Can or should schools in Norway exclude student teachers from the Christian university college NLA to protect the rights of sexual minorities?

2.1 Do teachers have the same freedom of religion as others?

The first question is whether teachers have the same freedom of religion as others. Do school leaders have an obligation to establish professional boundaries for freedom of religion to protect the values sought to be transmitted by the school system? Suppose one can claim that teachers do not have the same freedom of religion as others. In that case, it might open a window to claim that teacher training colleges are not at liberty to teach a doctrine that undermines the aims of education, which teachers have a duty to promote. This assertion may provide a foundation for justifying the actions of the ten schools that, according to NLA, have refused to admit student teachers from NLA.

In Norway, freedom of religion has constitutional protection. Article 16 of the Constitution of Norway stipulates: ‘All inhabitants of the realm shall have the right to free exercise of their religion’. According to Section 6 of the Equality and Anti-Discrimination Act ‘Discrimination on the basis of […] religion, belief, […] is prohibited’.

Norway has also ratified the International Covenant on Civil and Political Rights (ICCPR), which has been incorporated into the Human Rights Act (Law of 21 May 1999 no 30), thereby making it directly applicable as Norwegian law and giving it precedence over any other legislative provisions that conflict with it (Section 3 Human Rights Act). The most important provision on freedom of religion is Article 18 ICCPR. Paragraph 1 of that provision stipulates:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) also protects freedom of religion, with a wording that is very similar to that of Article 18 ICCPR. The freedom does not just include thoughts, conscience, and the private faith of a person, but also the right to manifest that faith in public, worship, observance, practice and teaching (including proselytising). The right must be understood together with the principles of non-discrimination enshrined in Articles 2(1) and 26 ICCPR. Nobody may be discriminated against based on religion or political or other opinions. Article 27 ICCPR protects the rights of religious minorities to ‘profess and practise their own religion’. Article 20 ICCPR states that advocacy based on ‘religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. This point is also reflected in Section 185 of the Norwegian Penal Code (Law of 20 May 2005 no 28), which provides a penalty of a fine or imprisonment for a term not exceeding three years to any person who, with intent or gross negligence, publicly makes a discriminatory or hateful statement on the basis of ‘religion or life stance’.

Thus, freedom of religion is a fundamental human right protected by law in Norway, and discrimination based on religion or the spreading of hate speech based on religion is prohibited.

However, there are exceptions to these rules. Article 18(3) ICCPR states:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

These limitations are similar to that of other freedoms, such as Article 12(3) ICCPR on the liberty of movement, Article 19(3) ICCPR on freedom of expression, Article 21 ICCPR on freedom of assembly and Article 22(2) ICCPR on freedom of association. The United Nations (UN) Human Rights Committee points out that ‘paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights’.¹⁶ First, any limitation to freedom of religion must be ‘prescribed by law’. Thus, one cannot undertake private assessment of what one would think is necessary. Second, that law must be ‘necessary to protect […] the fundamental rights and freedoms of others’. In our case, the right to primary and secondary education is central here.

The right to education is a fundamental human right, and it cannot be separated from the laws that define the aims of education. The aims are an essential part of that right.¹⁷

According to Section 9 of the Norwegian Equality and Anti-Discrimination Act (Law of 16 June 2017 no 51), discrimination based on religion or belief is permitted if the religion or belief ‘is of decisive significance for the performance of the work or the pursuit of the occupation’. The (prescribed) laws that define the aims of education provide the framework for what is of decisive significance for the performance of a teacher’s work. The most important Norwegian laws that define the aims of education in Norway are Article 109 of the Norwegian Constitution and Section 1-1 of the Education Act (Law of 17 July 1998 no 61).

In addition, the UN Convention on the Rights of the Child (CRC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have been incorporated into the Human Rights Act, giving these two treaties status as law in Norway, according to Section 2 of that Act. In addition, as already noted, Section 3 of the Act stipulates that such treaties ‘take precedence over any other legislative provisions that conflict with them’, including the Education Act. Article 29(1) CRC and Article 13(1) ICESCR define the aims of education.¹⁸

