Legal bases
Legal Bases of Gender Mainstreaming
Gender Mainstreaming as a gender equality strategy must also comply with the requirements developed by the Constitution, lawmakers and courts for this area. To the extent that actors are involved who are bound by legal considerations, i.e. public administrations, but also to a certain extent private industry and other organisations, the decision to get involved at all with Gender Mainstreaming and the decision as to which individual goals are to be pursued with Gender Mainstreaming are made from a legal point of view. On this page you will find the main legal norms, the goal of which is gender equality. They relate to various levels (international, European Union, Federal Republic of Germany and federal states) and therefore address various actors in various different policy fields and subject areas.
In the implementation of the Action platform of the 4th UN World Women’s Conference in Peking in 1995, Germany is obliged to look at the introduction of Gender Mainstreaming and to develop a concept for implementation.
A convention under international law which is particularly relevant for Gender Mainstreaming is the United Nations Convention for the Elimination of All Forms of Discrimination against Women (CEDAW or for short the Women’s Rights Convention), which has also been ratified by Germany and thus has the status of law. The CEDAW adopts as a matter of course the requirement for gender equality and sets out targets for gender equality in many areas of life. International law that has been ratified in Germany enjoys the status of a German law.
Going further than the ban on discrimination, Art. 4 of the UNESCO Universal Declaration on Cultural Diversity 2001 emphasises the protection of diversity: “The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity.�
The basic principles of gender policy in European law are set out in the Community’s Treaties. Since the revision undertaken in Amsterdam which came into force on 1 May 1 1999, two provisions can be emphasised, which make it compulsory for European institutions at all times to bear gender equality in mind and actively to promote it:
Art. 2 EC Treaty: “The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community (...) equality between men and women...�
Art. 3 paragraph 2 EC Treaty: “In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.�
The treaties also make it clear that “Gender� always involves women and men with all their differences and heterogeneity. Art. 13 EC Treaty is aimed at combating “discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation�.
Employment law
The aim of actual equal treatment, or gender equality, in all state activities is set out in Germany’s Basic Law, or constitution (GG).
Article 3 of the Basic Law [Equality before the law] generally prohibits discrimination:
The promotion of equal rights is put into practice in numerous Federal laws. For actors in the public sector, i.e. in particular in public administration, the following gender policy regulations exist:
â—? Section 2 of the Federal Equal Treatment Act (BgleiG, German link) obliges all those employed in the Federal government administration, especially managers, to promote equal treatment of women and men and to bear this obligation in mind as a continuous guiding principle in all departmental tasks Sec. 1 para. 2 of the Act obliges the Federal government administration to make equal treatment a matter of open discussion.
â—? The Law concerning the Implementation of Equal Treatment (DGleiG, German link) concretises equal treatment measures.
â—? The Federal Law concerning the Composition of Bodies (BGremG, German link) obliges the Federal government to aim to bring about equal participation of women and men in bodies for which it has the right to appoint or delegate members.
The Joint Rules of Procedure for the Federal Government (GGO) applies to the work of the Federal Ministries.
The following laws belong to the area of external steering (i.e. they are aimed outwards, at actors in the social sphere).
Promotion of work is provided for in the Third Book of the Social Code (SGB III, German links):
Discrimination is prohibited for private employment law under Sec. 611a of the German Civil Code (BGB, German links), Sec. 612 para. 3 BGB and other legislation including the Works Constitution Act [German link] and the law relating to staff representation, under which employers and works councils are obliged to combat discrimination.
Prohibition of discrimination on grounds of ethnic origin has already been in place for some time in insurance law (Sec. 81e of the Insurance Supervision Law VAG, German link). A draft Directive of the European Commission (Commission Directive (2003) 65 , a proposal for a Council Directive for implementing the principle of equal treatment of women and men with regard to access to and supply with goods and services), which identifies and forbids unequal health insurance contributions as sexual discrimination, is being hotly debated at the moment.
An initial implication for German law is the prohibition of sex-related tariffs in private pension schemes promoted by the state (known as “Riester-Rente�), which has been found to be discriminatory. Private health insurance companies are only, however, indirectly bound by the prohibition of discrimination (cf. Gender aspects in private health insurance, German text).
The principle of equal treatment is established in most federal states in their state constitutions.
