CASE OF KJELDSEN, BUSK MADSEN AND PEDERSEN v. DENMARK
No violation of P1-2;No violation of Art. 14+P1-2;No violation of Art. 8+P1-2;No violation of Art. 9+P1-2
14. The applicants, who are parents of Danish nationality, reside in Denmark. Mr. Viking Kjeldsen, a galvaniser, and his wife Annemarie, a schoolteacher, live in Varde; Mr. Arne Busk Madsen, a clergyman, and his wife Inger, a schoolteacher, come from Åbenrå; Mr. Hans Pedersen, who is a clergyman, and Mrs. Ellen Pedersen have their home in Ålborg. All three couples, having children of school age, object to integrated, and hence compulsory, sex education as introduced into State primary schools in Denmark by Act No. 235 of 27 May 1970, amending the State Schools Act (Lov om ændring af lov om folkeskolen, hereinafter referred to as "the 1970 Act"). Primary education in general 15. According to Article 76 of the Danish Constitution, all children have the right to free education in the State primary schools (folkeskolen), although parents are not obliged to enrol them there and may send them to a private school or instruct them at home. During the school year 1970/71, a total of 716,665 pupils were attending 2,471 schools, of which 277 were private with 43,689 pupils. Some parents chose to educate their children at home. 16. At the time of the facts at issue, primary education in State schools was governed by the State Schools Act (Lov om folkeskolen) (a consolidated version of which was set out in Executive Order No. 279 of 8 July 1966), which had been amended on various occasions between 1966 and 1970. Primary education lasted for nine years; a tenth year, as well as a pre-school year for children of five to six years, were voluntary. The subjects taught in the first four years were Danish, writing, arithmetic, knowledge of Christianity (kristendomskundskab), history, geography, biology, physical training, music, creative art and needlework. In the fifth and sixth years, English and woodwork were added, and in the seventh year German, mathematics, natural sciences and domestic science. As from the eighth year the pupils were, to some extent, allowed to choose from these courses the subjects they preferred. Under the Act, the Minister of Education determined the objectives of schooling and the local school authorities fixed the contents of the curriculum and the number of lessons. There were, however, two exceptions to this rule. Firstly, religious instruction was to be in conformity with the Evangelical Lutheran doctrine of the National Church, but children might be exempted therefrom. Secondly, the legislator had directed schools to include in their curricula, often in conjunction with traditional subjects, certain new topics such as road safety, civics, hygiene and sex education. 17. The administration of State schools in Denmark is largely decentralised. These institutions are run by the municipal council, the highest education authority in each of the some 275 municipalities in that country, as well as by a school commission and a school board. The school commission (skolekommissionen) is as a general rule composed of eleven members of whom six are elected by the municipal council and five by the parents. The commission, in consultation with the teachers’ council and within the limits laid down by law, prepares the curriculum for the schools within its district. The curriculum must be approved by the municipal council. To assist these bodies in the performance of their tasks, the Minister of Education issues guidelines prepared by the State Schools’ Curriculum Committee (hereinafter referred to as "the Curriculum Committee"), set up in 1958. Each State school has a school board (skolenævn) which comprises three or five members; one member is chosen by the municipal council, the two or four others by the parents. The board supervises the school and organises co-operation between school and parents. It decides, upon recommendation from the teachers’ council, what teaching aids and in particular what books are to be used by the school and it also determines the distribution of lessons among the teachers. 18. Primary education at private schools or at home must not fall below the standards laid down for State schools; it must cover the same compulsory subjects and be of comparable quality. While a school may be established without any advance approval, it is subsequently supervised by the school commissions in order to ensure, in particular, that adequate instruction is given in Danish, writing and arithmetic. The same applies to education given in the home; if the school commission finds twice in succession that such teaching is inadequate, the parents are required to send the child to a State or private school. The State supports private schools provided that they have not less than twenty pupils in all and not less than ten pupils per class. The State subsidises 85 per cent of their running costs (principal’s and teachers’ salaries, maintenance of buildings, heating, electricity, water, cleaning, insurance, etc.). In addition, private schools may be granted government loans on favourable terms for construction and improvement of buildings. As a result, parents who enrol their children at a private school do not in general have to bear school fees in excess of 1,200 Kroner per child per annum; during the 1973/1974 school year their average expenditure scarcely exceeded 1,050 Kroner. The Danish Parliament voted in May 1976 in favour of a proposal which would oblige municipalities to bear a large proportion of