March 4, 2024


The Supreme Court has endorsed this Wednesday that the marks of the subject of Religion do not count for the average of the academic record and that the Primary Education curriculum includes references to the terms “gender” and “gender perspective”. This has been established by the Contentious-Administrative Chamber when dismissing an appeal from the Catholic Confederation of Parents and Student Parents (Concapa) against Royal Decree 157/2022, of March 1, which establishes the management and the minimum teachings of Primary Education. The association asked that a provision dedicated to religious teachings be annulled and that certain references to gender be deleted.

The Supreme Court ruling comes after the Constitutional Court endorsed, in March, the Lomloe (Organic Law for the Modification of the Organic Education Law), from which the curricula that the Supreme Court has now examined are derived. In its resolution, the Constitutional Court already endorsed that Religion no longer count for the file and clarified that it clarifies that the “gender perspective” to which the appellants referred was mentioned in the law as a pedagogical principle addressed to the Administrations and educational centers, “not to the students to whom the legislator does not impose, therefore, any perspective or ideological adherence”.

The Supreme Court’s pronouncement now goes along a similar line. Regarding the teaching of religion, the high court emphasizes that the norm does not violate the fundamental rights of religious freedom, equality and education, since it “guarantees the offer of the teaching of the Catholic religion”, “and there is no discrimination between those students who have decided to follow, in relation to those who chose not to follow the teaching of the Catholic religion”. For the high court, Concapa’s doubts about the learning of other contents by those who do not opt ​​for religious education, are “expressly resolved” in the text when it states that “the activities referred to in this section in no case they will involve the learning of curricular contents associated with the knowledge of the religious fact or with any area of ​​the stage”.

For this reason, it understands that Concapa’s argument “seems to be based not on the regulation contained in the Royal Decree under appeal, which expressly prohibits what the plaintiff fears, but on its subsequent practical application. Ultimately, it supports the infringements that it denounces on future actions, and therefore hypothetical”.

Regarding references to “gender”, the Catholic confederation considered that references to “gender equality” or the “gender perspective” violate the neutrality that should prevail in the educational field. For the Supreme Court, however, this terminology “is the one followed by the rules of the European Union in all areas.” “Legal certainty, equality, ideological freedom or the right to education are not cracked by references to gender equality in the challenged Royal Decree, following international guidelines since the 1990s, the rules of the European Union, and the Organic Law of Education itself, which provides coverage to the challenged norms”, says the court in a sentence for which the magistrate Pilar Teso has been a rapporteur.

“The normative violations that are alleged in this regard, in short, do not find any justification in the argument put forward by the plaintiff, since the mere reference to ‘gender’, without more, does not imply any indoctrination for the students. On the contrary, when referring to ‘gender equality’ or the ‘gender perspective’, one is referring to equality, which we must not forget is a fundamental right, provided for in article 14 of the Constitution, and one of the highest values of our legal system ”, recalls the high court.

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