The obligation actually to implement equal treatment, whether by means of “effective measures� or “compensating for existing inequalities� is likewise established in most constitutions (e.g. in Bavaria Art. 118, Berlin Art. 10, Brandenburg Art. 12 [German], Bremen Art. 2 [German], Mecklenburg-Vorpommern Art 13 [German], Lower Saxony Art. 3, Rhineland Palatinate Art. 17 [German], Saxony Art. 8 [German], Saarland Art. 12 [German], Schleswig-Holstein Art. 6 [German], Thuringia Art. 2 [German]).
All federal states have passed equal treatment laws. You can find a collection of these at CEWS in Bonn.
Baer, Susanne: Recht auf Vielfalt. Zu den rechtlichen Rahmenbedingungen des Managing Diversity, in: Belinszki, Eszter / Hansen, Katrin / Müller, Ursula (eds.): Diversity Management. Best Practices im internationalen Feld, Münster 2003, pp. 44 – 59.
Professor Baer’s department has prepared a glossary on law and gender: http://Ims.hu-berlin.de/cgi-bin/glossar_recht.pl?Glossar_Recht_und_Geschlecht [German link]
International Conventions
In the implementation of the Action platform of the 4th UN World Women’s Conference in Peking in 1995, Germany is obliged to look at the introduction of Gender Mainstreaming and to develop a concept for implementation.
A convention under international law which is particularly relevant for Gender Mainstreaming is the United Nations Convention for the Elimination of All Forms of Discrimination against Women (CEDAW or for short the Women’s Rights Convention), which has also been ratified by Germany and thus has the status of law. The CEDAW adopts as a matter of course the requirement for gender equality and sets out targets for gender equality in many areas of life. International law that has been ratified in Germany enjoys the status of a German law.
Going further than the ban on discrimination, Art. 4 of the UNESCO Universal Declaration on Cultural Diversity 2001 emphasises the protection of diversity: “The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity.�
European Union Legislation
The basic principles of gender policy in European law are set out in the Community’s Treaties. Since the revision undertaken in Amsterdam which came into force on 1 May 1 1999, two provisions can be emphasised, which make it compulsory for European institutions at all times to bear gender equality in mind and actively to promote it:
Art. 2 EC Treaty: “The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community (...) equality between men and women...�
Art. 3 paragraph 2 EC Treaty: “In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.�
The treaties also make it clear that “Gender� always involves women and men with all their differences and heterogeneity. Art. 13 EC Treaty is aimed at combating “discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation�.
Employment law
- As early as 1957, the prohibition of discrimination in pay was established, and this was extended in the Amsterdam Treaty; Art. 141 paragraph 4 EC Treaty now stresses that the promotion of an under-represented sex shall not breach the principle of equal treatment, but rather serves to further the implementation of the prohibition of discrimination.
- By means of Directives, the ban on discrimination was extended to cover other areas of working life and refined. The three new anti-discrimination Directives may be highlighted:
- Council Directive 2000/43/EC forbids discrimination on grounds of racial or ethnic origin,
- Council Directive 2000/78/EC forbids discrimination in working life on the basis of religion or belief, disability, age or sexual orientation and
- Council Directive 2002/73/EC updates the previous equal treatment Directive to take account of sexual harassment and indirect discrimination, etc.
- In addition to the Directives, the case law of the European Court of Justice (ECJ) is also significant for changes in the law on equal treatment in the Member States.
German legislation
The aim of actual equal treatment, or gender equality, in all state activities is set out in Germany’s Basic Law, or constitution (GG).
Article 3 of the Basic Law [Equality before the law] generally prohibits discrimination:
- (1) “All persons shall be equal before the law.�
- (3) “No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability."
- Art. 3 (2) of the Basic Law provides, following the 1994 reform, not just that “Men and women shall have equal rights�, but now obliges the state expressly to “promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.�
The promotion of equal rights is put into practice in numerous Federal laws. For actors in the public sector, i.e. in particular in public administration, the following gender policy regulations exist:
â—? Section 2 of the Federal Equal Treatment Act (BgleiG, German link) obliges all those employed in the Federal government administration, especially managers, to promote equal treatment of women and men and to bear this obligation in mind as a continuous guiding principle in all departmental tasks Sec. 1 para. 2 of the Act obliges the Federal government administration to make equal treatment a matter of open discussion.
â—? The Law concerning the Implementation of Equal Treatment (DGleiG, German link) concretises equal treatment measures.
â—? The Federal Law concerning the Composition of Bodies (BGremG, German link) obliges the Federal government to aim to bring about equal participation of women and men in bodies for which it has the right to appoint or delegate members.