In some cases, teachers in Norway have been dismissed because they have said or done things that grossly undermine the aims of education reflected in Section 1-1 of the Education Act. The most significant Supreme Court case is the case of Hoaas v Nordland fylkeskommune.¹⁹ It involved a teacher in upper secondary school (‘videregående’) who had both publicly and in his teaching expressed explicitly racist views about the mixing of races; he denied the Holocaust and was very critical towards immigration policies. He said that adopting coloured children was tantamount to treason. He was dismissed from his teaching position. The Supreme Court of Norway found that the dismissal was legal. The Court held that a teacher must respect and uphold the aims of education, as prescribed by law, including the promotion of tolerance and non-discrimination, both in class and also outside the school gates. The Court emphasised that teachers are free to challenge established truths and express views that are contrary to the aims of education, but there are limits. The Court added that expressions of ‘gross violations’ (‘grove krenkelser’) of the aims of education could seriously undermine the professional trust and confidence a teacher needs in order to perform their duties. In such a case, the municipal school leadership could dismiss a teacher because of his or her expressed opinions.²⁰

In a case heard by the Borgarting Court of Appeal, a teacher was given a formal warning for expressing what he himself did not regard as racist remarks, but the students found offensive.²¹ He called one of the students a ‘negro’ and said that the reason why he was ‘lazy and stupid’ was because people from the Dominican Republic (where the students came from) do not go to school but ‘climb in trees and eat bananas’. The Court of Appeal held that it was appropriate to give the teacher a formal warning.

In a case dealt with by the Parliamentary Ombud for Scrutiny of the Public Administration, a teacher was given a formal warning for posting a Facebook comment about how she detested the sight of a well-known Muslim woman in Norway (Sumaya Jirde Ali).²² The comment seemed to be directed at her because she is a Muslim, and it could be interpreted as a derogatory statement against Muslims in general. The Municipal School leadership referred to the aforementioned Supreme Court decision (the Hoaas case) and argued that the teacher’s statements undermined the objects clause of the Education Act and consequently her reputation as a teacher. However, the Parliamentary Ombud found that her statements were not gross enough to seriously undermine the aims of education as defined by the objects clause of the Education Act (Section 1-1). Since she had conducted her duties in class in an excellent manner, her statements outside the school gates could not be said to meet that threshold – teachers must also have a certain level of freedom of expression in general.

There are several court cases in other countries regarding dismissal of teachers for undermining laws defining the aims of education.²³ In addition, there are two significant international cases – Ross v Canada²⁴ and Vogt v Germany²⁵.

The first-listed of these cases concerned Malcolm Ross, who worked as a resource teacher for remedial reading in a school district of New Brunswick in Canada from 1976 to 1991. He published several books and pamphlets in his spare time and made other public statements, including a television interview regarding his views about Christianity and Jewish beliefs and teachings. Among other things, he warned against the Jewish faith and argued that Christianity was under attack from Zionist interests. A Jewish parent, whose children attended another school within the same school district, filed a complaint with the district’s Human Rights Commission, claiming that the School Board, by failing to take action against the teacher, condoned his anti-Jewish views and in effect violated his children’s right to an educational service that was free from discrimination based on their faith. A Human Rights Board of Inquiry was established to investigate the complaint. They held that Ross had continually, over many years, contributed to the creation of a ‘poisoned environment’ within the school district which had greatly interfered with the educational services provided to the Jewish children. They submitted that the School Board was vicariously liable for the discriminatory actions of its employee due to its failure to discipline the teacher in a timely and appropriate manner, thereby endorsing his out-of-school activities and writings. Consequently, the School Board transferred him to a non-classroom teaching position, and prohibited him from teaching anymore. Ross challenged this decision, arguing that it violated his freedom of religion and freedom of expression. He took the case all the way to the Supreme Court of Canada, which held:

By their conduct, teachers, as ‘medium’ of the educational message (the values, beliefs, and knowledge sought to be transmitted by the school system), must be perceived as upholding that message. A teacher’s conduct is evaluated on the basis of his or her position rather than whether the conduct occurs within or outside the classroom. A school board has a duty to maintain a positive school environment for all persons served by it, and it must be ever vigilant of anything that might interfere with this duty. It is not sufficient for a school board to take a passive role. […] By their conduct, teachers as ‘medium’ must be perceived to uphold the values, beliefs, and knowledge sought to be transmitted by the school system. […] Teachers are seen by the community to be the medium for the educational message, and because of the community position they occupy, they are not able to ‘choose which hat they will wear on what occasion’.²⁶

Thus, according to the Court, a teacher is a medium for the educational message (the aims of education) and has a duty to ‘uphold the values, beliefs and knowledge sought to be transmitted by the school system’, meaning the aims of education. This duty extends beyond the school gates to the wider community. Thus, the Court condoned the decision to dismiss Ross from his teaching post.

