New report analyses the direct unequal treatment of women and men in federal law

Bern, 10.12.2021 - At its meeting of 10 December, the Federal Council adopted the report fulfilling the Caroni Postulate (19.4092) on the direct unequal treatment of women and men in federal law. The report concludes that most direct unequal treatment of women and men is permitted from a legal point of view, as it is based on justified reasons. Certain unjustified distinctions are likely to disappear in the near future as a result of legislative reforms.

The report responding to the postulate is based on an external legal opinion which not only documents the direct unequal treatment of women and men in the nine categories of domestic law, but also identifies its causes and comments on the reasons for justification. In agreement with the study, the Federal Council notes that the majority of the provisions that do not treat women and men equally are justified. This is either due to biological or functional differences, or due to the objective of achieving true gender equality.

Most occurences of direct unequal treatment between women and men in federal law concern provisions dealing with pregnancy and maternity. These provisions are justified on biological grounds as they concern protecting maternity. They are therefore in accordance with the principle of
equality between women and men as defined in Article 8 paragraph 3 of the Federal Constitution.

In line with the legal opinion, the Federal Council's report also identifies occurences of unequal treatment that are unjustified or highly controversial. Two issues, in particular, are currently the subject of wide debate and are part of current reforms. The first concerns social security law, which treats men and women differently with regard to retirement age. This formal unequal treatment will be abolished if the AHV 21 reform is adopted.

The second, and currently controversial, difference concerns criminal law. At present, the definition of rape under criminal law relating to sexual offences excludes men as victims. In the ongoing revision on sexual offences legislation, the Legal Affairs Committee of the Council of States is proposing a gender-neutral formulation of the definition, which aims to eliminate this existing inequality. The Federal Council will state its position on this in 2022.

Direct unequal treatment of women and men also exists in the area of national defence and in the widower's pension. There are ongoing efforts to eliminate these differences: the survivor's pension system as a whole is being reconsidered and various options for the future of compulsory
military service are being examined. In this regard, the Federal Council has said it is also willing to consider the possible compulsory participation by women in the Armed Forces' orientation day.

The law is constantly evolving and significant, if still insufficient, changes in favour of gender equality have taken place in recent decades. The Federal Council attaches great importance to achieving equality between women and men. The goal of the 2030 Gender Equality Strategy is to ensure that regulations which discriminate on the basis of gender no longer exist in federal law. Implementing the Caroni Postulate 19.4092 thus corresponds to a priority measure of this strategy. Beyond establishing legal equality, the 2030 Gender Equality Strategy focuses above all on achieving true equality between women and men.

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