Promoting Gender Equality in Education: Challenges and Solutions

2. EQUINET SEMINAR Gender Equality in Education Promoting diversity in education for women and men Challenges faced by persons pursuing non-traditional educational paths Frédérique AST

3. The Defender of Rights (DR)Independent Constitutional Authority 2004 Creation of the first Equality Body in France the High Authority against discriminations and for the promotion of Equality (HALDE) 2011 MERGER of the HALDE + 3 otherindependentinstitutions : • the Ombudsman • the Children’s Defender • The National Commission for Ethics in Security (CNDS) = the Defender of Rights

4. The DR deals with all forms of discrimination direct or indirect prohibited by law or under international conventions duly ratified by the French State Organic Law no. 2011-333 of 29 March 2011 21 prohibited grounds : origin, ethnicity, race, nationality gender family status pregnancy physical appearance name state of health, disability, loss of independence, genetic characteristics lifestyle sexual orientation age political opinions religion trade union activities place of residence sexual identity One of the 4 missions of the DR :Tackling discrimination through individual complaints on 21 prohibited grounds

5. Tackling discrimination in all areas of activities • Privateand public employment, includingvocational training • Public service operations, includingeducation • Regulation • Goods and services : • Transportation • Health • Housing • Banking • Insurances • etc

6. Key figures2015 • 4 missions taken all together : • 120 000 requests for intervention and advice • 79 592 claim files in total • 4 846 claim files on discrimination • 54,3% discrimination withinprivate/public employment • 22,6% racial/ethnic discrimination • 21,1% disability discrimination • 4,8% pregnancy discrimination • 4,4% sex discrimination • 4,4% familystatus discrimination

7. Powers of the DR • Guidance and assistance to the victim and help compile his/her file • Powers of investigation : • request for information • hearings • on-site verification • testing procedure

8. Decisions The DDD may decide: • to propose a mediation • to inform the State Prosecutor • a criminal transaction (on discrimination cases) • to set public action in motion by a direct summons (under specific conditions) • to present observations before the courts • to make recommendations to public and private individual and organisations

9. Case Study on private beauty training centres • Joined cases concerningprivatebeauty training centres refusing male applicants • Training leading to certificates in aestheticsand cosmetics • Individual claim by a male victimrelating to the refusal of his application by a private beauty training centre on the ground of hissex • Reportingconcerningother beauty training centres refusing male applicants → Ex officio investigation

10. Reactions/explanations of the concerned beauty training centres

11. Centre A • Lack of genderdiversitybased on the lack of appropriatefacilities (no separatechangingrooms) → Argument alreadyrejected in former decisions • The layout and narrowness of the facilitiescannotjustify the exclusion of girls fromboardingschool of prestigiousschools in France(≠ appropriateaim) • Decisions ex-HALDE no. 2010-197 and 2010-255 of 11 Oct. 2010

12. Centre B • Expression of regrets (« unfortunate incident ») • Willingness to debunkgenderstereotypes • Change of practices : • equaltreatment of male and female applications • change of the communication support takinggenderdiversityintoconsideration • during open day, information that the training is open to girls and boys • Information sharing withanother beauty training centre experiencinggenderdiversity • 4 male applicants : 2 withdrawals + 2 experiencingdifficulties to findcontracts of apprenticeship • Accommodation of male and femalechangingrooms → Acknowledgement of the practice change by the Defender of Rights

13. Centre C • « This profession isfemale-dominated. Inverselyothersectors are overrepresented by men. That isjust the wayitis ». • 99,9% of the trainees are female : therefore, itis normal that communication supports refer to a female public. • But NO systematicrefusal of male candidates. • 10 male traineessince 1989 (3 of thembeingblind) • They have to beready to • beisolated in a classroomwith 23 femaleclassmates • work in pairs withthem i.e. beingwaxed, made up, nailpolished

14. Centres D +E • All trainees are alsomodels at the same time (workin pairs) • bikini wax techniques, bust care… • Moreover, sometrainees are minors. → Impossibilityto welcome male candidates to respect privacy → Impossibility to organise separateclassrooms/training for men/women due to the lowenrollment of men

15. The beauty and wellness market :A growing market segment • 10% of the business industry in France • +7% everyyear (for the last 10 years) • +15% for the eyelashes and the nails in 2013 • EUR 3,542 billion • 46 699 undertakings • 48 021 employees

16. The beauty world :a gendered « culture » • The overrepresentation of women in thisindustry: • 88% of hairdressers and beauticians are female • But recentevolution of the market : • 50% of the spas customers are male • burst of the cosmetics for men in the 2000s • Complaints of male customers for refusal of access to beauty centres by femalebeauticians

17. International and European legal framework :The principle of prohibition of gender discrimination within the access to vocational training • Art. 1 of the ILO Convention no.111 • Prohibition of gender discrimination within the field of work and labour, includingvocational training • Art. 14 ECHR in conjuctionwith art. 2 Protoc no. 1 • Prohibition of gender discrimination within the field of education (construedbroadly) • Art. 14b of 2006/54 Directive • Prohibition of direct or indirect discrimination on grounds of sex in the public or private sectors, in relation to access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience.