Ross subsequently filed a complaint to the UN Human Rights Committee, alleging a violation of Articles 18 and 19 ICCPR. Article 18(1) ICCPR lays down a right to freedom of thought, conscience and religion while Article 19(1) and (2) ICCPR stipulate:

Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds ….

The right may include religiously held views and ideas. In respect of Article 19 ICCPR, the Committee held:

In the circumstances, the Committee recalls that the exercise of the right to freedom of expression carries with it special duties and responsibilities. These special duties and responsibilities are of particular relevance within the school system, especially with regard to the teaching of young students. In the view of the Committee, the influence exerted by schoolteachers may justify restraints in order to ensure that legitimacy is not given by the school system to the expression of views which are discriminatory. […] In that context, the removal of the author from a teaching position can be considered a restriction necessary to protect the right and freedom of Jewish children to have a school system free from bias, prejudice and intolerance.²⁷

Thus, freedom of expression is somewhat limited for teachers compared to other individuals. Being a teacher carries with it special duties and responsibilities associated with that profession. These duties are inseparable from the aims of education. Nobody is forced to become a teacher; it is a choice – a calling, some might say.

It could be argued that the expressions of Ross were tantamount to ‘hate speech’ and that they should have been sanctioned regardless of his status as a teacher.²⁸ Consequently, this would mean his freedom of expression was not, in reality, restricted on the basis of his profession. However, Canada did not challenge his right to say any of the things he had said about Jewish people and their faith as a private citizen. In fact, Canada first tried to argue that Ross had not established how his freedom of expression had been limited. The Human Rights Committee did not agree with that assessment, arguing that his freedom had indeed been limited by dismissing him from his teaching position. Canada then argued that he was free to express his views while employed by the school board in a non-teaching position or while employed elsewhere.²⁹

Specifically, with regard to Article 18 ICCPR, on freedom of religion, the Committee said that ‘the actions taken against the author […] were not aimed at his thoughts or beliefs as such, but rather at the manifestation of those beliefs within a particular context’.³⁰ Therefore, they held that the dismissal was not a violation of freedom of religion for the same reasons argued in relation to freedom of expression.

On the basis of this case, one may conclude that teachers have a duty to uphold and promote the aims of education and that they are not free to teach whatever they themselves think is important, fitted to whatever normative inclinations they possess. A teacher must also make sure not to undermine the aims of education outside the school gates. Thus, if they want to be a teacher, they do not have the same freedom of expression or religion as they would as normal citizens. The Committee did not discuss how seriously or grossly teachers would have to violate the aims of education to justify a dismissal, but it seems clear that Ross had indeed grossly violated the aims of education, as he had created what was described as a ‘poisoned school environment’ for Jewish people and especially Jewish children in that school environment.³¹

The other case of relevance is Vogt v Germany, a case brought before the European Court of Human Rights (ECtHR) in 1995.³² Mrs Dorothea Vogt was a secondary school teacher. She taught German and French. Her reputation as a teacher was impeccable, and she was held in high regard by her pupils, their parents, and her colleagues. However, she was a dedicated member of the German Communist Party (Deutsche Kommunistische Partei – DKP). She was dismissed from her position due solely to her membership and support for the DKP. The authorities held that the DKP’s objective, at the material time, had been the overthrow of the free democratic order in the Federal Republic of Germany and that they received their instructions from the East German and Soviet communist parties. Her refusal to dissociate herself from that party was seen as a violation of domestic laws requiring civil servants (including teachers) to show political loyalty to the democratic constitutional order. The German Government argued that:

The Federal Republic of Germany had a special responsibility in the fight against all forms of extremism, whether right-wing or left-wing. It was precisely for that reason and in the light of the experience of the Weimar Republic that the duty of political loyalty had been introduced for civil servants. The civil service was the cornerstone of a ‘democracy capable of defending itself’. Its members could not therefore play an active role in parties, such as the DKP, that pursued anti-constitutional aims. […] Even though no criticism had been levelled at the way she actually performed her duties, she had had, nevertheless, as a teacher, a special responsibility in the transmission of the fundamental values of democracy.³³

That being said, the DKP had not been banned by the Federal Constitutional Court, and their activities and aims were legal. Mrs Vogt had never personally expressed any disregard for the constitution or democracy. The ECtHR noted that there was a risk that:

[C]ontrary to the special duties and responsibilities incumbent on teachers, she would take advantage of her position to indoctrinate or exert improper influence in another way on her pupils during lessons. Yet no criticism was levelled at her on this point.³⁴

This risk, however, had to be proportionally weighed against the harsh measures of dismissing her from her job and the fact that it would be hard for her to find another relevant job.

