1 SchOG sport classes from grade 5 onwards are single-sex. 94
Belgium Yes Yes No95
Bulgaria96 Yes Yes The Protection against Discrimination Act contains a number of exemptions from the general antidiscrimination rule in the field of education. These provisions include Article 7 (3) the different treatment of persons based on religion, faith or gender in terms of undertaking an occupation or class in religious institutions or organisations where the nature of the
occupation or the conditions under which it takes place, religion, faith or gender is a genuine and determining occupational requirement [...] and Article 7 (4) different treatment of persons based on religion, faith or gender in religious education or training, including training or education to undertake an occupation.
Cyprus Yes Yes No97
Czech Republic Yes Yes No
92
http://www.bmukk.gv.at/schulen/recht/gvo/schog_01.xml#01
93
Co-education was made compulsory in all public schools in 1975. It was introduced in order to improve the relationship between the sexes in schools and to further women‟s chances. In Austria the overwhelming majority of all schools (both public and private) are now co-educative. Only 1.6 % of schools are still single-sex, out of which around 10 % of private schools are girls only and around 10 % are boys only (see ¨Measures of the BMUKK (2004-2010) to implement the Convention on the Elimination of All Forms of
Discrimination against Women (produced for the 7//8. CEDAW country reports to the UN)‟.
94
Para. 8b Subsection 2 SchOG includes two exceptions: where the number of pupils is too low or if the sport class involves several teachers, e.g. for dance or swimming classes. If the school is aware that a Muslim pupil does not wish to take part in co-ed sport classes on religious grounds, the school must organise single-sex classes. The issue with swimming classes is that even if the class is single-sex in public swimming pools other visitors to the pool may be male. If the swimming pool does not have specific opening times just for women, from grade 5 onwards the school director can exempt the pupil from swimming lessons.
95
Despite the general principle of co-education that applies to all schools and institutions at all levels of public education, some schools may still have a single-sex population. This is exceptional but can occur in e.g. technical/vocational schools or certain religious schools. In practice, this means that some subjects (e.g. sports, religion, mathematics, science) are taught in single-sex groups or that the whole curriculum is taught to girls and boys separately. The Flemish Ministry‟s statistics nevertheless suggest that attendance in single- sex schools is decreasing.
96
The legislation also applies to religious schools.
97
49 Member State Scope of the application of the law Exemptions
Public schools Private
schools
Denmark Yes Yes No98
Estonia99 Yes Yes The Gender Equality Act is applicable to access to compulsory education. The Act sets out an exhaustive list of cases which are not deemed to constitute discrimination. Of the exceptions, there are only two which might be applicable to single-sex schools or classes: 41) differences in treatment of persons due to their sex upon supplying goods and services. in the case the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving that aim are proportional to the aim; or 5) application of temporary special measures which promote gender equality and grant advantages for the less-represented gender or reduce gender inequality.100
Finland Yes Yes No
France Yes Yes
Single-sex schools exist. Private educational institutions have the right to choose if they just enroll students from one gender since coeducation is simply an obligation of the public schools.101
98
A single public school is allowed to make gender segregated teams in a class for a limited period of time, but only for pedagogical reasons. At the moment there is a public agenda on the boys lagging behind the girls in almost all subjects in the schools. There is also a discussion over brain differences between boys and girls. This discussion has led