Gender Equality in Law: Uncovering the Legacies of Czech State Socialism 9781509905867, 9781509905874, 9781509905843

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GENDER EQUALITY IN LAW Gender equality law in Czechia, as in other parts of post-socialist Central and Eastern Europe, is facing serious challenges. When obliged to adopt, interpret and apply anti-discrimination law as a condition of membership of the EU, Czech legislators and judges have repeatedly expressed hostility and demonstrated a fundamental lack of understanding of key ideas underpinning it. This important new study explores this scepticism to gender equality law, examining it with reference to legal and socio-legal developments that started in the state-socialist past and that remain relevant today. The book examines legal developments in gender-relevant areas, most importantly in equality and anti-discrimination law. But it goes further, shedding light on the underlying understandings of key concepts such as women, gender, equality, discrimination and rights. In so doing, it shows the fundamental intellectual and conceptual difficulties faced by gender equality law in Czechia. These include an essentialist understanding of differences between men and women, a notion that equality and anti-discrimination law is incompatible with freedom, and a perception that existing laws are objective and neutral, while any new gender-progressive regulation of social relations is an unacceptable interference with the ‘natural social order’. Timely and provocative, this book will be required reading for all scholars of equality and gender and the law. Volume 22: Human Rights Law in Perspective

Human Rights Law in Perspective General Editor: Colin Harvey Professor of Human Rights Law School of Law Queen’s University Belfast The language of human rights figures prominently in legal and political debates at the national, regional and international levels. In the UK the Human Rights Act 1998 has generated considerable interest in the law of human rights. It will continue to provoke much debate in the legal community and the search for original insights and new materials will intensify. The aim of this series is to provide a forum for scholarly reflection on all aspects of the law of human rights. The series will encourage work which engages with the theoretical, comparative and international dimensions of human rights law. The primary aim is to publish over time books which offer an insight into human rights law in its contextual setting. The objective is to promote an understanding of the nature and impact of human rights law. The series is inclusive, in the sense that all perspectives in legal scholarship are welcome. It will incorporate the work of new and established scholars. Human Rights Law in Perspective is not confined to consideration of the UK. It will strive to reflect comparative, regional and international perspectives. Work which focuses on human rights law in other states will therefore be included in this series. The intention is to offer an inclusive intellectual home for significant scholarly contributions to human rights law. Recent titles in this series Health and Human Rights Thérèse Murphy Discrimination, Equality and the Law Aileen McColgan Property and Human Rights in a Global Context Edited by Ting Xu and Jean Allain Governing (Through) Rights Bal Sokhi-Bulley For the complete list of titles in this series, see ‘Human Rights Law in Perspective’ link at www.bloomsburyprofessional.com/uk/series/ human-rights-law-in-perspective/

Gender Equality in Law Uncovering the Legacies of Czech State Socialism

Barbara Havelková

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Barbara Havelková 2017 Barbara Havelková has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-governmentlicence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-586-7 ePDF: 978-1-50990-584-3 ePub: 978-1-50990-585-0 Library of Congress Cataloging-in-Publication Data Names: Havelková, Barbara, 1980- author. Title: Gender equality in law : uncovering the legacies of Czech State socialism / Barbara Havelková. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2017.  |  Series: Human rights law in perspective  |  Includes bibliographical references and index. Identifiers: LCCN 2017000490 (print)  |  LCCN 2017001052 (ebook)  |  ISBN 9781509905867 (hardback : alk. paper)  |  ISBN 9781509905850 (Epub) Subjects: LCSH: Gender identity—Law and legislation—Czech Republic—History.  |  Equality before the law—Czech Republic—History.  |  Sex discrimination against women—Law and legislation—Czech Republic—History.  |  Women and socialism—Czech Republic—History.  |  Women—Legal status, laws, etc.—Czech Republic.  |  Human rights—European Union countries. Classification: LCC KJP2467.W65 H38 2017 (print)  |  LCC KJP2467.W65 (ebook)  |  DDC 342.437108/7—dc23 LC record available at https://lccn.loc.gov/2017000490 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Mamince

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Acknowledgements The writing of this book has benefited greatly from the support, both ­personal and professional, that I have received from many friends and colleagues. Since the book started as my doctoral thesis, I owe a great debt to my former supervisor, Sandra Fredman, whose book Women and the Law was the original inspiration for the project. Her unwavering support, guidance and feedback have been invaluable. I am also grateful to my former supervisor Bettina Lange, who helped me navigate the intricacies of methodology and who guided towards more pithy and precise arguments. My thanks go also to Catherine MacKinnon, who was a stimulating mentor during my Fulbright stay at Harvard and Michigan Law Schools almost 10 years ago when I first started to formulate the project. Over the years, early drafts of parts of the book benefited from feedback, thoughts and comments from a range of friends and colleagues: members of the informal Oxford equality research group, my doctoral thesis examiners, Meghan Campbell, Laura Carlson, Hana Havelková, Tomáš Holčapek, Tarun Khaitan, Kristina Koldinská, Jan Kratochvíl, Petr Polák, Kateřina Šimáčková, Pavla Špondrová, Kerrie Thornhill, Michael Wrase, as well as the participants in several conferences and seminars where I presented my work. In its final stages, the book benefited from the careful reading of and editing by Mike Leach, Andrea Volfová and Catherine Minahan. I am thankful to all. I dedicate this book in profound gratitude to my mother, Hana ­Havelková, who introduced me to gender, encouraged me to think critically and has supported me always.

viii 

Contents Acknowledgements��������������������������������������������������������������������������������� vii Table of Cases����������������������������������������������������������������������������������������� xv Table of Statutes������������������������������������������������������������������������������������� xix Table of Parliamentary Debates������������������������������������������������������������ xxv List of Abbreviations��������������������������������������������������������������������������� xxvii 1. Introduction��������������������������������������������������������������������������������������� 1 I. Main Argument�������������������������������������������������������������������������� 4 A. Women and Gender������������������������������������������������������������ 5 B. Equality and Anti-Discrimination���������������������������������������� 6 C. The Role of Law and Rights������������������������������������������������ 6 II. Book Structure and Chapter Summaries������������������������������������� 7 III. Feminist Legal Genealogy—The Methodology������������������������� 11 A. The Feminist Framework�������������������������������������������������� 12 i. Feminist Questions and Theoretical Concepts����������� 12 ii. The Gender-Progressive Standard������������������������������ 15 iii. Why Use Equality?���������������������������������������������������� 16 B. Scope of the Book������������������������������������������������������������� 17 i. Thematic Scope of the Enquiry���������������������������������� 17 ii. Territorial Scope—A Single-Country Case-Study����������������������������������������������������������������� 18 iii. Territorial and Temporal Scope—Pre-Communist Legacies and the Germanic Space������������������������������ 20 C. A ‘Law in Context’ Approach—Sources and Method���������������������������������������������������������������������� 21 i. Primary Sources and the Difference between the Periods��������������������������������������������������� 21 ii. A Mixed Inductive and Deductive Analysis��������������� 23 Part I: State Socialism 2. The Three Stages of Regulation of Women and Gender�������������������� 27 I. Equalisation (1948–62)������������������������������������������������������������ 29 A. Pre-Communist Foundations��������������������������������������������� 29 B. Stalinism��������������������������������������������������������������������������� 30 C. Equality Rights of the Sexes as a Constitutional Principle����������������������������������������������������� 33

x  Contents D. Equality in the Family������������������������������������������������������� 33 i. New Family?��������������������������������������������������������������� 36 E. Reproduction—Protecting the Health of Women�������������� 37 F. Work and Welfare������������������������������������������������������������� 38 i. Equal Access to Paid Work for Women—a Right or an Obligation?���������������������������������������������� 38 ii. Protective Provisions and Welfare������������������������������� 40 II. Reflection (1962–68)���������������������������������������������������������������� 41 A. The Period of Reform�������������������������������������������������������� 41 B. Family—Between Equality and Tradition�������������������������� 44 i. The Triple Burden������������������������������������������������������� 46 C. Reproduction in the Time of the ‘Population Crisis’������������������������������������������������������������� 48 D. A Turn from Equality in Paid Work to Care���������������������� 49 i. Protecting Motherhood����������������������������������������������� 49 ii. Bans on Work������������������������������������������������������������� 51 E. ‘Freedom’�������������������������������������������������������������������������� 52 III. The Era of the Family (1969–89)���������������������������������������������� 53 A. Normalisation������������������������������������������������������������������� 53 B. A Retreat into the Private Sphere�������������������������������������� 56 i. The ‘Wrongly Understood Emancipation’������������������� 57 C. Reproduction—Assuring the ‘Quantity’ and ‘Quality’ of the Population������������������������������������������������ 59 D. Pro-Population Policies����������������������������������������������������� 61 IV. Conclusions������������������������������������������������������������������������������ 62 3. State-Socialist Law and Rights���������������������������������������������������������� 64 I. From Activism to Formalism���������������������������������������������������� 65 A. Early Activism (1948–53)�������������������������������������������������� 65 B. Stabilisation (1954–68)����������������������������������������������������� 67 C. Normalisation (1969–89)�������������������������������������������������� 68 II. Characteristics of State-Socialist Law��������������������������������������� 70 A. Law as a Tool of Social Change����������������������������������������� 70 B. The Decline of Private Law and the Rise of Public Law������������������������������������������������������������ 71 C. Dubious Normativity and Disregard for Law�������������������� 74 III. Rights��������������������������������������������������������������������������������������� 76 A. The Primacy of Social Rights and the Socialist Understanding of Rights���������������������������������������������������� 76 B. Collective Interest�������������������������������������������������������������� 78 C. Absence of Avenues for Rights Enforcement��������������������� 80 IV. Conclusions������������������������������������������������������������������������������ 82 4. Equality as Socio-Economic Levelling����������������������������������������������� 83 I. Equality Trajectories����������������������������������������������������������������� 84

Contents xi

II. III. IV.

V. VI.

A. Formal and Substantive Equality��������������������������������������� 85 B. Three Phases of Equality and Anti-Discrimination Law��������������������������������������������������� 86 Legal Guarantees—Equality as a Right?����������������������������������� 89 A. Sex Equality as a Proclamation but Not an Anti-Discrimination Right������������������������������������������������� 90 Substantive Equality along the Axis of Class���������������������������� 92 Emphasis on Difference������������������������������������������������������������ 94 A. Special Treatment of Women��������������������������������������������� 95 B. Different and Worse Treatment—Inequality Not Identified as Sex Discrimination��������������������������������� 97 Beyond Equality?���������������������������������������������������������������������� 99 Conclusions���������������������������������������������������������������������������� 103

5. Blindness to Gender and Patriarchy������������������������������������������������ 105 I. Aspirations versus Reality������������������������������������������������������ 109 A. The ‘Woman Question’ in Marxism-Leninism and State-Socialist Aspirations���������������������������������������� 109 B. (In)Equality in Reality����������������������������������������������������� 111 II. Grappling with Explanations of Inequality����������������������������� 113 A. Denials of Inequality������������������������������������������������������� 114 B. Denials of Injustice���������������������������������������������������������� 114 C. Denials of Responsibility������������������������������������������������� 115 D. Seeing Gendered Causes?������������������������������������������������ 116 III. Intellectual Roots of the Limitations��������������������������������������� 117 A. Capitalism, not Patriarchy����������������������������������������������� 117 B. The ‘Natural’ Difference of Women�������������������������������� 119 C. Production versus Reproduction������������������������������������� 123 D. Materialism and Culture������������������������������������������������� 126 IV. Feminism?������������������������������������������������������������������������������ 128 A. The Prevented Bottom-Up Critique and the ‘Threefold Expropriation’����������������������������������������������� 129 B. Women as ‘Communist Subjects’ and their ‘Liberation’ from the Public Sphere��������������������������������� 130 C. What Happened to Men?������������������������������������������������ 132 D. Residual and Reactive Turn to Traditional Gender���������� 134 E. The Regime as the Perceived Source of Oppression��������� 135 V. Conclusions���������������������������������������������������������������������������� 137 Part II: Post-Socialism 6. Women and Gender After 1989������������������������������������������������������ 141 I. A Quarter Century of Post-Socialism�������������������������������������� 142 A. Changes and Legacies������������������������������������������������������ 142 B. The ‘Star Pupil’ (1989–97)���������������������������������������������� 146

xii  Contents

II.

III.

IV.

V.

C. Sobering Up and Trudging Along (1997–2006)��������������� 149 D. Cuts and a Conservative Turn (2006–14)������������������������ 151 E. Arrival of the New Left? (2014 Onward)������������������������ 152 The Model Family—Complete, Married, Heterosexual and with a Traditional Division of Labour����������������������������� 158 A. The Rise of a ‘New’ Family? Same-Sex and Unmarried Partners�������������������������������������������������� 158 B. Supporting a Traditional Division of Labour������������������� 162 C. Bias towards Complete Families, Against Single Parenthood����������������������������������������������������������� 163 D. Women’s Reproductive and Health Autonomy?�������������� 166 From Motherhood to Parenthood? The Question of Childcare���������������������������������������������������������������������������� 169 A. Protecting Motherhood and Parenthood in Labour Law���������������������������������������������������������������� 170 B. Protecting all Women as Mothers?���������������������������������� 172 C. Bringing Fathers into Care?��������������������������������������������� 175 D. Work or Care? A Closer Look at the Parental Benefit��������������������������������������������������������������� 177 Addressing Gender-Based Violence without Seeing Gender������������������������������������������������������������������������� 180 A. Positive Developments in Substantive Criminal Law and Beyond����������������������������������������������� 180 B. Refusal to See Gender����������������������������������������������������� 183 C. Criminalising and Blaming the ‘Victim’��������������������������� 184 Conclusions���������������������������������������������������������������������������� 188

7. Post-Socialist Law and Rights��������������������������������������������������������� 190 I. Transforming State-Socialist Law������������������������������������������� 192 II. Law—Legacies of State Socialism������������������������������������������� 193 A. Continued Disregard for the Law������������������������������������ 193 B. Legal Formalism�������������������������������������������������������������� 194 III. Rights—Legacies of State Socialism���������������������������������������� 196 A. Primacy of Socio-Economic Rights and a Parental Conception of Rights?������������������������������������ 196 B. ‘Collective Interest’ or Anti-Majoritarianism?����������������� 197 IV. A New Understanding of Law and Rights������������������������������ 198 A. Neoliberalism������������������������������������������������������������������ 199 B. The Anti-Regulation Narrative and Its Selectiveness��������������������������������������������������������������� 200 C. Manners or Morals, not Law������������������������������������������ 202 D. Conflating Economic and Social Notions of Privacy������������������������������������������������������������������������ 203 E. Rights as Freedoms for Some������������������������������������������ 205

Contents xiii F. Fears of Abuse of Legal Provisions���������������������������������� 207 G. Lack of Critical Reflection����������������������������������������������� 209 V. Conclusions���������������������������������������������������������������������������� 210 8. Equality and Anti-Discrimination after 1989: Resisting the Ideas and the Legal Concepts���������������������������������������������������� 212 I. Constitutional Law and the Right to Equality and Non-Discrimination��������������������������������������������������������� 213 A. Sex Equality for Men?����������������������������������������������������� 216 i. The Early Cases—Addressing Protection and Preferential Treatment of Women���������������������������� 217 ii. Newer Cases������������������������������������������������������������ 222 iii. What Can Cases Brought by Men Tell Us about Gender Equality?�������������������������������������� 223 II. Statutory Law and the EU as a Driver of Legal Change���������� 225 A. The EU Equality Acquis and its Rationales��������������������� 226 B. The EU as a Driver for Change��������������������������������������� 227 C. Anti-Discrimination Law Merely a Membership Obligation����������������������������������������������� 229 D. A Reluctant Transposition of Anti-Discrimination Law������������������������������������������������� 230 i. Before the ADA������������������������������������������������������� 231 ii. The ADA—as Little and as Late as Possible������������� 232 E. Giving Full Effect?����������������������������������������������������������� 235 F. Sex Discrimination Litigation before Ordinary Courts�������������������������������������������������������������� 238 III. Anti-Discrimination Law before the Courts���������������������������� 243 A. Avoiding Anti-Discrimination Adjudication�������������������� 244 i. Concentrating on Formal Questions������������������������ 245 ii. Shrinking the Scope of Reviewable Acts������������������ 247 iii. Redirecting Applicants to Other Claims������������������ 250 B. Greater Protection for Enumerated Grounds?����������������� 251 C. How Do We Know the Ground Was Sex? Motive and Proof������������������������������������������������������������ 256 i. Looking for Fault���������������������������������������������������� 257 ii. Burden of Proof������������������������������������������������������� 259 iii. Interventions by the Constitutional Court��������������� 262 D. Indirect Discrimination—Blindness to Structural Biases���������������������������������������������������������� 263 IV. Understanding Equality and Anti-Discrimination after 1989������������������������������������������������������������������������������� 268 A. At Most Formal, Certainly Not Substantive Equality�������������������������������������������������������� 268

xiv  Contents B. Women Too Different to be Discriminated Against?������������������������������������������������� 271 C. The Individualisation of Discrimination������������������������ 272 V. Conclusions�������������������������������������������������������������������������� 273 9. Wanted: Gender and Feminism����������������������������������������������������� 276 I. Aspirations Lost������������������������������������������������������������������� 277 A. Socialist Residue, Conservative Resurgence and the Neoliberal Rise������������������������������������������������� 277 B. Political Aspirations?���������������������������������������������������� 278 II. Denials of Gender Inequality������������������������������������������������ 282 A. Denials of the Existence of Inequality��������������������������� 282 B. Denials of Injustice�������������������������������������������������������� 283 C. Denials of Responsibility����������������������������������������������� 285 D. Blindness to the Gendered Structure of Society������������� 285 III. Missing Feminism���������������������������������������������������������������� 288 A. Why the Rejection of Feminism?����������������������������������� 289 B. The Presence of Undermining and Absence of Supporting Perspectives�������������������������������������������� 291 C. The Need for Second-Wave Radical Feminism�������������� 292 D. The Need for Feminist Legal Scholarship���������������������� 295 IV. Conclusions�������������������������������������������������������������������������� 298 10. Conclusions���������������������������������������������������������������������������������� 300 I. Women and Gender�������������������������������������������������������������� 300 II. Equality and Anti-Discrimination����������������������������������������� 302 III. Law and Rights�������������������������������������������������������������������� 303 IV. Continuity and Discontinuity����������������������������������������������� 304 Bibliography����������������������������������������������������������������������������������������� 308 Index����������������������������������������������������������������������������������������������������� 333

Table of Cases Czech Cases Constitutional Court (‘CCC’) CCC Decision from 23 November 1994, Ref No Pl.ÚS 13/94, published as No 3/1995 Co���������������������������������������������������� 195, 216, 217, 225 CCC Decision from 20 October 1999, Ref No I. ÚS 297/99������������������������������ 264 CCC Decision from 26 April 2006, Ref No Pl.ÚS 37/04, published as No 419/2006 Coll���������������������������������������������������������������������������������� 221, 262 CCC Decision from 6th June 2006, Ref No Pl.ÚS 42/04, published as No 405/2006 Coll�������������������������������������������������������������������������� 195, 216, 218 CCC Decision from 20th November 2007, Ref No Pl.ÚS 50/06, published as No 18/2008 Coll���������������������������������������������������������������������������������������� 253 CCC Decision from 16 October 2007, Ref No Pl.ÚS 53/04, published as No 341/2007 Co������������������������������������������������ 195, 216, 219, 221 CCC Decision from 12 March 2008, Ref No Pl.ÚS 83/06, published as No 116/2008 Coll������������������������������������������������������������������������������������������ 253 CCC Decision from 21st April 2009, Ref No Pl.ÚS 29/08, published as No 181/2009 Coll������������������������������������������������������������������������������������������ 253 CCC Decision from 23 March 2010, Ref No Pl.ÚS 8/07, published as No 135/2010 Coll������������������������������������������������������������������������������������������ 271 CCC Decision from 14 March 2011, Ref No Pl.ÚS 55/10���������������������������������� 152 CCC Decision from 28 February 2012, Ref No Pl. ÚS 26/11��������������������� 167, 206 CCC Decision from 31 January 2012, Ref No Pl.ÚS 5/12���������������������������������� 222 CCC Decision from 30 May 2012, Ref No II.ÚS 3894/11��������������������������������� 224 CCC Decision from 26 May 2014, Ref No I.ÚS 2482/13��������������������������� 216, 222 CCC Decision from 6 February 2014, Ref No I.ÚS 3271/13������������������������������ 255 CCC decision from 8 October 2015, Ref No III.ÚS 880/15��������� 216, 222–23, 262 CCC Decision from 22 September 2015, Ref No III.ÚS 1213/13����������������� 262–63 CCC Decision from 12 August 2015, Ref No III.ÚS 1136/13�������������������� 262, 265 CCC Decision from 27 January 2015, Ref No II.ÚS 2122/14���������������������������� 222 CCC Decision from 30 June 2015, Ref No I.ÚS 822/15������������������������������������� 222 CCC Decision from 24 February 2015, Ref No I.ÚS 38/15�������������������������������� 222 CCC Decision from 19 November 2015, Ref No Pl.ÚS 10/15, published as No 44/2016 Coll������������������������������������������������������������������������ 161 CCC Decision from 26 June 2016, Ref No Pl.ÚS 18/15��������������������� 215, 253, 256 CCC Decision from 14 June 2016, Ref No Pl.ÚS 7/15����������������� 160–61, 256, 277 Ordinary Courts Judgment of the Regional Court in Brno from 30 September 1949, Ref No To VI 37/49, Coll Court Dec 1949, No 195, p 268.����������������������������������������� 33

xvi  Table of Cases Judgment of the Regional Court of Košice from 29 March 1949, Ref No Co 153/1949, Coll Court Dec 1949, No 28, p 40��������������������������������������������� 33 Judgment of a Regional Court in Olomouc from 13 February 1950, Ref No RII 35/50, Coll Court Dec 1950, No 187, p 279���������������������������������� 80 Judgment of District Court Prague-West, B.V. proti Ministerstvu spravedlnosti, from 6 May 2005, Ref No 10 C 5088/2004-96����������������������� 241 Judgment of Regional Court in Prague, B.V. proti Ministerstvu spravedlnosti, from 18 October 2005, Ref No 23 Co 331, 332/2005-142���������������������������� 241 Judgment of District Court for Prague 1, V.S. proti SPGroup from 14th March 2005, Ref No 23 C 11/2003-70���������������������������������� 239, 260, 272 Judgment of the District Court for Prague 7, Čaušević proti Pražské teplárenské from 22 December 2006, Ref No 26 C 25/2006����������������� 245, 247–48, 257–58 Judgment of District Court in Jihlava from 26 September 2006, Ref No 4 C 1129/2001-220 as corrected on 24 January 2007, Ref No 4 C 1129/2001-236���������������������������������������������������������������������������� 254 Judgment of Municipal Court in Prague, Whelan and Whelanová from 2 May 2007, Ref No 11Ca 161/2007-39������������������������������� 236, 239, 266 Judgment of the Municipal Court Prague, Čaušević proti Pražské teplárenské from 23 May 2007, Ref No 54 Co 127/2007����������������������������������������� 245, 247 Judgment of the Supreme Court, B.V. proti Ministerstvu spravedlnosti from 5 June 2007, Ref No 21 Cdo 612/2006��������������������������������� 239, 241, 250 Judgment of the District Court for Prague 1, A.B. proti Ministerstvu zahraničních věcí from 6 September 2007, Ref No 27C 90/2004-123�������� 187, 232, 239, 241, 245–46, 260 Judgment of the Municipal Court in Prague, A.L. proti ČSA from 10th July 2008, Ref No 21 Co 190/2008-199������������������������������������������������ 236 Judgment of the Municipal Court in Prague, A.B. proti Ministerstvu zahraničních věcí from 18 April 2008, Ref No 14 Co 90/2008-148��������������� 241 Judgment of the District Court in Pardubice, P.S. proti Hasičskému záchrannému sboru from 12 March 2008, Ref No 8C 373/2006-107������������������������������������������������������� 187, 239–240, 260 Judgment of the Regional Court in Hradec Králové—Pardubice Branch, P.S., from 2 October 2008, Ref No 23 Co 327/2008–132�������������������������������������� 240 Judgment of the Supreme Court, Čaušević proti Pražské teplárenské from 11 November 2009, Ref No 21 Cdo 246/2008���������������� 239, 241, 247–48 Judgment of the District Court in Pardubice, P.S. from 30 March 2009, Ref No 8 C 373/2006–308����������������������������������������������������������������������������� 240 Judgment of Supreme Administrative Court, Whelan and Whelanová from 21 May 2009, Ref No 7 Afs 103/2008-71����������������������������� 239, 242, 266 Judgment of the Regional Court in Pilsen, E.K. proti Řediteli Policie from 28 May 2009, Ref No 30Ca 44/2007-49����������������������������������������������� 258 Judgment of the Regional Court in Hradec Králové—Pardubice Branch, P.S., from 27 October 2010, Ref No 23 Co 282/2009-397������������������������������������ 241 Judgment of the Supreme Court, A.B. proti Ministerstvu zahraničních věcí from 4 April 2010, Ref No 21 Cdo 3819/2008������������������������������� 239, 241 Judgment of the District Court for Prague 7, Čaušević proti Pražské teplárenské from 13 December 2010, Ref No 26 C 25/2006-372���������������� 241, 247–48, 258

Table of Cases xvii Judgment of the Supreme Court, A. L. proti ČSA from 07 July 2010, Ref No 21 Cdo 1743/2009������������������������������������������������������������� 234, 236, 242 Judgment of the Supreme Court, I.P. proti Dopravnímu podniku Ostrava from 10 February 2011, Ref No 21 Cdo 5061/2009�������������������������������������� 239 Judgment of the Supreme Court, H. P. proti Národnímu památkovému ústavu from 12 April 2012, Ref No 21 Cdo 3984/2011������������������������� 239, 242 Judgment of the Municipal Court in Prague, Whelan and Whelanová II. from 14 June 2012, Ref No 5Ca 336/2008-29��������������������������������� 242, 266–67 Judgment of the Supreme Court, H.P. proti Ministerstvu kultury from 27 March 2012, Ref No 21 Cdo 4586/2010�������������������������� 239, 257, 260 Judgment of the Supreme Court, E.K. proti Řediteli Policie, from 9 January 2013, Ref No 30 Cdo 2470/2012-73����������������������������� 236, 239, 246, 250, 259 Judgment of the Supreme Administrative Court, M.J. proti České obchodní inspekci from 30 October 2014, Ref No 4 As 1/2014-28���������������� 265 Judgment of the Supreme Court, M.H. proti Liberci, from 9 July 2014, Ref No 21 Cdo 1821/2013����������������������������������������������������������������������������� 251 Judgment of the Regional Court in Brno, M.P. proti Nemocnici Boskovice from 17 September 2014, Ref No 49 Co 319/2013-217������������������������� 239, 261 Judgment of the Supreme Court from 18 December 2014, Ref No 21 Cdo 4429/2013, published in 116/2015 Coll Dec Civ���������������������������� 237, 254 Judgment of the Supreme Court, P.P. proti Hasičskému sboru ČR, from 9 October 2015, Ref No 21 Cdo 962/2015������������������������������������ 239, 241 Judgment of the Supreme Court, J.K. proti Dětskému domovu Uherské Hradiště from 16 January 2015, Ref No 21 Cdo 3211/2014�������������������������� 239 Judgment of the Supreme Court, K. G. proti Univerzitě Karlově from 16 January 2015, Ref No 21 Cdo 1165/2013������������������ 239, 248–50, 258 Judgment of District Court in Blansko, M.P. proti Nemocnici Boskovice from 30 June 2015, Ref No 78EC 1342/2011-279���������� 239, 261–62 Other Jurisdictions European Court of Justice/Court of Justice of the European Union Case 43/75 Defrenne II [1976] ECR 455����������������������������������������������������������� 226 Case 149/77 Defrenne III [1978] ECR 1365������������������������������������������������������ 227 Case 129/79 Macarthys v Smith [1980] ECR 01275������������������������������������������ 260 Case 96/80 Jenkins v Kinsgate [1981] ECR 911������������������������������������������� 89, 264 Case 14/83 Von Colson and Kamann [1984] ECR 1891������������������������������������ 234 Case C-345/89 Criminal proceedings against Alfred Stoeckel [1991] ECR I-04047������������������������������������������������������������������������������������ 52, 174, 217 Case C-50/96 Deutsche Telekom AG v Schröder [2000] ECR I-00743�������������� 227 Case C-381/99 Brunnhofer [2001] ECR I-04961����������������������������������������������� 261 Case C-476/99 Lommers [2002] ECR I-02891�������������������������������������������������� 218 Case C-320/00 Lawrence [2002] ECR I-07325�������������������������������������������������� 258 Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835����� 236 Case C-203/03 Commission v Austria [2005] ECR I-935��������������������� 52, 174, 217 Case C-41/08 Commission v Czech Republic [2008] ECR I-00175�������������������� 230

xviii  Table of Cases Case C-241/11 Commission v Czech Republic [2011] OJ C232/27�������������������� 230 Case C‑401/11 Blanka Soukupová v Ministerstvo zemědělství [2013] OJ C156/10����������������������������������������������������������������������������������������� 237 European Court of Human Rights and the European Committee on Social Rights Belgian linguistic case (No 2), App nos 1474/62 and others (ECtHR, 23 July 1968)����������������������������������������������������������������������������������� 215 Hoogendijk v The Netherlands, App no 58461/00 (ECtHR, 6 January 2005)������������������������������������������������������������������������������� 264 DH and others v Czech Republic, App no 57325/00 (ECtHR Chamber, 7 February 2006)�������������������������������������������������������������� 263 DH and others v Czech Republic, App no 57325/00 (ECtHR Grand Chamber, 13 November 2007)����������������������������������������������� 263 EB v France, App no 43546/02 (ECtHR, 22 January 2008)������������������������������� 215 Muñoz Díaz v Spain, App no 49151/07 (ECtHR, 8 December 2009)����������������� 265 Andrejeva v Latvia, App no 55707/00 (ECtHR, 18 February 2009)������������������ 265 Ternovszky v Hungary, App no 67545/09 (ECtHR Chamber, 14 December 2010)���������������������������������������������������������� 168 Andrle v Czech Republic, App no 6268/08 (ECtHR, 17 February 2011������������� 219 Kiyutin v Russia, App no 2700/10 (ECtHR, 10 March 2011)���������������������������� 251 RK v The Czech Republic, App no 7883/08 (ECtHR, 27 November 2012)������������������������������������������������������������������� 166–67 Dubská and Krejzová v The Czech Republic, App nos 28859/11 and 28473/12 (ECtHR Chamber, 11 December 2014)���������������������������� 167, 168 Hanzelkovi v the Czech Republic, App no 43643/10 (ECtHR Chamber, 11 December 2014)���������������������������������������������������������� 168 Complaint to the European Committee of Social Rights, Transgender-Europe and ILGA-Europe v Czech Republic (Complaint no 117/2015) (pending)����� 155 Foreign Courts Korematsu v United States, 323 US 214 (1944) (USSC)������������������������������������� 252 Brown v Board of Education, 347 US 483 (1957) (USSC)����������������������������������� 85 Loving v Virginia, 388 US 1 (1967) (USSC)������������������������������������������������������� 287 Griggs v Duke Power Co, 401 US 424 (1971) (USSC)����������������������������������������� 89 Roe v Wade, 410 US 113 (1973) (USSC)�������������������������������������������������������������� 79 Califano v Goldfarb, 430 US 199 (1977) (USSC)����������������������������������������������� 223 Califano v Webster, 430 US 313 (1977) (USSC)������������������������������������������������� 223 Judgment of the Supreme Court of Canada Andrews v Law Society of British Columbia [1989] 1 SCR 143 (SC Canada)�������������������������������������� 251 United States v Virginia, 518 US 616 (1996) (USSC)������������������������������������������ 252 Pretoria City Council v Walker 1998 (2) SA 363 (CCSA)���������������������������������� 256 British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees’ Union (‘Meiorin’) [1999] 3 SCR 3 (SC Canada)�������������������������������������������������������� 256 Decision of the Constitutional Court of the Slovak Republic of 18 October 2005, Ref No PlÚS 8/04-202, published as No 539/2005 Coll��������������� 221, 271 Bedford v Canada 2010 ONSC 4264 (Superior Court of Justice of Ontario)����� 186

Table of Statutes Czech Sources Act No 117/1852 Imperial Criminal Code����������������������������������������������������� 33–34 Ministerial Decree of 23rd March 1897��������������������������������������������������������������� 30 Act No 91/1918 Coll�������������������������������������������������������������������������������������������� 30 Declaration of Independence of the Czechoslovak Republic from 18th October 1918 (Washington Declaration)�������������������������������������������������� 30 Act No 121/1920 Coll, Introducing the Constitutional Charter of the Czechoslovak Republic������������������������������������������������������������������� 30, 112 Ordinance No 74/1945 Coll��������������������������������������������������������������������������������� 40 Presidential Decree 88/1945 Coll������������������������������������������������������������������������� 39 Act No 57/1948 Coll�������������������������������������������������������������������������������������������� 35 Act No 99/1948 Coll�������������������������������������������������������������������������������������������� 40 Act No 231/1948 Coll������������������������������������������������������������������������������������������ 73 Act No 244/1948 Coll������������������������������������������������������������������������������������������ 99 Act No 247/1948 Coll������������������������������������������������������������������������������������������ 38 Constitutional Act No 150/1948 Coll������������������������������������������������ 33, 65, 89, 91 Act No 265/1949 Coll������������������������������������������������������������������������������ 34–35, 65 Act No 66/1950 Coll�������������������������������������������������������������������������������������������� 40 Act No 86/1950 Coll���������������������������������������������������������������������� 37, 65, 119, 165 Act No 88/1950 Coll�������������������������������������������������������������������������������������� 38–39 Act No 141/1950 Coll������������������������������������������������������������������������������������������ 65 Act No 142/1950 Coll������������������������������������������������������������������������������������ 35, 65 Act No 68/1951 Coll�������������������������������������������������������������������������������������������� 79 Act No 76/1952 Coll�������������������������������������������������������������������������������������������� 46 Government Ordinance No 40/1953 Coll������������������������������������������������������������ 39 Act No 61/1955 Coll�������������������������������������������������������������������������������������������� 35 Statutory Measure No 57/1955 Coll�������������������������������������������������������������������� 35 Act No 55/1956 Coll������������������������������������������������������������������������������������ 41, 101 Act No 63/1956 Coll�������������������������������������������������������������������������������������� 39, 70 Act No 68/1957 Coll�������������������������������������������������������������������������������������� 37–38 Ordinance No 249/1957 of the Ministry of Health���������������������������������������������� 37 Act No 70/1958 Coll�������������������������������������������������������������������������������������� 39, 96 Government Ordinance No 92/1958 Coll������������������������������������������������������������ 96 Constitutional Act No 100/1960 Coll������������������������������������������������ 67, 74, 89, 91 Act No 38/1961 Coll�������������������������������������������������������������������������������������������� 39 Act No 140/1961 Coll���������������������������������������������������� 37, 67, 119, 165, 181, 192 Act No 141/1961 Coll, Code of Criminal Procedure���������������������� 67–68, 182, 192 Ordinance of the Ministry of Health No 104/1961 Coll�������������������������������������� 48 Ordinance of the Ministry of Health No 126/1962 Coll�������������������������������������� 48 Act No 94/1963 Coll, Act on Family���������������������������������� 35–36, 45, 67, 159, 192

xx  Table of Statutes Act No 99/1963 Coll, Code of Civil Procedure���������������� 45, 67–68, 192, 222, 240 Government Ordinance 27/1951 Coll������������������������������������������������������������������ 99 Act No 40/1964 Coll������������������������������������������������������������������������������������ 67, 234 Act No 101/1964 Coll������������������������������������������������������������������������������������������ 51 Ordinance of the Ministry of Health No 95/1964 Coll���������������������������������������� 48 Act No 58/1965 Coll�������������������������������������������������������������������������������������������� 39 Act No 65/1965 Coll, Labour Code�������������������������������� 49, 50–51, 67, 90, 96–97, 173–75, 182 Act No 20/1966 Coll�������������������������������������������������������������������������������������������� 73 Government Resolution No 32/1967 Coll������������������������������������������������������������ 52 Ordinance of the Ministry of Finance No 24/1967 Coll��������������������������������������� 46 Act No 88/1968 Coll�������������������������������������������������������������������������������� 50–51, 96 Constitutional Act No 43/1968 Coll�������������������������������������������������������������������� 80 Act No 150/1969 Coll������������������������������������������������������������������������������������������ 39 Act No 153/1969 Coll������������������������������������������������������������������������������������ 50, 96 Act No 154/1969 Coll������������������������������������������������������������������������ 50–51, 61, 96 Ordinance No 74/1970 Coll������������������������������������������������������������������������������� 101 Act No 107/1971 Coll������������������������������������������������������������������������������������������ 61 Act No 99/1972 Coll�������������������������������������������������������������������������������������������� 61 Guideline of the Ministry of Health of the CSR No 1/1972 Bulletin reg in issue 5/1972 Coll������������������������������������������������������������������������������������ 60 Act No 14/1973 Coll�������������������������������������������������������������������������������������������� 61 Internal act of the Ministry of Labour and Social Affairs of the CSR from 1973, act no IV/1-8750-13.9.1973/7�������������������������������������������������������� 60 Ordinance of the Ministry of Health No 71/1973 Coll���������������������������������������� 49 Act No 121/1975 Coll������������������������������������������������������������������������������������������ 57 Ordinance No 130/1975 Coll������������������������������������������������������������������������������� 57 Act No 66/1986 Coll�������������������������������������������������������������������������������������������� 59 Act No 188/1988 Coll������������������������������������������������������������������������������������������ 61 Ordinance of the Ministry of Health and Social Affairs of the CSR No 152/1988 Coll�������������������������������������������������������������������������������������������� 60 Act No 175/1990 Coll�������������������������������������������������������������������������������� 185, 192 Act No 455/1990 Coll���������������������������������������������������������������������������������������� 186 Act No 382/1990 Coll������������������������������������������������������������������������ 171, 175, 178 Act No 582/1991 Coll�������������������������������������������������������������������������������� 176, 218 Act No 586/1992 Coll���������������������������������������������������������������������������������������� 162 Act No 634/1992 Coll���������������������������������������������������������������������������������������� 252 Act No 308/1993 Coll���������������������������������������������������������������������������������������� 148 Constitutional Act No 1/1993 Coll, the Constitution of the Czech Republic����������������������������������������������������������������������������� 214, 217 Constitutional Act No 2/1993 Coll, Charter of Fundamental Rights and Freedoms����������������������������������������������������������� 161, 196–97, 214, 222–223 Act No 74/1994 Coll������������������������������������������������������������������������������������������ 217 Act No 117/1995 Coll������������������������������������������������������������������ 152, 171, 176–80 Act No 155/1995 Coll������������������������������������������������������������ 172, 175–76, 218–19 Ordinance of the Ministry of Health No 261/1997 Coll������������������������������������ 173

