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Abstract
This paper explores how European gender equality law communicates in the contemporary democratic public sphere. It will analyse several gender discrimination cases of the European Court of Human Rights as well as the Court of Justice of the European Union and how judgements of these courts communicated and defined the concept of gender equality, and redefined and broadened this concept from early cases such as Abdulaziz, Cabales and Balkandali v The United Kingdom to more recent cases such as Land Brandenburg v Ursula Sass and Leyla Sahin v Turkey. Trying to answer how the law communicates, this paper will show that the law is not a static and immutable system, independent of historical, political, social and cultural contexts. On the contrary, the legal system represents a dynamic structure, which is continuously revised, and which is socially, historically and politically constructed.
DISCLOSURE STATEMENT
No potential conflict of interest was reported by the author(s).
Notes
1 “In this context, European judicial discourse is understood to encompass the supranational judgements and decisions taken by the European Court of Human Rights (the ECtHR), the former European Commission of Human Rights (the Commission) which functioned as the ECtHR’s ante-chamber until the late 1990s, and the Court of Justice of the European Union (previously known as the European Court of Justice)” (Sivonen Citation2011, 11).
2 In this paper, this term also refers to the European Court of Justice.
3 Abdulaziz, Cabales and Balkandali v the United Kingdom [1985] ECtHR, Application nos. 9214/80; 9473/81; 9474/81.
4 Land Brandenburg v Ursula Sass (European Court of Justice, C-284/02).
5 Leyla Sahin v Turkey: ECtHR, 29 June 2004.
6 In the case of Christine Goldwin v United Kingdom, the CJEU held that the concept of gender is not, fixed—it is constructed. However, European public legal discourse still comprehends the concept of gender as fixed.
7 According to feminist thought, “to be treated as equal” in the law means that women are allowed to compete with men by the same rules in the same institutions. However, these institutions are designed in accordance with male values and standards (Eseinstein Citation1988, 55).
8 Officially the Treaty establishing the European Economic Community (Citation1957).
9 Case 43/75, Defrenne v Sabena [1976] ECR 455.
10 Leyla Sahin v. Turkey [GC], (2005), Reports 2005-, at para. 115.
11 A 94 (1985); 7 EHRR 471.
12 The European Convention on Human Rights.
13 This article states: “Everyone has the right to respect for his private and family life, his home and his correspondence” (Council of Europe Citation1950).
14 Van Raalte v The Netherlands, 1997.
15 Lewen v Denda ECJ Case C-33/97 [2000] IRLR 6/7.
16 Hoyland v Asda Stores Ltd [2005] IRLR 438.
17 Grant v South-West Trains Ltd, Case C-249/96 [1998] ECR I-621.
18 “The Court considered whether same-sex couples in a ‘stable relationship’ are situated similarly to married heterosexual couples or to unmarried heterosexuals in a stable relationship. It noted that, although a few EC member states regulate same-sex partnerships in a manner ‘equivalent to marriage,’ most treat such relationships as comparable to unmarried heterosexual partnerships only for limited purposes, or else they do not recognize same-sex relationships at all” (Helfer Citation1999, 201).
19 Abdulaziz, Cabales and Balkandali v. UK (1985), European Commission of Human Rights, Series A, No. 94, § 78.
20 Leyla Şahin v. Turkey, [GC] no. 44774/98, 10 November 2005.
21 At para. 107 of the 2004 judgement (29 June 2004), and adopted in paras. 115–116 of the GC judgement, supra note 3.
22 Dahlab v Switzerland: ECHR 15 Feb 2001.
23 Psychoanalytical approach to gender is represented by Anglo-American school (object-relation theories) and French School based on structuralist and poststructuralist reading of Freud. Both schools examine how the subject’s identity is created. “Object-relations theorists stress the influence of actual experience (…) while the post-structuralists emphasize the centrality of language in communicating, interpreting and representing gender”(Scott Citation1988, 37). Scott emphasises poststructuralist’s approach and Lacanian theory argue that gender identity is constituted through language (Scott Citation1988, 38). The consequence of this understanding of gender is that gender is not fixed, and stable.
Additional information
Notes on contributors
Sanja Ivic
Sanja Ivic is a Research Fellow at the Institute for European Studies, Belgrade, Serbia.