Forced gender equality in politics? German courts say it’s unconstitutional

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German activists and politicians enacted forced gender parity laws in certain German states, which in theory would result in equal numbers of men and women in politics, but now German courts are striking down these laws as unconstitutional. 

According to the courts, such laws, which require parties to have both sexes equally represented on lists of candidates, serve as an unjustified interference with the constitutional rights of political parties.

The Supreme Administrative Court in Brandenburg last abolished the so-called “mandatory parity” on lists of candidates. Unlike most politicians in the state parliament, the court did not agree with the opinion that if there are practically the same number of men and women in society, then both sexes should have the same representation in political bodies. The court has therefore struck down the so-called “half and half” goal for gender representation in the management of public and government affairs.

The Brandenburg court came out against gender parity comes despite the fact that Brandenburg was the very first German federal state to introduce mandatory “parity”. Last year, the provincial parliament passed a law which, effective from July 30 of this year, ordered all political parties to include the same number of women and men on the candidate lists before the provincial elections.

Ulrike Liedtke, Speaker of the Brandenburg Parliament, was one of the most radical supporters of this law.

“If half of the population are women, equal representation of women on the lists of candidates is a clear democratic choice,” Liedtke said in August.

AfD scores a victory with court ruling

However, the Potsdam Court did not agree with these arguments. Following an action brought against the law on mandatory gender parity by the Alternative for Germany (AfD) and the National Democratic Party of Germany (NPD), the court upheld the complainants and rejected the mandatory parity.

“The law restricts the parties’ freedom to nominate candidates and thus to participate in elections,” a Potsdam court commented on Friday.

Already in July, a similar law on parity was repealed by a court in the German state of Thuringia after a similar gender parity law was passed in the Thuringian Parliament.

However, the adjustment of electoral laws for state elections towards equal representation of both sexes is also being discussed in other German federal states. And the last two negative judgments, according to experts, can be an obstacle against the promotion of “gender equality” in politics and at the national level.

Katrin Göring-Eckardt, chairwoman of the Greens’ parliamentary group, and Rita Süssmuth, former chairman of the Bundestag, from the government’s Christian Democratic Union (CDU), are strong supporters of gender-balanced candidates lists. For example, according to the Frankfurter Allgemeine Zeitung, in the last parliamentary elections in 2017, the proportion of women in the German parliament fell from 37.3 percent to 31.2 percent.

At the same time, Germany’s leader, Chancellor Angela Merkel, remains in power for well over a decade despite a lack of such mandatory quotas. 

The AfD, in particular, has long been opposed to the mandatory representation of both sexes on the lists of candidates, and in addition to lawsuits against the relevant laws in the federal states, four of its deputies are also preparing a constitutional complaint. According to them, the ruling from Germany’s Constitutional Court should prevent efforts for gender equality in politics once and for all.

AfD Vice President Beatrix von Storch described the mandatory parity on the candidates as “gender apartheid”.

Would resolving conflicts be different with more women in politics?

Considering Germany is one of the most liberal countries in promoting gender equality in politics, the decisions of its courts against parity laws may affect similar gender parity initiatives in other European countries.

At the same time, some political scientists are also considering the question of how a possible “fair division” of political powers in the state would affect or could affect, for example, the resolution of the current coronavirus pandemic, or other future crises. In other words, they are asking whether the state could deal with crises differently — either for better or worse — if the government of a nation constituted half of men and half of women.

However, previous experience with the possible influence of gender representation in political decision-making is more in favor of those who question this influence. For example, it cannot be said that the greater representation of women in government has meant (based on generally accepted gender prejudices) a more cautious approach to resolving the crisis.

In Sweden, a country that has decided to take less radical action against a pandemic and bet on faster population penetration, there are 12 women and 11 men in the government. In the Czech Republic, for comparison, there are 10 male to four female members of the cabinet.

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