An article written by Philippe Cossalter*
According to article 1 paragraph 1 of the French Constitution of 1958 : „France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs“.
The indivisible character of the Republic, which is the first of its peculiarities, finds multiple expressions. It implies that no part of the French population can be distinguished within a uniform whole. There is no Corsican or Breton people within it. French has been the sole language of the administration since 1539. And of course, no distinction can be made between men and women.
This was in any case the position of French constitutional law at the turn of the millennium and it has largely evolved since then. Let me explain in following how.
A. The principle of equality
So let us start with the principle of equality in French law. It is guaranteed by numerous constitutional provisions.
It is first guaranteed by the Declaration of the Rights of Man and of the Citizen and as such is one of the main achievements of the French Revolution. Article 1 of the Declaration contains the general expression of the principle of equality: „Men are born and remain free and equal in rights. Social distinctions can only be based on the common good“.
The principle of equality appears in many other provisions. This is firstly the case in the Preamble to the 1946 Constitution, paragraph 1 of which reiterates the general principle of equality by stating that „each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights „. Paragraph 3 of the same Preamble guarantees equality between women and men.
B. The meanings of the principle of equality
Let me explain the meaning of the principle of equality in french law.
Although the principle of equality is appearing in various constitutional provisions, its definition is in principle unequivocal. In French law, the principle of equality prohibits treating identical situations differently, but it does not prevent different situations from being treated differently.
The principle of equality obviously does not mean that the legislator or the regulatory authority must treat every situation in the same way. Differences in treatment may, however, only be based on criteria that are related to the purpose of the norm. The Constitutional Council sometimes specifies that the criteria must be ‚an objective and rational criteria with regard to the aim pursued by the legislator‘.
Differences in treatment for the access to health services may, for instance, be based on differences in income.
C. The prohibition of treating certain situations differently
However some situations, even if they are objectively different, cannot under any circumstances justify a difference in treatment. These are mainly those referred to in Article 1, sentences 1, 2 and 3 of the Constitution: „France is an indivisible, secular, democratic and social Republic. It ensures the equality before the law of all citizens without distinction of origin, race or religion. It respects all beliefs […]“.
Neither ethnicity nor religion can be the basis for any difference between individuals.
The same was true of gender, before the Constitution was amended to provide that the law should promote equal access of women and men to elected office. Prior to this, the Constitutional Council was seized on several occasions of Statutes providing for Women’s quotas in some elections. The first decision on this issue, „Quotas par sexe“, dates from 18 November 1982. The legislator had provided that lists of candidates for municipal elections could not contain more than 75% of persons of the same gender. Referring to Article 3 of the Constitution and Article 6 of the Declaration of the Rights of Man and of the Citizen, the Constitutional Council considered that, according to the combination of these texts „the status of citizen grants the right to vote and to stand for election under identical conditions to all those who are not excluded from it for reasons of age, incapacity or nationality, or for a reason tending to preserve the liberty of the voter or the independence of the elected representative; … these constitutional principles are opposed to any division of voters or eligible persons into categories“, in particular because of their gender.
In a decision of 14 January 1999, known as „Quotas par sexe II“ (Gender Quotas II), the Constitutional Council censured a Statute imposing parity between men and women on the lists of candidates for a Regional election.
In order to make positive gender discrimination possible, an amendment to the Constitution was necessary. A constitutional law of 8 July 1999 introduced a paragraph 5 to Article 3 of the Constitution, according to which „The law shall promote equal access of women and men to electoral mandates and elective functions“. Paragraph 5 of Article 3 was deleted and replaced by Article 1paragraph 2 of the Constitution , which now provides that „The law shall promote equal access of women and men to electoral mandates and elective functions, as well as to professional and social responsibilities“. The new wording adds equal access to professional and social responsibilities to political functions.
It was on the basis of the new provisions that the Constitutional Council recognised, in its 2000 decision ‚Quotas par sexe III‘ (Gender Quotas III), the constitutionality of a law designed to promote women’s access to elective office by introducing gender-balanced political lists for municipal elections.
D. Current legislation on gender equality in the political field
There is now a plethora of legislation concerning gender equality in the political sphere, including nine laws, some of which have been amended several times.
These provisions can be distinguished according to whether they concern list elections, or first-past-the-post voting.
For list elections, the implementation of parity is easy.
Law No. 2007-128 of 31 January 2007 on promoting equal access of women and men to electoral mandates and elective functions, which has been amended several times, imposes an obligation of strict alternation between women and men in the composition of the lists for the election of the executive of regions and municipalities of 1,000 inhabitants or more.
