Last October, the Ministry of Justice commissioned an analysis from the law firm Sorainen on how to merge the Gender Equality Act and the Equal Treatment Act. This analysis is now complete.

At the end of January, Gender Equality and Equal Treatment Commissioner Christian Veske — the civil servant whose work and responsibilities would be most affected by the potential legislative changes — requested to see the analysis.

"We have a completely legitimate interest in knowing what is being planned," Veske said.

A letter sent to the Ministry of Justice was of no help. Minister Liisa Pakosta (Eesti 200) thanked him for reaching out, but immediately cited the Public Information Act, which allows for a bill to be designated for internal use only until it is refined enough to be submitted for a round of approval.

"The law allows for this opportunity to prevent unnecessary public panic," Pakosta said. "So that there would be no misconception that, 'Aha, now the bill is finished, and now we're going to start criticizing it."

Masterclass on how not to draw up a bill

The Office of the Gender Equality and Equal Treatment Commissioner, which the Ministry of Justice fears may panic, is a state authority with an annual budget of €570,000.

"Before this bill moved to the Ministry of Justice, it was the responsibility of the Ministry of Economic Affairs and Communications," Veske told ERR. He recalled the substantial and lengthy engagement process at the time, in which his office actively participated.

"But from the moment it moved to the Ministry of Justice, we have no longer been included," he added.

Pakosta, however, explained that the bill's lengthy history is precisely why the Ministry of Justice is exercising restrained communication. She, too, remembered the officials who had previously worked on the bill.

"The Justice Ministry even created a training session using this bill as an example of how not to draw up a bill," she said.

The topic is not an unfamiliar one to Pakosta. On the contrary, she recalled how she had already supported merging the two laws back when she served as the Equal Treatment Commissioner for seven years. In the final years of her term, she commissioned a couple of analyses from Sorainen regarding the matter, and tried to contribute to the process.

Equal opportunities for whom?

This is not just about merging two laws — it's also about striking a balance between equal opportunities and equality.

Pakosta explained that Estonia's current Equal Treatment Act was introduced to comply with the EU's equal treatment directive. That directive was also the result of prolonged international debates, and Pakosta described it as the narrowest possible agreement.

"Our Constitution actually provides broader protections than this European directive," she said, adding that when Estonia drew up its own Equal Treatment act, it adhered strictly to the EU directive. "My goal is for us to establish broader protections that align with our Constitution."

In fact, last spring, even broader protections had been proposed in a bill submitted for a round of approval, but Pakosta referred to the sharp feedback at the time, which suggested [the bill] had gone a bit too far.

"The previous version of the draft proposed establishing human equality," she explained. "To date, our legal system in Estonia has operated on the principle of granting people equal rights and equal opportunities, which is a fundamentally different principle."

Justice Ministry already critical last year

This debate is not divided along party lines. The previous version of the bill was drawn up under the Ministry of Economic Affairs and Communications, then led by Tiit Riisalo, Pakosta's party mate in Eesti 200. The bill was submitted for a round of approval signed by Minister of Social Protection Signe Riisalo (Reform).

Riisalo's own party mate, then-Minister of Justice Madis Timpson, was one of the bill's harshest critics. He noted that part of the bill required employers to collect precise statistics to ensure the equal treatment of men and women even as another part of the bill emphasized that nonbinary people may not be discriminated against.

"The bill also expands the list of protected characteristics, but did not sufficiently analyze where such a generalized expansion could lead," Timpson noted.

He likewise pointed out that the constitutional prohibition of discrimination applies primarily to the public sector, yet the bill proposed that people should also be treated equally in the provision of goods and services, including the rental market."

"People do not have a general obligation to treat each other equally," he emphasized. According to the Constitution, he added, every individual has the right to decide with whom and under what conditions they enter into agreements.

Pakosta subordinates at Economic Affairs Ministry cannot see analysis

After attracting significant criticism, the bill was shelved. Soon after, the Reform Party's Kristen Michal took over as Estonia's new head of government, and the task of merging the two laws was assigned to the Ministry of Justice.

"The Ministry of Justice and Digital Affairs draws up bills with a strong connection to fundamental rights, but which are not actually within our remit," Pakosta stated.

Notably, the relevant departments at the Ministry of Economic Affairs and Communications fall under Pakosta's purview — and even they have not been shown the Sorainen analysis.

"We haven't shared it more broadly, and for a very simple reason," the minister explained. "From this variety of opinions, our goal is to reach a bill that will allow us to move forward calmly and constructively with solutions that fit our legal and cultural framework."

But what exactly is included in this analysis that could cause officials to panic and interfere with calm and constructive discussion?

The minister told ERR that she had only requested one thing from Sorainen — that their lawyers put in writing the exact minimum requirements imposed by the EU's equal treatment directive.

"This minimum framework is actually very well known by both the Commissioner's Office and the Ministry of Economic Affairs and Communications," she said. "It's just that this minimum framework was not available to us in writing from either institution."

Pakosta fears that if this document were to circulate among other state authorities, they may get the impression that the Justice Ministry intends to proceed with the bill as outlined in the analysis.

"We want to move beyond this minimum framework," she emphasized. "This is just one part of the preparatory materials. There's no reason to share it, and no reason for it to be distributed as though this bill were now complete."

No meeting, and calling feels inappropriate

Pakosta confirmed that once the Ministry of Justice has shaped its proposal into a bill, both the officials responsible for equality policy at the Ministry of Economic Affairs and Communications and Gender Equality and Equal Treatment Commissioner Christian Veske will be invited to join in.

Veske said, however, that state authorities should collaborate as early as possible in the legislative process, as he believes this would be more effective.

"Otherwise, a lot of time and money are spent, the bill is finished and only then does it turn out that other parties see major issues with it that now need to be addressed at a later stage," he warned.

Veske's office is now considering how to proceed.

In her response letter, Pakosta noted that she would not share the Sorainen document because it is a preliminary bill. In her interview with ERR, however, she nonetheless stressed that this document is by no means a draft of the bill.

Veske pointed out that if it is an analysis, its findings should be made public by law.

"I find it incomprehensible that these documents aren't being shared," he said. "And it's also a bit baffling that, even in this current situation, we have not been able to meet. I've tried several times to meet with the minister of justice, but so far, the opportunity hasn't come up."

Veske took over the role of Gender Equality and Equal Treatment Commissioner from Pakosta in 2022. The Ministry of Justice was tasked with drawing up the bill in question last summer.

Both Pakosta and Veske clarified that they have crossed paths at a couple of conferences.

"We haven't had a formal sit-down meeting with flags, but we'll get there eventually," Pakosta said.

But could a simple phone call between the director of a state authority and the ministry be enough to clear things up?

"I find it inappropriate to call the minister of justice directly when I haven't first had an official meeting with her," Veske replied.

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