Critical Review of Jurisprudence: An Occasional Series Gender Equality Jurisprudence of the European Court of Human Rights (original) (raw)
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Gender Equality Jurisprudence of the European Court of Human Rights
European Journal of International Law, 2008
The European Court of Human Rights has recently proclaimed gender equality as one of the key underlying principles of the Convention. However, the Court's jurisprudence has been largely impotent in challenging gender discrimination in the member states. This article explores the reasons why this is so by analysing Article 14 sex discrimination jurisprudence and the application of the principle of gender equality in the ' Islamic headscarf ' cases. The author argues that reasons lie in the Court's formalistic conceptualization of discrimination, and simplistic and paternalistic understanding of gender equality, which is insensitive to intersectionality of discrimination. The author proposes an understanding of gender equality as challenging (multiple and intersectional) forms of disadvantage. Under this approach, the question in equality jurisprudence would not be whether there was unjustifi ed differential treatment, but rather whether the law or practice at issue perpetuated or produced subordination of women (as defi ned by other identity characteristics) and unequal gender (and other) relations.
The European Court of Human Rights Through the Looking Glass of Gender: An Evaluation
Gottingen Journal of International Law, 2021
Gender equality is of paramount importance for a functioning democracy and for economic growth. It is a central tenet of human rights law and has seen significant developments on the legislative, judicial, and policy levels of the Council of Europe. Through a mélange of theory, legislation, and jurisprudential analysis, this paper will assess developments in the European Court of Human Rights’ approach to the issue of gender equality. This will be achieved through a survey of case law involving domestic violence, child-bearing, and the wearing of religious dress by women. The paper will demonstrate that, despite the existence of significant milestones in the ambit of promoting gender equality, and, notwithstanding effective advancements made by this body, particularly vis-àvis domestic violence case law, improvements to its approach remain necessary. More specifically, on one level, the Court denounces and works against gender inequality and discrimination but, on another, consciously or unconsciously, its approach and findings are marred by its own stereotypes, patriarchal influences, misconceptions, and preconceptions about what gender equality actually is and how it should be pursued.
University of Pennsylvania Journal of International Law, Vol. 35, No. 4, 2014, 2014
Many countries have recently experienced heated internal discussions over religion and state matters. These issues indeed tend to be exceptionally poignant, touching the very essence of peoples’ private beliefs and generally generating intense social and political arguments. One of the most controversial debates revolves around the tension between the protection of women’s rights to gender equality and to religious freedom. A rigorous expression of it takes place in the European context surrounding the wearing of veils, headscarves, and other modest garments by Muslim women (all of which are claimed to be protected as a manifestation of the right to freedom of religion). Several bans on the wearing of such religious attire have spawned a vast feminist literature laying out robust arguments of both opponents and proponents of the bans. Both sides make strong claims. On the one hand, some introduce sharp criticism of European courts' decisions to endorse the bans. The claim is that the rulings violate women’s religious rights as well as other rights (including the right to personal autonomy, the right of access to education and the right to employment). On the other hand, some assert that a secular approach - that would support and approve the bans - is vital for the protection of gender equality in our ever-growing multicultural democratic societies. It is in this context that this paper discusses the European Court of Human Rights rulings in this matter and its decisions to dismiss the many claims of religious women. It critically analyzes the Court’s assessment in recent cases and argues against the questionable absence of a comprehensive legal analysis of the issues at stake in the Court’s judgments. The paper points to the Court's failure to fully engage with the complexity of the debate. Ultimately, it advances the argument that the Court’s approach stems from the current construction of religion as law’s “other”, i.e. as an extralegal field, incontestable in the conventional sense. In simple words, the law fails to properly handle religion and religious aspirations of women in the public sphere. As shown, unfortunately, not only religion is constructed as law’s other, but in the context of women's rights, the otherness is exacerbated. Legal demands involving women’s religious rights create a legal field so ‘sensitive’ and controversial, that the Court seems to be avoiding serious discussion and instead turns to make unfortunate generalizations. For the ECtHR, such course of rulings is troubling and even dangerous, particularly in light of the effect of its judgments on national courts, as well as on international human rights tribunals and institutions.