The Joint Rules of Procedure for the Federal Government (GGO) applies to the work of the Federal Ministries.
- Section 2 of the GGO says that "Equality between men and women is a consistent guiding principle and should be promoted by all political, legislative and administrative actions of the Federal Ministries in their respective areas (gender mainstreaming)."
- Sec. 45 para. 1 in conjunction with Appendix 8 No. 9a of the GGO prescribes the involvement of the Federal Ministry for Families, Senior Citizens, Women and Youth (BMFSFJ) in the question of whether a law or statutory regulation can be expected to have an impact relevant for equal treatment policy.
- Sec. 44 para 1 of the GGO defines the consequences of a law as the intended effects and unintended side-effects.. These, with regard also to their relevance for equal treatment policy, must be analysed and set out in the reasons for the law.
- Sec. 42 para. 5 of the GGO provides for the obligation to use language reflecting the equality of men and women.
The following laws belong to the area of external steering (i.e. they are aimed outwards, at actors in the social sphere).
Promotion of work is provided for in the Third Book of the Social Code (SGB III, German links):
- Sec. 1 para. 1, aims of the promotion of employment: “Equal treatment of women and men shall thereby be pursued as a continuous guiding principle.�
- Sec. 8 para. 1, promotion of women: “To improve the occupational situation of women, the elimination of existing disadvantages and overcoming the gender-specific training and labour market shall be aimed at by means of active measures for the promotion of employment.�
- Sec. 8a, compatibility of family and career: “Active measures for the promotion of employment shall in terms of time, content and organisation take into account the life situations of women and men who look after and are raising children requiring supervision or care for dependants who require nursing care or wish to return to employment after such periods.�
Discrimination is prohibited for private employment law under Sec. 611a of the German Civil Code (BGB, German links), Sec. 612 para. 3 BGB and other legislation including the Works Constitution Act [German link] and the law relating to staff representation, under which employers and works councils are obliged to combat discrimination.
Prohibition of discrimination on grounds of ethnic origin has already been in place for some time in insurance law (Sec. 81e of the Insurance Supervision Law VAG, German link). A draft Directive of the European Commission (Commission Directive (2003) 65 , a proposal for a Council Directive for implementing the principle of equal treatment of women and men with regard to access to and supply with goods and services), which identifies and forbids unequal health insurance contributions as sexual discrimination, is being hotly debated at the moment.
An initial implication for German law is the prohibition of sex-related tariffs in private pension schemes promoted by the state (known as “Riester-Rente�), which has been found to be discriminatory. Private health insurance companies are only, however, indirectly bound by the prohibition of discrimination (cf. Gender aspects in private health insurance, German text).
Federal state legislation
The principle of equal treatment is established in most federal states in their state constitutions.
The obligation actually to implement equal treatment, whether by means of “effective measures� or “compensating for existing inequalities� is likewise established in most constitutions (e.g. in Bavaria Art. 118, Berlin Art. 10, Brandenburg Art. 12 [German], Bremen Art. 2 [German], Mecklenburg-Vorpommern Art 13 [German], Lower Saxony Art. 3, Rhineland Palatinate Art. 17 [German], Saxony Art. 8 [German], Saarland Art. 12 [German], Schleswig-Holstein Art. 6 [German], Thuringia Art. 2 [German]).
All federal states have passed equal treatment laws. You can find a collection of these at CEWS in Bonn.
Further reading:
Baer, Susanne: Gender Mainstreaming als Operationalisierung des Rechts auf Gleichheit. Ausgangspunkte, Rahmen und Perspektiven einer Strategie, in: Bothfeld, Silke/Gronbach, Sigrid/Riedmüller, Barbara (eds.): Gender Mainstreaming – eine Innovation in der Gleichstellungspolitik. Zwischenberichte aus der politischen Praxis, Frankfurt a.M. 2002Baer, Susanne: Recht auf Vielfalt. Zu den rechtlichen Rahmenbedingungen des Managing Diversity, in: Belinszki, Eszter / Hansen, Katrin / Müller, Ursula (eds.): Diversity Management. Best Practices im internationalen Feld, Münster 2003, pp. 44 – 59.
Professor Baer’s department has prepared a glossary on law and gender: http://Ims.hu-berlin.de/cgi-bin/glossar_recht.pl?Glossar_Recht_und_Geschlecht [German link]
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