the cost of transport for children attending private schools. The statistics on private schools show that, in the school year 1973/74, there were about seventy "free" schools; one hundred and one private grammar schools without special religious background; twenty-five Catholic schools; nineteen German minority schools; ten schools for members of other religious societies; eight "Christian free" schools; and some thirty-five other schools. The applicants claim that there are insufficient private schools and that their pupils frequently have to travel long distances to attend them; moreover, parents wishing to send their children to a private school in Copenhagen have to enter them on waiting lists at least three years in advance. Sex education 19. In Denmark, sex education in State schools has been a topic of discussion for thirty-five years. As early as 1945, sex education was introduced in the State schools of Copenhagen and several institutions outside the capital copied this example. Nevertheless, the Minister of Education spoke against compulsory sex education when the question was raised in 1958. In 1960, the Curriculum Committee published a "Guide to teaching in State schools" which distinguished between instruction on the reproduction of man and sex education proper. The Committee recommended that the former be integrated in the biology syllabus while the latter should remain optional for children and teachers and be provided by medical staff. The Committee also advised that guidelines for schools be drawn up on the contents of, and the terminology to be used in, sex education. In a Circular of 8 April 1960, the Minister of Education adopted the Committee’s conclusions: as from the school year 1960/61 reproduction of man became a compulsory part of biology lessons whereas an official guide issued by the Ministry, dating from September 1961, specified that only those children whose parents had given their express consent should receive sex education proper. 20. The Danish Government, anxious to reduce the disconcerting increase in the frequency of unwanted pregnancies, instructed a committee in 1961 to examine the problem of sex education (Seksualoplysningsudvalget). The setting up of such a committee had been urged, among others, by the National Council of Danish Women (Danske Kvinders Nationalråd) under the chairmanship of Mrs. Else-Merete Ross, a Member of Parliament, and by the Board of the Mothers’ Aid Institutions (Mødrehjælpsinstitutionernes Bestyrelse). Every year the latter bodies received applications for assistance from about 6,000 young unmarried mothers of whom half were below twenty years of age and a quarter below seventeen. In addition, many children, often of very young parents, were born within the first nine months after marriage. Legal abortions, for their part, numbered about 4,000 every year and, according to expert opinions, illegal abortions about 15,000 whereas the annual birth rate was hardly more than 70,000. 21. In 1968, after a thorough examination of the problem, the above-mentioned committee, which was composed of doctors, educationalists, lawyers, theologians and government experts, submitted a report (No. 484) entitled "Sex Education in State Schools" (Seksualundervisning i Folkeskolen m.v., Betænkning Nr. 484). Modelling itself on the system that had been in force in Sweden for some years, the committee recommended in its report that sex education be integrated into compulsory subjects on the curriculum of State schools. However, there should be no obligation for teachers to take part in this teaching. The report was based on the idea that it was essential for sexual instruction to be adapted to the children’s different degrees of maturity and to be taught in the natural context of other subjects, for instance when questions by the children presented the appropriate opportunity. This method appeared to the committee particularly suited to prevent the subject from becoming delicate or speculative. The report emphasised that instruction in the matter should take the form of discussions and informal talks between teachers and pupils. Finally it gave an outline of the contents of sex education and recommended the drawing up of a new guide for State schools. 22. In March 1970, the Minister of Education tabled a Bill before Parliament to amend the State Schools Act. The Bill provided, inter alia, that sex education should become obligatory and an integrated part of general teaching in State primary schools. In this respect, the Bill was based on the recommendations of the committee on sex education, with one exception: following a declaration from the National Teachers’ Association, it did not grant teachers a general right of exemption from participation in such instruction. The Bill had received the support not only of this Association but also of the National Association of School and Society representing on the national level education committees, school boards and parents’ associations, and of the National Association of Municipal Councils. Section 1 para. 25 of the 1970 Act, which was passed unanimously by Parliament and became law on 27 May 1970, added "library organisation and sex education" to the list of subjects to be taught, set out in Section 17 para. 6 of the State Schools Act. Accordingly the latter text henceforth read as follows (Bekendtgørelse No. 300 of 12 June 1970): "In addition to the foregoing, the following shall also apply to teaching in primary schools: road safety, library organisation and sex education shall form an integral part of teaching in the manner specified by the Minister of Education. ..." The Act entered into force on 1 August 1970. As early as 25 June, a Circular from the Minister of Education (Cirkulære om ændring af folkeskoleloven) had advised municipal councils, school commissions, school boards, teachers’ councils and headmasters of schools outside Copenhagen "that further texts, accompanied by new teaching instructions, on sex education would be issued". The Circular specified that "henceforth, parents (would) still have the possibility of exempting their children from such education and teachers that of not dispensing it". 