18. French legal framework • Prohibition of discrimination based on sex • Art. 1 French Constitution : • the Law favours the equalaccess to women and men to professional and social responsibilities. • Art. 2-2 Law no. 2008-496 27 May 2008 • Implementation of 2006/54 Directive • Art. 225-1 and 225-2 Criminal Code • Prohibition of the refusal to provide a service on the ground of sex • Promotion of genderdiversity • Art. 15 Law no. 2014-288 5 March 2014 • Training centres shall encourage genderdiversity by raisingawareness, by leadingeducational guidance policies and by promoting the advantages of diversity. • Theyshalltacklegender-based job repartition.

19. The main legal problem at stake • Is it justified for a training centre to refuse male candidates from beautician’s training because of privacy/decency?

20. Exception to the principle of non-discrimination • EU Law : • Direct discrimination justified by genuine and determining occupational requirement • Art. 14 of 2006/54 Directive  : « Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate.» • Strictly interpreted by the CJEU (Johnston Case) • ECtHR Case-law : • Only "very weighty" reasons could justify difference of treatment based on gender • Traditional distribution of gender roles in society cannot justify the exclusion of men (Konstantin Markin Case)

21. Balance of fundamental rights :Privacy v. non-discrimination • Art. 8 ECHR (= Art. 7 EU Charter + Art. 9 Civil Code) • Right to private life • Art. 225-3-4° Criminal Code : inapplicability of prohibition of gender discrimination when justified on privacy and decency • Art. 2-2 Law no. 2008-496 : Implementation of the genuine and determining occupational requirements exception

22. Legal analysis of the DR • Recognition of legitimateaims to beprotected: • Protection of minors • Decency and physicalprivacy of trainees • BUT • Beauty care involvingnudity (bust care, bikini wax) constitutesonly a verylimited part of the beauty procedures (make-up, massage, nailsetc) • Different training centres didovercome the problem of nudity (voluntarytrainees, strict control)

23. Articulation between physical decency and non-discrimination • No recent case-law • ECJ 8 Nov. 1983 European Commission v. UK (case 165/82): • Justification of refusal of access of men to the training and occupation of midwives • Occupation traditionally engaged in by women • In the 80s, sphere in which respect for the patient’s sensitivities is of particular importance but position kept under review in the light of social developments. • Concl. AG Rozès : “I do not consider that the alleged specific nature of the conditions in which the occupation of midwife is practised in the UK in such as to justify (…) the discriminatory rules against men. The guarantee of a free choice for patients, which is maintained in the proposed British rules, is a condition which is necessary and sufficient to allay the fears expressed by the Government”. • Lift of the exception immediately after the judgment • Out-of-date judgment : • ECJ 12 July 1984 Hofmann (case 184/83) justifying the refusal of parental leave to fathers

24. Articulation between physical decency and non-discrimination • Relative comparisonwithother occupations and training wherestudents face nudity • gynecologist, midwives, urologist, etc • Occupation and training open to men and women • Even if • they are no working in pairs and practising on theirown body • Medicinestudents are in principle not minors

25. The question of proportionnality • Disproportionnalitybetween the exclusion effect of all male applicantswith the limited cases of beauty care involvingnudity. • Lessdrasticmeasuresmaybefound: • Ex: call on externalmodels • Ex: training using simulation-basedsystems • Ex: gathering of male trainees over different training centres etc

26. Recommendations of the Defender of RightsDecision MLD no.2015-305 3 December 2015 To the training centres • To stop discrimination against male applicants • To change their communication support • To promotegenderdiversity, by adopting good pratices of other training centres To the Ministry of Education -To raiseawareness to all beauty training centres and schoolsconcerning the prohibition of gender discrimination - To contribute to the dissimination of the good practices regardinggenderdiversity

27. Follow-up of the recommendations • Recommendationsfollowed by the beauty training centers: • Change of the communication supports • Change of facilities to have separatechangingrooms • Recommendationsfollowed by the Ministry of Education by issuing a general instruction to all educationauthorities to : • raiseawareness to all schools, professional high schools, centres of apprenticeship, beauty training centres concerning • the prohibition of gender discrimination • the promotion of good practices encouraginggenderdiversity • accept male applicants • developgenderneutral communication • accommodateseparatechangingrooms • call on male externalmodels for male trainees (to reconcile training requirementswithdecency/privacy)