Imposing parity in single-member elections is more difficult. The election of members of parliament is traditionally carried out by a two-round first-past-the-post system, and not by a list ballot. It is not possible to impose parity in this case. However, the law of 6 June 2000 provides for financial sanctions for political parties that do not respect parity of candidatures at national level.
But this law has had limited effect due to two factors. Firstly, it is possible to run female candidates in difficult or unwinnable electoral districts and men in more winnable electoral districts. Secondly, candidates are not always affiliated to a party for an election.
However, the feminisation of the political staff is clearly improving.
According to statistics from the High Council for Equality between Women and Men, a body reporting to the Prime Minister, as of 1 January 2019, 51.5% of the 66.9 million people living in France are women. Women represent 52.3% of the voters registered on the electoral roll.
Since the last legislative elections, the National Assembly has 224 women out of 577, or 38.7%. The proportion was only 26.9% in 2012.
The Senate is composed of 110 female senators out of 348, or 31.6%, compared to 25% in 2014 and 22.1% in 2011.
In conclusion, a word can be said about parity in government. No text imposes parity within the government. But for the past twenty years, the search for a form of parity has marked the composition of governments. Some sovereign ministries are held by women, such as the Ministry of Defence. But this evolution is still imperfect.
There has only been one woman prime minister in France: Edith Cresson in 1991. She had to resign after 6 months. With this exception, the last woman to hold a political office of importance was Marie de Medici, mother of King Louis XIII, who was ousted by her son in 1617.
The French monarchical tradition, which has strongly marked the figure of the President of the Republic, was based on the principle of male primogeniture. Apart from the regencies of Catherine and Marie de Médici 400 and 500 years ago, no woman has ever ruled France, whose political tradition dates back to the 5th century.
As we know, things could change in the next presidential elections, where Marine Le Pen is not without a chance to win. This is the paradox of the situation, where the victory of a woman would also mark the return of the far right to power.
*Prof. Dr. Philippe Cossalter is co-director of the Centre-juridique franco-allemand and holds a chair in French public law at Saarland University.
 CE, Decision n° 57435 of 20 November 1964, Ville de Nanterre, rec. 562.
 CC, Decision n° 82-146 DC of 18 November 1982, Loi modifiant le code électoral et le code des communes et relative à l’élection des conseillers municipaux et aux conditions d’inscription des Français établis hors de France sur les listes électorales („Quotas par sexe“).
 CC, Decision n° 98-407 DC of 14 January 1999, Loi relative au mode d’élection des conseillers régionaux et des conseillers à l’Assemblée de Corse et au fonctionnement des Conseils régionaux („Quotas par sexe II“).
 By virtue of Article 1 of the Constitutional Act n° 2008-724 of 23 July 2008 on the modernisation of the institutions of the Fifth Republic.
 CC, Decision n° 2000-429 DC of 30 May 2000, Loi tendant à favoriser l’égal accès des femmes et des hommes aux mandats électoraux et fonctions électives („Quotas by sex III“).
 – Law n° 2000-493 of 6 June 2000 to promote equal access of women and men to electoral mandates and elective functions;
– Act n° 2000-641 of 10 July 2000 on the election of senators, which applies the principle of parity to the election of senators by proportional list voting in departments where three or more senators are elected. This law was amended by Law n° 2003-697 of 30 July 2003 on the reform of the election of senators, which limited the application of the proportional list system to departments where more than four senators are elected;
– Act n° 2003-327 of 11 April 2003 on the election of regional councillors and representatives to the European Parliament and on public aid to political parties;
– Law n° 2003-1201 of 18 December 2003 relating to parity between men and women on the lists of candidates for the election of members of the Assembly of Corsica;
– Act n° 2007-128 of 31 January 2007 to promote equal access of women and men to electoral mandates and elective functions;
– Act n° 2008-175 of 26 February 2008 facilitating equal access for women and men to the office of general councillor;
– Act n° 2013-403 of 17 May 2013 on the election of departmental councillors, municipal councillors and community delegates, and modifying the electoral calendar;
– Law n° 2013-702 of 2 August 2013 on the election of senators;
– Law n° 2014-873 of 4 August 2014 for real equality between women and men, concerning legislative elections.
Suggested Citation: Cossalter, Philippe, Gender quotas for political participation in Europe: the case of France, jean-monnet-saar 2021, DOI: 10.17176/20220523-103402-0