23. After the passing of the 1970 Act, the Minister of Education requested the Curriculum Committee to prepare a new guide to sex education in State schools intended to replace the 1961 guide (paragraph 19 above). The new guide (Vejledning om seksualoplysning I folkeskolen, hereinafter referred to as "the Guide") was completed in April 1971; it set out the objectives of sex education as well as certain general principles that ought to govern it, and suggested detailed curricula for the various classes. 24. On the basis of the recommendations in the Guide, the Minister of Education laid down in Executive Order No. 274 of 8 June 1971 (Bekendtgørelse om seksualoplysning i folkeskolen) the rules of which he had given notice in his Circular of 25 June 1970. The Executive Order - which applied to primary education and the first level of secondary education in State schools outside Copenhagen – was worded as follows: (1) The objective of sex education shall be to impart to the pupils knowledge which could: (a) help them avoid such insecurity and apprehension as would otherwise cause them problems; (b) promote understanding of a connection between sex life, love life and general human relationships; (c) enable the individual pupil independently to arrive at standpoints which harmonise best with his or her personality; (d) stress the importance of responsibility and consideration in matters of sex. (2) Sex education at all levels shall form part of the instruction given, in the general school subjects, in particular Danish, knowledge of Christianity, biology (hygiene), history (civics) and domestic relations. In addition, a general survey of the main topics covered by sex education may be given in the sixth and ninth school years. (1) The organisation and scope of sex education shall be laid down in or in accordance with the curriculum. Assistance in this respect is to be obtained from the Guide issued by the State Schools’ Curriculum Committee. If the special instruction referred to in the second sentence of Section 1 para. 2 is provided in the sixth and ninth years, a small number of lessons shall be set aside each year for this purpose. (2) Restrictions may not be imposed upon the range of matters dealt with in accordance with sub-section 1 so as to render impossible the fulfilment of the purpose of sex education. (3) The restrictions on the carrying out of sex education in schools, as indicated in Part 4 of the Guide, shall apply regardless of the provisions of the curriculum. (1) Sex education shall be given by the teachers responsible for giving lessons on the subjects with which it is integrated in the relevant class and in accordance with the directives of the principal of the school. If it is not clear from the curriculum which subjects are linked to the various topics to be taught, the class teachers shall distribute the work, as far as need be, in accordance with the recommendation of the teachers’ council; this latter opinion must be approved by the school board pursuant to section 27 para. 5 of the School Administration Act. (2) A teacher cannot be compelled against his will to give the special instruction in the sixth and ninth years referred to in the second sentence of section 1 para. 2. (1) The present Order shall come into force on 1 August 1971. (2) At the same time the right of parents to have their children exempted from sex education given at school shall cease. They may nevertheless, on application to the principal of the school, have them exempted from the special instruction referred to in the second sentence of section 1 para. 2. (3) ..." 25. A Ministry of Education Circular (Cirkulære om seksualoplysning i folkeskolen), also dated 8 June 1971 and sent to the same authorities as that of 25 June 1970 (paragraph 22 above), gave the recipients, inter alia, certain particulars on the preparation of State school curricula in this field. It drew, in particular, their attention to the fact that "it was for the school commission, after discussion with the joint council of teachers, to prepare draft provisions governing sex education to be included in the curricula of the schools of the municipality". Recalling that these provisions may take the form of a simple reference to the recommendations in the Guide, the Circular pointed out that the Guide gave, for the fifth to tenth year classes, various possibilities as regards the manner and scope of teaching. Thus, if there were a simple reference to the Guide, "it is for the institution (teachers’ council) to take a decision in this respect with the agreement of the school board". 26. The objectives set out in the Executive Order of 8 June 1971 were identical with those of the Guide, except that the latter contains an addition to the effect that schools must try to develop in pupils openness with regard to the sexual aspects of human life and to bring about such openness through an attitude that will make them feel secure. 