Table of Statutes xxi Act No 111/1998 Coll���������������������������������������������������������������������������������������� 249 Act No 167/1999 Coll�������������������������������������������������������������������������������� 225, 231 Act No 349/1999 Coll, on the Public Defender of Rights����������������������������������� 233 Act No 30/2000 Coll������������������������������������������������������������������������������������������ 231 Act No 217/2000 Coll���������������������������������������������������������������������������������������� 231 Act No 155/2000 Coll���������������������������������������������������������������� 175, 225, 231, 246 Act No 120/2001 Coll, Enforcement Code��������������������������������������������������������� 165 Act No 134/2002 Coll���������������������������������������������������������������������������������������� 181 Act No 218/2002 Coll���������������������������������������������������������������������������������������� 231 Act No 361/2003 Coll���������������������������������������������������������������������������������������� 231 Act No 453/2003 Coll���������������������������������������������������������������������������������������� 179 Act No 237/2003 Coll���������������������������������������������������������������������������������������� 171 Ordinance of Ministry of Health No 288/2003 Coll������������������������������������������ 173 Act No 46/2004 Coll������������������������������������������������������������������������������������������ 231 Act No 91/2004 Coll������������������������������������������������������������������������������������������ 181 Act No 435/2004����������������������������������������������������������������������������������������������� 231 Act No 436/2004 Coll���������������������������������������������������������������������������������������� 173 Act No 537/2004 Coll���������������������������������������������������������������������������������������� 181 Act No 561/2004 Coll���������������������������������������������������������������������������������������� 252 Act No 669/2004 Coll���������������������������������������������������������������������������������������� 162 Act No 112/2006 Coll���������������������������������������������������������������������������������������� 171 Act No 115/2006 Coll������������������������������������������������������������������ 151, 159–60, 279 Act No 135/2006 Coll�������������������������������������������������������������������������������� 182, 184 Act No 187/2006 Coll�������������������������������������������������������������������������������� 148, 171 Act No 262/2006 Coll, Labour Code���������������������� 68, 170–71, 174–75, 182, 192, 232, 250, 252 Act No 261/2007 Coll�������������������������������������������������������������������������� 172, 178–79 Government Ordinance No 361/2007 Coll, on Health and Safety at Work�������� 173 Act No 482/2008 Coll���������������������������������������������������������������������������������������� 162 Act No 40/2009 Coll, Criminal Code����������������������������������� 68, 165, 181, 185, 192 Act No 198/2009 Coll, Anti-Discrimination Act����������������������� 151, 171, 182, 230, 232, 234 Act No 347/2010 Coll���������������������������������������������������������������������������������������� 152 Act No 220/2011 Coll���������������������������������������������������������������������������������������� 219 Act No 365/2011 Coll, Amending the Labour Code������������������������������������������ 174 Act No 366/2011 Coll�������������������������������������������������������������������������������� 152, 178 Act No 373/2011 Coll, on Specific Health Services�������������������������������������������� 166 Act No 89/2012 Coll, Civil Code������������������������������������������� 68, 159–60, 192, 235 Act No 396/2012 Coll���������������������������������������������������������������������������������������� 165 Act No 45/2013 Coll, on the Protection of Victims of Crime����������������������� 182–83 Act No 234/2014 Coll, on Civil Service����������������������������������������������������� 192, 231 Act No 247/2014 Coll, on Child-Care in Children’s Groups������������������������������ 153 Foreign, EU and International Sources ILO Convention concerning the Employment of Women on Underground Work in Mines of all Kinds No 45 of 1935���������������������������������������������������� 174

xxii  Table of Statutes ILO Convention concerning Night Work of Women Employed in Industry No 89 of 1948�������������������������������������������������������������������������� 174, 217 Grundgesetz für die Bundesrepublik Deutschland Vom 23.05.1949 (BGBl. I S. 1)���������������������������������������������������������������������������������������������������� 20 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195�������������������������������������� 264 International Covenant on Civil and Political Rights, 16 December 1996, 999 UNTS 171 ������������������������������������������������������������������������������������������������ 54 International Covenant on Economic, Social and Cultural Rights, 16 December 1996, 993 UNTS 3���������������������������������������������������������������������� 54 Council Directive 75/117/EEC on the Approximation of the Laws of the Member States Relating to the Application of the Principle of Equal Pay for Men and Women, [1975] OJ L045/19����������������������������������������������������������������������������� 88 Council Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions, [1976] OJ L039/40����������������������������������������������������������������������������������� 88, 182 Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 14��������������������� 12, 18, 118, 143, 154, 156–57, 166–67, 243, 300 Council of Europe Recommendation 869/1979 on Payment by the State of Advances on Child Maintenance�������������������������������������������������������� 163 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11��������������� 252 Council Directive 86/378/EEC of 24 July 1986 on the Implementation of the Principle of Equal Treatment for Men and Women in Occupational Social Security Schemes, [1986] OJ L225/40������������������������������������������������������������� 230 ILO Convention concerning Night Work No 171 of 1990��������������������������������� 217 United Nations Committee on the Elimination of Discrimination Against Women, General Recommendation No 19, A/47/38 of 29 January 1992������� 118 Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, [1992] OJ L348/1����������������������������������������������������������������������� 51, 97, 170, 228 Council Directive 96/34/EC on the Framework Agreement on Parental Leave Concluded by UNICE, CEEP and the ETUC, [1996] OJ L145/4 ������������� 97, 228 Council Directive 96/97/EC of 20 December 1996 Amending Directive 86/378/ EEC on the Implementation of the Principle of Equal Treatment for Men and Women in Occupational Social Security Schemes, [1997] OJ L046/20����������� 230 Council Directive 97/80/EC on the Burden of Proof in Cases of Discrimination Based on Sex [1998] OJ L14/6����������������������������������������������� 257 Council Regulation (EC) No 1257/1999 of 17 May 1999 on Support for Rural Development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and Amending and Repealing Certain Regulations, [1999] OJ L160/80; corrigendum [2000] OJ L302/72������������������������������������ 237 Charter of Fundamental Rights of the European Union, [2000] OJ C364/1������������������������������������������������������������������������������������� 20, 252

Table of Statutes xxiii Council Directive 2000/43/EC Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, [2000] OJ L180/22����������������������������������������������������������������� 144, 195, 226, 264 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime (United Nations A/55/25, 8 January 2001)������������������������� 181 Council Framework Decision 2002/629/JHA on Combating Trafficking in Human Beings, [2002] OJ L203/1���������������������������������������������������������� 181, 228 Directive 2002/73/EC Amending Council Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working conditions, [2002] OJ L269/15��������������������������� 88, 182, 231, 247 Council Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Occupation [2000] OJ L303/16��������������������� 226 Council Directive 2004/113/EC Implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services, [2004] OJ L373/37������������������������������������������������� 226, 230 Council Directive 2004/113/EC Implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services [2004] OJ L373/37�������������������������������������������������� 226, 230 Directive 2006/54/EC on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (Recast) [2006] OJ L204/23��������������������������������������������������������������������� 94, 171, 182, 186, 203, 220, 227, 234, 243, 257, 263, 271 Treaty on European Union [2010] OJ C83/13�������������������������������������������� 143, 227 Treaty on the Functioning of the European Union [2010] OJ C83/47���������������������������������������������������������������������������������������� 92, 226, 227 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, and Replacing Council Framework Decision 2002/629/JHA [2011] OJ L101/1����������������������������������������������������� 228 Proposal for a Directive of the EP and of the Council on Improving the Gender Balance among Non-executive Directors of Companies Listed on Stock Exchanges and Related Measures (COM(2012) 614 final)����������������������������� 154

xxiv 

Table of Parliamentary Debates (all transcripts are available at www.psp.cz or www.senate.cz) Date

Chamber

Print No

Bill debated

Reference (pg)

19/12/1956

National Assembly

N/A

Amendments to the Criminal Code

71

181, 203, 208

Domestic violence 25/6/2003

Chamber 298 (2003) of Deputies

The proposal to amend the Criminal Code by inserting a provision on domestic violence (adopted as Act No 91/2004 Coll)

16/6/2005

Chamber 828 (2004) of Deputies

The accompanying bill 184, 203, 208 on domestic violence, containing noncriminal provisions (adopted as Act No 135/2006 Coll)

Labour and anti-discrimination 10/12/2003

Senate

10/2/2005

26/1/2006

119 (2003)

An amendment to the Labour Code defining sexual harassment (adopted as Act No 46/2004 Coll)

185, 202, 206, 207, 208, 288

Chamber 866 (2005) of Deputies

The proposal of the first AntiDiscrimination Act (not adopted)

269

Senate

The proposal of the first Antidiscrimination Act (not adopted)

229, 269

201 (2006)

Registered partnership 24/6/2005

Chamber 969 (2005) of Deputies

Proposal of the Act on 159, 203, 282 Registered Partnership (adopted as No 115/2006 Coll)

xxvi  Table of Parliamentary Debates Date

Chamber

13/7/2016

Chamber 320 (2014) of Deputies

Print No

Bill debated

Reference (pg)

Proposal to amend the Act on Registered Partnership (pending)

161

State advances on child support payments 10/4/2004

Chamber 848 (2001) of Deputies

Proposal of an act on state advances on child support payments 2001 (not adopted)

204

24/6/2005

Chamber 964 (2005) of Deputies

Proposal of an act on state advances on child support payments 2005 (not adopted)

204, 208

24/10/2007

Chamber 132 (2007) of Deputies

Proposal of an act on state advances on child support payments 2007 (not adopted)

204

27/1/2010

Chamber 849 (2009) of Deputies

Proposal of an act on state advances on child support payments 2009 (not adopted)

164, 204, 208

List of Abbreviations ADA

Act No 198/2009 Coll, Anti-Discrimination Act (antidiskriminační zákon)

ANO

Akce nespokojených občanů (Action of Dissatisfied Citizens)—a Czech political party

ARP

Act on Registered Partnership

CCC

Czech Constitutional Court

CEDAW

Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 14

CEE

Central and Eastern Europe

CEU

Central European University

Czech Charter

Act No 2/1993 Coll, Charter of Fundamental Rights and Freedoms

CJEU

Court of Justice of the European Union

CZSO

Czech Statistical Office

ČSSD

Česká strana sociálně-demokratická (Czech SocialDemocratic Party)—a Czech political party

CZ

Czech or Czechoslovak

DC

District Court

EC

European Communities

EEC

European Economic Community

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

EU

European Union

EU Charter

Charter of Fundamental Rights of the European Union [2000] OJ C364/1

KDU-ČSL

Křesťanská a demokratická unie—Československá strana lidová (Christian-Democratic Party)—a Czech political party

MC

Municipal Court

NGO

non-governmental organisation

xxviii  List of Abbreviations ODS

Občanská demokratická strana (Civil Democratic Party)—Czech political party

PSP ČR

Poslanecká sněmovna parlamentu České Republiky (Chamber of Deputies of the Parliament of Czechia)

RC

Regional Court

s

section

ss

sections

SAC

Supreme Administrative Court

SC

Supreme Court

TEU

Treaty on European Union [2010] OJ C83/13

TFEU

Treaty on the Functioning of the European Union [2010] OJ C83/47

UK

United Kingdom

UN

United Nations

US

United States (of America)

VAT

value added tax

1 Introduction

G

ENDER EQUALITY LAW is not doing well in Czechia.1 When obliged to adopt, interpret and apply statutory anti-discrimination provisions as a condition of membership in the European Union, legislators as well as judges have repeatedly expressed hostility and demonstrated a fundamental lack of understanding of key ideas underpinning them.2 For example, when the Czech Senate passed the Anti-Discrimination Act (ADA) in 2008, it adopted a resolution—a rarely used declarative instrument—to express its opposition to the statute: The Senate considers the Anti-Discrimination Act to be a tool for implementation of the requirements of EU law, the non-realisation of which would lead to sanctions. It does not, however, identify with the character of the norm, which artificially interferes with the natural evolution of society, does not respect cultural differences among the Member States and elevates the demand of equality above the principle of freedom of choice. The Senate urges the government not to consent to the adoption of further anti-discrimination measures at the EU level.3

Scepticism toward equality and anti-discrimination rights4 is also common among the judiciary. For example, the Constitutional Court judge, Vojtěch Šimíček, writing extra-judicially in 2015, stated that one of the pitfalls facing human rights was the current anti-discrimination hysteria [original emphasis]. The originally praiseworthy movement, which has achieved notable results, has long surpassed the borders of the reasonable. It has started to ignore that our whole life is based on our mutual difference, and our life is beautiful and noteworthy because each of us

1  The name Czechia is new, approved by the Czech Cabinet as the official short name of the Czech Republic in the first half of 2016. I use the name Czechia to describe the Czech Republic (1993–today) and the Czech part of Czechoslovakia (1918–93). Slovak law was different for at least part of the period discussed. Whereas Czechia followed Austrian law when Czechoslovakia was established in 1918, Slovakia had Hungarian law and retained elements of it until the 1950s. After the federalisation of Czechoslovakia in 1968, the laws of the two countries once again diverged somewhat. 2  I document this in detail in Ch 8. 3 Senate, Resolution no 377 of 2008 (23 April 2008, on file with the author) (emphasis added). All translations are mine unless indicated otherwise. 4  I discuss the possible difference between equality and anti-discrimination in section III.A.iii below, fn 72.

2  Introduction is different. … It is undoubtedly the law’s task to eliminate unjustified differences. It ought not, however, have the ambition to interfere with private relations: to decide whom I should employ and in what position, … with whom I can contract a rental agreement, how a candidate list [of a political party] should be constituted … This tendency inevitably leads to two consequences. First, the limitation of the freedom and free will of individuals and, at the same time, the evasion of the rules. As much as a river eventually finds its way to its own river bed, so does real life reject regulations which are not natural.5

The resistance to anti-discrimination rights among Czech judges has meant that, more than a decade after Czechia’s accession to the EU,6 a woman has yet to be wholly successful when bringing a case of sex discrimination before the Czech courts. The negative attitudes are not limited to Czechia; they are common among the formerly state-socialist countries of Central and Eastern Europe (CEE).7 And they go beyond the observable opposition to the implementation of the EU anti-discrimination acquis.8 A ‘gender curtain’ seems to hang between the ‘West’ and the ‘East’9 more generally with regards to gender equality 5  V Šimíček, ‘Lidská práva na rozcestí [Human Rights at the Crossroads]’ in J Přibáň et al (eds), Lidská práva. (Ne)smysl české politiky? [Human Rights. The (Non)Sense of Czech ­Politics?] (SLON, 2015) 149–50, emphasis added. 6  Czechia acceded to the EU on 1 May 2004. From this moment on, the rights contained in the EU anti-discrimination acquis became directly effective against the state and indirectly effective in horizontal relations. See Ch 8. 7  I use the term ‘Central and Eastern Europe’ (or CEE) to describe the former ‘Eastern bloc’ countries that did not become members of the Commonwealth of Independent States, the successor to the Soviet Union (ie countries that were Soviet satellites plus the Baltic states). My analysis is particularly applicable to post-socialist countries that have joined the EU (some in 2004, others in 2007 and 2013). These are the jurisdictions typically represented in the CEE literature, which contains a large body of work that deals with the deficiencies and difficulties of implementing EU anti-discrimination law. See, eg, C Kollonay Lehoczky, ‘The Significance of Existing EU Sex Equality Law for Women in the New Member States. The Case of H ­ ungary’ (2005) 12 Maastricht Journal of European and Comparative Law 467; M Zysk, ‘Age Discrimination Law in a Country with a Communist History: The Example of Poland’ (2006) 12 E ­ uropean Law Journal 371; C Chiva, ‘The Limits of Europeanization: EU Accession and Gender Equality in Bulgaria and Romania’ (2009) 10 Perspectives on European Politics and Society 195; U Sedelmeier, ‘Post-Accession Compliance with EU Gender Equality Legislation in Post-Communist­New Member States’ (2009) 13 European Integration Online Papers 1; A Gerber, ‘The Letter Versus the Spirit: Barriers to Meaningful Implementation of Gender Equality Policy in Poland’ (2010) 33 Women’s Studies International Forum 30; G Selanec, ‘A Betrayed Ideal: The Problem of Enforcement of EU Sex Equality Guarantees in the CEE Post-socialist Legal Systems’ (SJD thesis, University of Michigan Law School, 2012). 8 The EU acquis ‘is the body of common rights and obligations that are binding on all EU countries, as EU Members’. Aside from the legislation and the case law of the Court of Justice of the EU (CJEU), it is understood also to comprise ‘principles and political objectives of the Treaties’. EU, ‘Glossary’, available at http://eur-lex.europa.eu/summary/glossary/acquis. html. I use the term acquis, as it helps highlight that adopting the EU acquis goes beyond a mere transposition of norms into the national legal system. For a more detailed discussion, see ­Selanec, ‘A Betrayed Ideal’ (2012), 148 ff. 9  The labels ‘West’ and ‘East’ provide a useful shorthand for distinguishing between former socialist countries and the ‘developed’ capitalist countries, but they are of course both imprecise and somewhat homogenising. When I refer to the West, I understand it to include Western

Introduction 3 law. For example, protective labour legislation that distinguishes between men and women with regard to the maximum weight they are allowed to lift has persisted in the CEE, but has largely been abandoned in the West.10 The option of giving birth outside hospital is either illegal or made exceedingly difficult in many CEE countries, while it is both legal and common in the West.11 Paternity leave has been introduced in half of the EU’s old Member States and in only two post-socialist ones.12 When the Czech Cabinet discussed the signing of the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence (the so-called ‘Istanbul Convention’) in early 2016,13 it was one of the last three EU Member countries to sign, alongside Bulgaria and Lithuania.14 This book explores this scepticism as regards gender equality, and asks how it can be explained with reference to legal and socio-legal developments that started in the state-socialist15 past and which are still relevant today. It answers these questions by looking at how gender equality has been regulated in law and understood by lawmakers, judges and legal scholars in Czechia during the period between 1948 and today.16 Thus, in the foreground, the book examines legal developments in gender-relevant areas,17 Europe and North America. When I make a specific point about Western Europe (typically in relation to the EU), about the common law legal family (typically in discussions of certain aspects of anti-discrimination law doctrine) or about Anglo-American space (typically in discussing feminist theories), I so specify in the text. This addresses to some extent the question of imprecision. As for homogenisation, I acknowledge the existing critiques that neither ‘East’ nor ‘West’ is homogeneous; see, eg, FE Olsen, ‘Feminism in Central and Eastern Europe: Risks and Possibilities of American Engagement’ (1997) 106 The Yale Law Journal 2215. However, these cautions were raised especially when the intellectually hegemonic ‘West’ defined itself as against the ‘East’—it was a warning against homogenisation, oversimplification and ‘orientalism’ in relation to a little-known region. I do not believe that corresponding worries exist with regard to my treatment of the intellectually dominant Western Europe and North America. 10 

See Ch 6, p 173 below. See Ch 6, p 166–169 below. 12  European Commission, Maternity, Paternity and Parental Leave: Data Related to Duration and Compensation Rates in the European Union (European Parliament, 2015), available at www.europarl.europa.eu/RegData/etudes/STUD/2015/509999/IPOL_STU(2015)509999_ EN.pdf; see Ch 6, p 176 below. 13  See Ch 6, p 155 and 280 below. 14  Ministry of Justice, Předkládací zpráva pro vládu ČR k Istanbulské úmluvě [Supporting Report for the Cabinet on the Istanbul Convention] (Ref No 9641/2015-LO-SP/18—on file with the author, 2015). 15  ‘State socialism’ is a term commonly used in the literature to describe the period of rule of Communist Parties in CEE countries after World War II. Some authors use different terms, such as ‘real socialism’ (eg Gordon Skilling) and ‘real existing socialism’ (eg J Hersh and D Schmidt Johannes, The Aftermath of ‘Real Existing Socialism’ in Eastern Europe (Macmillan Press/ St Martin’s Press, 1996). While in common Czech parlance the term ‘Communism’ is used, it is not accurate. Kaplan argues that the power or regime can be described as ‘communist’ (due to the rule of Communist Parties), but that the society should be described as ‘socialist’: K Kaplan, Kořeny československé reformy 1968 [The Roots of Czechoslovak Reform 1968] (Doplněk, 2000). 16  The book describes the situation as of August 2016. 17  See section III.B.i below. 11 

4  Introduction most importantly in equality and anti-discrimination law. But it also excavates the underlying, sometimes hidden, yet crucial understandings of key concepts such as women, gender, equality, discrimination, rights and the role of law in society. As the book shows, these understandings significantly determine whether the legal provisions, and the interpretation given to them by the courts, will be gender-progressive18 or not. The quotations set out above give an indication of some of the intellectual and conceptual difficulties facing gender equality in Czechia today: an essentialist understanding of differences between men and women being natural, a notion that equality is incompatible with freedom, an assumption that Czechia is unique and not faced with a problem of gender inequality known to other countries, and a perception that existing laws are objective and neutral, while any new gender-progressive regulation of social relations is an unacceptable interference with the natural social order. In the following, I briefly present the book’s main argument (section I) and its structure (section II). I then elaborate on its methodology (section III). I.  MAIN ARGUMENT

Gender-progressive legislation has faced difficulties every step of the way: in the process of adoption by lawmakers, interpretation and application by the courts, and conceptualisation by legal scholars. This book argues that these difficulties are deep-seated in underlying ideas about women, lack of understanding of gender as a social construct19 and of gender order as an important and pervasive social structure, an extremely narrow understanding of what constitutes discrimination, and a refusal—or at best reluctance—to use law and rights to combat discrimination and to further gender equality. It also argues that these underlying understandings are path-dependent20 on state socialism. Blindness to gender and the gender order among Czech lawmakers, judges and legal scholars has been at the root of the problem. It is impossible to get gender equality right unless the socially constructed nature of gender is acknowledged. This is particularly important for drawing the line correctly between when to treat women the same, and facilitate equal treatment, and when to acknowledge and facilitate or protect their difference.21 Moreover, for anti-discrimination law to work, the structural nature of inequality needs to be acknowledged. It is especially important to

18 

See section III.A.ii below. See section III.A.i below. 20  The idea that ‘what a society is, has and does depends crucially on what it was, had and did’. M Krygier and A Czarnota, ‘Rights, Civil Society, and Post-Communist Society’ in A Sajó (ed), Western Rights? Post-Communist Application (Kluwer Law International, 1996) 106. 21  See p 49 and 220 below. 19 

Main Argument 5 recognise that the existing setup, societal and legal, is neither natural nor neutral. Without it, it is hard to comprehend, for example, how pay structures might be based on a socio-cultural undervaluation of work typically done by women or work when done by women.22 Without a recognition that institutions might be biased along axes such as sex/gender,23 it is difficult for acts that have disparate impact on women to trigger suspicion in judges.24 A.  Women and Gender Women and their concerns have not been entirely ignored or disregarded by law and policy in Czechia. Rather, they have been identified with certain ‘roles’, especially motherhood, and supported only when they conform to them. Women’s ‘difference’, mostly understood as biologically determined, has often been used to dismiss inequality as natural. Men have been the norm in the public life, and have largely been absent from private life. The androcentric nature of the setup in the public sphere of work and politics, and the gender role-conserving nature of the setup in the private sphere of the family, and the role law plays in sustaining them, have not been subjected to reflection and critique. Gender, as a social construct, an organising social principle and an axis of disadvantage, has not been seen and acknowledged by lawmakers, judges and legal scholars. Under state socialism, it was obscured: the socialist state was ideologically conditioned to see only ‘class’, while the population tended to identify the ‘regime’ as the source of its oppression. After 1989, it was the market-liberal narrative of choice and individualism that further hid any structural causes of inequality, including patriarchy. A bottom-up women’s awareness-raising and feminist movement was entirely missing during state socialism, and is only slowly constituting itself in Czechia today. Under state socialism, it was suppressed, just like all other civic movements, and while the language of women’s emancipation was ‘expropriated’25 by the

22 

See esp p 271. distinction between the biological sex and socially constructed gender is attributed to the anthropologist Margaret Mead, Sex and Temperament in Three Primitive Societies (Routledge, 1935). It has been both widely used as well as challenged, epistemologically and ontologically. See, eg, J Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990). There is, however, a difference between problematising a distinction that has been intellectually, and arguably even politically, well established and internalised in the West on the one hand, and not having arrived at the distinction at all in the East. It is hard to deconstruct without having constructed. The distinction thus has a role to play in an analysis of state-socialist and post-socialist CEE. 24  See Ch 8 section III for detail. 25 H Havelková, ‘Dreifache Enteignung und eine unterbrochene Chance: Der „Prager Frühling“ und die Frauen-und Geschlechterdiskussion in der Tschechoslowakei’ (2009) 23 The

6  Introduction socialist state, its project did not truly liberate women. Since 1989, feminism has been considered either unhelpful or harmful, due to its—incorrect— association with the socialist past. B.  Equality and Anti-Discrimination Equality was a central concern of the socialist state. However, its equality project aimed at socio-economic levelling, and was not particularly concerned with special characteristics such as sex/gender. Moreover, it did not contain an individual anti-discrimination right, therefore the conceptual step that the law should interfere with discriminatory acts or entrenched social structures of disadvantage along axes such as sex/gender, the cornerstone of a progressive understanding of anti-discrimination law in many Western jurisdictions today,26 was not made. While the lack of legal antidiscrimination guarantees was remedied in the post-socialist period thanks to the requirements of EU membership, the underlying understandings have not shifted. A legal harmonisation took place without a socio-cultural one. Importantly, women’s difference continues to be seen as an explanation and justification for inequality and discrimination. C.  The Role of Law and Rights The socialist state saw the law as a tool for social change, but this ‘social engineering’27 was rejected after 1989. On the contrary, as the above-cited excerpt from the Senate resolution exemplifies, it is now asserted in policy and legal debates that the law should not interfere with the ‘natural’ order of things. Furthermore, law itself is seen as neutral and objective, while calls for gender-progressive legislation are seen as biased. Gender equality is also hurt by a particular post-socialist understanding of rights. Under state socialism, rights were a mirage: legal guarantees were not enforceable individual entitlements but often mere policy pronouncements. ‘Rights’ had to correspond to a ‘collective interest’, and many were connected to obligations. The understanding of rights as connected to ‘desert’ and to the support of the majority was carried over into the post-socialist period, and has weakened anti-discrimination and equality rights claims, as well as other claims by women. 20 L’Homme 31; H Havelková and L Oates-Indruchová, ‘Expropriated Voice’ in H ­ avelková and Oates-Indruchová (eds), The Politics of Gender Culture under State Socialism: An ­Expropriated Voice (Routledge, 2014) 10–11. 26  Among common law countries, notably Canada and South Africa; beyond common law countries, in the EU and under the ECHR. See p 251 and 256. 27  See Ch 3 section II.A.

Book Structure and Chapter Summaries 7 A ‘new’ understanding of rights as freedoms also emerged after 1989, connected to market liberalism and the idea of a strong independent individual. It supports freedoms for the strong, but any request for rights and empowerment from disadvantaged groups, including women, is seen as ‘request for protection’ and thus rejected. II.  BOOK STRUCTURE AND CHAPTER SUMMARIES

The book is organised chronologically. Part I (Chapters 2 to 5) discusses gender equality law during the period of state socialism (1948–89), while Part II (Chapters 6 to 9) looks at the post-socialist period (1989–today). The two parts mirror one another in terms of content: Chapters 2 and 6 discuss the development of the legal regulation of women and gender; Chapters 3 and 7 look at the characteristics of law and rights; Chapters 4 and 8 examine the legal concepts and the legal guarantees of equality and nondiscrimination; and Chapters 5 and 9 analyse the underlying understandings of gender, the gender order and gender inequality. Chapter 2 examines legal regulation in areas that were seen as answering the ‘woman question’ (ženská otázka)28 under state socialism:29 family and work. I observe that while much was done for women in terms of formal equality in law in the public sphere, there was a marked lack of empowerment of women in the family and an absence of involvement of men in it. The socialist state thus at least to some extent promoted ‘public equality’30 but accepted ‘private difference’. The project of equality also changed over time: The early activist period of the 1950s delivered positive legal changes, but these policies were challenged and eventually outweighed by pro-maternity and pro-family policies aiming at population growth from the 1960s onwards. The diachronic analysis thus reveals that there was ‘first equality, then difference’. Chapter 3 observes that law under state socialism, public law in particular, was seen as a legitimate tool for social change. This was good for gender equality in the activist and progressive 1950s, but became more problematic later. Moreover, the memory of this ‘social engineering’ persisted after 1989, when it got exaggerated, discredited and used against the introduction of regulatory public law instruments in private law. As for rights, they were also understood differently in the state-socialist East than they were in the West. They were not seen as individual entitlements but as mere policy proclamations, which made guarantees of rights, including equality, a mirage. 28 

The term used by Marxist-Leninist theorists and in state-socialist official writings. See fn 81 below. 30  This had its limits too—segregation and a considerable wage gap persisted throughout the period. See p 113. 29 

8  Introduction Moreover, ‘rights’ had to correspond to collective interest and were often connected to obligations. Both traits were to some extent carried over into the post-socialist era. Chapter 4 argues that the state-socialist equality project was limited. There was socio-economic levelling, but no anti-discrimination rights. The attention to specifically protected grounds, such as sex/gender, and to individual autonomy, as we know it from Western anti-discrimination law and scholarship,31 was missing. Indeed, I suggest that the East and West have gone through very different developments with regard to equality and antidiscrimination law. Broadly speaking, the Western European development can be divided into three phases: the elimination of men’s legal privilege and guarantee of formal equality before law; the adoption of anti-discrimination legislation; and the rise of substantive and transformative equality. I argue that while the development was similar in the East during the first phase, phases two and three basically occurred in the opposite order in Czechia. There was first a substantive and transformative understanding of equality centred on class, and only later were anti-discrimination guarantees introduced. This was an important legacy for the post-socialist period, because it meant that the intellectual step that law ought to interfere with discrimination was not made, nor was any ground prepared for it. Chapter 5 shows that these inadequacies and gaps in gender equality law were underpinned by blindness to gender and the gender order, as well as denials of the existence of inequality, denials of the injustice of it and denials of responsibility for it.32 The roots of this blindness and denials were partly ideological, stemming from the Marxist-Leninist understanding of the natural difference of women, as well as its focus on class and capitalism to the exclusion of a recognition of other axes of disadvantage or systems of oppression. The regime’s expropriation of the language and agenda of equality meant that gender inequality was also obscured politically: women would have identified the regime as its source rather than patriarchy. Finally, gender was obscured epistemologically: the challenge to the perception that legal and social structures are natural, neutral and just, which happened in the West from 1970s onwards, did not occur in Czechoslovakia. Due to its isolation, Czechoslovakia missed the paradigmatic shift brought about by feminism, and Czechia has yet to experience it. Part II turns to developments after the fall of the state-socialist regime in 1989. Chapter 6 documents that while many previously missing legal guarantees, such as enforceable constitutional and statutory antidiscrimination rights, were adopted, and previously neglected issues, such 31 

See discussion on p 206. use Deborah Rhode’s framework, which—although created for the Anglo-American space—is apt for CEE as well. D Rhode, Speaking of Sex: Denial of Gender Inequality (­Harvard University Press, 1997). 32 I

Book Structure and Chapter Summaries 9 as ­gender-based violence, increasingly addressed, there has not been a genuine gender-progressive­shift with regard to the underlying categories and understandings. I observe that the regulation of family and work, which was characterised by a combination of ‘public equality and private difference’ during state socialism, persisted in post-socialism. Despite apparent changes, such as the gender-neutralisation of regulation of care to include fathers, and the legal recognition of same-sex partnerships, various legal provisions, as well as positions of law-makers expressed in the parliamentary debates, continue to be gender-conservative. There is a bias towards complete heterosexual families with a traditional division of labour and towards mothers as carers. A similar trend can be observed with regard to gender-based violence: despite positive legal developments in the postsocialist period, such as the criminalisation of domestic violence or stalking, the gender dimension of these issues continues to be denied and the law is written from a male perspective. Chapter 7 observes that law and rights experienced continuity as well as change33 in the years following the Velvet Revolution. I note that legal formalism, dominant among Czech lawyers during the 1970s and 1980s, survived the fall of state socialism. This has particularly harmed those areas of law that require purposive interpretation, such as equality and antidiscrimination law. The state-socialist understanding of rights as connected to desert, as conditional and as relativised by majority interest, has not waned either. Moreover, these inherited obstacles to gender equality have been joined by new challenges. A virulent market-liberal narrative rejected almost any legal regulation as an unacceptable social engineering, relegating most aspects of gender equality to manners or morals, not law. It also brought an understanding of rights as negative liberties. Supported by a resurgent social conservatism, this highly, albeit unwittingly, gendered account has defended negative freedoms for those who traditionally have them, but spurned new rights claims. Arguments drawing on economic liberalism and social conservatism, often together, have been raised by lawmakers against new gender-progressive legislation and rights, as well as by judges in interpreting and applying the laws that have been adopted. Chapter 8 provides an analysis of sex/gender equality and antidiscrimination law, and how it has been interpreted and applied by the Czech Constitutional Court (CCC) as well as by ordinary courts. In terms of the constitutional doctrine of sex/gender equality, it is currently difficult to

33 The distinction between ‘change’ and ‘continuity’ has been problematised by Gal and Kligman, who argue that the process is better understood as ‘shifting interpretive frameworks’. S Gal and G Kligman, The Politics of Gender after Socialism: A Comparative-Historical Essay (Princeton University Press, 2000) 109 ff. I acknowledge this critique, and despite using the terms throughout the book, I offer a more nuanced assessment of these dynamics in the Conclusions in Ch 10.

10  Introduction assess, as all the five cases that have come before the CCC have been brought by men. The CCC appears capable of declaring unconstitutional expressly stated disparate treatment on the basis of sex, but its sensitivity to structural bias and ability to understand substantive equality have yet to be seen. At the statutory level, anti-discrimination guarantees were strongly and persistently resisted in Parliament, and were only finally adopted for reasons of EU membership. I show that courts rely on various strategies in their reasoning to avoid deciding on the merits, which inevitably means a loss for the claimants. When they do address the merits, they generally set a very high threshold for what constitutes discrimination, they incorrectly look for fault or intent, are very reluctant to shift the burden of proof to defendants, and refuse to see the possibility that general structures can be biased and constitute indirect discrimination. I argue that these flaws are connected to the underlying ‘few bad apples’ understanding of anti-discrimination law. ‘Bad’ because only express, intentional, hateful acts are seen as discriminatory, and ‘few’ because discriminatory acts are seen as unconnected excesses, rare and individualised. While this understanding harms anti-discrimination law in general, sex/gender discrimination is further hampered by the continued emphasis on the difference between the sexes, and an inability to see men and women as truly comparable. Chapter 9 notes that while the state-socialist ideological aspirations for gender equality were limited, they practically disappeared at the level of government after 1989. Gender equality is at best ignored, at worst rejected as a project. The blindness to gender, gender order and gender inequality has persisted. A particularly strong dislike of feminism prevents any positive development. Feminist agenda suffers from the absence of a supporting perspective, such as Marxism, and a presence of undermining perspectives, such as structural functionalism. I discuss that although not all aspects of Western feminism are applicable to the Czech context, second-wave radical feminism,34 as corrected by third-wave critiques,35 in particular has important insights to offer. I note that legal scholarship has suffered from the absence of feminism too: positivist ideas about law as an autonomous, neutral and just system prevail. 34  The struggle to achieve basic political rights during the period from the mid-19th century to the early 20th century is often termed the ‘first wave’ of feminism. In the late 1960s and early 1970s in the US, a ‘second wave’ of feminists started addressing continued inequality in a wider range of areas of life, such as education, the workplace, the intimacy of the home and sexual matters. Feminists of the ‘second wave’ concentrated on identifying and understanding patriarchy and the way it impacts women as a group. Radical feminism identifies gender as the main axis of the ordering of society and calls for its overthrow. I return to this discussion in detail in Ch 9, section III.C. 35  Since the 1990s the universalism, generality and homogenisation of women allegedly present in the analyses of second-wave feminists has been challenged. Third-wave feminists have emphasised women’s heterogeneity, inter-sectionality, the importance of individual narratives and relativism. I return to this discussion in detail in Ch 9, section III.C.

