Prisoner S., is banged up for a 15-year sentence in the Bielefeld-Brackwede prison in Germany, for "severe crimes against property," and is about half way through his sentence.
He has chafed for some time that lady prisoners housed in a separate facility receive a €25 monthly allowance to spend on cosmetics. They also can use their own mobiles and are given €30 to spend making telephone calls.
The men, on the other hand, are only allowed to make phone calls under exceptional circumstances, and they are always monitored by prison staff.
The rules allow men to use money earned from prison work or small amounts received from relatives to buy toiletries, but all purchased items have to appear on a list approved by the prison. Dentures, glasses, and CD-players are all on the approved list - so are cosmetics -- but only for women. The rules don't allow women to get extra money from relatives to make telephone calls, however in practice this is generally ignored.
This gender inequality rankled with Prisoner S and he decided to file a complaint to the head of the prison authority citing Article 3 of Germany's constitution, which declares: "Men and women enjoy the same rights" and that "No one can be discriminated against or favored on account of his or her gender."
This Fletcheresque approach got short shrift from the head of the prison authority. In rejecting his request for equal treatment , he argued that the cosmetics allowance was justified given the "special circumstances of female incarceration" and that no infringement of rights had occurred because the rules corresponded to "the fundamental differences between women and men."
That didn't wash with prisoner S so he took his case to a district court in Bielefeld. Again his calls for equal treatment were rejected and the Judge ruled that the cosmetic allowance was simply the prison's way of following what is a "general custom" both within and "outside the prison." The ruling also determined that the greater "demand for cosmetics among women" corresponded to an "obviously greater 'natural' need."
So Prisoner S appealed to the appellate court in Hamm - again without success.
Finally his complaint reached the German Federal Constitutional Court,(Bundesverfassungsgericht, BVerfG) in Karlsruhe, the highest in the land. The sole task of this court is judicial review. It may therefore declare public acts unconstitutional and thus render them ineffective.
The court's jurisdiction is focused on constitutional issues, the integrity of the German Basic Law (Grundgesetz) and the immediate compliance of any governmental institution in any detail (article 1 subsection 3 of the Grundgesetz).
Prisoner S applied with a Constitutional Complaint (Verfassungsbeschwerde), as any person may file a complaint alleging that his or her constitutional rights were violated.
Providentially perhaps S's case was heard by Justice Gertrude Lübbe-Wolff (nominated to the court by the SPD) . She determined that equality between the sexes can only be abrogated in circumstances where "nature" makes it "absolutely necessary." The court did not feel that cosmetics and chatting on the phone satisfied this standard. The prison was "not free to choose" to keep the different sexes under unequal conditions.
Geschlechtsbezogene Zuschreibungen, die allenfalls als statistische eine Berechtigung haben mögen (Geschlechterstereotype), und tradierte Rollenerwartungen können danach zur Rechtfertigung von Ungleichbehandlungen nicht dienen.S. didn't get everything he asked for however, the case for making telephones available, will go back to the district court, which will allow the prison to make an argument based on security concerns.
The cosmetics issue, has therefore been settled. Soon S. and his fellow inmates will be able to indulge in all the lipstick, wrinkle dissolving creams and perfumes that €25 a month can buy.
See - Bundesverfassungsgericht - Pressestelle -
Pressemitteilung Nr. 100/2008 vom 2. Dezember 2008
Beschluss vom 7. November 2008 – 2 BvR 1870/07 –
Gleichbehandlung männlicher und weiblicher Gefangener bei Telefongesprächen und beim Einkauf