Quota rule and transgender people (TAS 331/18, issued on 15 August 2018)
The Ministry of Social Affairs and Health requested that the Ombudsman for Equality provide a statement on the placement of transgender people in the gender quotas of central government bodies.
In relation to a committee set up by the Government, the ministry had been inquired about how transgender people are placed in gender quotas. The inquiry asked whether the placement is based on gender registered at birth, the legal gender or gender identity, or are transgender people, as an under-represented minority, always counted as part of the group with a smaller percentage of the seats.
The Ombudsman for Equality monitors compliance with the Equality Act, but the Chancellor of Justice is the authority with final responsibility for the application and interpretation of the quota rule of the Equality Act in committees set up by the Government.
According to the quota rule of section 4a of the Equality Act, the proportion of both women and men in Government committees, advisory boards and other corresponding bodies, and in municipal bodies and bodies established for the purpose of inter-municipal cooperation, but excluding municipal councils, must be at least 40 per cent, unless there are special reasons to the contrary. One of the basic objectives of the quota rule of the Equality Act is to ensure that women and men can participate equally in societal planning and decision-making.
When the quota rule was first introduced into the Equality Act, the Committee for Labour Affairs stated in its memorandum (TyVM 10/1994) that the quota rule may only be deviated from under special circumstances. Such special circumstances could include that meeting the specific requirement would lead to discrimination against an individual or a conflict with one of the basic or human rights.
Under section 6c of the Equality Act, state and municipal authorities are obliged to prevent all discrimination based on gender identity or gender expression. In accordance with the Government Bill (HE 19/2014), the rule complements the obligations under sections 4 and 4a that have been laid down for the promotion of equality between women and men. According to the Government Bill, the concrete obligations of the Equality Act are designed and justified specifically for the purpose of promoting equality between women and men. This also applies to the quota rule.
The Ombudsman for Equality is of the view that transgender people are also placed in the gender quotas according to their legal gender. However, one exception could be a situation where the legal gender recognition process of a transgender individual is incomplete; in such a situation, the individual can be taken into account in the quota for women or men in accordance with his or her gender identity, even if his or her personal identity code were not yet changed. Since information on a person's transgender identity is a matter of personal privacy, it is important to note that the initiative in such a case must come from the transgender person him- or herself.
The current quota rule does not recognise a ‘third gender’, androgyny or non-binary gender identity. Persons with such gender identity are placed in the gender quotas in accordance with their legal gender.
When supervising compliance with the gender rule, those assigning committee members are entitled to ask people about their legal gender to check into which quota they belong. In this context, inquiring about the legal gender does not infringe personal privacy.