The Supreme Court. in a judgment of July 14, 2022, annuls the minimum height requirement of 1.60 meters required of women to join the National Police Corps as it constitutes indirect discrimination of them over men, who are required to have a minimum height ( 1.65 meters) less demanding, since the percentage of women (25%) is much higher than that of men (3%) who do not reach the required height.
The rapporteur, Judge Fónseca-Herrero Raimundo, concludes that the indirect discrimination that would occur by setting the same heights for women and men, which was already proclaimed by the Court of Justice of the EU (CJEU) in October 2017, is not saved with the mere fact of setting different minimum heights if the differences in average height, by sex, of the Spanish population are not taken into account, as is the case.
The rapporteur considers that in the selection process there are physical and medical tests that alone guarantee the physical and medical suitability for the performance of the functions attributed to the Police and within the structure of the Police there are functional areas that do not need any physical condition .
The appellant argued that the percentage of women who did not reach the required height was much higher than that of men, so that only a minimum height of 1.54 meters for women would reestablish the necessary equality (she was excluded because she was 1.56 ). For the applicant, the discrimination was a consequence of the fact that the limits set did not meet the current average height standards for men (1.74) and women (1.63) between 20 and 49 years of age.
The ruling upholds the appeal, highlighting first of all that the Administration bears the burden of demonstrating the existence of objective and legitimate reasons for a difference in treatment that is not discriminatory, and no justification is offered in this case in the preamble of the rule regulatory.
As for the State’s attorney’s argument that police officers, regardless of gender, must have characteristics that allow a polyvalence of positions depending on the needs, the ruling answers that the Administration says nothing, however, ” on the justification of the different minimum height in relation to this versatility and its influence on the maintenance of citizen security”.
Likewise, the magistrate points out that the alleged purpose of the rule, of allowing the full participation of both sexes in the functions that are specific to said Police Corps, “has nothing to do with that requirement of a different minimum height, which is in itself discriminatory because it restricts women’s access”.
The Chamber also underlines that in the selection process there are physical and medical tests that alone guarantee the physical and medical suitability for the performance of the functions attributed to the Police, and that, as the appellant points out, within the structure of the Police there are many functional areas that do not need any special physical condition, “much less having a more or less tall stature”.
The sentence also recalls that other police forces require a minimum height below that required by the National Police Corps, such as the Civil Guard (Scale of Corporals and Guards), where it is 1.60 m. for men and 1.55 m. for women.
The Supreme, in addition to annulling the requirement of the Royal Decree that approved the Regulation, declares the exclusion of the appellant from the selection process null and void, recognizing her right to carry out the corresponding tests, and in case of passing said process, the corresponding economic and administrative rights. , including seniority and ranking, will take effect from the same moment they did for the applicants named in the call from which they were excluded.
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