27. The principle of integration, provided for in paragraph 2 of section 1 of the Executive Order, is explained as follows in the Guide: "The main purpose of integration is to place sex guidance in a context where the sexuality of man does not appear as a special phenomenon. Sexuality is not a purely physical matter ... nor is it a purely technical matter .... On the other hand it is not of such emotional impact that it cannot be taken up for objective and sober discussion. ... The topic should therefore form an integral part of the overall school education ..." 28. As for the definition of the manner and scope of sex education (section 2 para. 1 of the Executive Order), the Guide indicates the matters that may be included in the State school curricula. In the first to fourth years instruction begins with the concept of the family and then moves on to the difference between the sexes, conception, birth and development of the child, family planning, relations with adults whom the children do not know and puberty. The list of subjects suggested for the fifth to seventh years includes the sexual organs, puberty, hormones, heredity, sexual activities (masturbation, intercourse, orgasm), fertilisation, methods of contraception, venereal diseases, sexual deviations (in particular homosexuality) and pornography. The teaching given in the eighth to tenth years returns to the matters touched on during the previous years but puts the accent on the ethical, social and family aspects of sexual life. The Guide mentions sexual ethics and sexual morals; different views on sexual life before marriage; sexual and marital problems in the light of different religious and political viewpoints; the role of the sexes; love, sex and faithfulness in marriage; divorce, etc. 29. The Guide advocates an instruction method centred on informal talks between teachers and children on the basis of the latter questions. It emphasises that "the instruction must be so tactful as not to offend or frighten the child" and that it "must respect each child’s right to adhere to conceptions it has developed itself". To the extent that the discussion bears on ethical and moral problems of sexual life, the Guide recommends teachers to adopt an objective attitude; it specifies: "The teacher should not identify himself with or dissociate himself from the conceptions dealt with. However, it does not necessarily prevent the teacher from showing his personal view. The demand for objectivity is amplified by the fact that the school accepts children from all social classes. It must be possible for all parents to reckon safely on their children not being influenced in a unilateral direction which may deviate from the opinion of the home. It must be possible for the parents to trust that the ethical basic points of view will be presented objectively and soberly." The Guide also directs teachers not to use vulgar terminology or erotic photographs, not to enter into discussions of sexual matters with a single pupil outside the group and not to impart to pupils information about the technique of sexual intercourse (section 2 para. 3 of the Executive Order). The applicants claim, however, that in practice vulgar terminology is used to a very wide extent. They refer to a book by Bent H. Claësson called "Dreng og Pige, Mand og Kvinde" ("Boy and Girl, Man and Woman") of which 55,000 copies have been sold in Denmark. According to them it frequently uses vulgar terminology, explains the technique of coitus and shows photographs depicting erotic situations. 30. On the subject of relations between school and parents, the Guide points out, inter alia: "In order to achieve an interaction between sex education at the school and at home respectively, it will be expedient to keep parents acquainted with the manner and scope of the sex education given at school. Parent class meetings are a good way of establishing this contact between school and parents. Discussions there will provide the opportunity for emphasising the objective of sexual instruction at the school and for making it clear to parents that it is not the school’s intention to take anything away from them but rather ... to establish co-operation for the benefit of all parties. It can also be pointed out to parents that the integrated education allows the topic to be taken up exactly where it arises naturally in the other fields of instruction and that, generally, this is only practicable if sex education is compulsory for pupils. ... Besides, through his contacts with the homes the class teacher will be able to learn enough about the parents’ attitude towards the school, towards their own child and towards its special problems. During discussions about the sex education given by the school, sceptical parents will often be led to realise the justification for co-operation between school and home in this field as well. Some children may have special requirements or need special consideration and it will often be the parents of these children who are difficult to contact. The teacher should be aware of this fact. When gradually the teacher, homes and children have come to know each other, a relationship of trust may arise which will make it possible to begin sex education in a way that is satisfactory to all parties." 