Feminist Legal Genealogy—The Methodology 11 In Chapter 10, I summarise the continuities and discontinuities between the two periods. I argue that there has been great intellectual path-dependence­ on state socialism, which has shaped the understanding of gender equality in post-socialism. The path-dependence has taken two forms: an unreflective and mostly unconscious retention of ideas developed during the state-socialist period, as well as a reactive conscious rejection of anything perceived as state-socialist. Both have been detrimental to gender equality law. III.  FEMINIST LEGAL GENEALOGY—THE METHODOLOGY

This book is multifaceted: it looks at legal and extra-legal sources, it performs a doctrinal legal analysis but goes beyond it, it looks at the law today but also at its historical development, it looks at the law but also at its intellectual underpinnings. It is possible that this book will represent different things to different readers. It can be seen as a standard doctrinal legal analysis and critique of anti-discrimination law in Czechia today,36 as a legal history of the regulation of women,37 as an intellectual history38 of the concept of gender equality or an exploration of the legal discourse39 about gender, amongst other things. These are all plausible understandings, and I believe the book can be read as such. I myself see it as a feminist legal genealogy40 of gender equality in law, and in the following I elaborate on how I understand this methodology.

36 

Contained especially in Ch 8. Contained especially in Chs 2 and 6. 38  On intellectual history and its relationship to legal history, see, eg, WW Fisher, ‘Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual ­History’ (1997) 49 Stanford Law Review 1065. 39  The terms ‘discourse’ and even ‘legal discourse’ are well-established philosophical and legal-philosophical categories, often concerned with institutional and procedural aspects of communication and argumentation. For example, Michel Foucalt has been concerned with discourse as a technique of power (M Foucault, ‘The Order of Discourse’ in R Young (ed), ­Untying the Text: A Post-Structuralist Reader (Routledge, 1981) 52) and Jürgen Habermas with procedural aspects (J Habermas, Theorie und Praxis. Sozialphilosophishe Studien (Suhrkamp 1971); J Habermas, Faktizität und Geltung (Suhrkamp, 1992)). The concept emphasises intersubjectivity. The Habermasian understanding of discourse is important, as it shows that the ruling of one judge (eg in an anti-discrimination case) will be influenced by the legal discourse in which he or she operates. As this observation would be denied by many in Czechia (I discuss the ideas of neutrality and objectivity of law and lawyers in Chs 7 and 9), it is a particularly pertinent way of looking at the production of the ‘impartiality of the judge’ and the perceived independence of subjective thought. 40 I use the term ‘genealogy’ instead of ‘history’ to highlight the fact that the enquiry is driven by an interest in the present and looks at the past primarily through that lens. The term is thus used in a rather general sense rather than being fully compliant with, eg, the specific Foucauldian approach. 37 

12  Introduction A.  The Feminist Framework This book uses a gender analysis of law and is situated within a feminist framework, for the questions it asks and the theoretical framework it employs to answer them, the standard it uses and the issues it examines. i.  Feminist Questions and Theoretical Concepts First, this book asks how the status of women has been regulated by Czech law and understood by Czech lawmakers, judges and legal scholars. The category of women has been challenged in more recent Western41 scholarship as essentialist and homogenising.42 I recognise that women are not a unitary category, and that there are other axes of disadvantage in society, such as race, ethnicity, class, immigration status, sexual orientation, disability or age, that shape women’s life experiences. I acknowledge that each situation is unique, and that the fact that one is a woman might not be the only reason for disadvantage, or not even the primary one.43 While I acknowledge that the category of women is socially constructed,44 I also consider that women have, although to differing degrees, a shared historical and current experience of disadvantage,45 both material and 41 Since no indigenous feminist legal scholarship has developed in Czechia, as I show in Ch 9 section III, I draw on Western academic writings. The feminist theory, as well as the legal development in the West, identified here with Western Europe and North America, is a useful foil against which to explore the Czech development and identify its peculiarities. The East–West dichotomy is therefore functional, albeit somewhat imprecise and homogenising, as I have discussed above in fn 9. 42  The universal category of women has been challenged as not corresponding to the variety of women’s experiences. Eg, Kimberle Crenshaw has pointed out the underlying assumption of ‘whiteness’: see K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] University of Chicago Legal Forum 139. Darren Rosenblum has argued, in the context of CEDAW, for abandoning the category of women and sex altogether: D Rosenblum, ‘Unsex CEDAW, or What’s Wrong with Women’s Rights’ (2011) 20 Columbia Journal of Gender and Law 98. 43  I do, indeed, consider that the project would benefit from an intersectional analysis, ie from looking at other axes of disadvantage that intersect with the category of women, but such an analysis would go beyond the scope of the current book. For the advantages and difficulties of intersectional analysis, see, eg, J Conaghan, ‘Intersectionality and the Feminist Project in Law’ in E Grabham et al (eds), Law, Power and the Politics of Location (Routledge-Cavendish, 2008). 44  Eg, Rosenblum notes that its meaning varies from country to country; Rosenblum, ‘Unsex CEDAW’ (2011). 45  A good overview of the situation around the world is provided in UN Women, ‘­Progress of the World’s Women 2015. Transforming Economies, Realizing Rights’ (UN Women, 2016), available at http://progress.unwomen.org/en/2015/; and The World Bank Group, ‘The Little Data Book on Gender 2016’ (International Bank for Reconstruction and Development/ The World Bank, 2016), available at https://openknowledge.worldbank.org/bitstream/ handle/10986/23436/9781464805561.pdf. For a theoretical account, see, eg, M Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge University Press, 2000) 1–4.

Feminist Legal Genealogy—The Methodology 13 symbolic.46 This disadvantage has been perpetuated by law, and law itself has employed and constructed the category of women. For these reasons, I continue to use women as a critical category of legal analysis.47 Such an analysis is particularly useful in the post-socialist context: while the mapping and scrutiny of the development of the legal treatment of women in the West is a project largely done,48 it is still missing in the post-socialist CEE context. This book offers it comprehensively for the first time, using the example of Czechia. Incorporating the conceptual developments in the West, the book goes beyond studying the legal treatment of women and uses gender as an analytical tool as well. I understand gender, with Joan Scott, as ‘a social category imposed on a sexed body’.49 The concept of gender draws attention to the culturally constructed meaning of womanhood and the nature of social norms regarding relations between the sexes and the roles of the sexes.50 Doing gender analysis is also particularly important in the post-socialist context, because Czechia missed the ‘second wave’ of feminism, and with it the construction of the analytical category of gender. Arguably, gender bias in law persists in the West, as well as in the East. I argue, however, that awareness and reflection of gender bias has been entirely missing from law-making, judicial decision-making and legal scholarship in Czechia, both during the period of state socialism and also since, even in such obviously gender-sensitive areas as anti-discrimination law51 and gender-based violence.52 Internationally, the study of gender now includes, alongside women, the study of men as well as of LGBTQ.53 For reasons of space, neither is explored in greater depth and separately from the central issue of women, although I discuss the notable absence of attention the law has paid to men in the regulation of parenthood and childcare,54 and occasionally draw on 46 See, eg, IM Young, Justice and the Politics of Difference (Princeton University Press, 1990); or N Fraser and A Honneth, Redistribution or Recognition (Verso, 2003) amongst others. I discuss the distinction between material (socio-economic) and symbolic (cultural) aspects of gender in equality in Ch 5 section III.D. 47  While I work with the observation that women are similar by having similar conditions thrust upon them in patriarchal societies, and the experience this generates, I do not accept that there is something socially inherently different about being a woman—my position is non-essentialist. 48  In the UK context, see, eg, S Fredman, Women and the Law (Oxford University Press, 1997); in the US context, see, eg, the works contained and referenced in T Thomas and T Boisseau (eds), Feminist Legal History: Essays on Women and Law (NYU Press, 2011). 49  JW Scott, ‘Gender: A Useful Category of Historical Analysis’ (1986) 91 The American Historical Review 1053, 1056. 50  Both are identified as cornerstones of the gender historical analysis in ibid, 1056. 51  See Chs 4 and 8. 52  See esp Ch 6 section IV. 53  The abbreviation LGBTQ stands for lesbians, gays, bisexuals and trans-gender and queer people. 54  Chs 2 and 6 section III.

14  Introduction examples regarding LGBTQ rights when they illustrate a traditional gender (hetero)normativity, for example in the area of family law.55 The concept of gender and related analytical categories, developed by feminist scholarship, are central to the theoretical framework of this book. Feminists point out that a central organising principle of our society is gender, and that the ‘gender systems’56 of our societies set normative expectations about ‘gender roles’,57 the gendered division of labour58 and sexuality,59 amongst others. Moreover, the ‘gender order’60 contains widespread patterns of power relations between masculinity and femininity, and these patterns are hierarchical. The type of gender order in which we live, both in the West and in the East, is often referred to as a ‘patriarchy’.61 It is understood here as a social system that entails male dominance and female subordination, characterised by men’s being central to positions of power, leadership, moral authority and control of property. The male is also the norm on which legal regulation is based. Law is thus an important social institution of patriarchy.62 The way in which law has been both a product and a tool of patriarchy has been the subject of extensive feminist scholarship.63 Law, a prime normative and regulatory system in society, has been called on to govern issues relating to family, work, political participation and inter-personal violence, amongst others. Because these areas are gendered in reality, law has not been able to ‘stay out of gender’. In terms of its relationship to patriarchy, law can either

55 

Ch 6 section II. The term is often used by sociologists to emphasise the systematic and structural nature of the normative prescriptions about gender and the fact that the system is perpetuated by social institutions. See, eg, CL Ridgeway and SJ Correll, ‘Unpacking the Gender System: A Theoretical Perspective on Gender Beliefs and Social Relations’ (1994) 18 Gender and Society 510. 57  A culturally constructed set of social and behavioural norms generally considered appropriate for either a man or a woman. 58  The idea that women have expressive (caring) roles and men have instrumental (breadwinner) roles in the family, originally presented in T Parsons and R Bales, Family, Socialization and Interaction Process (Routledge, 1956), has been heavily criticised by feminists as biologically deterministic. 59 These three are identified as the cross-cultural mainstays of the gender system in C ­Renzetti, D Curran and S Maier, Women, Men, and Society (Pearson, 2012). 60  The term is associated with R Connell, Gender and Power: Society, the Person, and ­Sexual Politics (Polity Press, 1987). The term ‘gender regime’ is often used to describe the configuration of gender relations within a particular setting (workplace, family, neighbourhood, etc). 61  For definition and history, see, eg, G Lerner, The Creation of Patriarchy (Oxford University Press, 1986). 62  On the relationship between law and patriarchy, see, eg, J Rifkin, ‘Toward a Theory of Law and Patriarchy’ (1980) 3 Harvard Women’s Law Journal 83; for a Marxist feminist analysis, see D Polan, ‘Toward a Theory of Law and Patriarchy’ in D Kairys (ed), The Politics of Law: A Progressive Critique (Pantheon Books, 1982). The inevitable historical contingence of law is also discussed in H Nagl-Docekal, Feminist Philosophy (Westview Press, 2004). 63  See eg CA MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, 1989); C Smart, Feminism and the Power of Law (Routledge, 1989); Fredman, Women and the Law (1997); J Conaghan, Law and Gender (Oxford University Press, 2013). 56 

Feminist Legal Genealogy—The Methodology 15 draw on the existing structures and cement them, which has overwhelmingly been the case historically, or it can transform them,64 which has more rarely been the case. Legal provisions regulating gender-relevant phenomena can thus be either gender-conservative (patriarchal) or gender-progressive (anti-patriarchal),65 but not gender-indifferent. This book looks at whether Czech law has been gender-conservative or gender-progressive during state socialism and in the post-socialist period, and how it has either affirmed or undermined patriarchal power relations.66 Law is shaped by its social environment and shapes it in return. This book explores the first part of this cycle, by looking at the understandings that underpin law. Addressing the second part would require a different methodology, and although I draw on secondary literature67 to present the reader with the wider context and give basic information on the realities of Czech women’s lives, it is not the focus of this book. Aside from exploring the gendered intellectual underpinnings of law and the gendered nature of the resulting regulation and judicial decision-making, I also examine whether there is any reflection among lawmakers, judges or legal scholars that these are indeed gendered. ii.  The Gender-Progressive Standard This book, as is the case more generally with feminist scholarship, is not neutral in its assessment of the legal regulation and the legal discourse. I consider some legal developments negative and some positive in terms of whether they promote gender equality. I evaluate them as either genderconservative or gender-progressive. The book thus has normative assumptions, but is not normative in a sense of developing an overarching vision for law reform in relation to the problems of gender conservatism identified in this book. Nor do I think that the adoption of any one particular full account or programme for gender progressiveness is necessary. In order to present the reader with a general idea of how I understand this ­commitment,

64  See, eg, T Thomas and T Boisseau, ‘Introduction: Law, History and Feminism’ in Thomas and Boisseau (eds), Feminist Legal History, 1. 65 An in-depth elaboration of how to understand the requirements on anti-patriarchal law, eg in the context of domestic violence, has been persuasively presented in M Madden Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (Oxford University Press, 2009) Ch 7. 66  I fully acknowledge that the development is not always linear and that there can be reversals and backlashes. 67  In order to provide a wider historical, political, economic and social context for my findings, I rely on secondary literature. In particular, I have drawn on history and political science relating to the historical and political development in Czechia over the past 70 years, gender scholarship in the social sciences and humanities for facts about women’s lives as well as theorisations, and existing critical legal scholarship analysing law during the two periods in CEE.

16  Introduction I borrow from the Beijing Platform of Action.68 It strives to empower women through ‘removing all the obstacles to women’s active participation in all spheres of public and private life through a full and equal share in economic, social, cultural and political decision-making … and the eradication of all forms of discrimination on the grounds of sex’.69 I discuss my understandings of which policies and legal approaches are gender-progressive and which gender-conservative in detail in the individual chapters, noting points of disagreement among feminist legal scholars, where relevant. iii.  Why Use Equality? Sex equality or gender equality70 is often the standard used in the literature to assess the situation of women.71 The concepts and rights to equality and non-discrimination72 have been particularly popular with feminist legal scholars.73 This reflects the fact that they are both terms used in law, and they have been employed, often strategically, by feminist advocates to claim rights for women.74 The concept of equality and its usefulness has also been challenged, however. Feminist scholars have pointed out that it maintains the man as the measure of things and the norm,75 and feminist legal scholars

68 Fourth World Conference on Women, ‘Beijing Declaration and Platform for Action’ A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995). 69  ibid, paras 1 and 10. 70  Many definitions of equality are available. Alison Jaggar, eg, defines it as a requirement that ‘those of one sex, in virtue of their sex, should not be in a socially advantageous position vis-à-vis those of the other sex’: A Jaggar, ‘On Sexual Equality’ (1974) 84 Ethics 275, 275. 71  See, eg, ibid; Nagl-Docekal, Feminist Philosophy (2004). Other terms have been used, however, eg ‘justice’ by Nussbaum, Women and Human Development (2000); Young, ­Justice and the Politics of Difference (1990); Fraser and Honneth, Redistribution or Recognition (2003), amongst others. 72 Equality and anti-discrimination are used practically interchangeably by many, eg by S Fredman, Discrimination Law (Oxford University Press, 2011). If a difference were to be drawn, equality could be understood as a broader principle, one that answers the question of general distribution of goods and can be legally expressed by a general prohibition of arbitrariness in law. Anti-discrimination law could be seen as containing a more concrete prohibition of acts that are unjustly based on an irrelevant characteristic. Eg, Joseph Raz helpfully draws a distinction between general equality, on the one hand, and strict or paradigmatic egalitarian principles (corresponding to anti-discrimination guarantees), which aim at an equal distribution of a certain good, on grounds generated by existing inequalities in the distribution of that good, on the other: J Raz, The Morality of Freedom (Oxford University Press, 1988). 73  A helpful summary is provided in R Hunter, ‘Introduction: Feminism and Equality’ in R Hunter (ed), Rethinking Equality Projects in Law (Hart Publishing, 2008) 1–3. 74  Of course, that these rights should be enshrined has itself been a demand of the feminist movement. My point here is that the legally guaranteed rights to equality and non-discrimination have subsequently been used to address a wide range of issues concerning women, where the originally underlying maxim—that likes be treated alike—has not been obvious. This was the case, eg, with the argument for sexual harassment to be covered by statutory provisions prohibiting discrimination in the US. See C Baker, ‘Sexual Harassment’ in T Thomas and T Boisseau (eds), Feminist Legal History: Essays on Women and Law (NYU Press, 2011). 75 MacKinnon, Toward a Feminist Theory (1989), 215–34.

Feminist Legal Genealogy—The Methodology 17 have shown the consequent doctrinal difficulties of finding a comparator, for example, for pregnant women.76 This is, however, arguably not a problem of equality as such, but of a narrow formal understanding of equality, which cares about consistency above all in a decontextualised way.77 While acknowledging this critique as important, and including its cautions in my analysis in the following chapters, I use the concept and the right to equality as my standard in this book. In part, because the concept of equality has a particular history in CEE, in the form of socio-economic egalitarianism based on Marxist-Leninist ideology, followed by a reactive aversion and rejection of equality thereafter, which differs from the Western trajectory.78 B.  Scope of the Book The book’s analysis is circumscribed thematically, territorially and temporally. All require brief explanations. i.  Thematic Scope of the Enquiry In order to answer the questions about underlying understandings of women, gender, equality, discrimination, law and rights, this book analyses three sets of areas. First, it presents an in-depth study of equality and anti-discrimination­law, both constitutional as well as statutory.79 Secondly, the book also looks in greater detail at areas that have been considered central to the question of the equality of the sexes in the Czech context. Under state socialism, the question of ‘equal rights between women and men’ (­rovnoprávnost žen a mužů),80 or the ‘woman question’, was limited to family, work, social welfare and public life.81 I argue that after 1989, notwithstanding some changes in legal provisions, this narrow indigenous understanding has not been enlarged.82 Thirdly, Western feminist

76 

See eg Fredman, Women and the Law (1997), 182–192. Ch 4, section I.A. 78  Ch 4, section I.B. 79  Ch 3 and 7. 80  This term is found in state-socialist law and legal scholarship, Ch 2. 81  The 1987 book by Bauerová and Bártová neatly summarises the topics that were typically addressed: J Bauerová and E Bártová, Proměny ženy v rodině, práci a ve veřejném životě [Transformations of Women in the Family, Work and Public Life] (Nakladatelství Svoboda, 1987). Issues of sexuality or gender-based violence were outside its scope. As political representation of women is rarely specifically legally regulated (once voting rights are granted and unless quotas are legally enacted), the topic is discussed minimally and more by way of illustration of the social position of women. 82  And with regard to redistribution and the material well-being of women, it even became more limited. See Ch 6 section I. 77 

18  Introduction ­scholarship,83 as well as the Beijing Platform84 or CEDAW,85 has identified a much wider range of areas necessary for the achievement of gender equality. Issues such as reproduction, sexuality, sexual orientation and identity, or gender-based violence, raised by the second wave of feminism, have so far been largely neglected in the Czech Republic. Including at least some of these issues in my analysis allows for a more comprehensive picture of the regulation of gender in law. Thus, aside from presenting the findings of my original research in the two aforementioned areas, I also draw on the findings of my previous enquiries into the issues of prostitution,86 rape,87 sexual harassment,88 domestic violence,89 transgender rights90 and reproductive rights. For reasons of scope, these areas are not presented and discussed in full and in depth, but examples and illustrations are drawn from them. ii.  Territorial Scope—A Single-Country Case-Study This book’s aim is to offer insights into post-socialist legacies in CEE with regard to gender equality law. It does so by looking in detail at one of the 83  Individual authors covering the legal situation of women comprehensively offer varying emphases: Martha Chamallas speaks about ‘money, sex and family’ (M Chamallas, Introduction to Feminist Legal Theory (Aspen Law & Business, 1999) 6 and 171); Sandra Fredman speaks of marriage and property (including reproductive control), suffrage, employment and welfare legislation (Fredman, Women and the Law (1997), 39–177); Catharine MacKinnon speaks of family, sexual subordination, lesbian and gay rights, reproductive control and trafficking in women, understood as meaning prostitution and pornography (CA MacKinnon, Sex Equality (Foundation Press; Thomson/West 2007)); Bartlett and Rhode discuss employment law, affirmative action, sexual harassment, family, reproductive rights, sexuality, LGBT issues, domestic violence, rape, pornography, international women’s rights, global trafficking, women’s health, education, and poverty and race (KT Bartlett and DL Rhode, Gender and Law: Theory, Doctrine, Commentary (5th edn, Aspen Publishers, 2009)). 84 Fourth World Conference on Women, ‘Beijing Declaration and Platform for Action’ (15 September 1995). 85  Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18 December 1979, 1249 UNTS 14. 86 B Havelková, ‘Právní úprava prostituce v ČR (Legal Regulation of Prostitution in the Czech Republic)’ in B Havelková and B Hančilová (eds), Co s prostitucí? Veřejné politiky a práva osob v prostituci (What to do with Prostitution? Public Policy and Rights of People in Prostitution) (SLON, 2014); B Havelková, ‘Blaming all Women: On Regulation of Prostitution in State Socialist Czechoslovakia’ (2016) 36 Oxford Journal of Legal Studies 165. 87  B Havelková, ‘Znásilnění—několik úvah nad právní úpravou [On the Legal Provisions Concerning Rape]’ in K Ciprová (ed), Pod hladinou: fakta a mýty o znásilnění [Below the Surface: Facts and Myths on Rape] (Gender Studies, 2010). 88  B Havelková, ‘Právní úprava obtěžování z důvodu pohlaví a sexuálního obtěžování [Legal Regulation of Harassment on the Grounds of Sex and of Sexual Harassment]’ in A Křížková, H Maříková and Z Uhde (eds), Sexualizovaná realita pracovních vztahů. Analýza sexuálního obtěžování v České republice [Sexualised Reality of Labour Relations. An Analysis of Sexual Harassment in the Czech Republic] (SOÚ AV ČR, 2006). 89  B Havelková, Feasibility Study on National Legislation on Gender Violence and Violence Against Children—European Commission JLS/2009/D4/018—National Report for the Czech Republic (unpublished, 2010). 90  B Havelková, ‘The Legal Status of Transsexual and Transgender Persons in the Czech Republic’ in J Scherpe (ed), The Legal Status of Transsexual and Transgender Persons (Intersentia, 2015).

Feminist Legal Genealogy—The Methodology 19 countries, Czechia. There are advantages to a single-country case-study. It allows for greater depth and richness of analysis, concentrated on one legal context; an analysis that can be supported by more comprehensive source material. Czechia, moreover, is a good choice as an example of the region, as it lacks some complexities present in other CEE jurisdictions, such as the pervasive influence of religion and the Church, which is prominent in countries such as Poland or Slovakia; and it has not experienced powerful nationalism and ethnic strife, as have countries in the Western Balkans. The question that can be raised with single-country case-studies is as regards their generalisability. Does the book offer a commentary on the state-socialist and post-socialist condition of gender equality law in CEE more generally? I believe so. While not being factually generalisable, the study lends itself to being analytically generalisable.91 I do not, however, offer the assessment as to the applicability of the book’s conclusions to other jurisdictions here. It is for others to assess the explanatory power of the book’s conclusions in relation to the reality of other countries. It might, nonetheless, be useful for me tentatively to highlight both the idiosyncrasies of the Czech case, as well as commonalities or areas where wider applicability could be expected. One Czech specificity is the singular virulence of the neoliberal92 ­economic discourse, especially in the 1990s, which was partly due to personalities such as Václav Klaus.93 Another is the periodisation of the statesocialist period. My analysis94 is most likely limited to Czechia, since other CEE countries’ periods of ‘thawing’ and repression occurred at different moments of their state-socialist journey.95 The same is true of my postsocialist periodisation,96 since the countries’ anti-communist revolutions happened at different moments and their trajectories varied after the fall of their respective regimes. There are many commonalities too, however. The trajectory of equality and anti-discrimination law, while different from that in the West, has arguably been common to the region, as has been an emphasis on the natural difference of the sexes, which has made gender-progressive regulation of the family and care, as well as the effective implementation of sex/gender 91 

See, eg, RK Yin, Case Study Research. Design and Methods (Sage, 2003) 10. For definition and discussion, see Ch 7 section IV.A and 9 section I.A. 93  He was Finance Minister (1989–92), later Prime Minister (1992–98) and eventually President (2003–13), and the long-term Chairman of the right-wing Civil Democratic Party (ODS). For detail, see p 200–204, 232, 279, 282–283. 94  Ch 2. 95 Eg, the Hungarian Uprising of 1956 happened more than 10 years earlier than the Prague Spring of 1968. This timing had consequences for where the countries stood in the late 1980s before the fall of state socialism: while Hungary, like Russia, was experiencing a thaw, Czechoslovakia was still mired in repressive policies that followed the 1968 invasion. Ch 2, section III. 96  Ch 6, section I. 92 

20  Introduction a­ nti-discrimination rights, difficult. Similarly, the retreat into the private sphere of family during particularly politically oppressive periods of the past seems to have been a common strategy, one which has led to important reconfigurations of understandings of the public and the private, which are considerably different from those in the West.97 iii. Territorial and Temporal Scope—Pre-Communist Legacies and the Germanic Space Readers in common law jurisdictions might be interested to learn more about those aspects of the scepticism regarding gender equality and law that are not unique to the post-socialist legal system but common to civil law jurisdictions,98 especially given that gender equality law and antidiscrimination law have not enjoyed much success in countries such as Germany either.99 This suggests that beyond being rooted in the statesocialist past, these negative Czech attitudes might be shared with other Continental, especially Germanic, countries. The scepticism might thus be connected to Central European social conservatism,100 or to the Germanic legal system and legal culture,101 not just to the post-socialist condition. In the Czech context, the Germanic influence can be expressed in temporal terms as well, as deeper pre-communist legacies. 97  Some of the commonalities are summarised in Gal and Kligman, The Politics of Gender (2000). 98  I am well aware of the heterogeneity of the civil law jurisdictions of Western Europe. A closer elaboration of them and their differences goes beyond the scope of this book, but a brief analysis may be found, eg, in C O’Cinneide, ‘The Uncertain Foundations of Contemporary Anti-discrimination Law’ (2011) 11 International Journal of Discrimination and the Law 7. 99  Akin to Czechia, in Germany the Anti-Discrimination Act would not have been adopted had it not been for EU law. S Baer, ‘The Basic Law at 60—Equality and Difference: A Proposal for the Guest List to the Birthday Party’ (2010) 11 German Law Journal 67, 82. Moreover, as late as 1997, German Constitutional Court judge Udo Di Fabio considered gender equality to be a ‘foreign body in the system of fundamental rights’: ibid, 84. 100  Eg, in Germany, the particular emphasis on heterosexual marriage as a basis of the family (Grundgesetz für die Bundesrepublik Deutschland Vom 23.05.1949 (BGBl. I S. 1), art 6) has been used to delay the recognition of women’s rights in relation to abortion and divorce, as well as the equal rights of LGBTQs. See ibid, passim; M Wrase, ‘Gleichheit under dem Grundgesetz und Antidiskriminierungsrecht’ in L Foljanty and U Lembke (eds), Feministische Rechtswissenschaft (Nomos, 2006), 88. 101  German scholars have particularly high regard for the principles of freedom of contract and private autonomy (I thank Michael Wrase for this insight). Eg, Karl-Heinz Ladeur, a prominent public law professor, described the German Anti-Discrimination Act as ‘unconstitutional and incompatible with both common sense and the requirements of the rule of law’, seeing it, amongst other things, as an unacceptable ‘control of motives’ incompatible with freedom of contract. See K-H Ladeur, ‘The German Proposal of an “Anti-Discrimination” Law: Anticonstitutional and Anti-Common Sense. A Response to N Vennemann’ (2002) 3 German Law Journal 3. The constitutionally embedded right to enterprise or freedom to conduct a business (Geschäftsfreiheit), which is unfamiliar in common law, has in my opinion guided the more protective attitude to managerial prerogative in Germanic jurisdictions (Grundgesetz für die Bundesrepublik Deutschland Vom 23.05.1949 (BGBl. I S. 1), art 6; this right is also recognised in the Charter of Fundamental Rights of the European Union, [2000] OJ C364/1, art 16).

Feminist Legal Genealogy—The Methodology 21 I acknowledge these as possibly important and relevant explanations for the prevalent scepticism and resistance to gender equality law and antidiscrimination law in Central Europe,102 but for reasons of space, while I occasionally point to them in the text, I leave their thorough analysis for another project. C.  A ‘Law in Context’ Approach—Sources and Method The book looks at law in context.103 It analyses both legal and extra-legal sources, and employs but goes beyond the ‘internal’104 doctrinal approach to the study of law.105 i.  Primary Sources and the Difference between the Periods This book examines legal sources: constitutional, statutory and derivative acts, local ordinances and, where relevant, internal administrative guidelines. It also looks at documents relating to the process of the creation of law by lawmakers: parliamentary debates, government reports, governmental policy papers and explanatory memoranda to proposals of bills. And it looks at sources that capture the interpretation and application of the law by the courts and reflections by legal scholars: the case law of the Constitutional Court and of ordinary courts,106 and academic literature. All these sources are only available in Czech and, for the first time in most cases, this book makes their analysis available to a Western reader. Legal sources are the cornerstone of my analysis in both periods. The emphasis on statutory law might be surprising to a common lawyer, but it is congruous with the civil law system, in which law is considered to be found first and foremost in statutes. While the legal sources remain largely the same in both periods, because of the ­political and institutional differences 102 

In this geographical term, I include Germany and Austria along with Czechia. term ‘law in context’ is used to emphasise the exploration of law critically, in its social, political and economic context. 104  The approach taken by insiders in the system. C McCrudden, ‘Legal Research and the Social Sciences’ (2006) 122 Law Quarterly Review 632, 633–34. 105  I use the term ‘law’ in the received Czech understanding as ‘objective law’ or ‘de lege lata’—ie, norms for behaviour found in formal legal sources, which are binding and whose observation is enforced by public power (I am paraphrasing from the leading introduction to the theory of law; A Gerloch, J Boguzsak and J Čapek, Teorie práva [Theory of Law] (ASPI, 2004)). I realise the limits of this definition of law, especially as offered by socio-legal scholars and legal sociology. However, for my purposes, it is useful to adopt this narrower approach. It is more true to the Continental Germanic tradition, where judge-made law is not considered a formal source of law and where legal norms as written in formal sources of law are therefore seen as separate from the interpretation and application of these legal norms by the courts. 106  In the context of a civil law system, where court decisions do not have precedential quality, it is more appropriate not to consider them to be formal sources on a par with legislation. 103  The

22  Introduction between state socialism and ­post-socialism, the same cannot be said of the other material. The availability and usefulness of the extra-legal sources ­varies somewhat in relation to the two periods studied. During the period of state socialism, as free political expression was dampened by the single-party rule,107 parliamentary debates did not contain any substantive policy contestation. There was no constitutional adjudication, as a Constitutional Court was never established. Only a very limited number of cases before ordinary courts, reported in the Official Collections of ­Judgments,108 raised issues of equality of the sexes.109 The more fruitful sources have thus been government reports, explanatory memoranda to bills, policy papers110 and academic legal literature, as contained especially in the main generalist111 academic law journals, Právník (Lawyer) and Socialistická zákonnost (Socialist Legality). All their volumes and issues, together with the entirety of the Official Collections of Judgments, have been perused for the project. The government-produced documents are helpful in identifying and assessing the state-socialist ideology and official policy in relation to gender-relevant laws. The policy papers and legal academic literature, on the other hand, while being subject to some political oversight,112 occasionally offer a more open discussion of law, policy and society. The fall of the Communist Party’s political and ideological hegemony opened a period of political pluralism, with a much greater contestation of policy and a wider range of perspectives on law and society. For the postsocialist period, I therefore pay greater attention to parliamentary debates on gender-relevant bills, such as the proposal of the ADA. These have generated many heated debates in both chambers of the Parliament. The Velvet Revolution of 1989 also brought institutional changes. The newly established Constitutional Court has dealt with five sex equality cases, and discrimination claims have started to be heard before the ordinary courts.113 The databases of the Constitutional Court, the Supreme Court and Supreme Administrative Court, and the newly established online database of ordinary courts’ decisions, have been searched to identify relevant decisions. Thus, for the post-socialist era, parliamentary debates and court decisions 107  The Communist Party had de facto control of the legislation and executive, as well as, arguably, the judiciary, but other parties existed and were represented in the Parliament, to give the system an appearance of democratic legitimacy and pluralism. 108  As available in the official collections Sbírka rozhodnutí československých soudů 1949– 1960 (The Collection of Decisions of Czechoslovak Courts) and Sbírka rozhodnutí a sdělení soudů ČSSR 1961–1969 (The Collection of Decisions and Communications of the courts of the Czechoslovak Socialist Republic) and Sbírka soudních rozhodnutí a stanovisek 1949–today (The Collection of Court Decisions and Opinions). 109  See ch 2 section I.C. 110  Especially the periodic Reports of the State Population Committee, published under the auspices of the Ministry of Labour and Social Affairs. 111  Both accepted contributions from all areas of law. 112  See eg the discussions on causes of the gender wage gap, Ch 5 section II. 113  Ch 8 sections I.A and II.F.

Feminist Legal Genealogy—The Methodology 23 are the key sources for uncovering the understanding of gender equality among lawmakers and judges.114 ii.  A Mixed Inductive and Deductive Analysis This book’s method is mostly inductive, with my research grounded in Czech legal and extra-legal materials. But it is informed and often framed by theories and concepts developed by Western feminist legal scholars. The interaction between the theoretical framework and the source material creates tension—will the a priori theoretical concepts informed by the culture of Western societies truly capture the content of the material?115 I have used the concepts developed in the West as ‘sensitising concepts’ that provide a ‘general sense of reference and guidance in approaching empirical instances’ but ‘retain close contact with the complexity of social reality, rather than trying to bolt it on to fixed, pre-formulated images’.116 These, together with the new categories that have emerged from the primary sources, have been continuously refined using the Czech material.117 Increasingly, there is also secondary literature available on aspects of my research, notably social science and humanities literature on gender in CEE118 and legal scholarship on law and rights in CEE.119 The fact that I work at the intersection of these literatures120 allows me to triangulate what is distinctively Eastern, against the foil of Western legal and intellectual developments, as well as what are the specificities of equality or antidiscrimination law, and even more specifically sex/gender, and what are the more general problems of law and rights in post-socialist CEE.

114 In contrast to the period of state socialism, I no longer draw on academic literature as a primary source. The freedom of expression and ideological pluralism after 1989 means that the content of academic writing diversified to an extent that makes a general conclusion impossible. 115  Any social science analysis of sources poses the question of the extent to which a priori categories are used (theory) and to what extent a researcher can be fully led by the material (pure induction from the material). A Bryman, Quantity and Quality in Social Research (Routledge, 2004) 60–70. 116 Summary of Blumer’s method in ibid, 68; H Blumer, ‘What is Wrong with Social Theory?’ (1954) 19 American Sociological Review 3. 117  This does not quite correspond to either of the most current ways of addressing the problem of ‘theory and research’ identified by Bryman, Quantity and Quality in Social Research (2004), 79–87, as ‘analytic induction’ and ‘grounded theory’, but is somewhere in between. In social science or socio-legal terminology, my method would correspond most closely to textual qualitative content analysis. 118 Represented here, eg, by Melissa Feinberg, Radka Dudová, Věra Sokolová, Barbara Einhorn, Susan Gal, Gail Kligman, Nanette Funk, Steve Saxonberg, Hana Havelková, Alena Köhler-Wagnerová, Alena Heitlinger, Jacqui True, Hana Maříková, Hana Hašková, Zuzana Uhde, Libora Oates-Indruchová, amongst others. 119 Eg Inga Markovits, András Sajó, Kathryn Hendley, Martin Krygier, Adam Czarnota, Catherine Dupré, Zdeněk Kühn, amongst others. 120  Others have done work at this intersection as well, see fn 7 above.