The court was evenly split on this matter. The decision was adopted by the narrowest possible margin. Ten against nine, the judges held that:

Since teachers are figures of authority to their pupils, their special duties and responsibilities to a certain extent also apply to their activities outside school. However, there is no evidence that Mrs Vogt herself, even outside her work at school, actually made anti-constitutional statements or personally adopted an anti-constitutional stance. […] In the light of all the foregoing, the Court concludes that, although the reasons put forward by the Government in order to justify their interference with Mrs Vogt’s right to freedom of expression are certainly relevant, they are not sufficient to establish convincingly that it was necessary in a democratic society to dismiss her.³⁵

Thus, Germany had indeed violated Article 10 ECHR, which lays down the right to freedom of expression. However, the primary dissenting opinion supported by all nine dissenting judges held:

We are of the opinion that the disciplinary measures against Mrs Vogt, […] do not violate Article 10 […]. Her dismissal as a teacher in public service was […] proportionate and could be considered necessary in a democratic society.[…] It is obvious that activities of this kind are bound to become known in a school and among the pupils even if the teacher concerned does not disseminate his or her political convictions in the classroom.[…] If a person like Mrs Vogt professes to support all the points of the DKP’s programme and affirms at the same time his or her respect for the constitutional order, these assertions are equally incompatible with each other. […] bearing in mind Germany’s special history, […] the State must be entitled to dismiss civil servants, including schoolteachers, who are actively engaged in activities on behalf of anti-democratic parties. This must be valid for all extremist parties […]. Mrs Vogt’s dismissal could therefore be considered by the German authorities to be necessary in a democratic society in conformity with Article 10.³⁶

It seems to have come down to a question of the trustworthiness of Mrs Vogt. Both the majority and minority opinions held that teachers have a special duty to uphold, respect and promote the values sought to be transmitted by the education system, in other words, the aims of education. The majority trusted her when she said that she believed in, respected, and promoted these aims, but the minority did not find that trustworthy since she had a senior position in the DKP.

As to the issue of seriousness, the majority held that ‘to dismiss Mrs Vogt by way of disciplinary sanction from her post as secondary-school teacher was disproportionate to the legitimate aim pursued’.³⁷ They also hinted at an argument that there had to be some leeway and that rules of public loyalty could not be practised as an ‘absolute’ duty of zero tolerance for any opinions that might slightly deviate from the values sought to be transmitted by the school system.³⁸

Although these are only two international cases, no other international legal sources speak to the contrary of the conclusions reflected in these two cases, namely that teachers have a professional duty to defend and respect the aims of education, both inside and outside the school gates. This duty also applies to teachers of private (including Christian) school institutions.³⁹

All in all, it seems clear that teachers have a professional duty to uphold and respect the aims of education as they are codified by international law and national laws. This duty extends to their spare time activities as well. A teacher is not free to be a member of any organisation (including religious organisations) or say things in public that grossly or seriously undermine the aims of education. Their freedom of expression is thus somewhat limited compared to other people. School authorities have a duty to dismiss a teacher who, through their actions or expressions, including religious expressions, grossly undermine the aims of education.

A teacher who is given new tasks and aims may also refuse to respect and promote them if they are contrary to national or international laws on the aims of education; indeed, one may argue that teachers have a duty to oppose such local aims.⁴⁰ This point might also be the case for teachers who are asked to serve as trainee supervisors for NLA students – they might have a duty to oppose this task if such an action seriously undermines the national or international aims of education. For example, suppose a Nazi University College is teaching its student teachers to believe in the superiority of the Aryan race. In that case, one might expect school teachers to refuse to supervise students from that college. The schools should not sign cooperation contracts with such a university college because such an act would grossly undermine the aims of promoting tolerance and respect for the rights of minorities, including Jewish people.⁴¹

2.2 Teacher colleges and their duties

The purpose of teacher training colleges is to educate teachers who are fully capable of fulfilling their duties in schools. The UNESCO Recommendation Concerning the Status of Teachers (1966) defines a teacher as ‘all those persons in schools who are responsible for the education of pupils’ (Article I(1)). The Committee on the Rights of the Child (CtRC) proclaims that the aims of Article 29(1) CRC

