Opinion to the Parliamentary Committee on Employment and Equality and the Defence Committee on Women’s Voluntary Military Service (HE 182/2021 vp.) (TAS 560/2021, issued on 15 November, 2021)
Both the Parliamentary Committee on Employment and Equality and the Defence Committee asked the Ombudsman for Equality for an opinion on the proposed Government Decree regarding the Act on Voluntary Military Service for Women (182/2021 vp.) The Ombudsman for Equality issued the same statement to both committees.
The Ombudsman for Equality was heard by the Finnish Parliament’s Employment and Equality Committee on this matter on 15 November 2021.
The Ombudsman for Equality monitors changes in legislation and developments in the field of national defence from a gender equality perspective
The proposed Government Decree (182/2021 vp) would enact a new law on voluntary military service for women. The new Act is intended to bring the current legislation on women's voluntary military service in line with the Finnish Constitution and to modernise the legal technicalities of the legislation. The concepts used in the Act and the age limits for military service are proposed to be partly harmonised with the Conscription Act. The new Act would replace the Act of the same name currently in force.
In assessing the current status quo, it must be noted that for a Government Decree and an order of the Ministry of Defence to regulate matters that, under section 80 of the Finnish Constitution, should be regulated by law, is highly problematic. The main proposals outlined in the decree under consideration are to raise the provisions on the deadline for applying for military service, conscript training, pregnancy, and equipment allowance to the level of the law.
The Ombudsman for Equality supports the proposed legislative changes.
The Ombudsman for Equality is regularly contacted about military service and the associated differences in treatment between men and women. Contacts have been made on issues such as the equipment allowance, equipment, attire, and the unisex accommodation trial. In the view of the Ombudsman for Equality, repeated contacts highlight the ways in which various matters can be perceived as unfair, especially if the intended aim of a particular practice is not clear. The Ombudsman for Equality has previously stated that, with regard to military service, it is useful to pay attention to the basis for gender-specific arrangements, when gender-specific arrangements are necessary, and at what level these arrangements should be imposed. The Ombudsman for Equality considers it important for the current system’s gender-specific measures to be clearly justified and known by everyone.
The Ombudsman for Equality does not take a position on the ways in which the defence forces should be organised in Finland but considers it important that the promotion of gender equality is taken into account in the development of the Finnish defence forces. The question of how equality can best be promoted depends on the basic organisational solutions to fulfilling Finland’s responsibilities regarding its national defence forces.
Gender equality and the gender-sensitive organisation of Finland's defence forces
The main provisions on gender equality are outlined in the Finnish Constitution and the Equality Act (Act on Equality between Men and Women, 609/1986). Under section 6 of the Constitution, everyone is equal before the law and there must be a valid reason for any discrimination based on gender. The same section also provides for the promotion of gender equality in societal activities. The aims of the Equality Act are similar to those of the constitutional provision, but rather than referring to a specific law, the constitutional provision instead provides for a general obligation on the legislator to develop the legislation.
Under section 127 of the Constitution, every Finnish citizen has a national defence service duty. In practice, men have been subject to compulsory military service under the Conscription Act (2007/1438), while women have had the option of voluntary military service under the Act on Voluntary Military Service for Women (Laki naisten vapaaehtoisesta asepalveluksesta, 194/1995).
The Finnish national defence system is, therefore, based on the different treatment of men and women at the legislative level. In connection with the enactment of the current Conscription Act, the Finnish Parliament’s Constitutional Law Committee has stated that the Constitution has not traditionally been considered to prevent conscription being legislated for men only. Women’s military service has been considered to be voluntary and can, therefore, be provided for by law. As stated in the proposal, the law on voluntary military service for women entered into force before the fundamental rights reform. The Constitutional Law Committee has not addressed the issue from the perspective of the constitutional prohibition of discrimination and the obligation to promote equality. The Ombudsman for Equality therefore welcomes the fact that the proposal has also been sent to the Constitutional Law Committee for an opinion, as the gender-specific organisation of national defence is a fundamentally important gender equality issue.
Treating people differently on the basis of their gender is not categorically prohibited and gender equality does not require that women and men are treated equally in all situations. On the other hand, there is now a determination to reduce discrimination based on traditional stereotypical gender roles, and legislation, for example, has sought to make language as gender neutral as possible. Today, anti-discrimination legislation, including European Union law and international human rights obligations, sets certain requirements for situations in which men and women are treated differently. However, the legislator has more discretion than the authority applying the law with regard to when people can be segregated on the basis of gender.
The Equality Act prohibits direct discrimination on the grounds of gender, gender identity, and gender expression. Direct discrimination, i.e., putting men and women on a different footing, is essentially the granting of different advantages or rights or the imposition of certain obligations, restrictions or burdens. The general prohibition of discrimination under section 7 of the Equality Act extends to the entire scope of application of the Act, i.e., concerning all areas of social life and all situations in which discrimination may occur. However, making military service compulsory for men only is an explicitly permitted exception to the prohibition of direct discrimination in section 9 of the Equality Act.
The Ombudsman for Equality hopes that the Finnish Parliament will not only assess the technical aspects of legislation concerning women’s voluntary military service but will also examine this legislation in a holistic way in the light of gender equality, fundamental rights, and anti-discrimination law. In addition to legislating, it is important that the legislator assesses and debates the acceptability of differentiating between women and men and the proportionality of the means.
19.11.2021