31. The Executive Order No. 313 of 15 June 1972, which came into force on 1 August 1972, repealed the Executive Order of 8 June 1971. The new Order reads: (1) The objective of the sex education provided in Folkeskolen shall be to impart to the pupils such knowledge of sex life as will enable them to take care of themselves and show consideration for others in that respect. (2) Schools are therefore required, as a minimum, to provide instruction on the anatomy of the reproductive organs, on conception and contraception and on venereal diseases to such extent that the pupils will not later in life land themselves or others in difficulties solely on account of lack of knowledge. Additional and more far-reaching goals of instruction may be established within the framework of the objective set out in sub-section (1) above. (3) Sex education shall start not later than in the third school year; it shall form part of the instruction given in the general school subjects, in particular Danish, knowledge of Christianity, biology (hygiene), history (civics) and domestic relations. In addition, a general survey of the main topics covered by sex education may be given in the sixth or seventh and in the ninth school years. The organisation and scope of sex education shall be laid down in or in accordance with the curriculum. If the special instruction referred to in the second sentence of section 1 para. 3 is provided, a small number of lessons shall be set aside for this purpose in the relevant years. (1) Sex education shall be given by the teachers responsible for giving lessons on the subjects with which it is integrated in the relevant class and in accordance with the directives of the principal of the school. If it is not clear from the curriculum which subjects are linked to the various topics to be taught, the class teachers shall distribute the work, as far as need be, in accordance with the recommendation of the teachers’ council; this latter opinion must be approved by the school board pursuant to section 27 para. 5 of the School Administration Act. (2) A teacher cannot be compelled against his will to give the special instruction referred to in the second sentence of section 1 para. 3. Nor shall it be incumbent upon the teacher to impart to pupils information about coital techniques or to use photographic pictures representing erotic situations. On application to the principal of the school, parents may have their children exempted from the special instruction referred to in the second sentence of section 1 para. 3. ..." 32. In a Circular of 15 June 1972 (Cirkulære om ændring af reglerne om seksualoplysning i folkeskolen), sent to the same authorities as that of 25 June 1970 (paragraph 22 above), the Minister of Education stated that the aim of the new Executive Order was to enable local school authorities and, consequently, parents to exert greater influence on the organisation of the teaching in question. In addition, sex education, which "remains an integral part of school education, which is to say that it should form part of the instruction given in obligatory subjects", was to have a more confined objective and place greater emphasis on factual information. The Circular pointed out that henceforth sex education could be postponed until the third school year. It also mentioned that, whilst the Executive Order no longer contained a reference to the Guide - which was still in force -, this was to emphasise that the Guide was simply an aid to local school authorities in the drawing up of curricula. Finally, the Circular gave details on the role of teachers. If a teacher thought he would not be able to take care of this instruction in a satisfactory manner, he should be afforded the opportunity of attending one of the information courses provided by the Teachers’ Training College. In addition, the Minister expressly recommended that special consideration be given to the personal and professional qualifications of teachers when courses including sex education are distributed amongst them. According to the applicants, the result of the Executive Order of 15 June 1972 was to free teachers from the duty of giving instruction in sex. It was alleged that in fact the Minister of Education issued it because many teachers vigorously protested against this duty. 33. On 26 June 1975, the Danish Parliament passed a new State Schools Act (Act No. 313), which became fully effective on 1 August 1976. However, it has not amended any of the provisions relevant to the present case; sex education remains an integral and obligatory part of instruction in the elementary school. Neither has the Act changed the former rules on the influence of parents on the management and supervision of State schools. While the Bill was being examined by Parliament, the Christian People’s Party tabled an amendment according to which parents would be allowed to ask that their children be exempted from attending sex education. This amendment was rejected by 103 votes to 24. 34. Although primary education in private schools must in principle cover all the topics obligatory at State schools (paragraph 18 above), sex education is an exception in this respect. Private schools are free to decide themselves to what extent they wish to align their teaching in this field with the rules applicable to State schools. However, they must include in the biology syllabus a course on the reproduction of man similar to that obligatory in State schools since 1960 (paragraph 19 above). 