[…] cannot be effectively integrated into, and thus be rendered consistent with, a broader curriculum unless those who are expected to transmit, promote, teach and, as far as possible, exemplify the values have themselves been convinced of their importance. Pre-service and in-service training schemes which promote the principles reflected in article 29(1) are thus essential for teachers, educational administrators and others involved in child education.⁴²

Teacher colleges must thus make sure that the students as far as possible learn to exemplify the values of the aims of education (both the national and international aims) and that they become convinced of the importance of these aims. A teacher training college that seeks to instil in students values that undermine the aims of education is problematic. Such a college cannot be said to educate teachers fit to exemplify and promote the aims of education – the social mandate of the schools. School authorities would thus have a duty to distance themselves from such a teacher training college.

Having said that, one cannot necessarily conclude that students of NLA share the faith in marriage between men and women just because they are students at this institution. Even if they did, that would not necessarily affect their performance as teachers. In addition, one must clarify if such a traditional faith in marriage is in violation of the aims of education as defined by national and/or international law.

3.1 Does the NLA position on marriage grossly undermine the aims of education?

So, it has been established that a teacher cannot seriously undermine the aims of education and that teacher training colleges must educate teachers who exemplify, respect and promote the aims of education. A teacher might also have a professional duty to refuse to take a post as a trainee supervisor if the college education of the student teachers grossly undermines the legally prescribed aims of education, and schools might have a duty not to enter into cooperation agreements with such university colleges.

However, it all depends on what it means to undermine the aims of education. Therefore, my second question is this: Does a traditional faith in marriage between man and woman, reflected in the NLA document, grossly or seriously undermine the national aims of education in Norway or the international aims?

3.2 Norwegian laws on the aims of education

There are both Norwegian national laws on the aims of education and international laws on the aims of education. First, I consider the Norwegian laws on point. The aims of education in Norway are mainly defined by Section 1-1 of the Education Act and the ‘Core Curriculum – values and principles for primary and secondary education’ (‘Overordnede del av læreplanen – verdier og prinsipper for grunnopplæringen’). The former Vice Mayor for Education and Child Services, responsible for all secondary and primary schools in Oslo, Inga Marte Thorkildsen, has argued that the NLA document is in violation of the social mandate of schools, which would normally mean the Education Act and the Core Curriculum, but she has not substantiated her argument.⁴³

There is nothing in the Education Act on marriage, sexuality or other matters related to such topics. However, Section 1-1 states that ‘All forms of discrimination shall be combated’. One might argue that this general non-discrimination clause should include sexuality and that a traditional view of marriage would be discriminatory, referring to Section 6 of the Equality and Anti-Discrimination Act which forbids discrimination based on ‘sexual orientation’. On the other hand, this same provision also forbids discrimination based on ‘religion’ and ‘belief’.

The last paragraph of Section 1-1 of the Education Act also states that ‘Education and training shall […] show respect for the individual’s convictions’. Thus, the educational emphasis seems to be more specific on non-discrimination based on faith and convictions.

However, education cannot promote respect for convictions that grossly or seriously undermine other core aims of education.⁴⁴ Thus, all convictions are not included. Might one say that the faith in marriage between man and woman is in violation of the non-discrimination education aim?

To clarify the anti-discrimination formulation in Section 1-1 of the Education Act, one must turn to court decisions, the preparatory works and the Core Curriculum (Overordnet del av læreplanen), which elaborates and clarifies the aims of education enshrined in Section 1-1 of the Education Act. However, there are no relevant court decisions that discuss this anti-discrimination aim in relation to sexual orientation or convictions on marriage.

The Bostad committee that studied and prepared the proposal forming the basis of the anti-discrimination formulation in Section 1-1 of the Education Act did not make any references to discrimination based on sexuality. The Committee certainly did not discuss the balance between discrimination based on faith and sexuality. They did not say much about the anti-discrimination formulation at all, and none of the other preparatory works seem to address sexuality.⁴⁵

