Freedom of association: should we be splitting hairs?
"I'm a member of a student association that glorifies the mullet: only people with this legendary mane can join. We hold conferences and hair evenings. However, the university has just withdrawn our official label, deeming the exclusion of non-mulets to be discriminatory! We're walking on thin ice, aren't we?
G.
Your association can certainly continue to exist, but the university is not obliged to publicly endorse it if its articles of association contravene the fundamental principle of equality that it must respect.
In Switzerland, any association is freely established under articles 60 et seq. of the Swiss Civil Code as long as it pursues a lawful purpose and does not contravene public policy. It is free to choose its members. This autonomy derives directly from the freedom of association guaranteed by article 23 of the Swiss Constitution. At this stage, nobody can prevent you from celebrating the mule and your passions, as long as you do not infringe certain rules such as those prohibiting incitement to hatred or attacks on personality.
The situation changes as soon as a public body - a cantonal university, for example - grants its recognition, which enables it to obtain subsidies, the provision of premises, official visibility or even the right to recruit in a specific area. By granting such advantages, the institution acts as an authority and must itself comply with Article 8 of our Constitution, which prohibits arbitrary discrimination. According to recent case law, a university can - and indeed must - withdraw its support if the conditions of access set by an association run counter to the principle of equality or human dignity. The Federal Court has pointed out that freedom of association does not confer an absolute right on its members. The State may therefore make its support conditional on compliance with non-discriminatory rules, provided that the measure is proportionate and that the association remains free to exist.
When applied to your hair fan club, the criterion of 'having a mullet' is certainly not based on sex, race or religion, but it remains a filter of appearance that could be considered discriminatory. If this were the case, the university could be seen as endorsing an arbitrary selection process that runs counter to its proclaimed values of openness. The university would therefore have to withdraw its recognition in application of its directives. However, nothing authorises the university to dissolve your association, so you can continue to hold private meetings, at your own expense, outside institutional channels.
In conclusion, there's nothing to stop you campaigning for the glory of the mullet, but if you want official recognition from a public university, you might have to accept members with shorter necks and fuller temples!
