In 2022, the Equality Ombudsman (DO) ruled that it was wrong for the Swedish Armed Forces to deny a person diagnosed with Asperger’s syndrome the opportunity to be considered for conscription. After appeal, the Svea Court of Appeal has now rendered its verdict.

It was in November 2022 that the Equality Ombudsman filed a lawsuit and requested that the Armed Forces pay SEK 45,000 in compensation for discrimination to the man. Two years later, the Stockholm District Court issued its decision, siding with the Equality Ombudsman and stating that the Armed Forces had violated the prohibition against discrimination and must pay compensation for discrimination.

A few weeks later, the Armed Forces appealed and requested that the Court of Appeal dismiss the Ombudsman’s case, and now the Court of Appeal has made its ruling. Svea Court of Appeal instead sides with the Armed Forces, assessing that the case did not constitute discrimination.

The Court of Appeal finds that the man, whose case was brought by the Equality Ombudsman, was not in a comparable situation to individuals who had been considered for conscription, and the decision to deny him assessment was therefore well-founded. The court also writes that people diagnosed with Asperger’s syndrome are not in a comparable situation to those with an ADHD diagnosis regarding the possibility to be considered for military service.

Since there are significant differences between serving in peacetime and in a war situation, it also cannot be considered comparable to be assessed for military service and applying to police training.

Appeal

At the same time, the Equality Ombudsman announces that it will appeal the ruling. This means the Supreme Court may ultimately decide the issue.

– The Equality Ombudsman notes that the Court of Appeal has made a different assessment from that of both the Ombudsman and the District Court. The issue is of great principal value and affects many people in society. The Ombudsman will seek leave to appeal in the Supreme Court to enable a review of the Court of Appeal’s decision, says Karin Ahlstrand Oxhamre, head of the Ombudsman’s legal department.

Valuable Competence

At Riksförbundet Attention, a nationwide non-profit advocacy organization for people with neuropsychiatric disabilities, there is criticism. According to chairman Eric Donell, society risks losing out on valuable competence when people are sorted out in this way.

– Neuropsychiatric diagnoses describe groups of difficulties but often say very little about how an individual functions in practice. Therefore, it is problematic if people are prevented from even being considered for conscription solely based on a diagnosis, instead of being offered an individual assessment of their ability, says Eric Donell.

Donell states that the principle is important even beyond conscription.

– When people are excluded in advance, it effectively becomes a sorting based on diagnosis, rather than an individual assessment of what the person can actually manage. This is a bigger issue than just conscription, since similar reasoning is also used when it comes to certain other professions.