24 

Part I

State Socialism

26 

2 The Three Stages of Regulation of Women and Gender1

T

HE QUESTION AS to whether state socialism ‘liberated’ women or equalised the relationship of the sexes, is often answered by commentators with a ‘yes, but’.2 The ‘yes’ refers to the empowerment of women in the public sphere, especially in access to education, work and politics. Possibly the most obvious ‘but’ is that there was a marked lack of empowerment of women in the family: traditional gender roles were retained in the home and women suffered from a triple burden of full-time work, housework and childcare.3 I document and discuss this combination of ‘public equality and private difference’ in this chapter. But the picture is more complex—the period of state socialism was not homogeneous, and different emphases can be identified during the different ‘stages’ of development. In this chronologically organised chapter, I argue that the original revolutionary zeal of the Stalinist period of the 1950s, which modernised, emancipated and equalised, began to be challenged during the political thawing of the 1960s, and eventually became hollowed and outweighed by pro-maternity and pro-family policies aiming at population growth during the Normalisation period of the 1970s and the 1980s. I shall distinguish three different stages of gender equality under state socialism: a period of ‘Equalisation’ (1948–62) during Stalinism (section I); of ‘Reflection’

1  An earlier and shorter version of this chapter has been published as B Havelková, ‘The Three Stages of Gender in Law’ in H Havelková and L Oates-Indruchová (eds), The Politics of Gender Culture under State Socialism: An Expropriated Voice (Routledge, 2014) with ­permission from Taylor&Francis. 2 Scott frames this question in terms of ‘liberation’: H Scott, Does Socialism Liberate Women? Experiences from Eastern Europe (Beacon Press, 1974). See also H Havelková, ‘Women In and After a “Classless” Society’ in C Zmroczek and P Mahony (eds), Women and Social Class—International Feminist Perspectives (Taylor and Francis/UCL, 1999); I Vodochodský, ‘Patriarchát na socialistický způsob: k genderovému řádu státního socialismu [Socialist-wise Patriarchy: on Gender Order of State Socialism]’ (2007) 8 Gender, rovné příležitosti, výzkum 34, 38; amongst others. 3  SL Wolchik, ‘Introduction’ in SL Wolchik and AG Meyer (eds), Women, State, and Party in Eastern Europe (Duke University Press, 1985) 7–8. See also S LaFont, ‘One Step Forward, Two Steps Back: Women in the Post-Communist States’ (2001) 34 Communist and Post-Communist Studies 203.

28  The Three Stages of Regulation (1962–68) during the post-Stalinist ‘Reform’ period (section II); and an era of the ‘Family’ (1969–89) during the Normalisation period that followed (section III).4 The chapter looks mainly at the areas that the socialist state5 identified as comprising the ‘woman question’,6 namely, family and work.7 This chapter offers two main observations about the development of the legal regulation of women and gender. First, there was a regression in the modernisation of women’s status and equality during the later stages of the state-socialist period. Secondly, the period of ‘political thawing’ in the 1960s was distinct and needs to be assessed separately, particularly since its role with regard to gender was problematic. In this period, the emergent political pluralism brought challenges to official narratives of ‘equality achieved’ from women themselves (organised and individual), but it also brought challenges by experts to the concept and policy of equality of the sexes. Both of these observations allow for a more nuanced analysis of the continuities and discontinuities in conceptualisations of gender equality between state socialism and the post-socialist period that followed. The legal framework inherited in the 1990s from state socialism came from the late period of Normalisation, which supported and entrenched difference between the sexes, especially in the family. A woman was no longer characterised as a worker and active citizen, as she had been in the 1950s; she was characterised as the wife who cared for her marriage and the mother who cared for her family. Although many Czechs in the 1990s claimed that gender equality needed no further attention, as it had been addressed and achieved under state socialism,8 they did not realise that what was in fact inherited were pro-family and pro-motherhood, but not necessarily gender equality, policies. At the same time, the earlier model of equality, exemplified by a female 4  Existing literature usually discerns two, rather than three, periods: (i) an emancipatory, equalising, revolutionary and activist stage of the late 1940s and 1950s; and (ii) a familyorientated, conservative and stability-centred one in the 1970s and 1980s. Vodochodský, ‘Patriarchát’ (2007), 38. See also A Wagnerová, ‘Laudatio Linda Šmausová—žena—človek— vědkyně—přítelkyně: curiculum velice osobní’ in L Oates-Indruchová (ed), Tvrdošíjnost myšlenky. Od feministické kriminologie k teorii genderu (SLON, 2011), 15; Scott, Does Socialism Liberate Women? (1974) 1; SL Wolchik, ‘The Precommunist Legacy, Economic Development, Social Transformation, and Women's Roles in Eastern Europe’ in Wolchik and Meyer (eds), Women (1985) 42. A more differentiated periodization is offered by SL Wolchik, ‘Elite Strategy Toward Women in Czechoslovakia: Liberation or Mobilization’ (1981) 14 Studies in Comparative Communism 123; or H Hašková and Z Uhde (eds), Women and Social Citizenship in Czech Society: Continuity and Change (Sociologický ústav AV ČR, 2009). 5 J Bauerová and E Bártová, Proměny ženy v rodině, práci a ve veřejném životě [Transformations of Women in the Family, Work and Public Life] (Nakladatelství svoboda, 1987); S Radvanová et al, Žena a právo [Woman and the Law] (Orbis, 1971). 6  For detail on the Marxist-Leninist aspirations regarding the ‘women question’, see Ch 5 section I.A. 7 I discuss the issues surrounded by an official silence, such as gender-based violence, in Ch 5, section III. 8  For examples of this position among MPs, see quote from Janeček MP, p 269.

Equalisation (1948–62) 29 tractor driver of the 1950s, became the scarecrow in the 1990s, despite being obsolete in reality. The post-socialist rhetoric against ‘state feminism’ and forcible emancipation therefore distanced itself from policies that had not been current for about three decades. The 1960s also played a particular role in the post-socialist era. That period of political thaw and pluralism, with its emphasis on greater economic freedoms, prepared the ground for post-socialist liberalism. The challenges to the efficiency of women’s work, full equality and collective childcare, as well as the narrative of freedom and choice that became prominent after 1989, were in some cases a reoccurrence, and in others a continuation, of those debates that led to the Prague Spring.9 I.  EQUALISATION (1948–62)

A.  Pre-Communist Foundations Czechoslovakia was formed out of the dismantled Austro-Hungarian Empire in 1918. It was an economically developed, prosperous country with strong democratic credentials.10 Wolchik points out that during the period of the ‘First Republic’ (1918–38), Czechoslovakia was more advanced than other CEE countries in terms of economic organisation, literacy rates, political organisation and political culture, as well as women’s opportunities.11 Czechoslovakia spent most of World War II as a German Protectorate.12 Most of Czechoslovakia was liberated by the Red Army in 1945, which led to the rising influence of the Communist Party and culminated in the Communist takeover of the Government in February 1948. The period between 1945 and 194813 was in many ways ‘proto-communist’: it saw the increasing domination of the Communist Party, the weakening of democratic opposition14 and the expulsion of Czechoslovakia’s German population. It also brought far-reaching changes to the economic system, such as land 9  This has been also noted by A Heitlinger, ‘The Impact of the Transition from Communism on the Status of Women in the Czech and Slovak Republics’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993), 97. 10  Wolchik, ‘The Precommunist Legacy’ (1985), 34–35. For a detailed account on Czechoslovakia, see SL Wolchik, Czechoslovakia in Transition: Politics, Economics and Society (Pinter, 1991) 1–59; A Heitlinger, Women and State Socialism: Sex Inequality in the Soviet Union and Czechoslovakia (Macmillan, 1979) 135 ff. 11  Wolchik, ‘The Precommunist Legacy’ (1985), 34–35. 12  The prosperous inter-bellum period ended in 1938, when Czechoslovak border areas were annexed to Germany. Slovakia separated from Bohemia and Moravia to become an independent state in March 1939. After the brief ‘un-free period’ of the ‘Second Republic’ (1938–39), the remaining Czech territory was occupied by Germany in 1939 and became a Protectorate. 13  Often referred to as the ‘Third Republic’. 14  Wolchik describes this period as ‘modified pluralism [leading to] the institution of communist dominance’: Wolchik, Czechoslovakia (1991), 17.

30  The Three Stages of Regulation confiscations and the nationalisation of entire industries, so that already by 1945, 60 per cent of workers were employed by the state.15 Many social provisions, often seen as state-socialist achievements, were enacted during this period16 (such as child benefits or a guarantee of equal pay).17 As far as the legal treatment of women was concerned, the situation of Czech women before 1948 was marked by two tendencies: (i) the formal equalisation of their status and rights in law; and (ii) an increase of protection in labour relations. These corresponded to the campaigns of first-wave feminist activists and the socialist movement before World War II, respectively. The move towards legal equalisation began in the nineteenth century, with women being able to access university education in 1897.18 Equality between the sexes later became an explicit programme of the newly established Czechoslovak Republic. In 1918, its Declaration of Independence proclaimed that ‘Women will have equal standing to men; politically, socially and culturally’.19 This promise was codified in the 1920 Constitutional Charter: ‘Privileges of sex, birth and profession are rejected.’20 Women’s suffrage was also incorporated,21 as was a special provision that guaranteed the protection of the laws to ‘marriage, family and motherhood’.22 In terms of protective legislation, gradual improvements in women’s working conditions started in the nineteenth century. For example, night-work was prohibited23 and an eight-hour working day was set in 1918.24 B. Stalinism The Stalinist period was marked by the attempt radically to transform Czechoslovak politics, economy and society. In terms of politics and public 15 L Kalinová, ‘Mythos und Realität des „Arbeiterstaates“ in der Tschechoslowakei’ in P Hübner, C Kleßmann and K Tenfelde (eds), Arbeiter im Staatssozialismus. Ideologischer Anspruch und soziale Wirklichkeit. (Böhlau Verlag, 2005) 90. 16 The considerable continuity between the periods is well documented in J Rákosník, Sovětizace sociálního státu: lidově demokratický režim a sociální práva občanů v Československu 1945–1960 [The Sovetization of the Social State] (Faculty of Arts, Charles University in Prague, 2010). 17  See fn 108 below. 18  Ministerial Decree of 23 March 1897. The first woman was admitted to the Philosophical Faculty of Charles University in the same year. The Faculty of Medicine followed in 1900. The Law Faculty only admitted its first woman student in 1919. M Lenderová, K hříchu i k modlitbě. Žena v minulém století [For Sin and for Prayer. Woman in the Last Century] (Mladá fronta, 1999). 19 Declaration of Independence of the Czechoslovak Republic from 18 October 1918 (Washington Declaration). 20 Act No 121/1920 Coll, Introducing the Constitutional Charter of the Czechoslovak Republic, s 106. 21  ibid, s 9. 22  ibid, s 106. 23  I discuss the negative consequences of bans of work for women in section II.D.ii below. 24  Act No 91/1918 Coll.

Equalisation (1948–62) 31 life, pluralism was eliminated. While ‘formal government structure remained relatively unchanged’,25 the Government became effectively subjected to Communist Party control. Associational life was simplified, centralised and equally subordinated to the Communist Party.26 Political purges were commonplace, and show trials led to the execution of opposition politicians27 and even of some top Party officials.28 Economic measures during the Stalinist period included further nationalisation of industry and industrialisation that required large-scale mobilisation of labour, forced collectivisation of agriculture, currency reform, severe restrictions on private inheritance and the introduction of a central planning mechanism.29 The aims of these reforms were to take economic power away from non-Communist elites,30 and to subject all economic activity to state and Communist Party control. In terms of industrialisation, the emphasis was on heavy industry. The state, however, ‘neglected the development and technological improvement of the consumer industries, such as housing, convenience foods, artificial textile fibres, modern household gadgets and the whole tertiary sector of trade and services’.31 This had important repercussions for women, whose work in these light industries and services was valued less, leading to a considerable gender wage gap.32 It also meant that basic consumer goods were often unavailable, and the task of compensating for these shortages fell largely to women (such as sewing, growing vegetables, cooking, etc).33 Stalinism in Czechoslovakia was ‘particularly durable and virulent’.34 Unlike in Hungary and Poland, which saw dramatic challenges to the system35 after Khrushchev’s denunciation of Stalin in 1956, Czechoslovakia did not de-Stalinise until the 1960s. One of the reasons cited by Wolchik is that the Czechoslovak economy was still performing well, thanks to the solid pre-communist base, such that that economic discontent, an important reason behind mass pressure for change in neighbouring countries, was not as pervasive in Czechoslovakia.36

25 Wolchik,

Czechoslovakia (1991), 22. ibid, 22. 27  Eg the women’s rights activist and MP, Milada Horaková. 28  Eg the then Secretary-General of the Communist Party, Rudolf Slánský. 29 Wolchik, Czechoslovakia (1991), 20–26. 30 J Korbel, Twentieth-Century Czechoslovakia: The Meanings of its History (Columbia University Press, 1977) 260–68. 31 Heitlinger, Women (1979), 138. 32  See p 113. 33  See section III.B below. 34  O Ulč, ‘Czechoslovakia’ in T Rakowska-Harmstone (ed), Communism in Eastern Europe (Manchester University Press, 1984) 118. 35 Wolchik, Czechoslovakia (1991), 25. 36  ibid, 25. 26 

32  The Three Stages of Regulation From this, an impression arises of Czechoslovakia in the late 1940s and 1950s as a totalitarian37 and oppressive state, law and society. While this is correct, paradoxically it was also a transformative period that considerably advanced gender equality. The two pre-1948 developments of the equalisation of the legal status of men and women and the guarantee of special rights and social protection of women continued and were enhanced after 1948.38 After the Communist takeover in 1948, the ‘equal rights of men and women’ were earnestly pursued as a policy goal. The late 1940s and 1950s were characterised by an emphasis on women’s access to the public sphere of work, education and politics. The legal situation of women improved in terms of the equalisation of the legal status of men and women (especially in family law),39 and a loosening of some conservative restrictions on women (such as with the legalisation of abortion and liberalisation of divorce). During this period, some of the limits of the inter-war period, which had embraced women’s public equality but shied away from interfering with the family,40 were overcome. Stalinist legislation was not to be kept out of the family. The 1950s was the period when the East did overtake the West with regard to equality of the sexes. The relative backwardness of the West was noted by Prague Spring émigrés. Wagnerová, who left Czechoslovakia in 1969 for West Germany, remembers: As far as equal standing of women was concerned, we felt [in West Germany] as [if we were] in the developing world; as if someone brought us back twenty years, to the times of our mothers and grandmothers. Like them, women [in Western Germany] left their work with the birth of the first child, or even already upon marriage …, there were no crèches and most kindergartens were open from 9 am till noon only. For the first time in our lives we experienced what it meant not to have one’s own status and to be defined through the status of one’s husband … It was an unpleasant surprise; a step back.41

37  The concept of totalitarianism has been problematised for homogenising a very contextspecific phenomenon. However, if any period of Czech history was ‘totalitarian’, it was the early Stalinist period. See Special Issue, ‘Existoval v českých dějinách totalitarismus? [Did Totalitarianism Exist in Czech History?]’ (2009) 4 Soudobé dějiny. 38  See esp the following section. 39 Bělovský comes to a similar conclusion regarding the transformative nature of the period: P Bělovský, ‘Rodinné právo [Family Law]’ in M Bobek, P Molek and V Šimíček (eds), Komunistické právo v Československu. Kapitoly z dějin bezpráví [Communist Law in Czechoslovakia. Chapters from the History of Unlawfulness] (Mezinárodní politologický ústav Masarykovy univerzity, 2009) 463. 40 M Feinberg, Elusive Equality. Gender, Citizenship, and the Limits of Democracy in Czechoslovakia, 1918–1950 (University of Pittsburgh Press, 2006) 99 and 128. 41  Wagnerová, ‘Laudatio’ (2011), 15.

Equalisation (1948–62) 33 C.  Equal Rights of the Sexes as a Constitutional Principle Equality of men and women was affirmed in both socialist Constitutions of 1948 and 1960.42 The constitutional principle of equal rights for men and women was applied by activist Stalinist courts,43 to the point of disapplying conflicting statutory provisions. Thus, for instance, a Regional Court in 1949 refused to grant a husband the exclusive right to decide over the couple’s domicile, based on the equality provision of the Constitution.44 The fact that the wife refused to live with the husband’s parents was not considered a ground for divorce, notwithstanding the fact that the then still valid General Civil Code stipulated to the contrary.45 Another Regional Court in the same year disapplied the criminal provision of the 1852 Criminal Code46 on wife abduction, which criminalised marital infidelity, ruling that it aimed at protecting only the husband’s interests, and was therefore incompatible with the constitutional equality guarantee.47 This gender-progressive judicial activism and pro-equality engagement marked the early Stalinist period.48 However, it did not last long and died out during the second half of 1950s, never to be repeated.49 D.  Equality in the Family The 1948 Constitution put ‘marriage, family and motherhood … under the protection of the state’.50 The new Act on Family Law of 1949 modernised family relationships and brought about de jure equality between husband and wife. The reform caught the imagination of the legal community. In the first few years of state socialism it was one of the most discussed topics of legal scholarship in the two generalist periodicals, Právník and Socialistická zákonnost.

42 

The 1948 and 1960 Constitutions, For full text of the relevant provisions, see p 89–90. The 1950s was a period of judicial activism. Z Kühn, ‘Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement’ (2004) 52 American Journal of Comparative Law 531; Z Kühn, Aplikace práva soudcem v éře středoevropského komunismu a transformace [The Judicial Application of Law During Central European Communism and Transformation] (CH Beck, 2005) passim. 44  Judgment of the Regional Court of Košice from 29 March 1949, Co 153/1949, Coll court dec 1949, No 28, p 40. 45  The Austrian Allgemeines Bürgerliches Gesetzbuch is in amended form still valid law in Austria. 46  Act No 117/1852 Imperial Criminal Code, s 96. 47  Judgment of the Regional Court in Brno from 30 September 1949, To VI 37/49, Coll court dec 1949, No 195, p 268. 48  In terms of legal activism, the early Stalinist period ought to be considered separately, as I discuss in greater detail in Ch 3, section I.A. 49  Kühn, ‘Worlds Apart’ (2004); Kühn, Aplikace (2005), passim. 50  Constitutional Act No 150/1948 Coll, s 10(1). 43 

34  The Three Stages of Regulation The new Act abandoned the legal institution of ‘head of household’ (hlava rodiny), which had stipulated that the husband led the household, decided the place of residence, and was owed help and obedience to his instructions by his wife.51 The previously separate roles of husbands (to see to the financial support and maintenance of the children) and wives (to care for their physical education and health) were eliminated,52 and the new Act stipulated the equality of spouses in the marriage. ‘Domestic chastisement’ was no longer permitted by criminal law.53 The new Act also abolished a previously existing right of annulment for a husband who found out his wife had been pregnant at the time of their marriage.54 Spouses also became legally equal in relation to their children.55 The provision on ‘paternal power’ (moc otcovská), which gave the father the sole right to make decisions regarding his children’s property and choice of occupation, was abolished.56 This therefore was a shift not only away from patriarchy in the sense of gender power of men over women, but also a termination of the power of the pater familias, in the Roman Law sense, over his family.57 Economic relationships between spouses were formally equalised. The default option of communal property of the spouses did not exist under the pre-Communist legal regime.58 Unless otherwise contracted, the legal default position was that property was retained individually, and in case of doubt the husband was presumed to be the owner.59 Similarly, unless challenged by the wife, it was presumed that the wife gave the husband rights of management of her property when they married.60 The 1949 Act on Family Law created a statutory community of marital property (zákonné společenství majetkové),61 which deemed all acquired property as co-owned by both spouses and co-managed by both spouses equally.62 The socialist state also put great emphasis on child maintenance, both during and after marriage.63 The constitutional equalisation of ‘legitimate’

51 

Imperial Decree No 946/1811 Coll, General Civil Code, ss 91 and 92. ibid, s 141. 53  Act No 117/1852 Coll, as valid in 1950, implicitly allowed chastisement of spouse and children, as it only addressed excesses. 54  Previously Imperial Decree No 946/1811 Coll, s 58. 55  Act No 265/1949 Coll, ss 15, 16 and 55. 56  Imperial Decree No 946/1811 Coll, in its final valid version, s 147. 57  For the distinction of these two meanings of patriarchy, see, eg, G Lerner, The Creation of Patriarchy (Oxford University Press, 1986) 239. 58  Imperial Decree No 946/1811 Coll, s 1233. According to this statute, a communal property could be established contractually. 59  ibid, s 1237. 60  ibid, s 1238. 61  Act No 265/1949 Coll, s 22. This was a dispositive provision: it provided the default legal set-up, but the spouses could contract otherwise. 62  ibid, s 23. 63  ibid, s 72. 52 

Equalisation (1948–62) 35 and ‘illegitimate’ children64 was accompanied by obligations on fathers towards their children by unmarried mothers.65 The enforceability of child maintenance after divorce was improved through the automatic docking of wages by the socialist employer.66 The state instituted a system of advance payments of child maintenance, in cases of non-payment by the liable parent,67 in 1948.68 All of these measures had important gender dimensions. Since custody of children tended to be awarded to the mother, the high costs of child-rearing and insufficient financial support for childcare after divorce were a common cause of destitution for divorcees. Divorce laws were also gradually liberalised. Although the pre-1948 General Civil Code69 did not distinguish between men and women with regard to their access to divorce, divorce in cases lacking the consent of both parties was very restricted. The new Act broadened access to divorce further, even though the spouse who caused the breakdown could not be granted divorce without the consent of the other spouse who was not at fault.70 The requirement of proof of fault was alleviated in 195571 and finally abolished by the new Family Code in 1963.72 It is worth noting that the Communist Party was not the first to propose such changes. A reform of family law, and private law more generally, had been debated but never passed during the First Republic (1918–38), and a version of an Act on Family Law had been drafted by non-Communist lawyers and politicians.73 Unlike the First Republic, though, when, as Feinberg noted, ‘[w]omen might have [had] an equal say in the voting booth, but inside their homes they remained subject to their husband’s authority’,74 the Communist Government was committed to formal equality in the family. This new notion of equality went so far that the maintenance of a divorced

64  1948 Constitution, s 11(2). Previously, their position was not equal, but limited maintenance obligations of the father existed. Imperial Decree No 946/1811 Coll, ss 155–171. 65  Act No 265/1949 Coll, s 76. 66 While the ‘docking of wages’ existed previously (Act No 142/1950 Coll, s 532), the mechanism was gradually modified to be more effective. So, eg, in 1955, Statutory Measure No 57/1955 Coll increased obligatory communications between the court and the employer, and made an executive order for the docking of child alimony applicable to all future employers. See also J Gemrich, ‘Nová úprava vymáhání pohledávek na úhradu osobních potřeb nezletilých dětí [New provisions on the Execution of Outstanding Receivables for Allowance Needs of Minor Children]’ [1955] Socialistická zákonnost 605. 67 These provisions were discontinued in the post-socialist period. I discuss the issues in greater detail on p 163–164. 68  Act No 57/1948 Coll. 69  In its final valid version. 70  Act No 265/1949 Coll, s 30(2). 71  ibid, as amended by Act No 61/1955 Coll, s 30(4). The new provision allowed for divorce without mutual consent if spouses were not cohabiting for a period of time. 72  Act No 94/1963 Coll, Act on Family. 73 Feinberg, Elusive Equality (2006), 41–72. 74  ibid, 99, 128.

36  The Three Stages of Regulation spouse, a provision that traditionally had protected economically inactive wives from economic decline after divorce, was abolished. Founded on the presumption of full employment of women and their economic independence, this development outstripped the actual development of women’s status, however, and the provision was reintroduced in 1963 in a gender-neutral form.75 i.  New Family? Many of these provisions can be conceptualised as parts of a revolutionary programme of weakening of the family. Dana Hamplová, a historian writing after 1989, observes that in the 1950s, this was a specific aim that the state made explicit in its propaganda as well as practical policies.76 She notes that ‘family is dangerous to revolutions, not only because it competes [with the revolution] for loyalty, but also because within it, existing values and norms are perpetuated and passed on’.77 This analysis might be correct in terms of the legal provisions, but the broader context was quite different, as the legal academic commentary shows. Although law made the dissolution of families easier, and outright discrimination towards the children of unwed parents was abolished, legal scholarship contained a strong marital normativity: children of unmarried mothers were still considered a social evil (and a capitalist hang-over);78 marriages were lauded as a sure sign of ‘good economic and political circumstances’;79 and the courts were instructed to prevent ‘impetuous and frivolous divorces’.80 What did happen during the Stalinist period, however, was an increase in the public involvement of state and law in the family. Many issues previously considered to be private matters became public concerns. The state became involved by enacting legislation that ran contrary to some traditional practices relating to the roles of the spouses in the family or the right to divorce. It also assumed an active role through its institutions. For example, the child support obligation of fathers towards their children was considered ‘an obligation of an individual toward society’81 and its enforcement

75 

Act No 94/1963 Coll, s 92. Hamplová, ‘Stručné poznámky o ideových přístupech k rodině v období socialismu [Brief Observations about Ideological Approaches to Family under State Socialism]’ (CEFRES, 2010), available at www.cefres.cz/IMG/pdf/hamplova_2001_ideove_pristupy_rodina_socialismus.pdf. 77  ibid, 2. 78 Z Patschová, ‘Tři roky boje za novou rodinu [Three Years of our Fight for the New Family]’ [1953] Socialistická zákonnost 14, 15. 79  ibid, 18. 80  ibid, 18. 81  ibid, 21. 76  D

Equalisation (1948–62) 37 was fully in the hands of society, and therefore the state as employer82 could dock the liable parent’s wages. The non-payment of alimony was a criminal offence,83 and the public ‘procurator’84 was given competence to initiate proceedings in matters of paternity ex officio, to establish who was liable for child support.85 The fact that the state had no qualms about interfering in issues previously considered private was positive during the early Stalinist period, when the aims of the interference were still gender-progressive. As I discuss below, however, the socialist state gradually abandoned this revolutionary zeal, and soon other issues that often conflicted with gender equality gained importance. E.  Reproduction—Protecting the Health of Women In the international context, a noteworthy feature of the ‘Eastern’ push for the equality of the sexes was the early and broad legalisation of abortion. The socialist state legalised abortion in 1957 with the adoption of the Act on the Artificial Interruption of Pregnancy.86 The use of the term ‘interruption of pregnancy’ itself was significant. It centred on pregnancy and whether the woman would continue or interrupt it, rather than on the foetus and whether it would remain or be aborted. The Act stipulated that abortions could be performed for health as well as other important reasons, such as: the age of the woman; the number of her children; the loss or ‘invalidity’ of her husband; the breakdown of the family; the prevalent financial responsibility the woman would bear for the family or her child; difficulties connected to the pregnancy of an unmarried woman; and indications that the pregnancy was caused by rape or another crime.87 Permission from an abortion committee was required. The Act also abolished the criminal liability of women or medical personnel who performed abortions.88 This legislation was part of a broader policy trend among socialist countries and was very progressive for its time, compared to most non-socialist ‘Western’ countries of the same era.89 Unlike later pro-choice policy shifts in 82  Nominally, the employers were ‘socialist organisations’, but due to high levels of central planning the freedom and discretion of these units to make managerial decisions was very low. 83  Act No 86/1950 Coll, s 210; and Act No 140/1961 Coll, s 213. 84  For a definition, see Ch 3, fn 134. 85  J Glos and A Kafka, ‘Prokurátorská žaloba o popření otcovství [The Procurator's Power to Initiate Proceedings to Refute Fatherhood]’ [1953] Socialistická zákonnost 92 86  Act No 68/1957 Coll. 87  Ordinance No 249/1957 of the Ministry of Health, s 2(2). 88  Former Act No 86/1950, s 218. A criminal provision, however, punished abortions done outside the scope of the Act. 89 East Germany liberalised abortion in 1947. The Soviet Union, which had legalised abortion after the 1917 Revolution but re-criminalised it in 1937, legalised it again in 1955.

38  The Three Stages of Regulation the West, however, the concern under state socialism was not to guarantee women’s individual reproductive autonomy, but instead to address public health problems caused by illegal abortions. In the words of the socialist legislator, the Act was adopted ‘in order to further care for a healthy development of the family, endangered by damage caused to health and life of women by interruptions done by unconscientious persons outside of health establishments’.90 This by itself is not necessarily a problem if the state pursues a just health policy that benefits women. As I shall show below, however, in the later stages of state socialism the understanding of what a ‘healthy’ population entailed was interpreted in racist ways. Moreover, since the availability of the ‘interruption’ to pregnancy was not accompanied by any full availability of contraceptives,91 abortion came to be perceived as the main way of preventing unwanted pregnancies,92 something that further problematised the notion of abortion’s being a ‘right’. F.  Work and Welfare i.  Equal Access to Paid Work for Women—a Right or an Obligation? Aside from the equalisation of women’s status in the family, women’s access to the labour market, education and politics93 was the main achievement of the 1950s.94 In terms of access to paid labour, the 1948 Constitution guaranteed a right to work,95 but it also stipulated an obligation to work.96 The policy had an important ideological foundation. Marxism-Leninism disdained the ‘parasitism’ of the propertied classes, and considered work to be essential for the creation of socialism and the socialist human being.97 Bulgaria, Romania, Poland, Hungary and Czechoslovakia followed. See Scott, Does Socialism Liberate Women? (1974), 104. 90 

Act No 68/1957 Coll, s 1. Does Socialism Liberate Women? (1974), 150–53. 92  A Heitlinger, ‘Passage to Motherhood: Personal and Social “Management” of Reproduction in Czechoslovakia in the 1980s’ in Wolchik and Meyer, Women (1985); K Jechová, ‘Matky a děti, chtěné i nechtěné. Mateřství v reálném socialismu [Mothers and Children, Wanted and Unwanted: Motherhood in “Real Socialism”]’ in Opozice a společnost po roce 1948 (Ústav pro soudobé dějiny, 2009) 10–73. 93  The last through party quota. I supply the data for all three in Ch 5 section I.B. 94  For a comparative study that shows how the East overtook the West during this period, see SL Wolchik, ‘The Status of Women in a Socialist Order: Czechoslovakia, 1948–1978’ (1979) 38 Slavic Review 583. 95  1948 Constitution, art III(3), s 26. 96  ibid, art III(1). 97  As previously elaborated on in B Havelková, ‘Pracovní právo [Labour Law]’ in Bobek, Molek and Šimíček (eds), Komunistické právo (2009), 494–99. A more sinister aspect of the obligation to work was its use against political opponents. Those who avoided work, endangered the government of people’s democracy or its economic life were sent to forced labour camps (eg Act No 88/1950 Coll, s 12; Act No 247/1948 Coll, s 2(1)a)). 91 Scott,

Equalisation (1948–62) 39 There was also the important practical reason of economic necessity. Labour needed to be mobilised to fill post-war shortages of labour in agriculture and industry.98 When the drive to equalise family law is read in this light, it can be interpreted as being primarily instrumental for the liberation of the female workforce, rather than the liberation of women. Indeed, a 1953 legal article, entitled ‘Three years of our fight for a new family’, stated: The mobilising character of our new family law consists in its helping to destroy capitalist anachronisms in thinking as far as old ideas and opinions are concerned, and actively helps to develop a productive labour force, with its new understanding of today’s woman’s tasks in society and the necessity of her reinsertion into socially important work.99

The obligation to work was explicitly specified in a number of statutes,100 and was enforced through a web of administrative obligations as well as administrative and criminal offences. For example the provision on ‘parasitism’ made it a crime to ‘make a living unfairly and avoid honest work’,101 and was used against prostitutes, amongst others.102 The legal institution of the ‘obligation to work’ was never absolute, however, and different groups of women were either exempt (like pregnant women) or lower on the list of groups to be ‘mobilised’ (such as married women).103 The right to work was considered to be positive by state-socialist commentators,104 and would also be seen as something positive by Western middle-class women who, during this same period, had to fight for access to education, work and public life.105 Working Czechoslovak women, whether working-class women, who had historically always worked out of

98  As a matter of fact, the obligation to work started before the Communist takeover. It existed in Nazi-occupied Protectorate Bohemia and Moravia. See JW Bruegel, ‘Social Policy in Occupied Czechoslovakia, 1938–1944’ (1945) 52 International Labour Review 154. A presidential decree had already created a general obligation in 1945 (Presidential Decree 88/1945 Coll), but was later abolished in 1958 (Act No 70/1958 Coll) after having been rarely used in the 1950s. See K Witz and J Hromada, Československé pracovní právo [Czechoslovak Labour Law] (Prague, Státní pedagogické nakladatelství, 1955) 40. 99  Patschová, ‘Tři roky’ (1953), 15, emphasis added 100  Act No 88/1945; Government Ordinance No 40/1953 Coll. 101  The provision was inserted into criminal law in 1956 by Act No 63/1956 Coll. Similar offences existed in administrative law, such as the offence of work avoidance in Act No 88/1950 Coll, s 72; Act No 38/1961 Coll, s 19(c); Act No 58/1965 Coll; Act No 150/1969 Coll, s 10. 102  I discussed this in greater detail in B Havelková, ‘European Gender Equality under and after State Socialism: Legal Treatment of Prostitution in the Czech Republic’ (MSt thesis, Oxford, 2010). 103  Eg Act No 88/1945 Coll stipulated that, if urgently necessary in the public interest, men aged 16–45 and women aged 18–45 could be allocated to work. Some groups were exempt, however (among them soldiers, students and pregnant women), with certain groups being prioritised over others (unmarried before married persons, etc). 104  Bauerová and Bártová, Proměny ženy (1987), 188. 105  The ‘frustrated housewife’ was represented, eg, by B Friedan, The Feminine Mystique (Dell, 1974).

40  The Three Stages of Regulation necessity,106 or other women, who in the 1950s were made to work (overwhelmingly full-time), ended up seeing things differently, however. Indeed, when the right to work, along with the expectation of and legal obligation to work, in state-socialist Czechoslovakia was not accompanied by any change in the division of household labour and childcare, rather than liberating women it instead imposed a triple burden on them. By the early 1960s, Czechoslovak women began to advocate for the option to not work and stay home with their children, a discussion to which I return in section II below. Finally, while the 1948 Constitution guaranteed equal access to all occupations107 as well as fair108 pay,109 and although proclamations on equality were scattered throughout the legal system, women were nevertheless concentrated in lower-paid industries and positions.110 This gender wage gap persisted during the entire period of state socialism. I present the data and discuss the causes of this persisting inequality in Chapter 5 below. ii.  Protective Provisions and Welfare Alongside equal access measures, new protective provisions were also enacted during this period. In labour law, maternity leave of 18 weeks was introduced in 1950.111 Individual protective measures, especially in the area of health and safety, were adopted throughout the 1950s. This happened in an uncoordinated, sector-specific manner, however, such that in 1963, they were described by a labour law scholar, as ‘imperfect, outdated and often practically impossible to find’.112 It was not until the Labour Code of 1965 that these provisions were unified. In social security law, birth grants (porodné) and financial assistance for maternity for up to 18 weeks (peněžitá pomoc v mateřství) were enacted in 1948.113 Legislation on sickness insurance guaranteed women full free medical and birthing care, whether in hospital or at home, and provided free layettes.114 Social security legislation further benefited women. Periods of childcare by women were counted toward pension benefits as equivalent

106 Fredman points out that seeing work outside of the home as liberating is a typically middle-class perspective. S Fredman, Women and the Law (Oxford University Press, 1997) 101–03, 105–06. 107  1948 Constitution, s 1(2). 108  Equal pay for men and women was stipulated already under Ordinance No 74/1945 Coll. However, it only stipulated equal wages for equal work, not for work of equal value. 109  1948 Constitution, s 27(4). 110  I discuss horizontal and vertical segregation in more detail in Ch 5 section I.B. 111  Act No 66/1950 Coll, s 13. 112 J Polášek, ‘O zvláštní úpravě pracovních podmínek žen a mladistvých podle návrhu zásad zákoníku práce (The Special Provisions on Working Conditions of Women and Youth in the Draft of the New Labour Code)’ [1963] Socialistická zákonnost 183, 184. 113  Act No 99/1948 Coll, s 44. 114  ibid, s 32. A layette is a collection of clothing for a newborn child.

