A Study of Gender Limitation on National Examination

自世界有萬物以來，即存在「雌、雄」二性，人類亦有「男、女」性別上的差異。我國古代社會的結構，以士、農、工、商為基礎，隋煬帝開科取士，確認了「士」的地位，而「士」則為社會的高階層，他們對社會具有極大的影響力，不但可以影響政治，而且也可以左右大眾的社會生活，因此，人人都想成為士的階級，士子應試，除其本身的基礎條件外，並無任何因素剝奪其應試的權益，「寒窗苦讀無人問，一舉成名天下知」，布衣可以為卿相，是為最佳寫照。 經由國家舉辦考試選任政府官員，可說是中國政治制度的最大特色，我國古代因受傳統宗法制度影響，男尊女卑，可說毫無兩性平權意識，即便科舉制度亦多以男性為對象，女性可謂與科舉考試絕緣。國家考試性別設限政策並非今日獨創，其可上溯隋唐，自隋、唐、宋、元、明、清至民國18年可稱為「性別設限黑暗期」。民國18年至36年由於考試法公布，不再以年齡及性別作為應考的基本條件，女性開始取得參加國家考試之機會，本時期可謂「性別設限曙光期」。民國36年施行憲法後，考試法亦於民國37年修正公布，明定國家考試以高等考試及普通考試為主，遇有錄取不足時始以特種考試為輔，從行憲迄今以來，國家考試甄補初任公務員之主要管道，即高普考試與特種考試，高普考試無性別設限，特種考試則依業務性質，由限制女性報考→分定男女錄取名額→大部分特考性別不拘，性別設限政策係在各界呼籲改進與磨合中，逐步遞演而來，故本時期可謂「性別設限磨合期」。 國外先進國家如美國、英國、徳國等，其公務人員之招募均未有性別限制。我國公務人員高等、普通及初等考試雖亦未有性別限制，但特種考試則基於業務性質設有性別限制，雖然在近19種特種考試中，迄民國94年底僅餘國家安全情報人員特考、調查人員特考、海巡人員特考、基層行政警察及消防人員特考、司法人員特考之監獄官、監所管理員、法警類科與原住民族特考之監所管理員類科等6項考試，仍定有性別設限，或限制女性報考、或分定男女需用、錄取名額。但上述6項特種考試，其性別設限是否合理、合法，本文乃就考選理論、兩性差異、性別角色、就業理論、平等理論及美國、英國、日本及我國兩性工作平權相關法制等面向加以探討，並就國家考試性別設限現況與國內外性別歧視案例等，作綜合整理分析，發現國家考試性別設限對男性有利、用人機關確實有用人困境，且目前用人機關性別設限之理由，除基於分監管理需要之監所管理人員及派赴中東地區人員外，其餘很難通過兩性工作平等法之檢核，形成實務面與法規面之執行落差，針對研究發現本文亦提出未來展望及研究建議，俾提供相關機關在兩性平權觀念、法規修正及政策執行等面向之參考。 關鍵詞（keyword）：國家考試、性別設限、兩性平權Since the earliest origins of life, the distinction of male and female genders has been a characteristic of nature that is manifested in the human race as well. The social structure of ancient China was founded on its division into classes of scholars, farmers, workers and merchants, and when the Sui Dynasty Emperor Yangdi (569-618) initiated the “keju” imperial examination system, members of the scholar class were automatically favored, and these scholars came to represent the upper class of society. They exerted great influence, not only in terms of governance but also in many ways upon the everyday lives of the populace, and many thus aspired to join the ranks of the scholar class. No factors other than a candidate’s personal aptitude restricted the rights of all to challenge the examinations. Indeed, the cherished image of a penniless peasant rising to the heights of state is expressed in the well-known aphorism, “No one calls at the cold window where the candidate studies long, But let him pass and all will praise his name, his fame, in song”. The selection of government officials through examinations is perhaps the most unique feature of China’s political systems. Under the influence of ancient China’s clan system, however, which strongly favored men over women, there was no consciousness of gender equality, and only men took these examinations. It is fair to say that women were absolutely excluded. The notion of gender inequality in national examinations is thus not a modern phenomenon but one which can be traced forward through the Sui, Tang, Song, Yuan, Ming and Qing dynasties until as recently as the 18th Year of the Republic (1929), a period we can call the ‘Dark Age’ of gender-based restrictions. The period from 1929, when the Examinations Act promulgated that year removed age and gender restrictions as part of eligibility criteria, through until 1947 can be called a ‘Period of Awakening’, as women began to avail themselves of the opportunity to take the examinations The Constitution of the Republic of China that came into force in 1947, and the Examinations Act as amended the following year, named the Senior and Junior examinations as the principal instruments of the system, and stipulated that where these did not supply an adequate number of qualifiers for various needs, Special examinations should be conducted. Since that time, national examinations have been the principal source of new recruits to the Civil Service, and while no gender restrictions apply in the Senior and Junior examinations, they are to be found in the terms of various Special examinations, in keeping with the nature of the work the examination addresses. These restrictions are manifested in various ways, from outright denial of female candidacies, to varying quotas for male and female qualifiers, to no gender restriction whatsoever. Under increasing social pressure, policies of gender limitation have gradually eroded, and this most recent period can be termed one of ‘Gender Restriction Erosion.” Civil service recruitment in Western countries such as the USA, the UK, Germany etc. is not touched by gender restrictions, and Taiwan’s Senior, Junior and Elementary examinations are similarly free of any gender-based eligibility criteria. Such criteria do exist, however, for various of Taiwan’s Special Examinations in view of the specialized nature of some of the occupations they address. Specifically, six of Taiwan’s nineteen Special Examinations feature gender restrictions of some type. These are the Special Examinations for National Security Personnel, for Agents of the Investigation Bureau, for Coast Guard Personnel, and for Entry-Level Administrative and Firefighting Police Officers, as well as the prison guard and bailiff categories of the Judicial Officers examination, and the prison guard category of the Special Examination for Indigenous Peoples. The nature of the restrictions varies from outright exclusion of female candidacies, to gender-based quotas for qualifiers and persons employed. It is the objective of this paper to explore, from the perspectives of examination and recruitment theory, gender differences, gender attributes, employment theory and equality theory whether the gender restrictions of these six Special Examinations are justifiable and legitimate. Gender equality law in the USA, the UK, Japan and Taiwan is also studied in this context. The paper presents an analysis of prevailing gender restrictions in national examinations and case studies of gender discrimination both in Taiwan and abroad, and observes that while gender restrictions in these examinations are to the advantage of males, employing agencies have trouble finding suitable personnel. It is further observed that the reasons cited for current gender restrictions, with the exception of where supervisory duties are designated by sex as in prisons, or where individuals are sent to represent Taiwan in Middle-Eastern countries, are difficult to reconcile with the provisions of Taiwan’s Gender Equality in Employment Act, and lead to ‘enforcement gaps’ between the letter of the law and its actual implementation. The paper posits future developments in this area and proposes further areas of research for reference by concerned agencies in the contexts of gender equality per se, amendments to laws and implementation of policy. Keywords: national examinations, gender restrictions, gender equalit