Instead, one might turn to The Core Curriculum – values and principles for primary and secondary education.⁴⁶ This elaborates Section 1-1 of the Education Act. It is the most important document to clarify the aims of education as they are enshrined in Section 1-1 of the Education Act. The Core Curriculum is also the basis for the detailed curriculum of all the different subjects in school.⁴⁷ In this document, there is one sentence that mentions sexuality. It is part of the topic ‘Health and life skills’. It states: ‘Relevant areas within this topic are physical and mental health, lifestyle habits, sexuality and gender, drug abuse, media use and consumption and personal economy’.⁴⁸ Same-sex marriage is not mentioned. It is not possible to say that a traditional faith in marriage between man and woman is in violation of the aims of promoting ‘Health and life skills’ just because sexuality is mentioned as one of many other relevant topics within this area. It is stated in the next sentence that issues that come under this topic are value choices and the importance of ‘meaning in life and relations with others, the ability to draw boundaries and to respect others’ boundaries, and the ability to deal with thoughts, feelings and relationships’.⁴⁹ These are important issues related to health and life skills too. Relationships and feelings about sexuality are related to ‘meaning in life’, which is a question of faith. This point must be interpreted in relation to Section 1-1 of the Education Act, which is the legal foundation for the Core Curriculum, which, as mentioned, explicitly states that education shall promote respect for ‘the individual’s convictions’.

In conclusion, I find no evidence that the NLA document is undermining the Education Act or the Core Curriculum. As Article 109 of the Norwegian Constitution provides that education shall promote respect for human rights, I will address this provision below in para. 3.3, when I analyse the human rights education aims of education.

3.3 International human rights and aims of education?

What about international law? Does the NLA document grossly undermine international laws on the aims of education?

There are no legally binding international treaty provisions on the aims of education which specifically mention sexuality or same-sex marriage. However, according to Article 26(2) of the Universal Declaration of Human Rights (UDHR), education shall be directed to the ‘strengthening of respect for human rights’. This same aim is reflected in the aforementioned Article 29(1)(b) CRC and Article 13(1) ICESCR. As noted above, these two treaties have been incorporated into the Norwegian Human Rights Act, giving them the force of law (Section 2) and ‘precedence over any other legislative provisions that conflict with them’ (Section 3). In addition, this aim is enshrined in a long list of other conventions⁵⁰ and declarations.⁵¹ It is part of what one might call the human rights education (HRE) aims. This HRE aim is also enshrined in Article 109 of the Norwegian Constitution.

The purpose of the HRE aim is to promote respect for the rule of human rights law. The aim is not to learn ‘about’ human rights in general or to respect human rights laws as abstract principles. The emphasis must be on promoting respect for minorities and vulnerable groups’ rights, including sexual minorities’ rights. The aim of human rights education is to promote a society based on the rule of human rights law for all human beings, not just promoting respect for human rights as an abstract concept in itself.⁵²

In 2006 a set of human rights principles—the Yogyakarta Principles—in relation to sexual orientation and gender identity was adopted by the International Commission of Jurists, the International Service for Human Rights and a series of world-leading human rights experts.⁵³ Principle 16 concerns education. It provides that:

Everyone has the right to education, without discrimination on the basis of, and taking into account, their sexual orientation and gender identity. States shall: […]

B. Ensure that education is directed to the development of each student’s personality, talents, and mental and physical abilities to their fullest potential and responds to the needs of students of all sexual orientations and gender identities;

C. Ensure that education is directed to the development of respect for human rights, and of respect for each child’s parents and family members, cultural identity, language and values, in a spirit of understanding, peace, tolerance and equality, taking into account and respecting diverse sexual orientations and gender identities; […]

E. Ensure that laws and policies provide adequate protection for students, staff and teachers of different sexual orientations and gender identities against all forms of social exclusion and violence within the school environment, including bullying and harassment;

These principles are largely based on a fairly authoritative interpretation of existing human rights laws on the aims of education. Education should promote respect for persons with ‘diverse sexual orientations and gender identities’ and their rights. Education should also combat prejudice and intolerance towards persons of different sexual orientations and gender identities.

One might add that the Committee on the Rights of the Child (CtRC) have called upon states to take effective action to protect all ‘lesbian, gay, bisexual, transgender and intersex adolescents from all forms of […] discrimination or bullying by raising public awareness and implementing safety and support measures’.⁵⁴

However, one cannot say that the NLA document is undermining sexual minority rights in general. The important question is if same-sex marriage is a human right. If same-sex marriage is an international legal human right, one might argue that a teacher training program cannot speak with two tongues – they cannot make a declaration that they believe in marriage between man and woman and at the same time promote respect for same-sex marriage.

Same-sex marriage is not mentioned in any human rights conventions adopted by states. There are only 29 countries in the world that have legalised same-sex marriage.⁵⁵ Furthermore, no treaty bodies have found that non-recognition of same-sex marriage is a violation of any treaties.