Reflection (1962–68) 41 to periods of employment.115 Attention was also paid to the collectivisation of childcare and housework. The number of crèches and kindergartens rose from 2,500 in 1936 to 67,000 in 1967.116 Many laundries and cafeterias in schools and in the workplace were created, and a specialised co-operative chain offering household services, called ‘The Liberated Household’, was established.117 Through the collectivisation of childcare and housework the socialist state tried to make good on its promise of liberating women from ‘household drudgery’.118 The measures were never comprehensive enough, however, and, more importantly, brought no change to the role of men in the family, and so the triple burden on women was never truly eliminated. As I discuss in the following section, from the 1960s onwards this policy emphasis on bringing childcare and housework into the public sphere came to be replaced by policies that encouraged women to stay at home. II.  REFLECTION (1962–68)

A.  The Period of Reform The Czechoslovak economy performed well until the late 1950s. This changed in the early 1960s as the rate of production growth slowed and prices rose. By 1963, Czechoslovakia’s growth rate had become negative,119 and the Communist Party realised that the economy needed restructuring to become more flexible, productive and efficient. A ‘new system of direction’ (nová soustava řízení) was proposed, to move away from rigid central planning. Economists began to criticise the socialist system, and they were joined by others, like creative artists, students, different mass organisations (including women’s), but also by members of the Communist Party, even at its highest level. The country as a whole began discussing ‘socialism with a human face’.120 Alongside economic reform, new issues were debated, such as: Slovak autonomy; greater freedom of expression and civil liberties; greater political pluralism;121 and whether the political trials of the 1950s should be re-examined.122 115 

Act No 55/1956 Coll, s 6. Does Socialism Liberate Women? (1974), 92; M Kučera, ‘Rodinná politika a její demografické důsledky v socialistickém Československu (Family Policy and its Demographic Consequences in Socialist Czechoslovakia)’ (CEFRES, 2010), available at www.cefres.cz/IMG/ pdf/kucera_2001_rodinna_politika_demografie_cssr. 117 Scott, Does Socialism Liberate Women? (1974), 94 ff. 118  Ch 5, fn 102. 119 Wolchik, Czechoslovakia (1991), 27; Ulč, ‘Czechoslovakia’ (1984), 121. 120 Wolchik, Czechoslovakia (1991), 31–33. 121  The proposals entertained by the Communist Party never included the abandoning of the one-party rule, however. 122 Wolchik, Czechoslovakia (1991), 31–33. 116 Scott,

42  The Three Stages of Regulation This open, bottom-up, democratic reform process of the 1960s ultimately triggered fears in Moscow that the Czechoslovak Communist Party was losing control of the country. This ‘Prague Spring’123 was thus soon cut short by the Warsaw Pact124 military invasion of Czechoslovakia on 21 August 1968.125 With regard to gender, the budding political pluralism of this brief period meant that the former, relatively unified official front on the ‘equal rights of men and women’ became more diverse. On the one hand, women’s organisations brought challenges to official narratives of ‘equality achieved’.126 Hilda Scott called this period the ‘awakening’.127 A 1968 statement by the Czechoslovak Union of Women128 documents the discontent with existing policies: [W]e are expressing our dissatisfaction with the fact that now, as in the past, the state and the party bodies do not take into account the complex and difficult situation in which Czechoslovak women are living … It is no longer possible to contemplate in silence discrimination against women in the matter of financial reward, particularly in the shifts towards the lower limits of wage categories and in the current tax system. The condition of women is further aggravated by the low standard of services and trade. Only a few women occupy leading positions, even in such obviously feminised sectors as the educational system, health service, textile and food industries, from factories to ministries …129

On the other hand, political thaw and more open policy debates also brought challenges to the goal of equality between the sexes itself. Although the 1960 Constitution contained even greater guarantees of equality of the sexes,130 it also ushered in a period when these rights were challenged and the emphasis on women’s emancipation faded.131

123  ibid, 34. This was a term used to describe the culmination of the reform process in Spring 1968. 124  Soviet, East German, Hungarian, Bulgarian and Polish forces participated in the invasion. 125  For a discussion of the entire reform period and the invasion in English, see G Golan, Reform Rule in Czechoslovakia: The Dubček Era, 1968–1969 (Cambridge University Press, 1973). 126 Heitlinger, Women (1979), 65–76. 127 Scott, Does Socialism Liberate Women? (1974). 128  The CUW was a new women’s organisation created in 1967. A centralised and Communist Party-dependent Central Committee of Women existed previously. For detail, see Heitlinger, Women (1979), 68–69; D Nečasová, ‘Women’s Organizations in the Czech Lands, 1948–89’ in Havelková and Oates-Indruchová (eds), The Politics of Gender (2014); See also Ch 5, fn 141. 129 Heitlinger, Women (1979), 70, first published in Vlasta, No 17, 24 April 1968. 130  See Ch 4 section 2. 131  According to Šimáčková, however, this fact was not restricted to equality of the sexes. Each Czechoslovak socialist constitution ‘opened a period which contradicted it, or rather headed somewhere else than the adopted and proclaimed constitution indicated’. K Šimáčková, ‘Fiktivní nebo reálná ústava [Fictious or Real Constitution]’ in Bobek, Molek and Šimíček (eds), Komunistické právo (2009), 124.

Reflection (1962–68) 43 Economists challenged the efficiency of gender equality policies, especially of women’s work and of collective childcare.132 The challenges to women’s work were connected to claims of ‘over-employment’.133 As post-war reconstruction came to an end, the economy’s needs for labour supply lowered and overall productivity fell. The female workforce, which had been instrumentally pulled into paid labour at the time of need, was now being pushed out. Moreover, collective childcare was expensive and women’s economic contributions did not cover it.134 Heitlinger commented that [t]o Lenin, analysing the question in somewhat abstract terms, the savings in labour time resulting from socialising housework would substantially cheapen the process. This impression was mistaken, for savings in time represent only one outcome of socialisation. Another arises when previously unpaid domestic labour becomes wage work and it commands payment in accordance with what is generally expected in the labour market, thus actually becoming more expensive. As a result, very great savings in labour time are necessary for the socialisation of domestic labour to become a viable economic proposition.135

The socialist state started to realise in the 1960s that it was too costly to provide collective childcare and housework services when women could do it for free. Arguments raised against collective childcare were supported by psychologists, who stressed the importance of individualised care136 and argued that collectively raised children might suffer from deprivation.137 Finally, the period was marked by a fear of a ‘population crisis’.138 Overworked women were less and less keen to have many children, and the birth-rate considerably declined at the end of 1950s.139 In expert debates as well as public opinion,140 this led to a resurfacing of the notion of a natural division of labour between men and women,141 support for traditional individual child-raising in the family and an emphasis on motherhood (section II.B). The fight against the ‘population crisis’ included restrictions on the

132  These debates did not appear in the legal periodicals but elsewhere. K Jechová, ‘Cesta k emancipaci. Postavení ženy v české společnosti 20. století. Pokus o vymezení problému [Path to Emancipation. The Position of Women in Czech Society in the Twentieth Century. An Attempt to Delimit the Question]’ in Pět studií k dějinám české společnosti (Ústav pro soudobé dějiny AV ČR, 2008) 23-41. 133 Scott, Does Socialism Liberate Women? (1974), 126–33. 134  ibid, 126–33. 135 Heitlinger, Women (1979), 18. 136  Hamplová, ‘Stručné poznámky’ (2010), 3. 137  J Langmeier and Z Matějček, Psychická deprivace v dětství [Psychological Deprivation in Childhood] (SZdN, 1963); Radvanová et al, Žena a právo (1971). 98. See also Kučera, ‘Rodinná politika’ (2001). 138  S Radvanová, ‘Zamyšlení nad připravovaným zákonem o poskytování příspěvku matkám malých dětí [A Thought on the Proposed Act on Contribution Payments to Mothers of Small Children]’ [1969] Socialistická zákonnost 508, 509. 139 Scott, Does Socialism Liberate Women? (1974), 104. 140  Jechová, ‘Cesta k emancipaci’ (2008). 141  ibid, 11.

44  The Three Stages of Regulation previously liberal abortion laws (section II.C), as well as the introduction of generous maternity provisions (section II.D.i). The fight against overemployment also arguably encompassed a ban on certain types of work for all women, which—although apparently pro-women—pushed some women out of work (section II.D.ii). Thus, although the period is generally viewed positively by historians, its record on gender equality is considerably more ambivalent. B.  Family—Between Equality and Tradition The question of family was revisited in the run-up to the adoption of a new family code in 1963. The importance of marriage and family was reemphasised in the new code, which contrasted with the Marxist expectation that its importance would diminish after the abolition of capitalism. A legal article from 1962 claimed that the ‘questions of marriage and family as well as child-raising are continually at the centre of attention of socialist society’,142 and supported this by citing a speech by Nikita Khrushchev, then First Secretary of the Communist Party of the Soviet Union, at the Party’s XXII Congress: Those who say that the importance of family in the transition to communism decreases and eventually disappears are not right at all. In reality, the family under communism strengthens, family relationships are definitely cleansed of economic speculation and will reach the highest levels of purity and strength.143

Socialist state policy was not consistent, however, and competing and contradictory policies and provisions co-existed in its family policy from 1960s onwards.144 Equalising and liberalising projects continued alongside measures that strengthened the traditional aspects of the family institution. Two examples are discussed in more detail: divorce, where the abandonment of fault-testing liberalised marriage at the same time that the introduction of obligatory court reconciliation of spouses filing for divorce strengthened it; and family roles, where, formally, roles were further gender neutralised, but where in practice it was the mother who became the figure responsible for maintaining a marriage, child-raising and house-keeping. First, as far as divorce is concerned, the socialist state rejected the notion of the economic purpose of marriage and of its being a ‘providing

142  M Schiller, ‘K návrhu osnovy zákona o právu rodinném [On the Proposal of the Family Code]’ [1962] Socialistická zákonnost 168, 168. 143  ibid, 168. 144  See also S Gal and G Kligman, The Politics of Gender after Socialism: A ComparativeHistorical Essay (Princeton University Press, 2000) 5.

Reflection (1962–68) 45 mechanism for a married woman’.145 Establishing fault in divorce proceedings had previously been used to determine property settlements and alimony,146 as well as to provide a moral and economic security incentive for wives to lead impeccable lives and not file for divorce. However, under state socialism this was no longer deemed necessary, and it was eliminated in 1963.147 This arguably weakened the institution of marriage, as it made divorce more available to spouses. On the other hand, it was important to keep families together for the purposes of child-raising. The family, as imagined and reformed by the socialist state in the 1950s, no longer had a religious or economic purpose, as it did pre-1948. Instead, it had an important ‘social function … of creating a favourable environment for the raising of children’,148 and was ‘a tool to form the character of our youth’.149 A new legal institution was thus introduced into the 1963 Code of Civil Procedure, namely, an obligation on the court to attempt to reconcile spouses who applied for divorce (řízení o smíření manželů).150 This made divorce proceedings more lengthy and onerous.151 Secondly, as far as roles in the family were concerned, throughout the state-socialist period, there was a strong emphasis on the ‘democratic family’. The importance of the equality of the spouses continued to be affirmed.152 This guaranteed women formal equality with men, but had also some negative consequences for women. The presumption of women’s equality meant that post-divorce alimony153 was limited to circumstances of qualified need and to five years after divorce.154 Interestingly, the democratic character of the family applied to children as well. The ‘power-hierarchical position of

145  M Schiller and V Flégl, ‘Několik poznámek k zákonu o právu rodinném [Several Comments on the Act on Family Law]’ [1961] Socialistická zákonnost 177, 181. See also Z Číhal, ‘O přípravách nového zákona o rodině [Report about the Works on the New Family Code]’ [1962] Socialistická zákonnost 597, 601. 146  Schiller and Flégl, ‘Několik poznámek’ (1961). 147  Act No 94/1963 Coll. 148  Schiller and Flégl, ‘Několik poznámek’ (1961), 180. 149  Schiller, ‘K návrhu’ (1962), 168. 150 Act No 99/1963 Coll, Code of Civil Procedure. See also M Černý, ‘Řízení o smíření manželů [Proceedings towards the Reconciliation of Spouses]’ [1965] Socialistická zákonnost 49; J Radimský, ‘Zkušenosti s řízením o smíření manželů [Experiences with the Proceedings towards the Reconciliation of Spouses]’ [1965] Socialistická zákonnost 24. 151  The problems of the obligatory court reconciliation were noted by legal scholars relatively quickly after its adoption. M Schiller, ‘Řízení o smíření manželů [Proceedings towards Reconciliation of Spouses]’ [1965] Socialistická zákonnost 24. The legal Action Program of 1968 considered its abolition. V Másilko, ‘Rozvod dohodou u bezdětných manželů [Consensual Divorce between Childless Spouses]’ [1968] Socialistická zákonnost 680, 683. 152  Eg Schiller and Flégl, ‘Několik poznámek’ (1961), 177 and 178. 153  Post-divorce alimony was made available again in 1963. Act No 94/1963 Coll, s 92. 154  The original proposal foresaw three years. M Černohubý, ‘Příspěvek na výživu rozvedeného manžela [Payments to Support a Divorced Spouse]’ [1964] Socialistická zákonnost 38. The shorter time period was much preferred by legal academics.

46  The Three Stages of Regulation parents’ over children was criticised and eliminated, and the legal institution of ‘parental power’ was abolished and changed into ‘parental care’.155 But again, these ideas about the new democratic socialist family and the formal legal equalisation of roles of the spouses coexisted with other legal provisions that cemented the gender roles of spouses as fathers and mothers. All provisions regarding care of children, from maternity leave to connected benefits, were available only to women, as I discuss in detail below.156 Men remained the ‘breadwinners’ for a number of ancillary legislative provisions, for example for the purposes of a discount on income tax for minor children.157 I argue that these provisions portray more accurately a lack of aspiration on the part of the socialist state to reform the family that contrasted with the formal legal equality expressed in the Family Code. i.  The Triple Burden Despite their formal legal equality, women retained their traditional childrearing and home-making duties. The practical consequence of full-time paid work158 and their continued responsibility for caring for children and their homes imposed a triple159 burden on women.160 A Czechoslovak survey from the beginning of the 1960s showed that a woman with two children spent, on average, nine hours a day at work and commuting, five and a half hours a day shopping and taking care of the home, an hour and a half with her children, an hour and 40 minutes on herself, and six hours sleeping. Her husband, in contrast, had four hours a day more free time.161 Scott summarises: Just when the American woman was starting to look around her and discover that her next-door neighbour felt as frustrated and unfulfilled as she did, the Czechoslovak woman was beginning to realize that the woman next door felt as overworked and exhausted as she did.162

155 

Schiller, ‘K návrhu’ (1962), 170. See section II.D.i below. 157  Act No 76/1952 Coll, and especially Ordinance of the Ministry of Finance No 24/1967 Coll, s 16. 158  J Šiklová, ‘Are Women in Central and Eastern Europe Conservative?’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism: Reflections from Eastern Europe and the Former Soviet Union (Routledge, 1993) 75; Havelková, ‘Women In and After’ (1999), 78. 159  If one counts paid work, childcare and housework separately. 160  On the question of triple burden, see, eg, Wolchik, ‘The Precommunist Legacy’ (1985), 40. 161  Cited in Scott, Does Socialism Liberate Women? (1974), 106. For comparison within CEE and with the West, see SL Wolchik, ‘Ideology and Equality’ (1981) 13 Comparative Political Studies 445, 463. 162 Scott, Does Socialism Liberate Women? (1974), 109. 156 

Reflection (1962–68) 47 Firestone’s observation about Russia, where ‘the roles of women were enlarged rather than redefined’,163 applies equally to Czechoslovakia. This led to calls for greater protection and help for mothers, and to an emphasis on family and motherhood. These calls came from experts who denounced the ineffectiveness of women’s labour, censured women for ‘deprivation’ caused by collective care and raised the alarm about a ‘population crisis’. However, similar demands also came from women. In 1968, the Czechoslovak Union of Women called for the option to stay at home with their children.164 The ‘new system of direction’ (nová soustava řízení) brought in a liberal programme for the economy (and society) that supplied a narrative of choice. In 1969, Senta Radvanová, a prominent female legal scholar specialising in the position of women, criticised the previous Equalisation period as being too directive regarding the principle of equality of the sexes, since it ‘coerced many, especially young mothers, into hasty return to their job’:165 A mechanical understanding of the equal standing of a woman in society has become antiquated. It came to the fore that even this idea [of equal rights] was a certain expression of administrative manipulation with a person, an a priori limitation of choice, where society—even for its own benefit—should enable such choice.166

Ironically, while the socialist state’s push for equality came to be interpreted as pressure imposed on women to work, the emphasis on freedom created the opposite pressure on women to stay at home as mothers. While the idea of giving women more choice was laudable, the practice was culturally conservative. The late 1960s saw the introduction of many gender-specific pro-maternity provisions in the area of labour law and social policy, which targeted women and cemented their roles as mothers and housewives. Two important things were missing from this policy. First, men were completely left out of the picture. They were workers and never carers. Secondly, women were to be both—workers and carers. In the 1950s the expectation was that they would be both at the same time, while from the 1960s onwards they were expected to be sometimes workers—before having children or once the children had grown up—and sometime carers—while on maternity leave. No genuine attempt was made at a true reconciliation of professional and private life, something that would ideally encompass both men and women.

163  S Firestone, The Dialectic of Sex: The Case for Feminist Revolution (Jonathan Cape, 1971) 248. 164  Action Program of the Czechoslovak Union of Women of 17 June 1968; cited in Radvanová, ‘Zamyšlení’ (1969), 509. 165  ibid, 509. 166  ibid, emphasis added.

48  The Three Stages of Regulation C.  Reproduction in the Time of the ‘Population Crisis’ The Act on the Artificial Interruption of Pregnancy and the ordinances that implemented it were amended quite often during the period of state socialism.167 Between 1957 and the year 1980, nine ordinances or their amendments were passed. Many pro-population alterations were made in the 1960s that effectively limited women’s access to abortion. A 1961 Ordinance of the Ministry of Health included the possibility of inviting and interviewing the responsible man (ie the putative father), or the parents of minor girls, in front of the abortion committee, thus inhibiting the freedom and limiting the privacy of the woman’s request.168 It also allowed the abortion committees to recommend to ‘women (especially unwed mothers)’ that they give birth and then temporarily place their children in institutional state care until they were able to take care of them themselves.169 One could argue that such a policy valued the existence of life over a woman’s reproductive autonomy, as well as the quality of life of the woman and her child. In 1962, the obligation to appear before an abortion committee in the woman’s place of residence was stipulated. This undoubtedly increased the anxiety associated with abortion. First, women could fear that an abortion might become known locally.170 Second, women’s accounts of their circumstances were made more easily verifiable. It also had the effect of further restricting the number of abortions for one woman, since previously women often ‘shopped’ around different districts to circumvent the earlier cap of one abortion per six-month period.171 After a window where abortion was free, payments for abortions were reinstated in 1963172 and increased a year later.173 Gradually, the number of medical personnel on the interruption committees decreased, while political and bureaucratic membership increased,174 including members of local ‘district population committees’.175 This latter change is an explicit reminder that the ‘population crisis’ motivated many of these changes.176 A 1965 law journal article asks ‘to what

167 Scott,

Does Socialism Liberate Women? (1974). Ordinance of the Ministry of Health No 104/1961 Coll, s 6(1). 169  ibid, s 6(2). 170  Notwithstanding the confidentiality obligations included in the ordinances. 171  According to the demographer Fialová, as interviewed by and cited in R Dudová, ‘Interrupce v socialistickém Československu z foucaultovské perspektivy [Abortion in Socialist Czechoslovakia from a Foucauldian Perspective]’ (2009) 10 Gender, rovné příležitosti, výzkum 25, 30. 172  Ordinance of the Ministry of Health No 126/1962 Coll, s 11. 173  ibid, as amended by Ordinance of the Ministry of Health No 95/1964 Coll, s 11. 174  In both Ordinance 104/1961 and Ordinance 126/1962. 175  Ordinance 126/1962, s 2(b). 176 Scott, Does Socialism Liberate Women? (1974), 104–07, 138–64; see also Dudová, ‘Interrupce’ (2009). 168 

Reflection (1962–68) 49 extent is the possibility of legal interruption of pregnancy reconcilable with the current pro-natality population policy of our state’?177 Some years later, this concern found legal expression when the opening provision of an implementing ordinance of the statute explicitly mentioned both the health of the woman and population growth as important considerations.178 The availability of contraception did not improve in this period.179 D.  A Turn from Equality in Paid Work to Care It is a great challenge for law to choose when to treat men and women the same, and when to treat them differently. Women are the same as men in their humanity and their potential, and, with regard to these qualities, should be treated equally. But women are also ‘different’.180 Those who become mothers face disadvantages, for the vulnerability connected to the physical aspects of pregnancy, birth and early motherhood, but also due to the vulnerabilities at the core of their interdependent relationships with their children. Moreover, all women, whether mothers or not, face some material and symbolic disadvantage connected to the gender-hierarchical organisation of patriarchal societies. The socialist state’s emphasis on equality between the sexes, as enshrined in both socialist constitutions and the new Labour Code of 1965, proclaimed equal ‘rights’ for men and women as one of its basic principles.181 However, as I argue in greater detail in Chapter 4, these guarantees were not fully-fledged equality rights, and, more importantly, they did not contain an anti-discrimination guarantee. Moreover, from 1960s onwards, the law increasingly concentrated on treating women differently, and on the protection and support of their motherhood. i.  Protecting Motherhood The problem with regulating motherhood is that not all women are mothers and carers,182 and not all carers are women. The descriptive observation that most carers are women should thus not translate into a prescriptive

177  J Prokopec, ‘K některým aspektům umělého přerušení těhotenství [On Certain Aspects of Artificial Interruption of Pregnancy]’ [1965] Socialistická zákonnost 41, 41. 178  Ordinance of the Ministry of Health No 71/1973 Coll, s 1. 179  Eg, Scott notes that a Czechoslovak pill started to be produced in 1965, but production was disrupted in 1969, so that the small success in shifting away from abortion as a primary tool of birth control, brought about by the availability of an oral contraceptive, was set back again. Scott, Does Socialism Liberate Women? (1974), 150–53. 180  For the problematisation of viewing women as different, see Ch 4, fn 14 and 74. 181  Act No 65/1965 Coll, art VII. 182  In the biological and social sense respectively.

50  The Three Stages of Regulation framework that facilitates and cements motherhood but does not enable parenthood or other forms of childcare. Moreover, protection should not go beyond what is necessary. When it does, it can turn women into unviable workers and entrench traditional gender roles, instead of protecting their vulnerability and enabling any reconciliation of their work and family lives. I argue that increasingly from the 1960s onwards, state-socialist law often got the balance wrong. It overprotected women in ways that hurt their position in the labour market, and kept men out of childcare, which cemented traditional gender roles in the family.183 The new Labour Code dedicated a special chapter to the ‘Working Conditions of Women and Minors’.184 It urged employers to create employment opportunities for women,185 and tasked ‘national committees’ (národní výbory) with the creation and upkeep of crèches, kindergartens and other childcare facilities.186 It contained positive guarantees for pregnant women and mothers,187 such as breastfeeding breaks,188 preferential treatment with regard to over-time and working time in general,189 the prohibition of workrelated travel190 and protection from dismissal.191 Maternity leave of 18 weeks, introduced in 1950, was lengthened several times in the 1960s, up to 26 weeks in 1968.192 Also introduced in 1968 was ‘further maternity leave’ of one year,193 later lengthened to two years in 1969.194 These labour law provisions were accompanied by a number of social security measures. ‘Financial assistance in motherhood’ (peněžitá pomoc v mateřství)195 was paid out during maternity leave. A ‘motherhood supplement’ was paid out during further leave (mateřský příspěvek).196 A oneoff ‘birth support’ payment was also provided.197 Motherhood was further reflected in the pension system. Periods of childcare counted toward women’s pension benefits, and mothers were granted earlier retirement based

183 

I return to this issue, and its relationship to the legal concept of equality, in Ch 4 section IV. Act No 65/1965 Coll, ss 149–169. 185  ibid, s 149(1). 186  ibid, s 149(2). 187  The rights were available based on the age of the child; for single parents, protection was available for longer. 188  Act No 65/1965, Coll, Labour Code, s 161. 189  ibid, s 156. 190  The prohibition was absolute for mothers of children up to 1 year of age; up to 8 years, the consent of the working mother was required: ibid, s 154. 191  ibid, s 155. 192  Act No, 88/1968 Coll, s 1. 193 ibid. 194  Act No 153/1969 Coll. 195  Act No 88/1968 Coll, s 2(b). 196  Act No 154/1969 Coll. 197  Act No 88/1968 Coll, s 13. 184 

Reflection (1962–68) 51 on the number of children they had borne.198 Families were also entitled to ‘child-raising supplements’ (přídavky na děti).199 These measures were valuable in recognising the social value of childbirth and care. As I discuss in the following chapter, some contemporary Czech authors were even suggesting that social security payment should be regarded as ‘remuneration for caring work’,200 or that it should at least be considered a ‘socially important activity’201 and financially supported according to need. That kind of progressiveness is brought into even sharper relief when compared internationally. What was achieved in the 1960s in Czechoslovakia was still a struggle for women in the UK in the 1970s and 1980s,202 and was only achieved at the EU level in the 1990s.203 It has yet to be guaranteed in the US.204 Nonetheless, two aspects detract from this positive evaluation. First, these measures were adopted ‘in the interest of improving the population development’,205 as was often explicitly mentioned in the statutes. Although presented as pro-women, they had at their base a collective interest in increasing the rate of childbirth in the country. Secondly, for the entire state-socialist period, they only allowed mothers and not fathers to be carers, and consequently cemented women’s roles in the family. It was only relatively late in the post-socialist period that a ‘levelling up’ occurred, where fathers were given equivalent rights, as I discuss in Chapter 6. ii.  Bans on Work Another set of ostensibly protective but ultimately limiting measures imposed a number of bans on work for women. The new Labour Code introduced a prohibition on night work206 as well as a prohibition on certain types of work for all women.207 The delegated legislation protected women from different kinds of physical, biological and chemical agents, processes and 198 

Act No 101/1964 Coll, s 11. No 88/1968 Coll, s 14 et seq. The ‘child-raising supplements’ were available from 1945, but the regulation was scattered throughout various sectoral legislation and not unified. Radvanová et al, Žena a právo (1971), 212. 200 Radvanová et al, Žena a právo (1971), 223. 201  J Mazanec, ‘Význam péče ženy o dítě v důchodovém zabezpečení (The Importance of Child-Care in Pension Security)’ [1975] Socialistická zákonnost 348, 350. 202 Fredman, Women (1997), 203–05. 203 Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, [1992] OJ L348/1. 204  The US protects parents from losing their job for a period of 24 weeks, but there is no statutorily guaranteed paid parental leave. R Ray, JC Gornick and J Schmitt, Parental Leave Policies in 21 Countries. Assessing Generosity and Gender Equality (Center for Economic and Policy Research, 2008). 205  Act No 154/1969 Coll, s 1. 206  Act No 65/1965 Coll, s 152. 207  ibid, s 150(2). 199  Act

52  The Three Stages of Regulation working conditions.208 Scott, writing in 1971,209 argued that while officially aimed at the protection of the weak female worker, these provisions in practice banned women from the best-paid jobs in heavy industry. She pointed to three paradoxes of this legislation. First, it was enacted only in 1965, when working conditions finally started to improve, such that some women who, for their entire lives, had worked in unsatisfactory conditions suddenly found themselves without work. Secondly, where a female workforce was necessary for the smooth running of factories or services, such as in the health sector, sectoral exceptions were passed, which meant that women could continue working in objectionable conditions if the socialist economy required it. Thirdly, analyses of female health in 1960s showed that the greatest problems facing women overall, mostly migraines, neuroses, etc, were caused by fatigue and sleep deprivation resulting from their triple burden and not from working conditions.210 Admittedly, the enactment of gender-specific protective legislation was not unique to state-socialist Czechoslovakia, and there are examples of its happening in Western Europe too. It was only from the 1990s onwards that the European Court of Justice began to consider these sorts of bans as violations of gender equality.211 In both the East and the West, however, this shows a paternalistic attitude to and a clearly gendered view of the female workforce. I return to the question of how an emphasis on difference harmed the gender equality project in greater detail in Chapter 4. E. ‘Freedom’ The political thawing and pluralism of the 1960s brought with it some freedom-related developments. On the one hand, increased freedom of speech brought hitherto unmentioned, and possibly unmentionable, topics, such as prostitution212 or pornography, into the open.213 On the other hand, emerging notions of freedom had some paradoxical consequences for women and 208 

Government Resolution No 32/1967 Coll. Does Socialism Liberate Women? (1974). 210  ibid, 19–23. 211 Blanket bans on night work and on work underground for women were considered incompatible with EU equality law by the European Court of Justice in Case C-345/89 Criminal proceedings v A Stoeckel [1991] ECR I-04047 and Case C-203/03 Commission v Austria [2005] ECR I-935 respectively. For developments after 1989, see p 171–174 and 217–218. 212  The legal debates about prostitution appeared in the 1960s; Havelková, ‘MSt Thesis’ (2010), 66–76. 213  Discussions of pornography or striptease did not reach the legal periodicals but made their way into other publications. Several chapters of the book Sex—Love? Marriage? Family? Children? were dedicated to this: ‘The Night Shadow of Sex Flies Through the Republic’; ‘Sex, Art, and Trade’; ‘Excursion into the Red-Light District in Hamburg’; ‘Pornography Instead of Butter?’ in L Svoboda (ed), Sex—Láska? Manželství? Rodina? Děti? [Sex—Love? Marriage? Family? Children?] (Polygrafia, 1969). 209 Scott,

The Era of the Family (1969–89) 53 gender equality. First, the narrative of freedom and choice was used to ‘enable’ women to stay at home longer with their children. While this alleviated their triple burden, it was also a step back as regards their equality. In the labour market it led to women being perceived as less reliable workers. And in the family, they acquired the official hallmark of being childcarers and home-makers. Secondly, the increased freedom of movement brought reports back from the West about striptease bars, prostitution and pornography, unavailable in Czechoslovakia at that time. Possibly as a reaction to the ‘de-eroticisation’214 of the 1950s, those who experienced open and available sexuality abroad were deemed ‘lucky’. Czechoslovakia was considered to be locked in a ‘Stone Age’,215 suffering from a ‘backwardness of many years’ for its lack of striptease bars.216 Both these constructions, that women should have the ‘choice’ to be mothers and that men’s access to sex and sexual production was equal to ‘progress’,217 reappear strongly during the post-socialist era. Indeed, with regard to prostitution, it has been amplified to mean a right of access to it for men.218 III.  THE ERA OF THE FAMILY (1969–89)

A. Normalisation The period of Normalisation that followed the 1968 Soviet-led military invasion of Czechoslovakia has been characterised as ‘a combination of material rewards and coercion’.219 Politically, Normalisation meant the ‘annulment of the innovations of 1968’,220 when ‘rehabilitated victims of Stalinism were “de-rehabilitated”, economic reforms were blocked [and] censorship reinstated’.221 The Communist Party was purged on a massive scale, even many committed Communists being stripped of their membership.222 An estimated 280,000 people lost their jobs for political reasons,

214  V Macura, Šťastný věk. Symboly, emblémy a mýty 1948–89 [The Happy Age. Symbols, Emblems and Myths 1948–89] (Pražská imaginace, 1992) cited in Havelková, ‘Women In and After’ (1999). 215  B Vaníček, ‘Noční motýl sexu letí republikou [The Night Shadow of Sex Flies through the Republic]’ in Svoboda (ed), Sex (1969), 69. 216  ibid, 69. 217  ibid, 68. 218  Havelková, ‘MSt Thesis’ (2010), 96–97. 219 Wolchik, Czechoslovakia (1991), 37. 220 Ulč, ‘Czechoslovakia’ (1984), 125. The exception was the acceptance of Slovak demands for greater autonomy. Czechoslovakia became a federation in 1968. 221  ibid, 125. 222  ibid, 126. This included reform leaders such as Alexander Dubček. A full one-third of the total 1,500,000 Communist Party membership was removed from the ranks.

54  The Three Stages of Regulation which decimated entire academic disciplines, such as history, among many other fields.223 Many of those affected were assigned to manual labour; some 150,000 went into exile.224 The period also included a change in the ‘political formula’. Václav Havel described this ‘post-totalitarian period’ in his essay The Power of the Powerless.225 He observed that belief in Marxism had vanished from most spheres of society, including the Communist Party and its leadership, and that Czechoslovaks were ‘living a life in lie’.226 It was no longer important to believe the ruling ideology but rather to perform its rituals. Pointing out this lie became an important aspect of the dissident movement. The ‘Charter 77’ human rights initiative, for example, demanded that the regime conform to the human rights standards it had itself signed up for internationally227 or promised domestically. Economically, the country’s political leadership tried to placate the population with a better standard of living, which included the somewhat improved availability of consumer goods and social welfare benefits.228 While the first half of the 1970s was ‘economically the most successful in the history of socialist Czechoslovakia’,229 the rest of the period was marked by a slow decline. Beginning in 1975, spurred on in part by the oil crisis of 1973, the combination of ‘waste in manpower allocation’, ‘irrational investment’, particularly into heavy industry, and ‘industrial obsolescence’, especially ‘outdated factory equipment and technological procedures’, led to a loss of competitiveness internationally, which worsened the already unfavourable trade balance.230 By the 1980s, ‘the failure of government to live up to its part of the social contract [had] become all too evident’.231 The average living standard dropped to the levels of the early 1960s.232 In order to remain in power, the Communist Party resorted to ‘intensified ideological fire’.233 This might be the reason why the Gorbachev-led changes to the Soviet system in the second half of the 1980s, perestroika234 and

223 

ibid, 128. ibid, 128. 225  First published illegally in 1979. V Havel, Moc bezmocných [The Power of the Powerless] (Londýnské listy, 1979). 226  For English translation, see V Havel, J Keane and S Lukes, The Power of the Powerless: Citizens Against the State in Central-Eastern Europe (Hutchinson, 1985). 227  In the 1966 International Covenant on Civil and Political Rights, 1996, 999 UNTS 171; and the International Covenant on Economic, Social and Cultural Rights, 1996, 993 UNTS 3. 228 Wolchik, Czechoslovakia (1991), 37. 229 Ulč, ‘Czechoslovakia’ (1984), 131. 230  ibid, 132. 231  ibid, 133. 232  ibid, 133. 233  ibid, 134. 234  Meaning ‘restructuring’ in terms of the restructuring of the Soviet political and economic system. 224 

The Era of the Family (1969–89) 55 glasnost,235 did not resonate in Czechoslovakia.236 Changes were planned only in 1987, and were restricted to the economic sphere; in any event, few reforms were implemented prior to the end of the regime.237 Even though anti-regime political activism increased in 1988 and 1989, the ‘Velvet Revolution’, which started on 17 November 1989, still came as a surprise, and was precipitated as much by the collapse of state-socialist regimes abroad as from the inside.238 In terms of aspirations to social change in the area of equality of the sexes, this was a period of resignation and stagnation. The old emancipatory rhetoric, as well as the legal gains of the 1950s, largely persisted, but alongside them gender-conservative regulation and social understandings gained more and more ground. While policies in the 1950s saw women as citizens and workers, the 1970s and 1980s equated them with motherhood and family.239 A 1973 Slovak sociological article stated that ‘in real life, as a rule, popular opinion connects the rearing of younger children, roughly up to the age of fifteen, primarily with the woman and also with her maximum physical presence in the family’.240 The relative decline of the ideal of equality of sexes is well illustrated by Scott’s anecdote: By 1972 the image of the beautiful tractor driver as heroine had receded so far into the distant past that a top [Communist Party] official … on a visit to a cooperative farm at harvest time … [inquired of the husbands in] husband-and-wife combine-operator teams: ‘And you let them drive?’241

I noted above that the East was ahead of the West at the end of 1950s and even in the 1960s, but by the end of 1980s the East had noticeably fallen behind. The émigré Wagnerová, who returned to Czechoslovakia from West Germany after the 1989 Velvet Revolution, observed that she felt ‘as if we somersaulted again back to the GDR, when we went there in late 1960s. Our [comparative] advance, that we were so proud of, ceased to exist.’242 235  Meaning ‘openness’, referring to the attempt by the Soviet leadership to increase transparency and reduce censorship in government in order to lessen corruption. 236 Wolchik, Czechoslovakia (1991), 39 ff. 237  ibid, 40–41. The reform aimed to decrease the element of central planning and increase the managerial independence of enterprises. 238 ibid, 41–49. For more on the period of perestroika and the fall of Communism, see, respectively, M Pullman, Konec experimentu [The End of an Experiment] (Scriptorium, 2011), and B Blehova, Der Fall des Kommunismus in der Tschechoslowakei (LIT Verlag, 2006). 239  This shift has been noted by authors writing about other CEE countries. For Russia, see, eg, N Vinokurova, ‘Reprivatising Women's Lives: from Khrushchev to Brezhnev’ in R Kay (ed), Gender, Equality and Difference During and After State Socialism (Palgrave Macmillan, 2007); for Hungary, see I Asztalos Morell, ‘How to Combine Motherhood and Wage Labour: Hungarian Expert Perspectives During the 1960s’ in R Kay (ed), Gender, Equality and Difference During and After State Socialism (Palgrave Macmillan, 2007). 240  J Jančovičová, ‘Increasing Participation of Women in the Direction of Society’ (1973) 5 Sociológia, 211–12, cited in Scott, Does Socialism Liberate Women? (1974), 17, emphasis added. 241 Scott, Does Socialism Liberate Women? (1974), 1. 242  Wagnerová, ‘Laudatio’ (2011), 18–19.

56  The Three Stages of Regulation The West experienced modernisation and emancipation from the 1960s onwards, mostly thanks to the rise of the ‘second wave’ of the feminist movement.243 The bottom-up character of this development was important. Activists fought against gender inequality, and it was debated openly in the pluralist and liberal democratic societies of the West. The understanding and consequent rejection of gender inequality to a considerable extent became internalised in Western, especially Anglo-American, societies. The socialist East missed this development, however. While, in terms of material provisions for women, the East was comparable to and even more generous than the West, in 1989 it fell behind in terms of a challenge to patriarchy and a shift in cultural paradigm; a topic to which I return in Chapters 5 and 9.244 In the following section, I discuss the re-traditionalisation of the law and legal discourse on family (section III.B), assess the developments in the area of reproduction, including the policy of sterilisation of Roma women (section III.C) and present the wide-ranging pro-population policies that had women at their centre (section III.D). It is important to note that women were the main focus of all this regulation. All that was related to marriage, family, housework, reproduction and children was equated with women and regulated through them. This was true for all the responsibilities, while men were completely out of the picture. Although apparently protective and supportive, these measures often entrenched and exploited, rather than alleviated, the responsibilities of women as mothers, wives and home-makers. B.  A Retreat into the Private Sphere The strengthening of the family defined the period of Normalisation, both in terms of official policy and as a reaction of the population to the discredited regime’s public space. For Ivan Vodochodský, the metamorphoses of the public and private spheres were essential to the understanding of the ‘real socialism’ of the 1970s and 1980s: The previously prestigious public sphere of work, and political and civil engagement, which used to be the male domain, became uninteresting, unpleasant and sometimes dangerous. By contrast the private sphere (sometimes spoken of as household, sometimes as family), previously viewed for routine and drudging ‘female work’ became the main shelter from the traps of the outside world and a place where real feelings and opinions could be vented.245

243 For a discussion, see R Tong, Feminist Thought (Westview, 2009); and AS Fraser, ‘Becoming Human: The Origins and Development of Women’s Human Rights’ (1999) 21 Human Rights Quarterly 853. 244  See Ch 5 section IV and Ch 9 section III. 245  Vodochodský, ‘Patriarchát’ (2007), 38.

