The International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Croatia

NTERIGHTS brought a complaint which alleged that Croatia was not complying with Articles 11(2) and 16 taken alone and in light of the non-discrimination clause in the Preamble and Article 17 of the European Social Charter (“ESC”) because Croatian schools were not providing adequate sexual and reproductive health education for children and young people.

It was alleged that the fragmented manner in which sexual and reproductive health information was delivered by schools was inadequate and failed to meet the ESC’s requirements. The information was not broad enough, outdated, gender stereotyped and could be considered to be scientifically inaccurate or discriminatory on grounds of sexuality and/or family status. For example, women were primarily portrayed as mothers and homosexuality was described as resulting from incorrect sexual development. In addition, it was claimed that the information provided in the elective Catholic religious teachings course and the extracurricular TeenStar program was not comprehensive or evidence-based. Furthermore, it was contended that the teachers were not qualified to deliver such information and that there was inadequate monitoring of the curriculum by the Government and the teacher training agency. Finally, it was claimed that Croatia’s failure to institute an adequate program of sexual and reproductive health education in schools had a disproportionate impact on and disadvantaged girls in such a way as to leave them vulnerable to certain risks.

The Croatian Government responded that the sexual and health reproductive curriculum was adequately integrated into other school subjects. The Government claimed that the curriculum included all topics recommended by regional and international bodies and complied with legislation pertaining to gender equality and same-sex unions. The Government also claimed that the elective Catholic religious teachings represented modern Catholic interpretations and that the Government was respecting the right of parents to provide their children with religious education. The Government also noted that the TeenStar program was optional and no school was required to implement it. The Government further argued that the teachers were qualified for such topics and that adequate monitoring systems were in place. Finally, the Government denied that girls were exposed to greater health risks than boys, claiming, for example, that HIV/AIDS prevalence was very low in Croatia and that the World Health Organization had deemed Croatia to be a low priority zone with regards to the spread of HIV/AIDS.

[Adapted from INTERIGHTS summary, with permission]

The Committee held that:

(1) under Article 11(2), states must provide education and aim to raise public awareness in respect of health-related matters, and, apart from the family framework, the most appropriate structure for the provision of health education is the school;

(2) sexual and reproductive health education was a process aimed at developing the capacity of children and young people to understand their sexuality in its biological, psychological, socio-cultural and reproductive dimensions which would enable them to make responsible decisions with regard to sexual and reproductive health behaviour;

(3) cultural norms and religion, social structures, school environments and economic factors varied across Europe and affected the content and delivery of sexual and reproductive health education;

(4) states must ensure sexual and reproductive health education formed an adequate part of the  ordinary school curriculum, in form and substance which were relevant, culturally appropriate and of sufficient quality, and that there were procedures for monitoring and evaluation of this;

(5) sexual and reproductive health education must be provided to school children without discrimination on any ground, direct or indirect;

(6) the obligation under Article 11(2) did not affect the rights of parents to enlighten and advise their children, to exercise with regard to their children natural parental functions as educators, or to guide their children on a path in line with the parents’ own religious or philosophical convictions;

(7) states had some discretion to structure this type of education and INTERIGHTS had not demonstrated a clear causal link between Croatia’s approach of teaching sexual and reproductive health as an integrated part of different school subjects and the alleged consequences of the inadequacy of the education;

(8) it had not been adequately demonstrated that the education provided could not reasonably fulfill the aim of raising awareness about sexual and reproductive health to the extent required by Article 11(2);

(9) Croatia’s system for training teachers and monitoring this type of education was not incompatible with Article 11(2);

(10) it had not been established that the overall content of the ordinary Croatian school curriculum was deficient enough to fall short of the substantive requirements of Article 11(2);

(11) certain specific elements of the educational material used in the ordinary curriculum, however, were manifestly biased, discriminatory and demeaning, notably the way in which persons of non-heterosexual orientation were sometimes described and, as such, violated Article 11(2) in the light of the non-discrimination clause of the Preamble to the ESC;

(12) the elective Catholic religious teachings course and the extracurricular TeenStar program were optional courses not subject to the same level of scrutiny by the ECSR as ordinary curricular activities that receive direct state sanction, therefore the ECSR did not consider it necessary to examine what was acceptable under the ESC with regards to these optional courses;