One might argue that general provisions of non-discrimination, or the wording of other provisions on general principles, provide a right to same-sex marriage. However, one cannot ignore the context of treaties and international law. According to the Vienna Convention on the Law of Treaties (VCLT), ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning […] in their context and in the light of its object and purpose’ (Article 31(1)). Richard Gardiner explains:

It is necessary to stress that the ordinary meaning [of a treaty provision] is not an element in treaty interpretation to be taken separately […]. Nor is the first impression as to what is the ordinary meaning of a term anything other than a very fleeting starting point. For the ordinary meaning of the treaty, terms are immediately and intimately linked with context and then to be taken in conjunction with all the other relevant elements of the Vienna Rules.⁵⁶

Arguably, the most important context to consider is the basic nature of a treaty (convention). According to Article 2(1)(a) VCLT, a treaty is ‘an international agreement concluded between States in written form and governed by international law’. It is an agreement, a contract of sorts between states, and the states ultimately decide how their own contract should be understood. Thus, when interpreting treaties, one must look for evidence of a substantial agreement among the states parties to the treaty. The relevant context is also defined in Article 31(2) and (3) VCLT. In relation to UN human rights treaties, it includes general comments and concluding observations from the treaty bodies. It also includes other conventions and agreements between states, including declarations.

However, there are no conventions, declarations, general comments, concluding observations, jurisprudence, international court decisions, or any other relevant legal sources that conclude that same-sex marriage is a violation of any human rights treaties. To be sure, principle 24(E) of the Yogyakarta Principles does mention same-sex marriage. This Principle is not a legal document adopted by states, yet it might, nevertheless, reflect evidence of opinio juris among a substantial number of legal scholars. Principle 24(E) stipulates that states shall:

Take all necessary […] measures to ensure that in states that recognise same-sex marriages […] any entitlement, privilege, obligation or benefit available to different-sex married […] is equally available to same-sex married or registered partners.

The wording ‘in states that recognise same-sex marriages’ indicates that recognition of same-sex marriage is optional and not an obligation of states.

Article 12 ECHR holds that ‘[m]en and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’. In relation to same-sex marriage, the ECtHR has stated:

[A]rticle 12 of the Convention is a lex specialis for the right to marry. It secures the fundamental right of a man and woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law. It enshrines the traditional concept of marriage as being between a man and a woman […] While it is true that some Contracting States have extended marriage to same-sex partners, article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples⁵⁷

This court decision reflects the tension between, on the one hand, ensuring same-sex partners the same legal protections as heterosexual spouses and, on the other hand, maintaining the states’ right to preserve marriage as an exclusive relationship between heterosexual men and women.⁵⁸

The Court of Justice of the European Union (CJEU) has also found that:

[A]s EU law currently stands, a person’s status, which is relevant to the rules on marriage […] is a matter that falls within the competence of the Member States, and EU law does not detract from that competence. The Member States are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law.⁵⁹

Thus, the CJEU also finds that states are free to prohibit same-sex marriage without violating EU law.

Summing up, there is no firm evidence to support a claim that same-sex marriage is a human right. Teachers are thus not obliged to promote respect for same-sex marriage as a human right. It is not a human right and thus not part of the human rights education aims defined by international law or Article 109 of the Constitution of Norway. Accordingly, the NLA document is not in violation of the human rights education (HRE) aims of education.

On the other hand, though, one must conclude that freedom of religion is a concrete and firm human right. Education must promote respect for religious groups’ right to freedom of religion. In addition, Article 26(2) UDHR specifically states that education ‘shall promote understanding, tolerance and friendship among all […] religious groups’. Religious groups are also included in Article 29(1)(d) CRC and Article 13(1) ICESCR. The historical context is also of essential importance in relation to the promotion of respect for the rights of religious groups and the obligation to promote tolerance and understanding towards these groups. It was a religious organisation, the World Jewish Congress, which in 1947 proposed to include the aims of education in the UDHR. A mere two years after the Holocaust, this was an issue of tremendous importance for the Jewish representatives. They argued that the importance of the ‘spirit of education’ was ‘possibly greater than that of all the other articles of the Declaration’.⁶⁰

Promoting respect for different faiths might feel like a contradiction in itself, because many religious groups believe that all the other religions are wrong and that people who believe in ‘false religions’ are doomed to some horrible fate. Thus, such faiths are opposed to other faiths. However, that is an intolerance that must be tolerated.