The Era of the Family (1969–89) 57 Family became the locus of freedom, moral and civic education, and creativity.246 Due to the dysfunctions of the economy, it also became a place where material shortages were compensated for.247 Its function as an economic unit was significant, despite the earlier proclamations that under state socialism it would not need to be. The family adopted an almost ‘pre-capitalist role’248 as a site where basic goods were produced: According to empirical research from the end of the 1970s, 57 per cent of women sewed or repaired clothes, and 25 per cent of the population produced or reconstructed furniture. Research among Prague workers showed that 37 per cent of eggs, 22 per cent of meat, and 73 per cent of fruit and vegetables were homeproduced (from their or their relatives’ gardens).249

While this economic reality might have provided good practical reasons for couples not to split up, the law and the legal community reinforced marriage further by adopting an uncompromising marital normativism. Couples should marry and stay together. i.  The ‘Wrongly Understood Emancipation’ The 1971 book Woman and the Law observed that ‘the legal status [of cohabiting unmarried partners] is entirely deliberately not regulated in our law’,250 in order to make such an arrangement undesirable. ‘The breakdown of marriage’ was described as an unambiguously ‘socially negative phenomenon’.251 An aim that carried over from the 1960s, of preventing marriage breakdowns, gained new momentum with the establishment of marriage counselling centres252 that were statutorily tasked with collaborating with the courts.253 Courts often referred couples seeking divorce to counselling first.254 Guidelines and legal academic articles on marriage counselling set marriage as the absolute norm, and made it the task and responsibility of women 246 

H Havelková, ‘“Patriarchy” in Czech Society’ (1993) 8 Hypatia 89, 92. ibid, 92. 248  Havelková even uses the word ‘feudal’: Havelková, ‘Women In and After’ (1999), 77. 249  Hamplová, ‘Stručné poznámky’ (2010), 6. 250 Radvanová et al, Žena a právo (1971), 76. 251  ibid, 80. 252  These centres were originally founded in 1969. J Haderka, ‘Manželské poradny—jako partner soudů v úsilí za vytvoření a zachování trvalých manželských svazků [Marriage Counselling Centres—the Courts’ Partner in an Effort to Create and Preserve Durable Marriages]’ [1976] Socialistická zákonnost 294. They were later elevated to the position of a social service. See Act No 121/1975 Coll, s 2, s 80(3), (4). 253  Ordinance No 130/1975 Coll, s 79. 254  K Novák, ‘Ze zkušeností manželské a předmanželské poradny v Jičíně [Experiences from Marriage Counselling Centre in Jičín]’ [1979] Socialistická zákonnost 226; V Capponi and T Novák, ‘Spolupráce manželských a předmanželských poraden se soudy v Jihomoravském kraji v prevenci rozvodovosti [The Collaboration of Courts and Marriage Counselling Centres in Preventing Divorces in Southern Moravia]’ [1981] Socialistická zákonnost 229. 247 

58  The Three Stages of Regulation to hold marriages together. Under the label ‘wrongly understood emancipation’,255 the equality between the sexes was de facto recanted by one law journal article in 1979: According to our experience, many women interpret emancipation as a mechanical half-and-half division of housework and do not see the necessity to help each other and come up with a form of collaboration and organisation of the running of the household such as to have it running in an undisturbed, smooth way. We cannot do without specialization, the use of natural abilities of each spouse to certain tasks, nor without respect for the fact that one partner [man] has more work and out-of-work obligations. With mechanical half-and-half division, one partner [man] feels overburdened, unjustly nagged, which leads to reactions of protest and to conflicts.256

Even the advances of women that had already been achieved, in this case their high educational level, were criticised when they were seen to lead to marital discord: [I]n so called young marriages, women have higher education than men. This nontraditional fact encounters lack of preparedness to accept this from their [male] partners. In our counselling centre we often attempt to address the consequences of the un-understandable superiority of young women, who—in a marriage with a less educated partner—take a position which makes the marital relationship unequal at least. Often, they [women] try to unload most of the household obligations on the other [male] spouse … [claiming] that their work is more socially beneficial and important, and therefore more time-demanding than that of the [male] partner, who should understand this and take the burden of family obligations upon themselves.257

These excerpts show that while the formal equality of spouses that was guaranteed in family law remained the same, the understanding and interpretation of marriage within the legal community became openly based on a traditional understanding of gender roles that considered the woman responsible for marital harmony. The condemnation of women who wanted an equal sharing of household duties is a long way away from the early socialist promise of de facto equality and women’s liberation from household drudgery. By 1989, the traditional understanding of a woman’s role was so commonplace that the then Prime Minister Adamec stated the woman’s situation was ‘not yet ideal because of “the lack of free time for fulfilment of their duties in the family”’.258

255 

Novák, ‘Ze zkušeností’ (1979), 229. ibid, 229, emphasis added. 257  ibid, 229, emphasis added. 258  L Oates-Indruchová, ‘The Beauty and the Loser. Cultural Representations of Gender in Late State Socialism’ in H Havelková and L Oates-Indruchová (eds), The Politics of Gender Culture under State Socialism: An Expropriated Voice (Routledge, 2014) 129, emphasis added by Oates-Indruchová. 256 

The Era of the Family (1969–89) 59 In the above discussion of the 1950s, I mentioned the positive aspects of public involvement in the family, such as the strengthening of equality between the spouses and the state’s involvement in securing child support, amongst others. During Normalisation, the state’s interference became gender-conservative and was no longer driven by the aim of ‘equality between the sexes’, but rather by the aim of ensuring that children were reared in ‘unbroken’ families. This is where the problematic nature of the ‘collective good’ comes to the fore. As many of the state’s guarantees were not aimed at enhancing individuals’ (ie women’s) autonomy, but rather at furthering collective interests or increasing the state’s control over matters in the collective interest, their outcomes were not in the hands of those they were ostensibly protecting. The nature of public involvement in women’s lives was therefore double-edged. On the one hand, the state could, and often did, further women’s status by regulating and interfering in areas traditionally controlled by men.259 On the other hand, though, the state was primarily interested in what it identified as the collective interest, and not in the will and choices of individual women. As a result, it often did not offer women meaningful choices, and even used them instrumentally to fulfil policy objectives. This disregard for their autonomy was also apparent in reproductive law and policy. C. Reproduction—Assuring the ‘Quantity’ and ‘Quality’ of the Population Abortion committees were only abolished in 1986,260 despite repeated calls for greater privacy for women, for simplification of the committee process and for greater speed throughout the period.261 While this made abortion more accessible, it did not mean that the state relinquished its role as the guardian of health, social progress and population growth during the 1970s and 1980s. Part of its plan to improve the ‘quality’262 of the population included the policy of sterilisation of women from ‘socially weak’ backgrounds.263 While the 1972 Sterilisation Guideline was not 259  This resonates with many writers’ description of the state as ‘paternalistic’. See P Kenney, ‘The Gender of Resistance in Communist Poland’ (1999) 104 The American Historical Review 399, 405, and the references therein. See also discussion on p 132–134 below. 260  Act No 66/1986 Coll. 261  The lengthy process prevented the use of new, less intrusive technologies, such as early pregnancy ‘mini-interruptions’. Dudová, ‘Interrupce’ (2009). 262  V Sokolová, ‘Planned Parenthood Behind the Curtain: Population Policy and Sterilization of Romani Women in Communist Czechoslovakia, 1972–1989’ (2005) 23 The Anthropology of East Europe Review 79, 82. 263  Office of the Public Defender of Rights, Závěrečné stanovisko veřejného ochránce práv ve věci sterilizací prováděných v rozporu s právem a návrhy opatření k nápravě [Final Report on Illegal Sterilizations and Proposals for Remedy] (No: 3099/2004/VOP/PM a násl., 2004), 69.

60  The Three Stages of Regulation ethno-specific,264 it led in practice265 to forced sterilisations,266 overwhelmingly of Roma women.267 A monetary incentive for agreement with sterilisation was enacted in 1973,268 and remained in place until the Velvet Revolution.269 A 1989 health journal article supported the policy targeting the Roma thus: [T]hese are citizens who in high numbers demonstrate negative attitude toward work and education, have high crime rates, tendency toward alcoholism and promiscuity among women, and last but not least show retardation with regard to cultural and social development compared to other population groups.270

The number of sterilisations was at its greatest at the very end of the statesocialist era.271 Shockingly, this approach continued after 1989 and well into the first decade of the new millennium.272 I believe that this disregard for Roma women’s reproductive rights must be borne in mind when assessing the reproductive policy of Socialist Czechoslovakia in general. Certainly during Normalisation the reproductive policy was strongly instrumental. Both abortions and sterilisations were seen as methods of centralised planning regarding the quantity and ‘quality’ of the population, so it is difficult to see them as rights of women. Rather, they were instruments for higher state policies on health, population growth and the assimilation of ethnic groups. The treatment of Roma women also gives an indication of a gendered as well as racialised approach to sexuality. While the lack of striptease bars

264  Guideline

Coll.

265 

of the Ministry of Health of the CSR No 1/1972 Bulletin reg in issue 5/1972

Sokolová, ‘Planned Parenthood’ (2005), 80–81. term ‘forced’ is used, even though some situations are better described as lack of circumstances allowing for informed consent regarding the procedure. 267  While non-Roma women were sterilised as well, Sokolová points out that ‘several estimates claim that anywhere from 21.2 to 36.6 % of all sterilized women were Romani, while the Roma constituted less than 2% of the overall Czechoslovak population’: Sokolová, ‘Planned Parenthood’ (2005), 79. In other state-socialist countries, the ethnic character of the state population policy was also pronounced. Bulgaria, for instance, restricted abortions among ethnic Bulgarians, but allowed them for Turkish and Roma minorities. Gal and Kligman, The Politics (2000), 16. 268  Internal Act of the Ministry of Labour and Social Affairs of the CSR from 1973, Act No IV/1-8750-13.9.1973/7; later regulated by various social security instruments. Office of the Public Defender of Rights, Závěrečné stanovisko (2004), 30. 269  Ordinance of the Ministry of Health and Social Affairs of the CSR No 152/1988 Coll, s 35. 270 E Posluchová and J Posluch, ‘Problemy plánovaného rodičovstva u cigánskych spoluobčanov vo Východoslovenskom kraji [Problems of Family Planning Among Gypsy Citizens in the Region of Eastern Slovakia]’ [1989] Zdravotnícka pracovníčka, 220–23, cited in Office of the Public Defender of Rights, Závěrečné stanovisko (2004). 271 R Pellar and Z Andrš, Zpráva o výzkumu problematiky sexuální sterilizace Romů v Československu [Report on the Examination in the Problematics of Sexual Sterilization of Romanies in Czechoslovakia] (unpublished, 1989), cited in Office of the Public Defender of Rights, Závěrečné stanovisko (2004). 272  See p 166–167. 266  The

The Era of the Family (1969–89) 61 for men was considered an indicator of ‘social backwardness’,273 arguably similar sexually liberal behaviour among Roma women was termed ‘promiscuity’ and considered ‘socially retarded’.274 D.  Pro-Population Policies Measures targeting population growth275 that had started in the 1960s were enhanced during Normalisation. Indeed, by the mid-1970s the ‘Czechoslovak population policy … became, according to some Western demographers, “the best, most comprehensive pro-natalist population policy in the developed world”’.276 Heitlinger notes that by the late 1970s, the Czechoslovak government was spending almost 4 per cent of its annual budget for direct cash benefits (family allowances, birth grants, paid maternity leaves, and allowances) and an additional 7 per cent on services and subsidies in kind (subsidized day care, kindergartens, school meals, afterschool care, children’s goods, tax and rent reductions based on number of children). These levels exceeded comparable expenditures in any other major developed country.277

The maternity benefit was extended from one year in 1970, to two years in 1971 to three years in 1988 if the woman was caring for older children at the same time,278 and maternity leave in labour law was adjusted accordingly.279 Families with children were preferred in the granting of ‘newlyweds loans’ that were officially meant to help with the purchase of a flat or a house,280 although in reality they were large enough to contribute at most to purchases of furniture. Pro-natality pricing and tax policies were implemented,281 and labour and social security protection and support for motherhood was boosted. For example, the motherhood supplement created in 1968282 was augmented in 1971,283 and ‘child-raising supplements’ (přídavky na děti) gradually increased.284 273 Vaníček,

‘Noční motýl’ (1969), 69. and Posluch, ‘Problemy’ (1989), 220–23, cited in Office of the Public Defender of Rights, Závěrečné stanovisko (2004). 275  Many statutes stated so explicitly, eg Act No 107/1971 Coll, s 1. 276 Sokolová, ‘Planned Parenthood’ (2005), 81, citing J Besemeres, Socialist Population Policy: The Political Implications of Demographic Trends in the USSR and Eastern Europe (ME Sharpe, 1980) 263. 277  Heitlinger, ‘The Impact’ (1993), 98. 278 It motivated women to have two children shortly after each other. R Dudová, ‘Promarněná šance na změnu: zhodnocení reformy rodičovského příspěvku [A Lost Chance: Assessing the Reform of Parental Allowance]’ in A Křížková et al (eds), Práce a péče [Work and Care] (SLON, 2008), 31. 279  Act No 188/1988 Coll. 280  Act No 14/1973 Coll. 281 Kučera, ‘Rodinná politika’ (2001), 5. 282  Act No 154/1969 Coll. 283  Act No 107/1971 Coll. 284  Act No 99/1972 Coll. 274 Posluchová

62  The Three Stages of Regulation These provisions, although generous, were fundamentally gender-conservative. They worked on the assumption that mothers were the indispensable caring parent, while men and fathers continued to be absent. Moreover, it was the individual care in the home that was supported. The 1950s’ emphasis on collective childcare was challenged in the 1960s, and was slowly abandoned in the 1970s and the 1980s. The norm became the family, and for the mother to be responsible for child-rearing.285 Ostensibly, the state paid extraordinary attention to the well-being of women, but it did so often in a technocratic pursuit of the collective interest. This trend of the socialist state pursuing other aims behind seemingly pro-women measures can be documented throughout the period: the push for access to employment overlapped with work-force mobilisation to sustain industrialisation in 1950s; the ban on women’s work in 1965 ‘coincided’ with ‘overemployment’ worries; and restrictions on abortion in the late 1960s and early 1970s matched state concerns about a ‘population crisis’.286 In the 1980s, the state put forward allegedly pro-women policies that were mainly aimed at preserving heterosexual families and population growth. This pernicious link between family and women, the illusion that pro-family policies were invariably pro-women,287 continued well after 1989, as I discuss in Chapter 6. IV. CONCLUSIONS

In this chapter, I have observed that the socialist state did a lot for women. Compared to the ‘West’, women accessed the public spheres of education, work and politics earlier and in greater numbers, during the Equality period of the 1950s, and were then more generously and comprehensively supported as mothers in the later era of the family in the 1970s and 1980s. This indicates a combination of ‘public equality and private difference’, but the picture is more complex than that. First, it changed over time and emphasised ‘first equality, then difference’. The underlying assumptions about men and women were very gender-­ conservative, increasingly so towards the end of the period—women’s role as wives was to hold marriages together, and women’s role as mothers made them the exclusive carers for children in the home. How was the co-existence of the equal and the different legal treatment of men and women justified? And how were the ideas of ‘sameness’ and ‘difference’ of men and women reconciled? I return to these questions in Chapter 4, which takes a much closer look at the legal guarantees of equality under state socialism. 285 

Similarly, Hamplová, ‘Stručné poznámky’ (2010), 4. Similarly, Wolchik, ‘Ideology and Equality’ (1981), 445. 287  Similarly, Jechová, ‘Matky a děti’ (2009). 286 

Conclusions 63 Second, although de jure equality was guaranteed not only in the public but also in the private sphere, this was problematised by the easy acceptance of de facto inequality. There was ‘relative de jure equality combined with de facto inequality’. I turn to law and rights, their characteristics and their state-socialist understanding in the next chapter.

3 State-Socialist Law and Rights

I

N THE PREVIOUS chapter, I noted certain characteristics of law and rights that were specific to state socialism, such as its considerable regulatory interference in the family, or the fact that the legalisation of abortion ought not be understood as a right to reproductive autonomy, as it might be in the West. The peculiarities of state-socialist law and its specific understanding of rights under state socialism are explored more closely in this chapter. Section I briefly discusses the development of state-socialist law. Akin to the regulation of women and gender relations, the state-socialist period was not homogeneous with regard to law. One can distinguish between the ideologically charged early Stalinist period, of legal reform and judicial activism, which lasted until 1953 (section I.A), a period of legal Stabilisation, which saw recodification of main areas of law (section I.B), and Normalisation, of a return to judicial formalism (section I.C). Section II presents several characteristics of state-socialist law that are relevant to gender equality. In particular, I note how the law was used as an instrument of social change, especially in the early Stalinist period (section II.A). Due to an understanding of ‘law as command’, rather than as a facilitator of private transactions, the importance of public law rose and the importance of private law declined (section II.B). Nevertheless, notwithstanding the coercive character of much of public law, the normativity of state-socialist law was problematic. It often commanded what could not be achieved, and then made statements about performance that were at odds with reality. As a consequence, it ceased to be taken seriously, and a widespread disregard for law could be observed (section II.C). Section III then turns to the state-socialist understanding of rights, arguing that legal rights were a mirage. Law was not intended to be used by individuals to constrain official power, and the many apparent guarantees that such rights afforded were merely educational statements (ie their normativity was limited). Neither the barely tolerated civil and political rights, nor the socio-economic rights that the state preferred were enforceable ­individual entitlements as understood in Western rights discourses. At most, they were policy statements and aspirational instructions to the legislature

From Activism to Formalism 65 (section III.A). Furthermore, the state-socialist emphasis on collective interests further weakened the individual aspect of ‘rights’ (section III.B). Lastly, rights were practically unenforceable anyway because of the absence of key institutions, such as a constitutional court, the judiciary’s lack of independence, and its weakness in interpreting the law vis-à-vis the legislature and the executive (section III.C). I.  FROM ACTIVISM TO FORMALISM

A.  Early Activism (1948–53) When the Communists came to power in 1948, they inherited a welldeveloped Germanic civil law system of Austrian origin.1 This was soon changed with the state-socialist codification drive of 1948–50, which is often referred to as the ‘legal two-year plan’. Following the adoption of a new ­Constitution in 1948,2 most legal areas were recodified.3 A new Act on Family Law was adopted in 1949,4 and civil and criminal codes, along with associated codes of civil and criminal procedure, were adopted in 1950.5 There was some continuity with the pre-socialist legal system, and these new codes followed the Continental civil law tradition to some extent, but they were also meant to be ideologically consistent with Marxist-Leninism and reflect the victory of the proletariat.6 As discussed in the previous chapter, this was particularly true for the Act on Family Law, which aimed to construct a ‘democratic family’. In the Civil Code, ideological changes included

1  I use the ‘legal family’ classification available in K Zweigert and H Kötz, An ­Introduction to Comparative Law (Oxford University Press, 1998) 132–67. After the dissolution of the Austro-Hungarian Empire in 1918, the Czech lands continued using Austrian law (Slovak law was different—see Ch 1 fn 1). Most of that original legal framework survived the First Republic (1918–38), as well as the politically un-free periods of the Second Republic (1938–39) and the Protectorate (1939–45). Eg, the 1811 Austrian General Civil Code (which is in amended form still valid in Austria) was abrogated only in 1950. For a discussion of the failed recodification of the Civil Code during the First Republic, see M Feinberg, Elusive Equality. Gender, Citizenship, and the Limits of Democracy in Czechoslovakia, 1918–1950 (University of Pittsburgh Press, 2006). See also p 35 above. 2  Constitutional Act No 150/1948 Coll. 3  The term ‘code’ describes a statute (an act of parliament) that comprehensively regulates an area of law. While most of the system was changed in this two-year period, some areas were altered later. Labour law, for instance, was only codified in 1965. 4  Act No 265/1949 Coll. 5  Act No 141/1950 Coll; Act No 86/1950 Coll; Act No 142/1950 Coll. 6  Petr Bělovský notes that there was a great difference between the socialist rhetoric of the preamble and the traditional structure, terminology and content of the Civil Code. P Bělovský, ‘Občanské právo [Civil Law]’ in M Bobek, P Molek and V Šimíček (eds), Komunistické právo v Československu. Kapitoly z dějin bezpráví. [Communist Law in Czechoslovakia. Chapters from the History of Unlawfulness] (Mezinárodní politologický ústav Masarykovy univerzity, 2009), 434.

66  State-Socialist Law and Rights establishing the primacy of collective over individual interests, and preferring socialist forms of property over private ownership.7 In the Criminal Code, new offences against the republic8 and the economic constitution9 were created and used repressively against the dissenters in the new socialist state. In his analysis of judicial decision-making in state-socialist Czechoslovakia, Zdeněk Kühn describes the early Stalinist period (1948 to 1953)10 as both ‘activist and anti-formalist’, and as characterised by its strong ideological orientation.11 Marxism-Leninism has been likened to a ‘secular religion’12 that was faithfully followed by state-socialist legal scholars and the Party, that had its own dogma, ‘clergy’ (in the form of revolutionary leaders and later party officials) and institutionalised punishment of h ­ eretics.13 Law was used to bring about various tenets of Marxism-Leninist ideology or the later objectives of state-socialist planners (a discussion to which I shall return in Chapter 5). Decisions of the Communist Party directly affected the creation and the application of law. Rado Procházka has provided ample examples of the ‘direct transmission of decisions of the organs of the [Communist] Party into the exercise of substantive competence of state institutions, including the parliament’.14 Judges were seen to be the ‘missionaries of socialism’,15 and according to the then Prime Minister, their judgments were meant to ‘popularize the decisions of the [Communist] Party’.16 While the Communist Party’s influence on the law persisted throughout the entire state-socialist period, it was particularly virulent during Stalinism. In 1953,

7 

ibid, 434. ‘behaviour unfriendly to the republic’ or ‘abuse of religious function’. T Gřivna, ‘Trestní právo hmotné [Substantive Criminal Law]’ in Bobek, Molek and Šimíček (eds), Komunistické právo (2009), 563 ff. 9  Such as ‘machinations against nationalisation’, ‘endangering of the creation and fulfilment of the economic plan’, amongst others: ibid. 10 Z Kühn, Aplikace práva soudcem v éře středoevropského komunismu a transformace [The Judicial Application of Law During Central European Communism and Transformation] (CH Beck, 2005) 53. 11 Z Kühn, ‘Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement’ (2004) 52 American Journal of Comparative Law 531; Kühn, Aplikace (2005). 12  S Weil, Oppression and Liberty (Routledge and Kegan Paul, 1958); see also J Přibáň, ‘Na stráži jednoty světa: Marxismus a právní teorie [Guarding the Unity of the World: Marxism and Legal Theory]’ in Bobek, Molek and Šimíček (eds), Komunistické právo (2009) 41, 45; Kühn, Aplikace (2005), 37; I Markovits, ‘Justice in Luritz’ (2002) 50 American Journal of Comparative Law 819, 845. 13 Přibáň, ‘Na stráži’ (2009), 48–49. 14  R Procházka, ‘Všetkým telám rovnako [To Every Body Equally …]’ in Bobek, Molek and Šimíček (eds), Komunistické právo (2009), 96. 15  Markovits, ‘Justice’ (2002), 842; Přibáň, ‘Na stráži’ (2009). 16  PM Zdeněk Fierlinger in 1952, cited in Kühn, Aplikace (2005), 40. In East Germany, the Government was bound to ‘a blind following of party guidelines’. Markovits, ‘Justice’ (2002), 845. 8 Eg,

From Activism to Formalism 67 a Czechoslovak legal scholar chastised judges for ‘underestimating the importance of political editorials and essential articles of the Red Law17 (Rudé právo) [the official newspaper of the Czech Communist Party]’.18 The political activism of judges during the Stalinist period was especially apparent in their criminal judgments. ‘Class origin’ was routinely taken into account, and harsher sanctions were given to those deemed to be ‘anti-state perpetrators’.19 Law was used instrumentally to transform society, and it was engineered to produce outcomes determined by the collective interests of socialist society, class, workers, etc.20 Law was identified with socialist morality to the point where courts commonly created legal obligations out of perceived moral duties.21 Kühn considers this period to be a dramatic departure from the Continental traditions of formalism and positivism in judicial decision-making, and speaks about an ‘unbound application of law’.22 He notes that part of the judiciary’s early anti-formalism and activism can be explained by the need to disapply the inherited capitalist legal order. Once the new socialist codifications were prepared and adopted, however, the demand for judicial activism declined, and the importance of formalism, stability, positivism and textual interpretation returned. B.  Stabilisation (1954–68) The end of the Stalinist period was characterised by a second wave of socialist recodifications, starting with a new Constitution in 1960.23 A new Act on Family,24 civil and criminal codes,25 codes of civil and criminal procedure,26 and a brand new Labour Code27 were adopted in the early 1960s, officially to improve the quality of the legal order. Tomáš Gřivna notes that this was achieved to some extent in criminal law, where some ideological

17  Právo in Czech denotes both law and right. The title of the daily paper could be interpreted as both. 18  J Kokeš, ‘Za lepší rozhodování našich soudů [Toward a Better Decision-Making by our Courts]’ [1953] Socialistická zákonnost 11, cited in Kühn, Aplikace (2005), 40. 19 Kühn, Aplikace (2005), 50–52. 20  ibid, 45–50. 21  ibid, 44. Kühn cites the example of a decion of the Polish Supreme Court that derived a legal duty from the moral duty to work overtime. 22 As opposed to the traditional Continental ‘bound judicial decision-making’ based on formalism and positivism. Kühn, ‘Worlds Apart’ (2004), 534 ff. 23  Constitutional Act No 100/1960 Coll. 24  Act No 94/1963 Coll, Act on Family. 25  Act No 40/1964 Coll; Act No 140/1961 Coll. 26  Act No 99/1963 Coll, Code of Civil Procedure; Act No 141/1961 Coll, Code of Criminal Procedure. 27  This dualism was abolished by the promulgation of Act No 65/1965 Coll.

68  State-Socialist Law and Rights but d ­ octrinally awkward provisions of the Criminal Code were improved on,28 while some others were softened, such as the abolition of the death penalty for a range of crimes.29 Petr Bělovský notes, however, that changes made to private law were considerably different. In order to conform to the alleged ‘progressive development of economic and political relations of a developed socialist ­society’,30 and to prepare for the anticipated arrival of communism, the new Civil Code radically departed from the Continental private law tradition and abolished many basic civil law institutions, such as possession, usucaption, servitudes and tenancy.31 In its belief that socialism was transforming social relationships and therefore no longer needed private law regulation, the Civil Code defied the reality of Czechoslovak economic relations at the time, and in so doing encouraged the emergence of a ‘grey economy’.32 The remainder of the state-socialist period saw only amendments to these new codes, but no major recodification on any great scale. Remarkably, some of these codes are, in amended form, still in force today,33 while other areas of the law were recodified only very recently. A new Labour Code was adopted in 2006, for instance,34 while a new Criminal Code was promulgated in 200935 and a new Civil Code in 2012.36 This demonstrates that there was considerable legal continuity into the post-socialist transition period, in spite of the political, economic and social ruptures that the Velvet Revolution of 1989 brought about. Moreover, some characteristics of statesocialist law continue to persist today, such as considerable regulatory elements in private law, in labour in particular; a topic to which I return in Chapter 7.37 C.  Normalisation (1969–89) The period of normalisation brought only minor adjustments to the blackletter law of the early 1960s codifications. Despite this, however, the period

28 Gřivna notes changes to ‘preparation’ and ‘attempt’ of a crime, for example. Gřivna, ‘Trestní’ (2009), 570. 29  ibid, 569. 30 Bělovský, ‘Občanské právo’ (2009), 436. 31  ibid, 437. 32  See fn 97 below. 33 Act No 99/1963 Coll, Code of Civil Procedure and Act No 141/1961 Coll, Code of Criminal Procedure. 34  Act No 262/2006 Coll, Labour Code. 35  Act No 40/2009 Coll, Criminal Code. 36 Act No 89/2012 Coll, Civil Code, which also abolished the Act on Family (Act No 94/1963 Coll). 37  See esp Ch 7 sections I and II.

From Activism to Formalism 69 did experience a significant change in attitude to law in general. ‘New socialist positivism’38 took hold, with its ‘mix of some selected Marxist clichés, intellectual impotency and ideological emphasis on centralized law-making authority’.39 It was the responsibility of the legislator (or even the executive)40 to sufficiently and clearly express the will of the working people.41 If judges were revolutionaries in 1950s, they became bureaucrats during Normalisation, and the period was characterised by ‘bound judicial decision-making’.42 Kühn notes that while the rhetoric was still ideological and anti-formalistic, judicial work in reality was driven by formalism and textual interpretation, especially in the ‘neutral areas of mass application of law’. The only exceptions were the highly political cases against the regime’s opponents.43 For the most part, though, Marxist-Leninist phrases overwhelmingly became pure rhetoric, without any practical significance. As a result, the prestige of the legal profession declined,44 and the judiciary’s function was devalued and ‘almost reduced to clerical skills’.45 The role of the judges was seen to be the mere mechanical application of statutes, what Kühn has termed ‘mechanical jurisprudence’.46 Judges were expected to faithfully enforce the legislator’s or the executive’s commands.47 As Goran Selanec notes: Socialist courts developed a style of adjudication favouring a narrow and simplistic understanding of positivist textualism. The key judicial task was to establish the meaning of particular words used by a particular provision in order to deduce the correct legal command entailed by the rule.48 … The most valuable skill for a socialist judge … was to know the law, that is, to know which valid statute, decree or decision must be applied in a particular situation. … [Once the judge] established the relevant facts of a particular case and the applicable law, it was assumed that the socialist judge was left with an easy task [of subsuming the facts under the rule].49

38 

Kühn, ‘Worlds Apart’ (2004), 540. ibid, 540. 40  Although both the legislature and the executive nominally contained representatives of other parties, the Government was de facto under the control of the Communist Party. 41 Kühn, Aplikace (2005), 55. 42  Kühn, ‘Worlds Apart’ (2004), 538. 43 Kühn, Aplikace (2005), 58. 44  ibid, 71 ff. 45  G Selanec, ‘A Betrayed Ideal: The Problem of Enforcement of EU Sex Equality G ­ uarantees in the CEE Post-socialist Legal Systems’ (SJD Thesis, University of Michigan Law School, 2012) 27. 46 Z Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (Martinus Nijhoff, 2011). 47  Selanec, ‘A Betrayed Ideal’ (2012), 25, citing C Varga, Transition to Rule of Law: On the Democratic Transformation in Hungary (Institute for Legal Studies of the Hungarian Academy of Sciences, 1995) 84. 48  Selanec, ‘A Betrayed Ideal’ (2012), 25. 49  ibid, 28. 39 

70  State-Socialist Law and Rights This formalism has persisted after 1989, and continues to affect the application of law negatively, anti-discrimination law in particular, especially by trial courts.50 The Normalisation period was also characterised by an evident disregard for the internal hierarchy of law.51 Secondary laws, adopted by the executive, became the de facto main source of law.52 Furthermore, in order to make law ‘understandable to broad working masses’,53 legislation was simplified to the point of being unusable, a notable deficiency of the already mentioned 1964 Civil Code, amongst others.54 As a result, the importance of law diminished and rates of litigation dropped.55 In its place, a ‘concept of limited law’ took hold, in which statutes and other written laws were considered the only formal sources of law. Neither legal scholars nor judges distinguished between norms and the texts of statutes or regulations, and left no room for any interpretation of law other than the linguistic and logical.56 Teleological methods of interpretation, in particular, were notably absent. This general interpretive orientation has also continued after 1989, and, as I argue in Chapters 7 and 8, constitutes a major obstacle for anti-discrimination law. II.  CHARACTERISTICS OF STATE-SOCIALIST LAW

A.  Law as a Tool of Social Change The socialist state moved from social change optimism in the early Stalinist period (1948–mid-1950s) to legislative optimism in the late 1950s. This development can be illustrated with the example of regulation of prostitution. Marxist-Leninist ideology predicted that prostitution should disappear with the overthrow of capitalism. When this social change did not occur, the socialist state then turned to legislation to address it. It introduced the criminal offense of ‘parasitism’ in 1956, which targeted ‘making a living improperly and avoiding honest work’.57 Other crimes created by the same

50 

See Ch 7 section II.B and Ch 8 section III.A. Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, 2005) 2. 52 Kühn, Aplikace (2005), 62–65; A Sajó, ‘New Legalism in East Central Europe: Law as an Instrument of Social Transformation’ (1990) 17 Journal of Law and Society 329, 331–32; Selanec, ‘A Betrayed Idea’ (2012), 24. 53  Kühn citing contemporary sources in Kühn, Aplikace (2005), 65. 54  ibid, 67. 55  See section II.B below. 56 Kühn, Aplikace (2005), 82–92. 57  A provision criminalising those who ‘make a living unfairly and avoid honest work’ was inserted by Act No 63/1956 Coll. 51  W

Characteristics of State-Socialist Law 71 amendment targeted other anti-socialist acts, such as speculation, sabotage and pilferage of socialist property. The state-socialist lawmaker believed that these ‘capitalist anachronisms in the popular consciousness’58 could be suppressed and the connected behaviours changed through law: ‘such actions [such as prostitution], resulting from relics of the past, are a heritage of crude societal morals and customs and they need to be fought against [by criminal law]’.59 Thus, once early belief that the political and economic revolution brought by the Communist Party rule would lead to considerable social change was disproved, another belief took its place—that social change can be effected through law. The use of law to affect social change, although often used repressively, was not necessarily entirely bad for gender equality in Czechoslovakia. As discussed in the previous chapter, this instrumentalist use of law at times justified state intervention in traditional institutions, such as the family, especially in the activist 1950s, which led to liberalisation of divorce and formal equalisation of the status of spouses.60 Yet as the emphasis on social change through law weakened with the formalist turn in the 1970s and 1980s, so did the efforts to achieve equality of the sexes.61 Akin to what happened to the image of 1950s women’s emancipation, although the actual use of law as a tool of social change by the socialist state declined during Normalisation, the memory of it did not fade. Indeed, in the post-socialist era, the image of law as a tool for ‘social engineering’ has been retained and employed as a kind of scarecrow.62 It has often been used as an argument against the introduction of regulatory public law instruments in private law, anti-discrimination law in particular.63 B.  The Decline of Private Law and the Rise of Public Law Kathryn Hendley, writing about labour litigation in the Soviet Union, conceptualised state-socialist law in terms of the prevalence of coercive law (emphasis on law’s capacity to impose a basic social order) over reciprocal law (law as a constraint on official power, a tool for vindicating citizens’ grievances and the facilitation of private transactions).64 Inga Markovits,

58 

Deputy Šebík, National Assembly, 19/12/1956. Government, ‘Explanatory Memorandum to the Governmental Proposal of an Act Amending the 1950 Criminal Code’ (PSP ČR, 1956), available at www.psp.cz/ eknih/1954ns/tisky/t0094_03.htm, 1956. 60  Ch 2 section I.D. 61 Kühn, Aplikace (2005). 62  See p 201 below. 63 ibid. 64  Hendley points out that the defining elements necessary for the rule of law as understood in the West were missing or damaged in the Soviet Union: (i) law as reciprocal process in which 59  Czechoslovak

72  State-Socialist Law and Rights who examined law and justice in East Germany, described it as the prevalence of vertical law (law as command) over horizontal law (the coordination of purposes and balancing of interests):65 ‘[t]he socialist legal system seem[ed] to suffer from the same problems that plague[d] the socialist economic system: too much emphasis on command, an unwillingness to respect individual autonomy, [and] insufficient incentives’.66 This was reflected in the low importance accorded to private law under state socialism while public law flourished, in stark contrast to both the capitalist West and the presocialist period in Czechoslovakia.67 As far as private law was concerned, Markovits observed that ‘Law needs self-determination, egotism, conflict, competition, choice bargaining, and the universal usefulness of money if it is to flourish.’68 Noting the very low litigation levels in the East, she argued that the reason for this was because of the absence of the prerequisites for invoking the courts that exist in the West, namely: (i) social disconnect between applicants; (ii) translatability of claims into money; and (iii) a wish to change the status quo. In the East, meanwhile: (i) people could not sever legal or factual ties (workers could not be sacked, tenants not be evicted, etc); (ii) money was not worth litigating for; and (iii) nobody could change the status quo.69 Although litigation dropped in civil and commercial law, it rose dramatically in family law. In East Germany, 51 per cent of civil courts’ agenda consisted of family feuds, while in Hungary it was 54 per cent,70 and ‘over 50 per cent’ in Czechoslovakia.71 This was arguably likely because personal property and personal relations were the two things people could still ‘own’, and therefore fight over.72 This meant that family law received considerable attention during state socialism, both from lawmakers and from legal academics, as was shown in the previous chapter. While in social terms this can be seen as a publicisation of the private, intimate sphere of the family, from a legal perspective it was a kind of ­publicisation of private law, or in today’s terminology an emphasis on regulatory elements in private law. This expansion of public law into state and society participate; (ii) procedural regularity; (iii) substantive legitimacy; (iv) efficacy; and (v) accessibility. K Hendley, Trying to Make Law Matter: Legal Reform and Labor Law in the Soviet Union (University of Michigan Press, 1996) 3. 65 I Markovits, ‘Socialist vs. Bourgeois Rights—An East–West German Comparison’ (1977–1978) 45 University of Chicago Law Review 612, 626. 66  ibid, 631. 67  Markovits, ‘Justice’ (2002); Kühn, Aplikace (2005). 68  Markovits, ‘Justice’ (2002), 870. 69 I Markovits, ‘Pursuing One’s Rights Under Socialism’ (1986–1986) 38 Stanford Law Review 689, 751. 70  Kühn, ‘Worlds Apart’ (2004), 544. 71 J Bičovský, ‘Problematika při sporech o otcovství [Contesting Paternity]’ [1963] Socialistická zákonnost 474, 474. 72  ‘Ownership’ here is understood in both a literal and a metaphorical sense.

