Germany mulls gender equality law for politicians

The Constitutional Court isn't convinced, but a recent ruling has spurred on the SPD, Greens and the Left.

A parity law would seek to enable gender equality in German parliaments - but it might be unconstitutional.
A parity law would seek to enable gender equality in German parliaments - but it might be unconstitutional.Imago/Steinach

Berlin-Of the 709 parliamentarians currently sitting in Germany's Bundestag, only 31 per cent of them are women. More than 100 years after German women got the right to vote, full gender equality within politics remains a long way off. It's a problem the centre-left SPD, Greens and the Left want to tackle with a parity law, which would introduce a minimum proportion of candidates on electoral party lists who must be women.

However, similar laws at a state level in Thuringia and Brandenburg were ruled unconstitutional by local constitutional courts and overturned. At the federal level, too, supporters of a parity law have already faced a number of setbacks, but they have no intention of giving up. On the contrary, the latest decision of the Federal Constitutional Court on parity has only strengthened them in their initiative.

Most recently, the Senate of the Federal Constitutional Court rejected an election law complaint by a group of women. In view of the low proportion of female representatives in the German Bundestag, they criticised the lack of laws requiring parties to have equal representation on state lists and constituency candidacies. "However, the election review complaint does not sufficiently substantiate that the federal legislature is obligated to such parity in the electoral nomination law for political parties," the Senate wrote in a press release.

"The decision is air under the wings of those who favour parity rules. The reform commission on electoral law will also discuss this issue and hopefully make proposals," SPD parliamentarian Leni Breymaier said. The Federal Constitutional Court had left open whether an election law based on parity would be compatible with the German constitution (Grundgesetz).

The judges explained that it was up to the legislative branch to decide how to comply with the equality mandate in Article 3, Paragraph 2, Sentence 2 of the Grundgesetz. This states that men and women have equal rights and the state is to work towards implementing these and eliminating disadvantages.

Landmark ruling due soon

"I interpret this to mean that the federal legislature doesn't have an obligation but rather the right to reform electoral law with the aim of increasing representation of women. In my view, this is a success and a mandate for action," Breymaier said. A working group of Social Democratic women in the SPD is calling for a parity law no later than the election in 2025, the next one following the one taking place in September.

"The mandatory women's quota on supervisory boards is having an effect, and the women's quota for management boards will also bring real change. Now politics must follow: for far too long, women's concerns have not been heard or have been put on the back burner," said Cansel Kiziltepe, SPD MP and co-founder of the Berlin Parity Network.

She added that the constitutional complaints against the Thuringian and Brandenburg state constitutional courts' rulings are still pending. "The Federal Constitutional Court will make a fundamental ruling on this issue. I am firmly convinced that our constitution supports parity."

The Left Party also agrees and sees its position reinforced by the constitutional judges' ruling on the electoral law complaint. "Such a law, i.e. a binding law that implements the state's equality mandate enshrined in the constitution, must be set in motion politically," Cornelia Möhring, women's policy spokeswoman for the Left parliamentary group, said.

In this context, it is important to justify the encroachments on the principles of freedom and equality of choice and on the freedom of political parties, she said, as had been pointed out by the Constitutional Court. "It has once again become clear what needs to be done and that the ball is in the court of the parties and parliamentary groups."

Cross-party working group on parity unsuccessful

What's more, the Left purportedly already has a finished draft bill for a parity law ready to go. "We will make that available for discussion and, if necessary, also put it forward when the Bundestag deals with the question of parity voting rights."

The Greens also want to push ahead with gender parity in the Bundestag. "We will take a detailed look at the Federal Constitutional Court's reasoning, discuss appropriate measures to ensure women half the power and co-determination, and then find a solution that complies with the constitution," Ulle Schauws, women's policy spokeswoman for the Greens' parliamentary group told the Berliner Zeitung.

A cross-party working group of female members of the Bundestag, with the exception of the AfD, attempted to establish parity in the Bundestag back in 2019. By the end of the year, they had reached a consensus and appointed an expert committee that would deal exclusively with parity and develop solutions for more women in parliament. "Regrettably, there was no majority for this. In the end, the CDU/CSU and also the SPD did not support it," Schauws said.

"What remained was a group motion, which was only supported by our parliamentary group and the Left." However, the Bundestag rejected this in the summer of 2020. "What is now going to come instead is a woolly working group which will be dealing with a wide variety of electoral law reform issues and will not come to any conclusions until 2023."

The group disbanded without any results. "And that's a real shame, because at the beginning this was a productive exchange, but then the energy was taken away from it by the tactics of the coalition factions," Cornelia Möhring said critically. She says the working group set up by the CDU/CSU and SPD was only intended to "calm down" women.

FDP: no chance

The FDP believes a possible parity law doesn't stand a chance, however. The rulings in Thuringia and Brandenburg showed that this was the wrong way to get more women into parliaments. "This was a clear signal for efforts at the federal level," Nicole Bauer, women's policy spokeswoman for the FDP parliamentary group, told the Berliner Zeitung.

"The onus is not on the legislators, but on the parties. It is now up to them to develop innovative ideas on how the appropriate participation and representation of women in leadership positions and in elected office can succeed - and sustainably." To this end, the FDP has already introduced a motion in the Bundestag.

Among other things, the group is calling for barriers facing a candidate to be analysed in the run-up to their candidacy and in everyday parliamentary life, and for proposals to be made to overcome them. "In this way, we create an essential basis for more diversity, which I am convinced will also bring a higher proportion of women."

According to experts, parity laws are particularly problematic from an equality perspective. "On the one hand, women, whose share of a party's members is generally lower than that of men, would thus constitute a disproportionate number of elected officials," Ulrich Battis, professor of constitutional and administrative law at Berlin's Humboldt University, told the Berliner Zeitung last year. On the other hand, he said, there are a wide variety of different gender identities beyond just man and woman.

A number of other European countries already have parity laws for electoral candidate lists, typically requiring these to be made up 40-50 per cent of women. Among them is France, which saw an initial introduction of a 25 per cent quota in the 1980s ruled unconstitutional, before the constitution was amended in the late 1990s to make way for the new law in 2000.

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