It seems clear that the HRE aims do not require teachers to promote respect for same-sex marriage, but they do require teachers to promote respect for different faiths, including religious groups that believe in marriage between men and women. This conclusion means that there are no legitimate grounds for discriminating against NLA students on the basis of an indirectly associated connection to faith in marriage between man and woman.

4.1 Is the discrimination of NLA students illegal?

The third question posed in the paper is if the action of the ten schools in Oslo illegal or unethical, or whether they should be praised for their action to defend the principle of non-discrimination based on sexuality and the inherent dignity of human beings.

According to Section 6 of the Norwegian Equality and Anti-Discrimination Act, ‘[d]iscrimination on the basis of […] religion, belief, […] is prohibited’. This provision also specifies that discrimination means direct or indirect differential treatment. Section 7 defines direct differential treatment as ‘treatment of a person that is worse than the treatment that is, has been or would have been afforded to other persons in a corresponding situation, on the basis of factors specified in section 6’, such as religion or belief.

The prohibition of discrimination based on religion is also a prominent part of international law. For instance, Article 26 ICCPR stipulates:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as […] religion.

The UN Human Rights Committee have pointed out that:

The term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as […] religion[…] and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.⁶¹

Differential treatment based on religion must, according to Article 18(3) ICCPR and Article 9(2) ECHR, be ‘prescribed by law’ and necessary to protect the rights of others (including the right to education).⁶²

Section 9 of the Norwegian Equality and Anti-Discrimination Act specifies:

In employment relationships […] direct differential treatment on the basis of […] religion, belief, […] is only permitted if the characteristic in question is of decisive significance for the performance of the work or the pursuit of the occupation.

The laws on the aims of education define what is of ‘decisive significance for the performance of the work’ of a teacher. Schools and school leaders have a duty to guard against expressions of faith and opinions that grossly or seriously undermine these laws on the aims of education.⁶³ However, there is no evidence to support the claim that a traditional faith in marriage grossly undermines Norwegian laws or the international laws on the aims of education.⁶⁴

Thus, there is no legal basis for discrimination of the NLA University College because they have an expressed faith in marriage between man and woman. There are no legal grounds for discriminating against the NLA students for merely being associated with that expression of faith. As there are no legal grounds for justifying discrimination of NLA students, such discrimination is illegal according to Section 6 of the Equality and Anti-Discrimination Act. It is equally illegal according to international law. It would be a violation of non-discrimination rights (for instance, Article 26 ICCPR) and the right to freedom of religion (Article 18(1) ICCPR and Article 9(1) ECHR).

4.2 Civil disobedience as an ethical option

Birgitte Fjørtoft and Solveig Østrem have argued that this fixation on the legality of the actions of these schools leads to an overly narrow perspective on the matter. They argue that the real issue at stake is the ethical dilemmas and that the school leaders should be praised for their courage and professionalism in their defence of the principles of non-discrimination based on sexuality.⁶⁵

Normally one would first assess whether actions are legal and then subsequently reflect on the ethical aspects of actions. Civil disobedience is sometimes ethically defendable. However, the ethical consequences of saying that opinions concerning faith in a traditional form of marriage should be prohibited in schools in order to promote respect for the principles of non-discrimination on the grounds of sexuality would severely restrict freedom of religion for teachers. It would mean, in effect, that many thousands of teachers in Norway and millions of teachers around the world are ethically unfit to practise as teachers. The faith in marriage between man and woman is normal in many of the biggest religious communities worldwide.

Moreover, even these arguments about ethics seem to lack any basis in ethical guidelines. In the ethical guidelines for teachers in Norway, there is no mention of sexuality, and certainly not of same-sex marriage.⁶⁶ Fjørtoft and Østrem try to justify the schools’ action by referring to this sentence in the guidelines: ‘Each individual person’s personality and integrity must be met with respect. No form of oppression, indoctrination or prejudiced opinions shall be tolerated’.⁶⁷ However, what about the integrity of people of different faiths? And would it be ethical to oppress student teachers because they are associated with a faith that Fjørtoft and Østrem find unacceptable, based on this very general norm? As Martii Koskenniemi puts it, regarding Article 1 UDHR, it is a ‘kind of a natural morality, or a theology whose abstractness can always be shifted to serve particular interests’.⁶⁸ Civil disobedience cannot be justified ethically by simply referring to a moral feeling. One cannot ethically justify such action by saying that all teachers that do not share the right moral feeling should be excluded from practising as teachers. One can certainly not ethically justify discriminating against students for simply being associated with such a wrong moral feeling.