Characteristics of State-Socialist Law 73 private law areas was unproblematic for state-socialist legal scholars. The distinction between private and public law was considered bourgeois, as it was based on the institution of private property.73 Other areas, such as labour law, for example, also became heavily publicised under state socialism. Considering that only ‘socialist employers’ (emanations of the state) existed, one’s autonomy to negotiate a contract of employment was severely limited, as the contract acquired a top-down character typical in public law. This was true not only at the individual level, but also at the collective level of industrial relations: trade unions were seen as tools of governance rather than independent representatives of workers. A labour law textbook from 1955 thus stated that ‘the people’s democratic state entrusts the trade unions with certain tasks previously discharged by the state administration; for example inspections of health and safety and compliance with health insurance rules’.74 Labour law is thus a good example of the nature of the publicisation. First, the horizontal nature of labour relationships diminished, due to the hierarchically superior char­ acter of the employer and the trade unions. Second, the regulatory nature of the Labour Code was prominent, as it was extremely protective of ­workers, and of women in a particular. Under state socialism, traditional areas of public law came to be widely used to control and coerce. Criminal law flourished.75 Especially during the Stalinist period, it was used to create a new socialist human being, and thus various breaches of socialist morality became punishable as crimes or administrative offences. New socialist crimes were written into the Criminal Code, ranging from ‘the negligent endangering of the common economic plan’ to ‘unauthorised leaving of national territory’.76 They were often used to suppress opposition.77 Health law was also used in a similar manner. I have observed elsewhere78 that, for example, the 1966 Act on the Care of National Health was used to allow forced medical checks, and treatment in quarantine if necessary, of those persons suspected of having a sexually transmitted disease.79 Because every person arrested by the police for ‘parasitism’ through prostitution was suspected of carrying an

73 Bělovský,

‘Občanské právo’ (2009), 426–427. Witz and J Hromada, Československé pracovní právo [Czechoslovak Labour Law] (Státní pedagogické nakladatelství, 1955) 74. 75  Markovits, ‘Justice’ (2002) 841; Kühn, Aplikace (2005), 54. 76  Act No 231/1948 Coll. 77 Kühn, Aplikace (2005), 59–60. 78 B Havelková, ‘Blaming all Women: On Regulation of Prostitution in State Socialist Czechoslovakia’ (2016) 36 Oxford Journal of Legal Studies 165. 79  Act No 20/1966 Coll, s 23(4). This provision enabled authorities to hospitalise those with certain diseases without their consent. 74 K

74  State-Socialist Law and Rights infection,80 it was practically guaranteed that any prostitute taken into custody would be subjected to involuntary medical examinations and treatment.81

In the post-socialist period, distaste for what came to be perceived as over­ regulation of life was repeatedly expressed by lawmakers in opposition to gender-progressive legislation.82 This dislike for cogent law and regulatory private law, even law in general, has often been exploited by opponents of gender equality guarantees, who explicitly link it to state socialism to ­discredit proposed legislation.83 C.  Dubious Normativity and Disregard for Law One of the ways in which social change was to be achieved was through educational legislation. State socialist legal theory explicitly accepted that socialist law was different from bourgeois law. The latter only worked through sanctions, whereas the former worked through ‘education and persuasion’.84 Socialist law ‘gave normative acts a deeper possibility of educational effects’85 through adoption of ‘proclamations, appeals and wishes’, or ‘norms with only a morally-political sanction’.86 The existence of such sanction-less norms (leges imperfectae) is important for my assessment of human rights, and equality guarantees in particular, under state socialism. What on the surface appeared to be legal guarantees of rights were often only aspirational statements.87 Another aspect of these norms was their dubious normativity. Not only was law used to express aspiration, it was also employed to persuade people about socialist achievements to date and to describe a socialist heaven. For example, the 1960 Constitution claimed that ‘Socialism, in our country, has won!’88 As Hendley noted, the law often commanded society to do

80 M Vlček, Příživnictví v československém trestním právu [Parasitism in Czechoslovak Criminal Law] (Academia, 1985) 55, cited in R Dudová, Prostitution and Trafficking in Czechoslovakia/the Czech Republic from 1950 Until Today (2010) Working Paper No 4, FEMCIT IP Contract No 028746, 12. At the U Apolináře Prague hospital, 40 beds were specifically reserved for women brought there by the police. See A Březinová, ‘Příspěvek k sociálně zdravotní problematice prostituce jako zdroje pohlavních nemocí (A Contribution to the Discussion on the Health-Social Origin of Venereal Diseases)’ (Doctoral thesis, Faculty of Hygiene and Medicine, Charles University, Prague, 1981) cited in Dudová, Prostitution and Trafficking (2010), 12. 81  Havelková, ‘Blaming all Women’ (2016), 172. 82  See Ch 7 section IV.B. 83  See p 269 below. 84  M Kalenská, ‘Vztah norem socialistické morálky k pracovnímu právu [The Relationship between Socialist Morality and Labour Law]’ [1962] Právník 837, 847. 85  ibid, 846. 86  ibid, 845. 87  See Ch 4 section II.A for a discussion of the ‘right’ to equality. 88  Constitutional Act No 100/1960 Coll, art I.

Characteristics of State-Socialist Law 75 what could not be done, in annual and five-year plans, and then lied about the inevitable sub-standard performance.89 Often Czech legal scholars drew conclusions about reality from a legal norm that stipulated it. The realisation of the equality of sexes, for instance, was deduced from a de jure legal change. A 1969 article criticising alimony for divorced (female) spouses as no longer necessary, considering the evolved situation of women, provides an example of this: ‘from 1st January 1950 [when the new Act on Family Law entered into force] women became not only legally, but also economically equal partners of men in marriage’.90 Both the fact that apparent legal guarantees were proclamations rather than rights and the unclear distinction between description and prescription meant that state-socialist constitutional and statutory equality guarantees have to be interpreted cautiously, especially not as containing a right to non-discrimination. I return to this point in greater detail in Chapter 4. Moreover, the fact that state-socialist law so often demanded or stated the impossible meant that it sometimes ceased to be taken entirely seriously.91 Indeed, several authors have observed a widespread disregard for law. Markovits observed that the public behaviour of many socialist citizens at times borders on anarchy[;] … tenants do not pay their rent; consumers do not settle their utility bills; passengers on buses or tramways jump the fare; … they remodel homes or build weekend houses without permits, cheat about statutory limitations on the size of buildings, and obtain materials on the black market and labour from moonlighters … GDR workers are thus not embarrassed to come late to work, drink on the job, go shopping during hours, take home provisions or tools, and generally behave as if they own92 the place.93

Disregard for the law continues to be an important legacy of state socialism in the post-socialist period. Many regulatory provisions of the Labour Code inherited from state socialism, such as the prohibition on termination during pregnancy, maternity and parental leave, are often circumvented by employers.94 Similarly, as I document in Chapter 8, the Czech Republic’s new anti-discrimination provisions, which were seen merely as an ‘offering’ to the EU in the process of their adoption,95 are also widely disregarded and routinely misapplied by the courts.

89 Hendley,

Trying to Make Law Matter (1996), 28. Rais, ‘Jiný pohled na výživné rozvedené manželky [Another Perspective on the Maintenance of a Divorced Spouse]’ [1969] Právník 556, 557. 91 Hendley, Trying to Make Law Matter (1996), 28. 92  Arguably, due to the concept of socialist property, they did. 93  Markovits, ‘Pursuing’ (1985-1986), 753. 94  See p 156–157 below. 95  See Ch 8 section II. 90 O

76  State-Socialist Law and Rights One might wonder, at this juncture, how this observation about widespread disregard for the law squares with the previously mentioned coercive character of state-socialist law. First, one must distinguish between private and public law. In private law, suitable and well-crafted rules were not available to facilitate civil or commercial transactions, and thus it was not useful and was rarely called upon by parties.96 This probably did not matter a great deal, since important deals were often made in the grey or black economies anyway.97 Secondly, a population living—out of necessity—in some ways in the shadow of the law was convenient, as it allowed the state to prosecute breaches selectively. Especially during Normalisation, it was opportune that a threat of prosecution hung over a population that in reality had to resort to the ‘second economy’ to satisfy its basic needs. III. RIGHTS

Public law under state socialism, although prevalent, was limited. Rather than providing constraints on official power or tools for vindicating citizens’ grievances, it was a mechanism of top-down control. Neither constitutional nor administrative law empowered individuals through rights. Nor did the—extensive—public elements in private law. It is this ‘mirage’ of rights under state socialism to which I now turn. A. The Primacy of Social Rights and the Socialist Understanding of Rights It is well known that there was a general preference for socio-economic rights in the socialist East, while civil and political rights were preferred in the West. This distinction was famously demonstrated by the bifurcation of human rights into two separate International Covenants in 1966. According to Barbara Stark: The United States, a capitalist democracy, was deeply suspicious of economic, social and cultural rights, which it viewed as incompatible with capitalism and free enterprise. The Soviet Union, in contrast, distrusted civil and political rights, which it viewed as threats to the State.98 96 

Markovits, ‘Justice’ (2002), 848 ff; Kühn, Aplikace (2005), 70. Grossman coined the term ‘second economy’, the ‘unofficial, unplanned, illegal economy, operated privately for individual gain’: G Grossman, ‘The “Second Economy” of the USSR’ (1977) 26(5) Problems of Communism 40. See also Markovits on a connected ‘second legality’: I Markovits, ‘Law or Order—Constitutionalism and Legality in Eastern Europe’ (1981–1982) 34 Stanford law Review 513, 597. 98 BJ Stark, ‘The International Covenant on Economic, Social, and Cultural Rights and Monitoring’ [2009] Hofstra University School of Law Legal Studies Research Paper Series, Research Paper No 8-18, 9. 97  Gregory

Rights 77 Markovits points out that while civil and political rights were grudgingly accepted by the state-socialist bloc, in practice they were ‘limited, conditioned, or dependent upon the fulfilment of duties and in this fashion clearly linked to the interests of state’.99 Socio-economic rights, she observes, were considered ‘more important than the traditional political freedoms, and [were] therefore give[n] precedence in the [socialist] constitutions’.100 However, even these social rights were collective ‘material guarantees … not rights in our [Western] sense at all’.101 The difference between the West and East was thus deeper; not only in emphasis but also in conceptualisation. Markovits summarises: Bourgeois law sees rights as individual entitlements, focuses on the end result of a right’s realization (if necessary in court), insists on exact definitions (in order to know how much a right-holder is entitled to), and basically perceives the realization of a right as a private affair. Socialist law sees rights primarily as policy pronouncements; focuses on the process of realizing the policy more than on the eventual realization of the right itself; is interested in ambiguity (which facilitates the manipulation of a right for policy purposes); and basically perceives the realization of a right as a social affair.102

Similarly, George Bermann has observed that in the Soviet Union, a ‘right [was] … understood to be a particular kind of benefit’103 and what appeared to be constitutional rights were at most ‘directives to legislatures’.104 The state as sovereign could at any given moment change its mind—the concept of the ‘rule of law’ was vacant,105 and so the state did not feel bound by rights. The content of any ‘rights’ in state-socialist Czechoslovakia, including ‘the equal rights of the sexes’, was thus not determined at the constitutional level but rather through legislation. Rights were connected to duties,106 both expressly in the legal texts and in legal scholarship.107 And in practice, the availability of and access to ‘rights’, even socio-economic rights, was often conditional on political loyalty.108 99  Markovits, ‘Law or Order’ (1981–1982), 519. For the example of freedom of association in Czechoslovakia, see Procházka, ‘Všetkým’ (2009), 111. 100  Markovits, ‘Law or Order’ (1981–1982), 519. 101  ibid, 520. As Markovits flippantly illustrates. ‘“Material guarantees” protect no more “rights” than a mother’s announcement to her children that she will cook spaghetti for supper.’ 102  Markovits, ‘Socialist vs. Bourgeois Rights’ (1977–1978), 625. 103 GA Bermann, ‘The Struggle for Law in Post-Soviet Russia’ in A Sajó (ed), Western Rights? Post-Communist Application (Kluwer Law International, 1996) 41. 104  ibid, 54. 105  ibid, 41. Bermann points out that in the USSR, ‘rule of law’ only started to be discussed under Gorbachev. I found no mention of the ‘rule of law’ in any Czechoslovak legal journals either. 106  Markovits, ‘Law or Order’ (1981–1982), 519. 107  On the obligation to work, see Ch 2 section I.F. 108  Some Czech women who were active political dissents regard the equality of the sexes during state socialism as a front, a charade that did not exist in reality. This is probably too strong an assessment, but it is correct to say that access to many of the political system’s

78  State-Socialist Law and Rights These two points left two different legacies. The primacy and generousness in terms of socio-economic rights were carried over to some extent post-1989, even into the new Czech Charter, for example in the comparatively rare constitutional guarantee of free health care.109 This has made it very difficult to introduce new types of guarantees in the post-socialist era, as the level of guarantees can be seen as sufficient. And their weak enforcement, which I show in the example of statutory anti-discrimination guarantees in Chapter 8, can be seen as a legacy of the particular understanding of rights not as enforceable individual entitlements. B.  Collective Interest The concept of ‘rights’ was further weakened under state socialism by the dominant ideological and policy concern for collective interests. Collective interests—‘societal interest’, class interest, interest of workers, ‘what benefits working people, people’s democracy and the camp of peace’110—were all important principles that were applied by state-socialist courts, especially in the early Stalinist period. Contemporary legal scholars were unambiguous about the subordination of the individual interest to collective interest: ‘the freedom of an individual is derivative of the freedom of society and is conditional on it’.111 There was a presumption of a lack of conflict between individual and collective interests, and claiming otherwise was particularly transgressive.112 Individuals who were perceived as putting their own interests above those of the collective were chastised by legal scholars.113 Today, in the context of the European Convention on Human Rights (ECHR), the interaction between a right and a ‘collective interest’ would be understood as the interaction between a guarantee, often contained in paragraph 1 of ECHR provisions, and permissible limitations ‘prescribed by law and … necessary in a democratic society in the interests of [for example] public safety’,114 often contained in paragraph 2.115 The constellations were

advantages was conditional on the individual’s ‘political reliability’. Personal accounts of contemporaries in conversations with the author. See also p 136 below. See also M Krygier and A Czarnota, ‘Rights, Civil Society, and Post-Communist Society’ in Sajó (ed), Western Rights? (1996), 141. 109 

See Ch 7 fn 39. Aplikace (2005), 45–50. 111  V Knapp, ‘O spravedlnosti [On Justice]’ [1966] Právník 310, 320. 112  ibid, 320. 113  Kalenská, ‘Vztah’ (1962), 842. 114  Eg, ECHR, art 10 (freedom of speech) or art 11 (freedom of association). 115 See, eg, A McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 Modern Law Review 671. 110 Kühn,

Rights 79 aligned differently in state-socialist Czechoslovakia, however. It appears that the issue rarely got to any balancing116 stage. The first constellation to note is that many legal regimes that in many Western countries would be interpreted as expressions of an individual right, were conceived of differently in state-socialist Czechoslovakia. This would have been the case, for example, with the ‘interruption of pregnancy’. Rather than being seen as an expression of respect for reproductive autonomy or for the right to privacy,117 legalised abortion in Czechoslovakia was understood first as being a public health concern, which was later tempered by a concern for the demographic health of the population. Eventually, this led to various restrictions being imposed on the accessibility and availability of ‘interruptions’.118 The second constellation was that although rights nominally existed, they were given a very specific meaning that was correlative with the public interest. For example, with regard to the freedom of association, the only permissible purpose of associating was ‘the realization of the democratic right of the people to strengthen the peoples’ democracy and to support the building of socialism’.119 In this way, a very basic political right was rendered available only in pursuit of a state-defined purpose. To take another example, a very specific meaning was given to the proclamation of ‘equal rights of men and women’, one that included a wide scope for differential treatment that was both to the benefit of women (protective legislation) and to their detriment (instances of discrimination). Other rights, such as the socio-economic right to work, were better understood as obligations in the sense that there were repercussions for not making proper use of the right. Markovits noted that the constitutional ‘right to work’ does not entitle a citizen to sue the state for employment, but it does—as a policy pronouncement—find reflection in court decisions that protect employment and people who work or in decisions that discriminate against people who do not work.120

An example of the use of the ‘right to work’ against those who do not work, in the Czechoslovak equality context, was a court decision to keep children in the custody and care of a divorced working mother rather than

116 Even today, rights can have ‘“express definitional restrictions”, limiting either their content, the circumstances in which they apply, or the persons who are entitled to them’: ibid, 671. Under state socialism, the limits were, however, not expressed. More importantly, they were different q ­ uantitatively (they went much further to the core of the right) and qualitatively (on occasion they practically turned the right into an obligation). 117  Such as, famously, in Roe v Wade, 410 US 113 (1973) (S Ct). 118  See Ch 2 section II.C above. 119  Act No 68/1951 Coll, s 1, cited in Procházka, ‘Všetkým’ (2009), 112. 120  Markovits, ‘Socialist vs. Bourgeois Rights’ (1977–1978), 616.

80  State-Socialist Law and Rights the new homemaker wife of the (former) husband.121 Although in this ­particular case the preferential treatment of workers can be seen as genderprogressive—the fact that a woman worked not being held against her with regard to her ability to care for her children—it is nevertheless problematic that the content of the rights at play was not determined dialectically, including through a clashing of state and individual interests. All of these mechanisms arguably prepared the ground for the limited acceptance of an anti-majoritarian role for human rights after 1989. In the Czech Republic today, it is not widely accepted by lawmakers, or even judges, that rights might be needed to protect individuals in situations where their interests clash with what is perceived as the collective interest, and especially when the majority is unsupportive or hostile to such claims. This has been particularly problematic for ‘unpopular’ rights, such as anti-­ discrimination, and rights of ‘unpopular’ groups, such as single mothers, the Roma and others.122 It is finally worth noting that the constellation where the existence of the right would be acknowledged but the right would be overridden by the public interest, an interplay typical under most human rights regimes, including the ECHR, did not truly arise under state socialism. This was partly due to the complete lack of an institutional set-up that would allow that dialectic to occur; a point to which I now turn. C.  Absence of Avenues for Rights Enforcement The just stated weaknesses of rights were exacerbated by a general lack of avenues for redress. In other words, the lack of real substantive rights found its procedural equivalent in a lack of enforcement mechanisms. Procedures to challenge to state behaviour on the basis of individual rights were either not there at all, or not truly available in practice. There was no way to bring individual claims for constitutional ‘rights’.123 During the entire period of state socialism, no judicial body had jurisdiction to review individual complaints of infringements of fundamental ‘rights’ guaranteed by the Constitution. For most of the period there was no provision for a Constitutional Court at all, and even when its creation was finally foreseen by law in 1968,124 it was never established. Administrative judicial

121  Judgment of a Regional Court in Olomouc from 13 February 1950, Ref No RII 35/50, Coll Court Dec 1950, No 187, p 279, cited in Kühn, Aplikace (2005), 48. 122  See Ch 7 section IV. 123  Parties could argue before ordinary courts that statutory or regulatory law should be interpreted, or even disapplied, according to the Constitution. 124  Constitutional Act No 43/1968 Coll.

Rights 81 review was equally non-existent. Only informal complaints to the administration were possible and acceptable.125 Before the ordinary courts, litigation was dampened by the fact that courts did not act as impartial third-party arbiters of disputes but rather as another controlling arm of the socialist state. The lack of independence of the Czechoslovak judiciary has been well documented.126 The unity of the state went beyond this, however. In labour relations, for example, not only the courts but also employers and trade unions were all emanations of the state that were practically controlled by the Communist Party. Thus, an aggrieved employee, for example a woman challenging an unfair wage, would have to stand against her employer, a socialist organisation,127 structurally charged with pursuing the collective well-being of workers. Her challenge would have to go before an arbitration committee organised by the Revolutionary Trade Union.128 Because the trade unions were seen as ‘the connectors between the masses and the vanguard of the working class’, and the ‘platform through which the Communist Party can best and most effectively influence the masses’,129 it was unlikely that such an arbitration would be independent and impartial. A claim could only be taken to court after arbitration failed. With regard to the courts, as noted earlier, the relative decline in the role of courts under state socialism was symptomatic of a generally weak judiciary. The courts were weakened in their credibility in the earlier period by a preference for outcome over process,130 while in the later period their integrity was weakened by a lack of separation of powers and the complete domination of the legislature, the executive and even the Communist Party131 over the judiciary.132 Especially in the later period of the 1970s and 1980s, when old pre-communist statutes were mostly replaced by new laws created by socialist legislatures, law was equated with the written law, and the courts became mere textual interpreters and mechanical appliers of statutes.133 But it was not only the legislature, but also the bureaucracy or even the Communist Party that could do more for citizens than the courts. Aggrieved

125 

Markovits, ‘Justice’ (2002), 848 ff. See also Kühn, Aplikace (2005), 70. O Motejl, ‘Soudnictví a jeho správa (Judiciary and its Administration)’ in Bobek, Molek and Šimíček (eds), Komunistické právo (2009). 127  In an economy where no private employment existed, all employers were public. 128  J Rákosník, ‘Pracovní právo v letech 1948–1960 [Labour Law 1948–1960]’ in J Kuklík (ed), Vývoj československého práva 1945–1989 (Linde, 2008) 231. 129  Witz and Hromada, Československé (1955), 75. 130  Markovits, ‘Socialist vs. Bourgeois Rights’ (1977–1978), 626. 131  Motejl, ‘Soudnictví a jeho správa’ (2009). 132  AKR Kiralfy, ‘The Rule of Law in Communist Europe’ (1959) 8 The International and Comparative Law Quaterly 465, 468. 133  Kühn, ‘Worlds Apart’ (2004), 540–49. 126 

82  State-Socialist Law and Rights citizens often sought non-legal, informal avenues, which were often more efficient as well as quicker: a complaint could be brought against administrative decisions to an administrative body, general complaints could be brought to the local Communist Party committee (their ‘street committee’), the ‘procurator’,134 or they could write into a ‘complaint book’ in shops and restaurants, amongst other things.135 The lack of sanctions and judicial mechanisms for the enforcement of ‘rights’ under state socialism impacted not only the use of ‘rights’ by individuals, but also the rights’ content. Individuals could not fight for their understanding of what the constitutional, statutory or regulatory provisions guaranteed. Whereas in the West the interpretation of a right’s content would often happen through self-interested litigation, in the East, this particular legal dialectic was missing.136 IV. CONCLUSIONS

In this chapter, I have examined several characteristics of state-socialist law and rights that are crucial for understanding not just the period itself, but also the legacies still influencing Czech law and legal scholarship today. For example, an anti-regulation narrative, a reaction to the perceived ‘social engineering’ of the past, has harmed the speed of adoption and the quality of the anti-discrimination provisions in the 2000s. And the continued interpretive formalism of the judiciary, together with an unwillingness to see rights as anti-majoritarian, has caused problems in the interpretation and application of these provisions. I return to the effect of these legacies on the post-socialist period in Chapters 7 and 8. In the next chapter, I stay within the state-socialist period and take a closer look at one particular constitutional and statutory guarantee central to gender equality, that of ‘equal rights of women and men’. The general observations made in this chapter play an important role in understanding the limitations of the concept of equality under state socialism. For example, the fact that rights did not aim at enhancing individuals’ autonomy but rather at furthering the collective interests, helps us understand why a right not to be discriminated against never existed and why the project of equality was limited to socio-economic levelling instead. 134 In the State Socialist system, the ‘procurator’ was an institution that combined the functions of the public prosecutor with extensive powers of oversight over the ‘legality’ of activities of public institutions, which included central ministries and regional bodies, civil, administrative and criminal courts, and any ‘institutions which limit personal freedom’, such as prisons. J Lata, ‘Prokuratura (Public Prosecutors)’ in M Bobek, P Molek and V Šimíček (eds), Komunistické právo (2009), 878. 135 Kühn, Aplikace (2005), 70. Markovits, ‘Pursuing One’s Rights’ (1985–1986), 732 ff. 136  Markovits, ‘Pursuing One’s Rights’ (1985–1986), 751.

4 Equality as Socio-Economic Levelling1

I

N PREVIOUS CHAPTERS, I warned that the state-socialist equality ­ project, especially as far as gender equality was concerned, was narrow. This might be surprising in light of the egalitarian ideology at the heart of state socialism. At first glance, one might suppose that there was a strong notion of equality in Czechoslovakia. A closer look, taken by this chapter, however, reveals that while equality was of real concern to state-socialist policy-makers, the equality project was limited in many important ways. These limitations continue to impact on equality and ­anti-discrimination law in post-socialist countries today, as I show in greater detail in Chapter 8. This chapter begins with a longitudinal look at the trajectory of equality and anti-discrimination law in Czechoslovakia2 as compared to Western Europe, looking at the UK and the EU in particular. The development of equality and anti-discrimination law in the UK/EU can be divided into three phases: 1. the elimination of men’s legal privilege; 2. the adoption of anti-discrimination legislation; and 3. the rise of substantive and transformative equality. This chapter argues that in state-socialist and post-socialist countries, the order of the last two stages was reversed. There was first a transformative project of socio-economic levelling, substantively aiming at equality of results, while anti-discrimination rights were only introduced at a later stage (section I).3 Consequently, as the transformative phase preceded

1  Parts of this chapter have been previously published in B Havelková, ‘Resistance to AntiDiscrimination Law in Central and Eastern Europe—a Post-Communist Legacy?’ (2016) 17 German Law Journal 627. 2  Although I focus on Czechoslovakia and Czechia, this analysis would likely apply to other CEE countries. 3 This story might well apply to other parts of the world, especially to countries with a history of socialism. For a similar observation about an inverted equality trajectory in India, where statutory protections from discrimination are relatively new, see T Khaitan, ‘Transcending Reservations: A Paradigm Shift in the Debate on Equality’ (20 September 2008) Economic and Political Weekly 8.

84  Equality as Socio-Economic Levelling an u ­ nderstanding of discrimination, the equality project in post-socialist ­countries has continued to differ from that in the West. During state socialism, equality was understood substantively, ­meaning that it was context-based and strived for real-life equality. It was also transformative in the socio-economic sense, because it purposefully aimed at redistribution, the eradication of poverty and at economic levelling. ­However, it was incomplete in several significant ways. First, while equality was a respected and constitutionally enshrined principle, there was no corresponding enforceable right not to be discriminated against (section II). ­Secondly, state-socialist equality policies were substantive and transformative with regard to class, but did not target other discrimination grounds, and especially not sex, let alone gender, in the same way. They were also redistributive only. Unsurprisingly, due to their Marxist-Leninist origins these policies were concerned primarily with socio-economic inequalities and not with socio-cultural ones, such as stereotyping, gender bias, devaluation of women and the feminine, or gender-conservative notions of ‘role’ or ‘sexuality’4 (section III). Lastly, sex/gender equality in the law encountered the additional problem of an emphasis on the difference between the sexes.5 While on the one hand this differentiation permitted the special treatment of women to protect their particular vulnerabilities, it also meant that in circumstances where such differential treatment left women worse off, it was not recognised as an issue in conflict with their constitutional equality guarantees (section IV). In section V I briefly explore whether anti-discrimination rights were even necessary, considering the generous redistributive system using the example of remuneration. I conclude that they were: while the generosity of the social security system could eliminate economic disadvantage faced by working mothers in need of child care, it obviously could not address inequalities in paid work experienced by all women. I.  EQUALITY TRAJECTORIES

There is no uniform understanding of the concepts of equality and antidiscrimination law or rights in legal scholarship.6 Chris McCrudden, in his study of equality and anti-discrimination law in English public law, observes that this is because it is ‘essentially pluralistic in its sources, in its origins, in 4 

For their intellectual underpinnings, see Ch 5 section III. Ch 5 I discuss how this difference was perceived to be biologically determined, and therefore natural and unchangeable. Ch 5 section III.B. 6  Fredman points out that the precise meaning of equality and discrimination has been much contested between neoliberals, modified liberals and critical theorists, including feminists. S Fredman, ‘Discrimination’ in P Cane and M Tushnet (eds), Oxford Handbook of Legal ­Studies (Oxford University Press, 2003). 5  In

Equality Trajectories 85 its meaning, in its application, and in its functions’.7 Notwithstanding this opacity, some categorisation and terminology is nevertheless useful for our purposes here. In the following sections, I introduce two principal conceptualisations of equality, formal and substantive (section I.A). I then outline the trajectory that equality and anti-discrimination law took in the UK and the EU on one hand, and in Czechoslovakia on the other (section I.B). In both subsections, the features and concepts of UK/EU equality and anti-­ discrimination law are used as a foil8 against which I highlight the specificities of the parallel Czech development. A.  Formal and Substantive Equality Scholars often draw a distinction between formal and substantive equality. Formal equality is expressed by the equal treatment principle. It demands impartiality9 and consistency,10 and asks that decisions be made without regard to a specifically protected characteristic, such as sex.11 Substantive equality, on the other hand, recognises that the equal treatment of people who are unequally situated can lead to injustice. It therefore goes beyond the formal requirement of equal treatment and aims at equality of opportunity, resources or results.12 These two concepts therefore identify different problems and target different wrongs: formal equality is concerned with tackling arbitrariness, prejudice or the unjustified difference of treatment, whereas substantive equality aims at eliminating hierarchy or dominance,13 disadvantage14

7 C McCrudden, ‘Equality and Non-Discrimination’ in D Feldman (ed), English Public Law (Oxford University Press, 2004) 581, 582. 8  It is, unfortunately, not possible to use indigenous Czech terminology and categorisation. Under state socialism, there was a limited concept of equality derived from Marxism-Leninism; in the post-socialist period, there has been none. The well-established and well-theorised Western terminology is thus applied. 9  H Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16, 16. 10  S Fredman, Discrimination Law (Oxford University Press, 2011) 2. 11  Collins, ‘Discrimination’ (2003), passim. 12 ibid, passim; Fredman, Discrimination Law (2011) 14–19. Fredman distinguishes four dimensions of substantive equality: (i) redistributive dimension, which aims at breaking the cycle of disadvantage; (ii) recognition dimension, which requires respect and dignity; (iii) transformative dimension, which accommodates difference and demands structural change; and (iv) participative dimension, which calls for social inclusion and political voice (ibid, 25–33). 13  CA MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987) 32–46. 14  Disadvantage has been emphasised by courts, eg in Brown v Board of Education 347 US 483 (1957) 495 (USSC), as well as by academics. For Denise Réaume, ‘substantive’ understanding of equality is characterised by being sensitive to the ‘actual conditions of life of members of disadvantaged groups’: see D Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 1. MacKinnon stresses that ‘the opposite of equality is hierarchy, not difference’, and that therefore the aim of equality law should be limiting disadvantage, not just eliminating

86  Equality as Socio-Economic Levelling or social exclusion.15 While the concerns of formal equality are to a large extent addressed by prohibitions of direct discrimination and individualised enforcement, the substantive understanding of equality calls for a wider range of remedial measures. Some measures, such as the prohibition of indirect discrimination, target group disadvantage and systematic harm. Others, such as affirmative action, counter pervasive exclusion. Still others seek to change existing biases and norms, such as the ‘male norm’,16 and promote diversity. These include gender mainstreaming,17 reasonable accommodation18 and positive duties.19 In Western Europe, the substantive equality approach arose out of a critique of formal equality and was based on evolving social realities and understandings of inequality.20 State-­ socialist equality law in Czechoslovakia had many hallmarks of the substantive understanding of equality, but it centred on class. Sex/gender equality, on the other hand, consisted of a combination of a formal equality commitment to eliminate certain exclusions of women in law, and an emphasis on difference, not understood as disadvantage to be remedied but as an unchangeable, biologically determined fact to be reflected in law.21 B.  Three Phases of Equality and Anti-Discrimination Law Although there are some differences in the accounts of how equality and anti-discrimination laws have developed in Western Europe, there are some general trends.22 Three phases can be identified: 1. the elimination of men’s legal privileges;

any difference in treatment. See CA MacKinnon, Sex Equality (2nd edn, Foundation Press; Thomson/West, 2007) 26. 15  For a more comprehensive list and analysis of the wrongs of direct and indirect discrimination, see A Altman, ‘Discrimination’, Stanford Encyclopedia of Philosophy, at http://plato. stanford.edu/entries/discrimination/, accessed 1 July 2016. 16 Fredman, Discrimination Law (2011), 11. 17  Eg J Shaw, ‘Mainstreaming Equality and Diversity in the European Union’ (2005) 58 Current Legal Problems 255. For an account of the difficulties gender mainstreaming has faced in the CEE, see C Bretherton, ‘Gender Mainstreaming and EU Enlargement: Swimming against the Tide?’ (2001) 8 Journal of European Public Policy 60. 18  In EU law, this term applies only to disability, but can be understood in a broader sense to include the accommodation of family life in the workplace. 19  S Fredman, ‘Breaking the Mold: Equality as a Proactive Duty’ (2012) 60 American Journal of Comparative Law 265. 20  If I were to map the concepts of formal and substantive equality on the Western European trajectories that I offer below, phases 1 and 2 could be considered as having adopted a formal understanding, while phase 3 adopted a substantive one. 21  See also Ch 5 section III.B. 22  I mostly draw on the work of Bob Hepple. Writing about labour law in Western Europe, he speaks about three phases of equality: (1) formal (1957–75); (2) substantive (1976–99); and (3) comprehensive or transformative (2000–04). See B Hepple, ‘Equality at Work’ in B Hepple

Equality Trajectories 87 2. the adoption of anti-discrimination legislation; and 3. the rise of substantive and transformative equality. My analysis here focuses on discrimination on the basis of sex/­ gender, although the description of trajectories applies to equality and anti-­ discrimination law more generally. The first phase had its origins in the eighteenth and nineteenth centuries, with liberals such as Mary Wollstonecraft calling for the truly universal application of laws to men and women as equals.23 Their aim was the elimination of legal privileges for men and the removal of formal legal impediments to women’s self-realisation, with particular regard to voting and property rights. This demand for equal legal status formed the centrepiece of what has been called the ‘first wave’ of feminism.24 Formal equality along these lines was to a large extent achieved in most European countries in the first half of the twentieth century. The formally equal treatment of men and women by the law was also a basic tenet of the ‘woman question’ (ženská otázka) in Marxism-Leninism.25 And, as I showed in Chapter 2,26 the project of ‘equal rights of women and men’ (rovnoprávnost žen a mužů) was taken seriously by the Czechoslovak socialist state, especially in the early period after the communist takeover in 1948, when formal equality in the family and in access to education, work and public life was instituted. Thus, one could argue that up until the 1960s, state-socialist Czechoslovakia differed little from Western Europe in terms of the requirement of formal legal equality, except that the legal change actually happened faster than in the West. However, this similarity changed substantially as the development of equality law in the two regions diverged in the subsequent phase. From the mid-1960s onwards, many in the West came to understand that the mere absence of formal discrimination in law did little to address historical patterns of disadvantage and continued discrimination.27 Discriminatory acts, whether by public or private actors, could also be obstacles to equality.

and B Veneziani (eds), The Transformations of Labour Law in Europe (Hart, 2009) 134–60. Similarly, Sandra Fredman identifies a ‘new generation’ of equality rights, starting in the 2000s, which includes the positive duty to promote equality. See S Fredman, ‘Equality: A New Generation?’ (2001) 30 Industrial Law Journal 163. 23 

M Wollstonecraft, A Vindication of the Rights of Woman (Thomas and Andrews, 1792). For an overview of this development, see, eg, AS Fraser, ‘Becoming Human: The Origins and Development of Women’s Human Rights’ (1999) 21 Human Rights Quarterly 853; or N Lacey, ‘Feminist Legal Theory and the Rights of Women’ in K Knopp (ed), Gender and Human Rights (Oxford University Press, 2004). 25  I present a closer analysis of Marxist-Leninist aspirations in Ch 5 section I.A. 26  Ch 2 section I. 27  This was not only the case in Western Europe, but also in North America, with the US playing a leading role. 24 

88  Equality as Socio-Economic Levelling The obligation that there be formal equality in law was therefore expanded to include the right to non-discrimination.28 This phase started with statutory ‘civil rights’ guarantees,29 such the UK Race Relations Act of 1965.30 In Western European EU Member States, it gathered momentum in the 1970s with the adoption of EEC directives on equal pay31 and equal treatment32 of men and women. As with the first phase, this phase was largely concerned with formal equality and the equal treatment principle. But it no longer just addressed disparity in law; it created legal guarantees against discrimination in certain horizontal relations between individuals. Czechoslovakia, however, missed this development. The principle of equality, although legally enshrined, was not understood to contain a prohibition of discrimination within it. It was not until the late 1990s that anti-discrimination provisions were inserted into statutory law as part of the obligatory legal reforms required by accession to the EU.33 As I show in greater detail in Part II of this book,34 the interpretation and enforcement of these provisions has been extremely difficult in Czechia. The third phase of development of equality and anti-discrimination law in Western Europe involved an increased understanding of how seemingly neutral measures can in effect be biased in favour of an advantaged group. This new sensitivity has led to a shift towards a more substantive understanding of equality. Some signs of this shift appeared concurrently with the previous formal anti-discrimination phase. ‘Positive action’35 for women was e­ nabled36 in 1976 by the EEC Equal Treatment Directive,37 while the ­European Court

28 Eg, P Brest, ‘In Defence of the Anti-discrimination Principle’ (1976) 90 Harvard Law Review 1. 29 As Hepple points out, international and constitutional law guarantees were often adopted immediately after World War II; the statutory guarantees, however, were only adopted ­beginning in the 1960s. Hepple, ‘Equality at Work’ (2009) 131–46. 30  The US preceded this with the US Civil Rights Act of 1964. 31 Council Directive 75/117/EEC on the Approximation of the Laws of the Member States Relating to the Application of the Principle of Equal Pay for Men and Women, [1975] OJ L045/19. 32  Council Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions, [1976] OJ L039/40. 33  See Ch 8 section II. 34  See esp Ch 8 section III. 35  Affirmative action for race was introduced in the 1960s in the US. See R Bader Ginsburg and D Jones Merritt, ‘Affirmative Action: An International Human Rights Dialogue’ (1999) 21 Cardozo Law Review 253. 36  I use the term ‘enabled’ rather than introduced, because these measures were not mandated by the EU. Rather, the EU allowed the Member States to use them. This became relevant in the process of implementation of EU law in post-socialist countries, as some considered positive action impermissible under their constitutions, and the EU framework allowed such a conclusion. See Ch 7 fn 34 and Ch 8 fn 83. 37  Directive 2002/73/EC Amending Council Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working conditions, [2002] OJ L269/15, art 2(4).