Journal of Human Rights, 2019
Decisions on Article 9(2) of the European Convention on Human Rightsthe right to religious manifestation-evidence the importance of intersectional considerations of gender, religion, and even nationality. This article uses qualitative comparative analysis in order to find patterns of litigation victory and defeat by intersectional groups in their claims of violation of this provision. Our analyses show that intersectionalization, operating through a methodology particularly well suited to do so, was essential to render visible important patterns in the judicial arena. These patterns show the different outcomes of litigation by intersectional groups. In particular, Muslim women, whose cases frequently had a clear dimension of "claim intersectionality" related to religious clothing, systematically were defeated before the European Court of Human Rights. This contrasts with cases brought by male Muslims, a successful category of litigants, therefore emphasizing the importance of gender dimension when understanding cases on religious manifestation.
Gender Transgression as a European Value? The Role of the Court in Recognizing Human Rights
The paper examines gender transgression as a European value, as part of human dignity and individual human rights within the scope of the Council of Europe and the European Court of Human Rights. The paper also examines (1) Human dignity as an intrinsic value of an individual person; (2) Legal doctrine, legal arguments and legal interpretation as the means for applying certain concepts of human dignity; (3) Gender transgression and the right to self-determination as (part of) human dignity; (4) The role of the European Court of Human Rights in recognizing the right to gender transgression by applying different interpretative methods.
Women’s Right to Autonomy and Identity in European Human Rights Law: Manifesting One’s Religion
Res Publica, 2008
Freedom of religious expression is to many a fundamental element of their identity. Yet the jurisprudence of the European Court of Human Rights on the Islamic headscarf issue does not refer to autonomy and identity rights of the individual women claimants. The case law focuses on Article 9 of the European Convention on Human Rights, which provides a legal human right to freedom of religious expression. The way that provision is interpreted is critically contrasted here with the right to personal autonomy and identity now developed by that court in interpreting Article 8 which contains a right to respect one’s private life.
European Law Blog, 2023
On 13 October 2022, the CJEU (hereinafter: the Court) issued a judgment on religious discrimination in employment. In Case C-344/20 (LF v SCRL), the Court held that neutrality provisions prohibiting workers from manifesting their religious or philosophical beliefs do not constitute direct discrimination, provided that they are applied in a general and undifferentiated way. This ruling is not an anomaly in the Court’s corpus of equality cases concerning Islamic headscarves. However, its significance lies in the Court’s responses to the other questions referred by the French-speaking Brussels Labour Court in Belgium. The referred questions challenged the Court to reassess three elements: its delineation between direct and indirect discrimination, its delineation of comparators in religious discrimination cases, and the acknowledgement of intersectional religious and gender discrimination. Intersectional discrimination describes synergistic disadvantage on the basis of two or more discrimination grounds, resulting in a unique form of discrimination. The aforementioned three elements are interconnected and impact the Court’s overall stance towards intersectionality. By not engaging with these three elements thoroughly, and most notably by not engaging in intersectional analysis of the alluded religious and gender discrimination, it forewent an opportunity to inch closer to acknowledging intersectionality. This is notable, particularly as AG Medina's Opinion to the case delves into an extensive intersectional analysis.
When the European Court of Human Rights encounters the face A case-note on the burqa ban in France
2016
In the hard case S.A.S. v. France, the European Court of Human Rights has set limits to a free-choice approach to human rights in general and to religious freedom in particular. In upholding the ban on wearing full-face veils on the basis of the ‘vivre ensemble’ principle, the Strasbourg Court has endorsed the French Republican approach to laïcité, together with a more socio-ethical concept of human beings based on the face-to-face encounter. There are instances in which judges prove to be philosophers without knowing it. One could wish that this happened more often when human rights are concerned. There is probably not enough thinking about the philosophy that actually underpins – or should underpin – hard cases in the 21 century. It is assumed that liberalism is the main underlying philosophy in Europe. It praises the multi-faceted individual and values free choice. However, judges should always keep in mind where human rights come from, what conditions their exercise and what the...
The Concepts of Equality and Non-Discrimination in Europe: A Practical Approach
Equality and non-discrimination are complex concepts, with considerable debate on their meanings and justification. The discussion of equality and discrimination is, in general, characterised by considerable conceptual and methodological confusion. This is no different in relation to the discussion of equality and discrimination in the European legal context, including in the context of EC law. Although there is agreement on the most elementary principles, in practice a wide range of approaches is often adopted by, for example, the European Court of Justice and the European Court of Human Rights. Similarly, despite there being many common definitions of the central concepts of gender equality law in the EU Member States and EEA countries, there is a fair chance that the concepts are understood and applied differently and that confusion also exists here. This Report provides, in the first place, an analysis of the concept of equality and related notions in EC law, in particular in th...