THE HAGUE, 10/06/09 - Schools are allowed to exclude practising homosexual teachers if this behaviour is against their religious principles. So says the Council of State in as yet confidential written recommendations to the cabinet, Nederlands Dagblad newspaper reported yesterday.

The requirements that schools impose on teachers must not lead to discrimination. Specific requirements for behaviour in or outside the school are however permitted when "these can be adequately related to the religion/ideology that forms the basis of the institution," according to the government's most important advisory body.

The Council of State concludes that the so-called 'single fact construction' can be dropped. It is still the case now that someone cannot be excluded as a teacher due to the 'single fact' that he is homosexual. There must be a question of 'additional circumstances' if someone is rejected or dismissed.

In the 15 years that the Equal Treatment Act (AWGB) has been in force, it has however never become clear where the boundary lies between the 'single fact' and 'additional circumstances.' Which 'additional circumstances' could be permissible and which could not has also remained vague. The cabinet had requested the Council of State's advice partly for this reason.

The Council of State now proposes replacing Article 5 of the AWGB. The anti-discriminatory principle remains completely intact, but religious and ideological institutions may under strict conditions impose specific requirements. These must be "substantial, legitimate and justified" with an eye to "an attitude of (...) loyalty" to the religious or ideological basis of the school.

Christian schools and institutions also have "a great freedom" in establishing the goal that schools want to attain with the requirements. A decisive factor is that their own rules are consistently applied. The Council of State bases its advice on European rules.

The Council deduces from EU treaties that EU member states can give wider freedoms to 'confessional educational institutions' than to other ideological organisations, such as hospitals. This difference is made because it is actually in education that the transfer of "identity-determining standards and values" takes place.

The Council of State's recommendations are presently with the cabinet. It is not yet known when the government will give its response to the advice.