(13) the claim that textbooks in general perpetuate certain gender stereotypes was imprecise and undeveloped and the examples quoted do not by themselves violate Article 11(2);

(14) with regards to the claim that the inadequacy of the education discriminated against girls by leaving them vulnerable to certain risks, there was not enough evidence to conclude that such education overall is inadequate under Article 11(2) and in any event it was not otherwise established that girls were inordinately exposed to certain health risks;

(15) in light of the ECSR’s earlier findings, no separate issues arose under Article 16 taken alone and in the light of the non-discrimination clause in the Preamble to the ESC; and (16) no issues fall within the scope of Article 17, which provided for the rights of mothers and children to social and economic protection.

[Adapted from INTERIGHTS summary, with permission]

The Committee acknowledges that cultural norms and religion, social structures, school environments and economic factors vary across Europe and affect the content and delivery of sexual and reproductive health education. However, relying on the basic and widely accepted assumption that school-based education can be effective in reducing sexually risky behaviour, the Committee considers that States must ensure
- that sexual and reproductive health education forms part of the  ordinary school curriculum;
- that the education provided is adequate in quantitative terms, i.e. in respect of the time and other resources devoted to it (teachers, teacher
training, teaching materials, etc.).
- that the form and substance of the education, including curricula and teaching methods, are relevant, culturally appropriate and of sufficient quality, in particular that it is objective, based on contemporary scientific evidence and does not involve censoring, withholding or
intentionally misrepresenting information, for example as regards contraception and different means of maintaining sexual and
reproductive health;
- that a procedure is in place for monitoring and evaluating the education with a view to effectively meeting the above requirements."

"48. Having regard to the non-discrimination clause in the Preamble to the Charter, sexual and reproductive health education must be provided to school children without discrimination on any ground, direct or indirect, it being understood that the prohibition of discrimination covers the entire range of the educational process, including the way the education is delivered and the
content of the teaching material on which it is based. This requirement that health education be provided without any discrimination has two facets: children must not be subject to discrimination in accessing such education, which should also not be used as a tool for reinforcing demeaning stereotypes and perpetuating forms of prejudice which contribute to the social exclusion of historically marginalised groups and others that face embedded discrimination and other forms of social disadvantage which has the effect of denying their
human dignity."

"59. As a result, the Committee considers that the authorities must enjoy a wide margin of discretion in determining the cultural appropriateness of the educational material used in the ordinary Croatian school curriculum. Moreover, in the same way as it has when considering the quantitative aspects of the education provided, the Committee notes that the main indicators relating to sexual and reproductive health among youth do not clearly establish that the level of awareness of sexual and reproductive health is notably worse than in many other European countries (see paragraphs 55-56). Finally, the Committee also attaches weight to the fact that the Government in recent years has taken a number of initiatives to revise and develop the curricula in this field. In the light of all these considerations, the
Committee does not consider that it has been established that the overall content of the ordinary curriculum in general is sufficiently deficient so as to fall short of the substantive requirements imposed by Article 11§2.

60. However, the Committee does find that certain specific elements of the educational material used in the ordinary curriculum are manifestly biased, discriminatory and demeaning, notably in how persons of non-heterosexual orientation are described and depicted."

"61. In effect, by officially approving or allowing the use of the textbooks that contain these anti-homosexual statements, the Croatian authorities have failed in their positive obligation to ensure the effective exercise of the right to protection of health by means of non-discriminatory sexual and reproductive health education which does not perpetuate or reinforce social exclusion and the denial of human dignity...this positive obligation extends to ensuring that educational materials do no reinforce demeaning stereotypes and perpetuate forms of prejudice which contribute to the social exclusion, embedded discrimination and denial of human dignity often experienced by historically marginalized groups such as persons of non-heterosexual orientation. The reproductions of such state-sanctioned material in educational materials not alone has a discriminatory and demeaning impact upon persons of non-heterosexual orientation throughout Croatian society, but also presents a distorted picture of human sexuality to the children exposed to this material. By permitting sexual and reproductive health education to become a tool for reinforcing demeaning stereotypes, the authorities have failed to discharge their positive obligation not to discriminate in the provision of such education, and have also failed to take steps to ensure the provision of objective and non-exclusionary health education."