Decision regarding the adoption by the State of ‘measures in all levels of the educational system aimed at sponsoring the exercise of the right to gender self-determination and expression of gender’, following a petition for judicial review filed by a group of MPs.
Head of State;
Relations with executive bodies;
Criteria of Distinction;
Civil and political rights;
29 of June of 2021
On June 29, 2021, the Plenary of the Constitutional Court of Portugal issued Acórdão n.º 474/2021, ruling on the constitutionality of the norms embodied in article 12(2) and 12(3) of Law 38/2018, regarding the adoption by the State of ‘measures in all levels of the educational system aimed at sponsoring the exercise of the right to gender self-determination and expression of gender’, following a petition for judicial review filed by a group of MPs.
The petitioners presented two grounds for a judgement of unconstitutionality. On the one hand, they argued that the challenged provisions reflect and sponsor a so-called ‘gender ideology’, in violation of the prohibition against ideological programming of education by the State and the freedom of such programming by non-public schools, in accordance with article 43(2) of the Portuguese Constitution. On the other hand, they argued that the norms in question violate the proviso of statute, as they have little substance of their own and refer to executive decree the regulation of a subject matter that falls within the area strictly reserved by the Constitution to parliamentary statute.
The Court gave precedence to the latter ground. It was understood that if the content of the measures protecting the exercise of a right to gender self-determination and expression of gender was indeed determined by executive decree, as opposed to the contest norms, the first and key constitutional question to be raised concerns the proviso of statute. In fact, given the first ground offered by the petitioners, no definite judgment can be made about the substance of the regime, as most of it is contained not in the statutory norms under review but in an executive decree the constitutionality of which lies beyond the scope of the proceedings.
The Court observed that Law 38/2018 falls wholly and squarely within the area of basic freedoms reserved by article 165(1)(b) of the Constitution to statute, since it explicitly draws a right to gender self-determination and expression of gender from the fundamental rights to the free development of one’s personality and to personal identity enshrined in article 26(1) of the Constitution, which is in turn inserted in the list of basic freedoms contained in Title II of Part I of the Constitution.
The judgment stressed that the area of basic freedoms is subject to a strict statutory proviso, encompassing all substantial aspects of the legal regime, such that administrative ordinances may only extend to technical details in that domain. The majority was of the view that the norms under review fell considerably short of exhausting the substance of the legal regime concerning the exercise of a right to gender self-determination and expression of gender in schools; indeed, they refer most of the regime to executive decree.
The judgement emphasized that while it may be hard to determine exactly how far statutes are required to go in matters subject to a proviso and that there is little sense in a sharp dichotomy between legislation and execution, given that in most modern constitutional democracies parliaments and executives draw their legitimacy from the same source (‘popular sovereignty’) and are tied together by the dynamics of political accountability and party politics, parliamentary legislation retains preeminence on the basis of three distinctive virtues: pluralistic representation, public debate, and deliberative decision-making.
These virtues should be taken into account in borderline cases, in the form of a four main factors: first, the more novel and contested the matter is, the greater the demand for parliamentary deliberation; second, direct interference or regulation of basic freedoms calls for greater parliamentary intervention than indirect or accidental effects in that area; third, the greater the need for flexibility, the more regulation by administrative ordinance is suitable; fourth, the lesser the democratic qualities of the type of administrative ordinance to which the matter is referred, the greater the area that ought to be covered by statute.
The majority was of the view that all these factors point in the direction of the highest level of demand with respect to the extension of parliamentary deliberation over the subject matter of article 12(2) and 12(3) of Law 38/2018: it is novel and contested; it directly concerns basic freedoms; it is suitable for relatively general and stable rules; and it refers its execution to the least qualified form of ordinance (simple ministerial decree). Consequently, it found the provisions under review too vague to fulfil the requirement of provision by statute.
BVerfGE 33, 1 ;
BVerfGE 45, 400 ;
BVerfGE 78, 249 ;
BVerfGE 98, 218 ;
BVerfGE 116, 24 ;
BVerfGE 150, 1 .