Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    Article 8, Subparagraph 1 of the Civil Service Examination Regulation for General Police Officers [公務人員特種考試一般警察人員考試規則], which stipulated different height requirements of men and women for the firefighter entrance exam, did not pass the intermediate scrutiny review. It was unconstitutional for leading to unfair differential treatment relating to sex in its application, consequently violating equal protection under Article 7 of the Constitution. The TCC referred to national health data and found that the provision has excluded a higher percentage of female citizens than male citizens without sufficient evidence to justify this exclusion. 

    Article 7, Paragraph 2 of the Civil Service Examination Regulation for General Police Officers, which stipulates that qualified firefighter trainees may be asked to undergo a reexamination of their physicals by the training institute when necessary, was constitutional. The wording regarding "when necessary" stipulated therein conformed to the principle of legal clarity. 

    The petitioner's final court decision was quashed, with its matters remitted to the Supreme Administrative Court.

Background Note

    Article 8, Subparagraph 1 of the Civil Service Examination Regulation for General Police Officers, which also applies to the firefighter entrance exam, stipulates that examinees would fail their physical examination at the second stage of the exam if they couldn’t meet the following height requirements: 165 centimeters for non-Indigenous man, 160 centimeters for non-Indigenous women, 158 centimeters for Indigenous man, and 155 centimeters for Indigenous women. Furthermore, under Article 7, Paragraph 2 of the Civil Service Examination Regulation for General Police Officers, qualified trainees (who passed the exam) may be asked to reexamine their physicals by the training institute when necessary, those who failed would be disqualified by the Civil Service Protection & Training Commission. 

    The petitioner, Ms. Yun-Hsuan CHEN, passed both the writing exam (first stage) and the physical examination (second stage) for the firefighter entrance exam in 2018. However, she was later asked to undergo a reexamination of her physicals during training. The petitioner was measured at 158.9 centimeters upon reexamination, not meeting the height requirement for non-Indigenous women. The petitioner was subsequently disqualified. After ensuing administrative appeal and judicial litigations, her case was finally dismissed by the Supreme Administrative Court. The petitioner filed a constitutional complaint, arguing that: (1) Provision I, which implements height-based classification for the qualification of firefighters, would not pass strict scrutiny, and that it disproportionately barred more women from becoming firefighters, thus violating the equality principle; (2) Provision I disproportionately excludes non-Indigenous women shorter than 160 centimeters altogether without considering the various types of tasks (in the firefighting agencies) that shorter people may have advantage in performing; and (3) The term "when necessary" in Provision II is hard for the trainees to comprehend and foresee, thus lacks legal clarity. 

    The case was argued on January 16, 2024. ^[1]
 

Summary of the Judgment 

Holding

1. Article 8, Subparagraph 1 of the Civil Service Examination Regulation for General Police Officers (hereinafter, "Provision I" and "Police Exam Regulation") stipulates: "Examinees with one of the following results in his or her physical examinations should be disqualified: (1) Height: Men shorter than 165.0 centimeters and women shorter than 160.0 centimeters…."^[2] The application of this height-requirement provision in firefighter entrance exam excludes a significantly higher percentage of female examinees than their male counterparts. Said differential treatment imposes a disadvantage to the female examinees' right of taking public examinations and of holding public offices, which does not conform to equal protection under Article 7 of the Constitution. Provision I should cease to be effective one year from the date of announcement of this Judgment. 
2. Article 7, Paragraph 2 of the Police Exam Regulation (hereinafter "Provision II") stipulates: "After enrollment, trainees may be required to reexamine their physicals in public hospitals designated by the Ministry of Interior or the Ocean Affairs Council when necessary. Trainees who failed their physicals should be disqualified by the Civil Service & Training Commission with a letter." The term "when necessary" in the provision does not violate the principle of legal clarity. 
3. Supreme Administrative Court Judgment 109-Shang-928 (2021) (hereinafter the "disputed judgment") is unconstitutional and shall be quashed. Its case shall be remitted to the Supreme Administrative Court.
    

Reasoning

1.  Constitutional rights and standard of review pertaining to this case:

    Equal protection under Article 7 of the Constitution does not prohibit all forms of differential treatment. The legislators and relevant authorities may, based on the value system presented in the Constitution and their legislative purpose, stipulate reasonable differential treatments considering the different natures of the regulated matters. Because sex is a nearly immutable characteristic that people are born into, laws that impose differential treatment with sex-based classification should be reviewed under intermediate scrutiny. Such laws should further important public interest and by means that are substantially related to that interest.【22】

2. Within the scope that it is applied to firefighter entrance exams, the height requirements of Provision I substantially exclude a majority of women from being qualified examinees.【24】

(1) Provision I results in disadvantageous differential treatment relating to sex in its application:

    According to the statistics from 2017 to 2020 by the Health Promotion Administration, Ministry of Health and Welfare, the average height of male citizens within the age group that is eligible to take the firefighter entrance exam (18 to 37) is 172.0 centimeters. The average height for their female counterparts is 159.5 centimeters. Considering the difference in heights between men and women in this country, Provision I provides different minimum height requirements for examinees. The minimum height for male examinees is 165.0 centimeters, which is 7 centimeters shorter than average and excludes approximately 10 percent of the men in the age group based on percentile ranks. In contrast, the minimum height for female examinees is 160.0 centimeters, which is 0.5 centimeters higher than average and excludes approximately 55 percent of the women in the age group based on percentile ranks. The application of the provision results in a sex-related disparity that demonstrates a statistical significance. According to national human height statistics over the years, such significance exists on a long-term and consistent basis. It is substantive to determine that Provision I has resulted in disadvantageous differential treatment to women’s rights of taking public examinations and of holding public offices.【26】

(2) Provision I furthers an important public interest:

    Considering the operational needs and safety of firefighters, the diverse nature of disaster and emergency response, and the safety of operating heavy machinery, the height and physical fitness of firefighters are essential to the success of their missions. Due to the considerations mentioned above, Provision I stipulated height criteria as one of the requirements for the physical exam of the firefighter entrance exam. Provision I also set up different thresholds for the height of male and female examinees based on the difference in average height between the two sexes. The objective of Provision I is of important public interest.【28】

(3) Provision I's means is not substantially related to its purpose:

    According to the statistics, male firefighting personnel constitute 88 percent of the firefighting force, whereas their female counterparts account for 12 percent. The application of Provision I has consistently shaped the work environment and culture of the police and firefighting forces to cater to and be defined by male needs, which makes it hard for women to participate.【30】

    Relevant authorities argued that the height thresholds for female examinees were decided based on firefighting experiences and tacit knowledge, as well as the consideration for equipment purchasing, occupational safety, and superiority in disaster response. However, based on their statements given during oral argument, purchase of equipment can be adjusted. The agent ad litem for the National Fire Agency in this case admitted in a lower court that there was no scientific evidence to support the claim that a person shorter than 160 centimeters would incur unbearable hazards when operating their machinery. Moreover, taking into account the diverse situations in firefighting and disaster response, shorter firefighters have their relevant advantages, which is essential to a complete disaster response team.【32-33】

    In conclusion, the relevant authorities failed to provide substantial evidence why women shorter than 160.0 centimeters would be unfit for firefighting and stricter height requirements should be set for female examinees to exclude most women from taking this exam. Therefore, such disadvantageous differential treatment that Provision I imposed on women is not substantially related to its purpose. Within the scope that it is applied to firefighter entrance exams, Provision I violates equal protection under Article 7 of the Constitution. Provision I should cease to be effective one year from the date of announcement of this Judgment. Relevant authorities should note that the amended height requirements should not create too much sex-related disparity when disqualifying examinees.【34】

3. The restrictions that Provision II imposes on people's right of taking public examinations and of holding public offices do not contradict the principle of legal clarity. 

    Although the term "when necessary" in Provision II is an indefinite legal term (indefinite concept of law), its meaning and connotation are comprehensible under common sense. Furthermore, it is foreseeable for the person regulated under Provision II (examinees or trainees) that reexamination of their physicals may be required when there are doubts regarding their physical fitness. The application of Provision II may be reviewed by a court applying general legal interpretation methods. Provision II does not contradict the principle of legal clarity.【37】

4. The disputed judgment is unconstitutional. It shall be quashed, and its case remitted to the Supreme Administrative Court. 

    Article 64, Paragraph 1 of the Constitutional Court Procedure Act stipulates that "[i]n a judgment where a time period is set for the impugned legal provision to lapse, the competent court to which the underlying case of the relevant final court decision is remanded shall decide in accordance with the ratio decidendi of the judgment of the Constitutional Court by which the impugned legal provision is declared unconstitutional, notwithstanding the time period set for the lapse of the legal provision declared unconstitutional, unless the holding of the judgment otherwise decides." Provision I, which disqualified the petitioner upon reexamination of her physicals, is declared unconstitutional by this Judgment. Although it is given a time period before its lapse, its height requirement is unconstitutionally flawed  ab initio. However, considering the time that the petitioner had invested, the uncertainty of amending the provision may severely affect her equal right of taking public examinations and of holding public offices. To protect her constitutional rights, as well as to stay in line with the Court's intention to encourage petitioners, the disputed judgment shall be quashed, with its case remitted to the Supreme Administrative Court. The Supreme Administrative Court should decide following the ratio decidendi of this Judgment, notwithstanding the time period set for the lapse of the disputed provision. 【40】

Notes: 

[1] Previously argued under the case name "Case on the Constitutionality of Height Requirements for General Police Officers Entrance Exam."

[2]  This provision does not have an official English translation. The translated text in this Judgment is prepared by the Department of Clerks for the Constitutional Court for the readers' reference.