35. The applicants maintain that the introduction of compulsory sex education did not correspond at all with the general wish of the population. A headmaster in Nyborg allegedly collected 36,000 protest signatures in a very short space of time. Similarly, an opinion poll carried out by the Observa Institute and published on 30 January 1972 by a daily newspaper, the Jyllands-Posten, is said to have shown that, of a random sample of 1,532 persons aged eighteen or more, 41 per cent were in favour of an optional system, 15 per cent were against any sex education whatsoever in primary schools and only 35 per cent approved the system instituted by the 1970 Act. According to the authors of two articles, published in 1975 in the medical journal Ugeskrift for Læger and produced to the Court by the Commission, the introduction of sex education has not, moreover, brought about the results desired by the legislator. On the contrary indeed, the number of unwanted pregnancies and of abortions is said to have increased substantially between 1970 and 1974. The Government argue that the statistics from 1970 to 1974 cannot be taken as reflecting the effects of legislation whose application in practice began only in August 1973. Facts relating to the applicants 36. Mr. and Mrs. Kjeldsen have a daughter called Karen. She was born in December 1962 and attended St. Jacobi municipal school in Varde. All the municipal schools in this town were still using, until the 1972/73 school year, the curricula adopted in 1969, that is, before the 1970 Act entered into force. In Varde the curriculum changed only with effect from the 1973/74 school year. 37. On 25 April 1971, the applicants asked the Minister of Education to exempt their daughter from sex education, saying they wished to give her this instruction themselves. On 6 May 1971, the Ministry replied to the effect that a new Executive Order on sex education in State schools was in the course of preparation. The applicants complained to the Danish Parliament but without any result. They then approached the Parliamentary Ombudsman (Folketingets ombudsmand) who told them on 2 June 1971 that he had no competence to deal with the matter. 38. The Ministry of Education, in a letter of 14 July 1971, advised the applicants that Executive Order No. 274 (paragraph 24 above) had been issued and added that, for practical reasons, it was not possible to exempt children from integrated sex instruction. On 5 August 1971, the applicants wrote again to the Ministry of Education, this time enquiring about sex education in private schools. The Ministry told them on 20 September that private schools were not obliged to provide instruction beyond that which, since 1960, they had been obliged to give within the context of the biology syllabus. Some weeks before, that is, on 31 August 1971, the school commission of Varde had refused a request by the applicants that their daughter should be given free private education. 39. On 13 October 1971, the Ministry replied to a further letter, dated 6 September, in which the applicants had requested new legislation to provide for free education without sex instruction. The Ministry said that it did not intend to propose such legislation and it also refused to arrange for the applicants’ daughter to receive separate education. Referring to the reply given to another person who, in the same field, had invoked Article 2 of Protocol No. 1 (P1-2), the Ministry stated that Danish legislation on sex education complied with this provision, particularly in view of the existence of private schools. On 15 April 1972, the applicants asked the Ministry of Education why the curricula of the Varde municipal schools had not yet been adapted to the new legislation on sex education; the file in the case does not reveal whether the Ministry replied. 40. Meanwhile, the applicants had withdrawn their daughter from the St. Jacobi school and during the 1971/72 school year they educated her at home. In August 1972 they again sent her to the Varde municipal school (Brorsonskolen). They maintained before the Commission that the nearest private school was nineteen kilometres from their home and that their daughter, who had diabetes, could not be away from home for a long period of time. The Government did not contest these claims. 41. Mr. and Mrs. Busk Madsen have four children, the eldest of whom began school in 1972 at a State school in Åbenrå. They attempted unsuccessfully to have their children exempted from sex instruction. 42. Mr. and Mrs. Pedersen have five children, of whom three were of school age in 1972. Two of them, Ester, born in 1957, and Svend, born in 1965, attended private schools in order to avoid having to follow sex education courses; the third, Hans Kristian, born in 1961, was enrolled at the Poul Paghs Gade municipal school in Ålborg. The applicants paid 660 Kroner a month for Ester, who left the latter school in summer 1972 to attend a private boarding school at Korinth (Fyn), and 75 Kroner for Svend. The Pedersens had asked the competent authorities – likewise unsuccessfully - to exempt their children from sex instruction. They stated in their application that they were considering sending their third child as well to a private school, if the Commission could not help them. 43. In March 1972, the applicants complained about the use of certain books on sex education at the above-mentioned school. These books had apparently been approved by the school board in consultation with the teachers at the school. The Education and Culture Committee of the Northern Jutland County Council (Nordjyllands amtsråds undervisnings - og kulturudvalg) decided, however, on 16 June 1972 to uphold the school board’s action and this decision was confirmed by the Minister of Education on 13 March 1973.