Legal Guarantees—Equality as a Right? 89 of Justice developed the concept of ‘indirect ­discrimination’38 in 1981.39 Since then, substantive equality has gathered momentum in the EC/EU, and has ‘widened and deepened’40 since the 1990s. Equality law has become more ‘comprehensive’ in the EU41 with regard to the inclusion of grounds, such as sexual orientation, and the protection of intersectional discrimination. It has also become more ‘transformative’,42 aiming at the ‘dismantling of systemic inequalities and the eradication of poverty and disadvantage’.43 It has become increasingly concerned with ‘anti-­subordination’ rather than with ‘anti-classification’.44 Not so in Czechia. Since 1989, the more substantive a provision, the less acceptable it has been for post-socialist legislators and judges. For example, Czech as well as other CEE courts have had particular difficulties with the correct and effective application of the shift of the burden of proof, indirect discrimination and positive action.45 II.  LEGAL GUARANTEES—EQUALITY AS A RIGHT?

Both state-socialist Constitutions in Czechoslovakia guaranteed equality of men and women. The 1948 Constitution stipulated: The state guarantees to all its citizens, men and women, the freedom of person and its expression and it fosters equal possibilities and opportunities for all.46 Men and women have equal standing in the family and in society and equal access to education and also to all occupations, offices and ranks.47

Similarly, the 1960 Constitution provided: Men and women have equal standing in the family and at work and in public activity.48

38 The US Supreme Court developed its doctrine of ‘disparate impact’ in 1971. Griggs v Duke Power Co 401 US 424 (1971) (USSC). 39  Case 96/80 Jenkins v Kinsgate [1981] ECR 911. 40  M Bell, ‘The Principle of Equal Treatment: Widening and Deepening’ in P Craig and G De Bùrca (eds), The Evolution of EU Law (Oxford University Press, 2011). 41  Hepple, ‘Equality at Work’ (2009), 154–60. 42 The term ‘transformative’ is often used to highlight a socio-economic dimension. See S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford ­University Press, 2008); and Hepple, ‘Equality at Work’ (2009), 155. 43  Hepple, ‘Equality at Work’ (2009), 155. 44 OM Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy and Public Affairs 107; JM Balkin and RB Siegel, ‘The American Civil Rights Tradition: Anticlassification or Antisubordination?’ (2003) 58 University of Miami Law Review 9. Some authors categorise this approach, which is based on a positive duty to promote equality, as constituting a separate, fourth generation of equality law; see Fredman, ‘Equality: A New Generation?’ (2001). 45  See Ch 8 section III. 46  Constitutional Act No 150/1948 Coll, art III(2) (emphasis added). 47  ibid, s 1(2). 48  Constitutional Act No 100/1960 Coll, art 20(3).

90  Equality as Socio-Economic Levelling Equal engagement of women in family, work and public activity is secured through special provision for working conditions and special health care during pregnancy and maternity, as well as through the development of institutions and services allowing women to use all their abilities to participate in the life of society.49

The constitutional equality guarantees were complemented by statutory law. For example, the 1965 Labour Code stated among its basic principles: Women have the right to equal standing with men at work. Women are guaranteed working conditions which enable them to work not only taking into account their physiological conditions but also and especially taking into account their social function as mothers and their role in raising and caring for children.50

Two aspects of these legal provisions are worth noting and are discussed in greater detail below. First, there was no inclusion of any explicit right not to be discriminated against on the basis of sex, or any other typically protected characteristic. Secondly, the statements on equality, especially in the 1960 Constitution and the 1965 Labour Code, went hand in hand with an emphasis on difference. A.  Sex Equality as a Proclamation but Not an Anti-Discrimination Right The equality guarantees expressed in both Constitutions as well as the Labour Code were more akin to ‘policy statements’51 rather than enforceable individual rights. I show this using the five standard methods of interpretation for legal norms used in Central European legal theory:52 textual, logical, systematic, historical and teleological.53 With regard to language, the word ‘right’ was not used in ­Czechoslovakia’s socialist Constitutions. The Labour Code speaks of a ‘right to equal standing’, but it is mentioned only in its perambulatory introductory provisions on principles, which were not binding. It is quite significant that the word was not repeated in the actual binding body of the Code, where the only provisions that specifically addressed women targeted them for special treatment because of their ‘physiological conditions’ and their ‘social function as mothers’. Discrimination was not mentioned at all. As far as systematic interpretation is concerned, the first question one has to ask is what normative power the constitutional provisions had over statutes and other acts of the Government. Formally, both Constitutions

49 

ibid, art 27 (emphasis added). Act No 65/1965 Coll, original version, art VII (emphasis added). 51  See Ch 3 section III.A. 52  These are not specifically state-socialist but common to the Germanic legal systems. 53  As summarised, eg, in A Gerloch, J Boguzsak and J Čapek, Teorie práva [Theory of Law] (ASPI, 2004) 149–57. 50 

Legal Guarantees—Equality as a Right? 91 contained provisions that required all hierarchically subordinate norms to conform to the Constitutions.54 However, the legal scholarship assumed a lack of conflict between statutory and constitutional law, and implied that constitutional provisions were given content through statutory law: ­‘Czechoslovak laws actualize the principle of “equal standing” of men and women in a way that creates legal distinctions between them, for example when this is justified by “biological difference of the female organism”.’55 As I pointed out in Chapter 3, in reality, constitutional ‘rights’ were only available in so far as they were contained in statutory or even regulatory acts, and it was the legislature and the executive that gave them content. Furthermore, a systematic analysis of procedural mechanisms shows that avenues for redress and remedies were missing. Constitutional review was entirely unavailable, but even individual equality claims before ordinary courts, especially in the labour area, were practically unthinkable. It therefore comes as no surprise that the official Collections of Judgments contained not a single discrimination claim, nor was any mentioned in the literature.56 The most persuasive demonstration of the non-right character of the equality guarantee, however, is drawn from the contemporary construction of human rights norms and their aims (the teleological and historical interpretation). As I discussed in Chapter 3, neither constitutional nor statutory provisions were constructed and understood as true rights—they were at most ‘policy pronouncements’.57 In sum, during the state-socialist period, any individual wanting to challenge a discriminatory act would have had to contend with an absence of any clear normatively expressed legal guarantee to be free from discrimination, no specific anti-discriminatory procedural guarantees, and a theoretical conceptualization of one’s rights to equality being nothing more than ‘policy pronouncements’. Anyone experiencing discrimination on the basis of a specific characteristic, such as sex or race, would also have to be content with an understanding

54  The provision was weaker in Constitutional Act No 150/1948 Coll, s 172(3), which only required that ‘interpretation and use of all other legal acts be in harmony with the Constitution’. Constitutional Act No 100/1960 Coll, art 111(2) was more categorical in stating that ‘statutes or other legal acts must not contravene the Constitution’. Some constitutions, eg the European Charter of Fundamental Rights, art 52(5), or the current Czech Charter, art 41(1), have a general provision that limits the effect of some rights or principles (often socioeconomic) to the extent guaranteed by statute. This was not the case in the state-socialist constitutions. 55  V Mikule and M Kalenská, ‘K otázce rovnosti před zákonem [On Equality before the Law]’ [1968] Právník 511 (emphasis added). 56  The guarantees were used in interpretation by ordinary courts in the 1950s, but there were no claims on the basis of individual equality or anti-discrimination rights. See Ch 2 section I.C. 57  I Markovits, ‘Socialist vs. Bourgeois Rights—An East–West German Comparison’ (1977– 1978) 45 University of Chicago Law Review 612, 625.

92  Equality as Socio-Economic Levelling of equality as achievable through general policy rather than a prohibition of discrimination—a result of the primacy of class. Lastly, a woman wanting to claim sex/gender discrimination would also have had to overcome the perception that natural differences between the sexes implicitly legitimised the differential treatment and status of women. I turn to these last two challenges in the two sections below. III.  SUBSTANTIVE EQUALITY ALONG THE AXIS OF CLASS

The state-socialist Constitutions, as well as the Labour Code, did not merely declare formal equality between the sexes but stressed equality of opportunity and positive measures to allow women to ‘use all their abilities’. To a Western reader, this might suggest a substantive understanding of equality, a progressive approach to which the Western understanding of equality has been shifting.58 As I have shown in Chapter 3, this substantive emphasis on context and real-life situation was part of a broader understanding of socioeconomic rights as primary. In contrast to the capitalist countries of the West at the time, the socialist states considered positive rights to be a precondition for negative freedoms.59 In other words, civil and political rights were seen as possible only if socio-economic rights enabled them. The same was true of equality—substantive equality was primary, formal equality had a limited role. Viktor Knapp, a leading Czechoslovak legal theorist, stated: The basis is equality in substance, not just form.60 Both Marx and Lenin see the basis of justice in equality; not in a quantitative legal equality (‘law—the same standard for different people’), although even this [standard] is not without meaning for justice, but the equality of people, that is an equality which considers their inequality and their difference.61

The academic writing on equality focused largely on class or socio-­economic status. This is noteworthy. In the West, discrimination tends to be prohibited only on the basis of certain characteristics. The UK Equality Act 2010 explicitly recognises age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.62 The EU list is similar.63 These characteristics are 58 

See section I above. J Boguszak, ‘K sociální podstatě práva [On the Social Foundation of Law]’ [1967] Právník 297, 300. See also Markovits, ‘Socialist vs. Bourgeois Rights’ (1977-1978). 60  V Knapp, ‘O spravedlnosti [On Justice]’ [1966] Právník 310, 312. 61  ibid, 311 (emphasis added). 62  UK Equality Act 2010, s 4. 63  The EU has the competence to combat discrimination on the basis of ‘sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’ (TFEU, art 19). It has done so through a series of directives. The grounds mentioned in the UK Equality Act 2010 that go beyond this list, namely gender reassignment, marriage and civil partnership, pregnancy and 59 

Substantive Equality along the Axis of Class 93 chosen because the stereotypes and prejudices surrounding them are often grounds of discrimination in real life. They are axes of societal disadvantage and bases of societal hierarchies.64 Class or socio-economic status are not included among the enumerated protected grounds in either the EU65 or the UK.66 The socialist state, on the other hand, saw the equality project first and foremost as being about socio-economic inequality. In the words of Viktor Knapp, the concern was with (in)equality ‘stemming from a particular division of means of production’.67 The focus on class and the absence of other discrimination grounds, such as sex/gender or race and ethnic origin,68 are worth noting in their own right, but this also tells us something about equality and anti-discrimination law. Class equality could be, and to large extent was, achieved by tools other than anti-discrimination law. Socio-economic levelling was to some extent realised through the expropriation of private property after the 1948 communist takeover. It was also actively pursued through full employment and equalising wage policies, which were a matter of public law and central planning in state-socialist Czechoslovakia. A conscious and concerted overcompensation of manual labour and undervaluing of non-manual work led to an unprecedented levelling and homogenisation of income across ­society.69 A generous social security system completed this effort. This shows that wealth and income inequality can be addressed by a largely redistributive tool set, which might not need a statutory prohibition of discrimination in horizontal relations. This is perhaps why class or socioeconomic status is often omitted in catalogues of protected grounds in the

maternity, were interpreted as covered by ‘sex’ by the CJEU. The ECHR of 1950 prohibits discrimination on the basis of ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. This is a wider list than the one contained in the EU and the UK legislation, but the duty is more limited. Arguably, one characteristic of anti-discrimination guarantees is that the wider the group of duty-bearers and the more far-reaching the duties, the more limited the grounds. 64  For a more detailed discussion of the role of grounds in anti-discrimination law, see, eg, T Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015) 30–38. 65  ECHR, art 14. 66  The UK Equality Act 2010 speaks about ‘socio-economic inequalities’ in relation to the public sector equality duty (s 1). But this provision is very limited in the definition of dutybearers: it is not extended to private, horizontal relations, such as employment or access to goods and services. 67  Knapp, ‘O spravedlnosti’ (1966), 311. 68  Nor were any other grounds, such as religion or belief, disability, age or sexual orientation, addressed. As these have entered the anti-discrimination landscape more recently, and in the case of the EU only in this millennium, it is not surprising that these were not specifically addressed during the period of state socialism. 69  The general levelling of wages can be seen as compensation for the general lack of freedom in society. See, eg, WD Connor, Socialism, Politics, and Equality. Hierarchy and Change in Eastern Europe and the USSR (Columbia University Press, 1979) 217 and 23.

94  Equality as Socio-Economic Levelling West.70 And this also explains why state-socialist Czechoslovakia, committed to achieving real substantive socio-economic equality,71 did not need an individual anti-discrimination component. This is also what made the situation so different from that in the West. When one speaks about ‘substantive equality’, ‘positive duties’, ‘pro-activity’, etc in the West, one assumes that an individual entitlement to assert discriminatory behaviour exists, and that all other measures go beyond it and complement it. In the state-socialist understanding, the substantive measures were not only the basis, they were all there was. The suspicion of Western equality and anti-discrimination law against the difference of treatment and impact was missing. The intellectual step that the law should interfere with behaviour based on bias, whether expressed by individual discriminatory acts or in discriminatory structures, was never made. IV.  EMPHASIS ON DIFFERENCE

Some Western authors reflecting upon the state-socialist gender policy have understood it as emphasising sameness.72 I believe that this was not so. While the language was that of equality or ‘equal rights’ (rovnoprávnost), many of the policies were based on a perceived difference between the sexes, increasingly more so towards the end of the state-socialist period. The constitutional and labour legislation provisions quoted in section II reveal that sex/gender equality in state-socialist Czechoslovakia was inseparable from the special treatment of women. This is, in and of itself, not automatically problematic.73 If one takes ‘men’ as the comparator,74 ‘women’ are at once both the same as, and different from, men: they are the same in their humanity, but different in their biology and in the lives they typically lead in a

70  The other reason is that there is political disagreement about whether poverty is an ‘immutable’ characteristic as is sex or race, and whether it thus deserves a similar type of protection. 71  See also J Blahož, ‘K otázce svobody o rovnosti v kapitalistických státech [On Freedom and Equality in Capitalist States)]’ [1980] Právník 517, 523. 72  Eg, Nanette Funk states that it ‘failed to acknowledge’ the ‘difference [between men and women]’. In N Funk, ‘Introduction: Women and Post-Communism’ in Funk and Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993) 6. 73  This is enshrined, eg, in the EU’s recognition that ‘provisions concerning the protection of women, particularly as regards pregnancy and maternity’ do not constitute a breach of the principle of equal treatment (now Directive 2006/54/EC on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (Recast), [2006] OJ L204/23, art 28(1). Special treatment still has opponents, however. As Fredman points out, ‘different’ treatment has been opposed by liberals, who argue that equality should be symmetrical, as well as by neoliberals, who reject interference with the ‘free’ market. S Fredman, Women and the Law (Oxford University Press, 1997) 305. 74  MacKinnon, eg, has criticised the sameness-difference paradigm as obscuring the fact that the unchallenged norm, the standard of comparison, is male. MacKinnon, Feminism Unmodified (1987), 32–46.

Emphasis on Difference 95 patriarchal world. For equality law to be true to its name, it needs to recognise this and accept that both equal and different treatment on the basis of sex is congruent with the principle of equality. However, it is often difficult to determine how much and what type of special treatment is necessary and suitable.75 There are three particular challenges that arise with such determinations. One, it is easy to assume that all of the specifics of women’s lives are rooted in their biology. Legal provisions can reflect and perpetuate such an essentialist understanding of gender, for example by seeing the mother as the only parent, or they can actively counteract it, for example by actively encouraging fathers to become involved in childcare. Two, a balance needs to be struck between protecting the existing vulnerabilities of women on the one hand, and making sure that this protection does not stifle them or limit their range of options and choices on the other. Lastly, over-emphasising difference can ultimately lead to an acceptance of differential treatment that is neither special nor beneficial, but actually worse for women. This is the moment when anti-discrimination measures can fail women. None of these three challenges was tackled particularly well, or at all, under state socialism. This is not to say that Western Europe has found the right formula either, and certainly not during the time period in question. The aim of the ensuing sections is thus not to make a comparative point. Rather, it is to show how the difference between the sexes played a role in state socialism, and how this has undermined the concept of equality and laid a foundation for scepticism regarding anti-discrimination law, still felt today.76 A.  Special Treatment of Women As I pointed out above, special treatment was incorporated directly into legal provisions guaranteeing equality between the sexes. With regard to women and sex/gender, the principle that ‘unlikes should be treated unalike’ was actually more prominent than the imperative of ‘treating likes alike’.77 In many instances, the differential treatment was intended to benefit women. Measures were implemented that catered to women’s special needs that resulted from their ‘different’ biology, such as breastfeeding breaks at

75 

On the debates in the West, see Fredman, Women and the Law (1997), 304–08. Ch 8 section IV.B. 77 This is the Aristotelean formulation of the equality principle. For a discussion and a feminist critique of this standard, see CA MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, 1989) 225. 76 

96  Equality as Socio-Economic Levelling work,78 or cervical cancer scans for women. Radvanová explicitly defended the latter as compatible with the principle of equality: [T]hese special procedures do not mean a breach of equality between citizens in access to health care. This is because the right to health care means care which is adequate and needed based on a particular health condition or the potential danger of disease.79

Other measures were promulgated that reflected the ‘different’ social reality of women’s lives, such as their protection from dismissal during pregnancy and maternity leave under labour law,80 and maternity benefits in social security.81 Some measures even pushed for direct positive actions, such as, for example, a legal requirement that employers adopt binding ‘plans to increase the labour participation of women’,82 or even the Communist ­Party’s quota for women. Overall, in a material sense, these provisions were good for women. In fact, Czechoslovak women were probably better off socio-economically than many women in most Western countries during the same period.83 The socialist state made sure that women’s specific biology was reflected in policy. It protected women from the ramifications that their pregnancy and motherhood would otherwise have had on their economic situation. To some extent, such measures redressed the disadvantage women face more generally under patriarchy. However, there was still the problem of an underlying (mis)understanding of sex/gender. State policy never drew a conceptual distinction between the biological and the social,84 and most special treatment was deemed to protect and support the ‘role’ of women as mothers.85 These essentialist references to ‘functions’ and ‘roles’ of women and mothers both drew on and entrenched a specific, narrow conception of what it meant to be a ‘man’ or a ‘woman’. They cemented existing gender roles and the gender order, and, because they were based on stereotypical ideas about roles, such ­provisions

78 

Act No 65/1965 Coll, s 161. S Radvanová et al, Žena a právo [Woman and the Law] (Orbis, 1971) 191–92 (emphasis added). 80  Maternity leave of 18 weeks, which was introduced in 1950, was extended several times in the 1960s, up to 26 weeks in 1968 (Act No 65/1965 Coll, s 155). Also introduced in 1968 was ‘further maternity leave’ of one year, which was extended to two years in 1969 (Act No 153/1969 Coll). 81  These were especially generous from the 1960s onwards. ‘Financial help in motherhood’ (peněžitá pomoc v mateřství) was paid out during maternity leave (Act No 88/1968 Coll, s 2(b)). Furthermore, a ‘motherhood supplement’ was paid out during ‘further maternity leave’ (mateřský příspěvek) (Act No 154/1969 Coll). 82  Eg Act No 70/1958 Coll, s 8(1) and Government Ordinance No 92/1958 Coll, s 20. 83  I return to the material situation of women in Ch 5, section I.B. 84 The distinction between sex as biological and gender as socially constructed can be ­critiqued as well. See Ch 1 fn 23 and Ch 5 fn 83. 85  See aslo Ch 5 section III.B. 79 

Emphasis on Difference 97 were inappropriately tailored to reflect them. One example is that they completely excluded men from the possibility of being responsible for childcare.86 In many instances they went beyond what was necessary, such as with their banning of certain types of work for all women, adopted in the 1965 Labour Code.87 This was intended as a protective measure for the benefit of women, but in effect it seriously limited women’s opportunities in the labour market.88 Furthermore, the extent of some provisions, such as the length of ‘further maternity leave’, although optional, made female workers less desirable and less valuable to employers, and could stifle women’s careers. Nor was there any consideration of changing the male-based norms that pervaded law and society. In the context of work, for example, alternative measures that could have allowed for the reconciliation of family and work obligations, such as part-time work,89 were never made a part of the equality project.90 One could conclude from this that women were treated the same during the periods of their lives when they were seen as workers, and differently while they were mothers. But women’s perceived difference from men inevitably seeped into their lives as workers, and it was used to deny or justify discrimination. B. Different and Worse Treatment—Inequality Not Identified as Sex Discrimination The narrative of difference between the sexes enabled an understanding of men and women as not comparable. This supported different-but-better treatment, but also different-and-worse treatment.91 Because difference

86  While I would advocate gender-neutralisation of parenting, ie parental leave and parental benefits for both men and women, there is a case to be made for special protection of women during pregnancy, and breastfeeding shortly after birth. EU legislation has approached the issue in such a fashion. See Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, [1992] OJ L348/1; and Council Directive 96/34/EC on the Framework Agreement on Parental Leave Concluded by UNICE, CEEP and the ETUC, [1996] OJ L145/4. 87  The Labour Code introduced a prohibition of night work (Act No 65/1965 Coll, s 152) as well as some specific types of work for all women; ibid, s 150(2). 88  Ch 2 section II.D.ii. 89  Part-time work was almost non-existent during the period. 90  The generous provision of childcare, for instance, was clearly positive in helping mothers to work outside of home, yet did nothing to change the male-based employment model. 91 This particular trap that respecting difference creates has not been unique to the East and has been noted by feminist scholars in the West as well. See eg ML Minow, ‘Foreword: The Supreme Court, 1986 Term—Justice Engendered’ (1987) 110 Harvard Law Review 10, 12–13; CA ­Littleton, ‘Reconstructing Sexual Equality’ (1987) 75 California Law Review 1279, passim.

98  Equality as Socio-Economic Levelling between the sexes was seen to be natural, the segregation of women into the realm of the family, housework and childcare, as well as the separation of male and female jobs in the sphere of work, were also understood as being natural.92 Rather than being perceived as a manifestation of inequality, this was instead perpetuated through legal regulation and defended by legal academics: The fact that it is first and foremost the woman who is called to care for a child at a young age, cannot be seen as some inequality. The equality of a man and a woman does not mean a mechanical division of life functions and societal work. Motherhood is an exclusive fate of the woman.93

However, separate is rarely equal.94 Women were ‘helpers’,95 and were ‘auxiliary’,96 especially in the public worlds of work and politics. Their income was seen by employers as secondary to men’s and was therefore lower: in 1962, a woman on average earned 64 per cent of a man’s wage; by 1988, the proportion had only risen to 71 per cent.97 Women rarely reached higher managerial positions.98 In local politics, women’s involvement meant their relegation to segregated tasks, such as inspecting caring work, childcare and social welfare.99 In national politics, while they were represented in

92  For parallels in the West, see, eg, Fredman, Women and the Law (1997), 74–75, 104–13, 122–25, 133–37. 93 Radvanová et al, Žena a právo (1971), 30 (emphasis added). 94  The term ‘separate but equal’ was used to justify discrimination of African Americans through segregation before the ruling in Brown. It is doubtful that the segregation of two groups, based on a protected characteristic such as sex or race, can ever be equal unless it is consciously set up to benefit the disadvantaged group. 95  L Oates-Indruchová, ‘The Beauty and the Loser. Cultural Representations of Gender in Late State Socialism’ in H Havelková and L Oates-Indruchová (eds), The Politics of Gender Culture (Routledge, 2014). 96  AG Meyer, ‘Feminism, Socialism, and Nationalism in Eastern Europe’ in SL Wolchik and AG Meyer (eds), Women, State, and Party in Eastern Europe (Duke University Press, 1985). 97  H Hašková and M Vohlídalová, ‘The Labour Market and Work-Life Balance in the Czech Republic in Historical Perspective’ in H Hašková and Z Uhde (eds), Women and Social Citizenship in Czech Society: Continuity and Change (Soú, 2009), 46. Although the man was not the sole breadwinner, as he was in the West, he was still the main breadwinner in the family. See J Šiklová, ‘Are Women in Central and Eastern Europe Conservative?’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism: Reflections from Eastern Europe and the Former Soviet Union (Routledge, 1993) 75. 98  Scott, writing in 1974, noted that ‘in agriculture, where 52 per cent of all workers are women, only 20 of the country’s 5,800 farm cooperatives are headed by women’ and ‘only two of the more than three hundred district national health centres are directed by women, in spite of the “feminization” of medicine’. See H Scott, Does Socialism Liberate Women? Experiences from Eastern Europe (Beacon Press, 1974) 14. 99  Fodor observes that ‘not surprisingly, the functions women were supposed to fill were not only different but also inferior to those carried out by men’. E Fodor, ‘Smiling Women and Fighting Men: The Gender of the Communist Subject in State Socialist Hungary’ (2002) 16 Gender & Society 240, 258.

Beyond Equality? 99 the—largely powerless—state legislatures,100 women were rarely made members of the executive government or of the Central Committee of the Communist Party.101 Scholars and jurists at the time did not reflect on the possibility that this segregation and inequality might be unfair and discriminatory. Instead, it was seen as a consequence of the natural differences in women’s abilities or preferences. It was not really possible to challenge socio-cultural frameworks of disadvantage, such as the undervaluing of work that was typically done by women, because stereotypes were not identified as being harmful to women but rather as reflections of biological reality. Material disadvantages, such as lower rates of remuneration, similarly could not be challenged because they too were seen to be a natural consequence of difference. ­Neither unequal treatment nor unequal results along the sex/gender axis triggered the kind of suspicion that it would do in UK/EU anti-­discrimination law today.102 V.  BEYOND EQUALITY?

One example of where the differences between men and women were not conceptualised as discriminatory was the area of remuneration. The socialist state (being de facto the only employer in the economy)103 had a historically unique chance to completely disregard the costs of men’s and women’s pay on the labour market (the often cited cause of wage differentials in

100  On average, women constituted 23% in the National Assembly, twice as many as before the Communists came to power. At the communal level, representative bodies comprised on average 30% women. J Bauerová and E Bártová, Proměny ženy v rodině, práci a ve veřejném životě [Transformations of Women in the Family, Work and Public Life] (Nakladatelství ­Svoboda, 1987) 234–35. On the limited role of the legislature in actual decision-making, see H Havelková, ‘Women in and after a “Classless” Society’ in C Zmroczek and P Mahony (eds), Women and Social Class—International Feminist Perspectives (Taylor and Francis/UCL, 1999) 75. 101  During the entire period of 41 years of state socialism, only three women were either state or federal ministers. See H Havelková, ‘Jako v loterii: politická reprezentace žen v ČR po roce 1989 [Like A Lottery: The Political Representation of Women the Czech Republic after 1989]’ in H Hašková, A Křížková and M Linková (eds), Mnohohlasem (Sociologický ústav AV ČR, 2006) 30. See also Scott, Does Socialism Liberate Women (1974), 14. 102  The former should trigger suspicion of direct discrimination, the latter of indirect. 103  The state was ‘responsible’ for the structural differences in pay even legally—the wage policy was subject to central planning. The exact institutional set-up varied slightly over time. For a period, the setting of wages was under the control of the Ministry of Social Welfare (Act No 244/1948 Coll, s 1), while from 1951 it was under the control of the State Wage Commission (Government Ordinance 27/1951 Coll). Organs of the state issued very detailed directives—it was observed in 1990 that pay was governed by roughly 800 separate legal norms published in the Collection of Statutes (M Trstenský, ‘Market Economy and Labor Law: Czechoslovak Report’ in M Bogdan (ed), Legal Aspects of Market Economy. Reports from a Czechoslovak-Swedish Symposium (Acta Societatis Juridicae Lundensis, 1990) 40.

100  Equality as Socio-Economic Levelling capitalist Western societies)104 and remunerate jobs on the basis of their inherent value. It did not do so. A considerable gender wage gap persisted throughout the period, as noted above. Radvanová observed the discriminatory mechanism by which this happened, even though she did not classify it in those terms: ‘It cannot be ignored that men often get work which is better paid than women. … Sometimes the position gets redefined to a lower pay grade when a woman is about to take it up.’105 I return to how state-socialist scholars tried to explain the persistent gender wage gap in Chapter 5, arguing mainly that blindness to gender and the gender order was a major obstacle. In this section, I want briefly to explore another possible way of combatting inequality. I noted above that class and socio-economic inequality can be addressed by a slightly different policy and legal tool-set. Redistributive measures, such as social security benefits, can compensate for, alleviate or even eliminate inequalities. In the following, I discuss whether the losses incurred by women through discriminatory wages were ‘compensated’ via other means. Could it be argued that ‘women’s pay’ consisted not only of their wages, but also of other benefits the state made available to them, especially to mothers? And were the social benefits targeting women actually meant to remunerate their work in the home? Answers to both questions are theoretically important. An answer to the former might suggest that generous social security benefits were able to ‘compensate’ for the losses caused by discrimination in the workplace. Anti-discrimination rights have been critiqued in the West as being too individualistic in remedies, and therefore not capable of structural change.106 If social security benefits were topping up women’s income, one could argue that anti-discrimination rights were not necessary. The latter answer would be particularly interesting for feminists, as many in the West have long criticised the fact that the work in the home is unpaid107 and have called for its economic recognition.108 If the socialist state was willing to abandon the male-centred understanding of paid labour, it would mean an important paradigmatic shift. In the following, however, I show that neither argument can be made. As for the compensatory role of social security benefits, it was suggested by Radvanová that ‘Women’s wages are on average a third lower than those of men. The negative consequences of this are being compensated for

104  Eg E Ellis and P Watson, EU Anti-Discrimination Law (Oxford University Press, 2012) 223–24. 105 Radvanová et al, Žena a právo (1971), 149. 106 Fredman, Women and the Law (1997), 251–53. 107  Eg, ibid, 98–101. 108 The Western feminist ‘wages for housework’ position is summarised in MacKinnon, Toward a Feminist Theory of the State (1989), 64.

Beyond Equality? 101 through social security.’109 She also considered that ‘wage has reached its zenith as means to interest people in societal development’, and argued that the state money, which would otherwise have gone toward wages, was better spent ‘liquidating the causes of social frustration’, ie to social benefits.110 The benefit that came closest to being compensation for gendered inequality was the ‘material provision for transferred [female] employees’, which was available to women who lost their jobs or positions due to the ban on certain types of work contained in the 1965 Labour Code.111 This truly did compensate for a gender-based loss of income, although the cause was not individualised or even structural discrimination (for example in wage classification) but the introduction of a ban on certain types of work for women. Other benefits were not dependent on a lower wage, either in entitlement or amount. They were tied to childcare. These thus were more remote from the idea of ‘compensation’, since they would only have benefited mothers and not women who were childless. Among them were the previously mentioned counting of the periods of childcare toward pension benefits as equivalent to periods of employment,112 child benefits113 or maternity benefits (mateřský příspěvek).114 Concerning the last, Radvanová even stated that ‘this social provision does not have to have the form of compensation of [lost]115 pay, but rather the form of remuneration for caring work of children in the society’s interest’.116 This suggests that the state was recognising work in the home and actually paying for it. Another author urged readers to ‘consider the period of maternity leave as socially needed and necessary work, which should be made equal to an employment relationship [and remunerated at levels] comparable to wages’.117 Although the idea is expressed by the two academics in clearly aspirational language—these were suggestions, not a widely accepted understanding or justification of the pro-women or pro-family provisions—the mere fact that the conceptualisation of care work as work was put forward by established state-socialist legal scholars is very important at a theoretical 109 Radvanová

et al, Žena a právo (1971), 277 (emphasis added). 233. The context of these statements needs to be borne in mind: there was no private sector, and both wages and social security were paid out of the state’s budget—the clear distinction between wages and social security, which exists in the West, did not apply. 111  Ordinance No 74/1970 Coll. The provision included compensation for wages lost due to the transfer. 112  Act No 55/1956 Coll, s 6. 113 Radvanová observes that they were instituted in 1945 as a ‘form of pay’ meant to ‘increase the income of large families’: Radvanová et al, Žena a právo (1971), 212. 114  Introduced in 1969. 115  The benefit was (and continues to be) paid out of sickness insurance. Absence during pregnancy and maternity has thus been treated similarly as an absence due to illness. 116 Radvanová et al, Žena a právo (1971), 223 (emphasis added). 117 J Jirásek, ‘Některé otázky postavení žen v pracovněprávních vztazích [Some Issues Regarding Women's Standing in Labour Relations]’ [1964] Právník 177, 185 (emphasis added). A similar debate took place in the UK: see Fredman, Women and the Law (1997), 91–92. 110  ibid,

102  Equality as Socio-Economic Levelling level. The existence of this approach suggests that not only was the social provision for motherhood considered instrumentally necessary for population growth (as I have argued in the previous chapter), but that at least one segment of the state-socialist experts and decision-makers118 was willing to abandon the understanding of work exclusively as industrial male labour and recognise work in the home and children as equal to it. It shows that, in some quarters at least, there were genuine ideological and political aspirations about improving the situation of women under state socialism, and a belief that the state-socialist project was meant to be socially transformative with regard to women’s socio-economic well-being. The aspiration was to eliminate women’s economic disadvantage caused by childcare, but without other measures—making sure women were treated equally in the world of paid labour and that the burden of housework and childcare was not just theirs—they failed to be truly transformative in gender equality terms. Are there other possible interpretations of the generosity of the socialist state in the area of social benefits for women? A sceptical interpretation would be to point out that in practice, it might have been aiming at the reduction of the likelihood of political discontent. But there is another explanation, with a solid theoretical basis. Namely, that the state was distributing ‘according to need’. Marxist-Leninist theory foresaw two ways of distributing goods and services: under socialism, ‘from each according to his ability, to each according to his work’, and under communism, ‘from each according to his ability, to each according to his need’.119 Many authors commented that while in labour relations workers were still paid according to their work, social security was allocated ‘according to needs’:120 Aside from the [principle of remuneration based on work], distribution is increasingly being done based on a socially recognised need. It comes to play in cases where the society has a special interest in a certain activity (for example the care of children), where [awards] cannot be based exclusively on the workers’ participation in social [paid] work.121

118  ‘Experts’ should not be equated with the ‘state’, but it has been argued that their opinions had considerable policy-influencing power. H Havelková, ‘Dreifache Enteignung und eine unterbrochene Chance: Der „Prager Frühling“ und die Frauen- und Geschlechterdiskussion in der Tschechoslowakei’ (2009) 20 L’Homme 31. See also discussion on p 106 and 128. 119  The latter principle was first expressed by Marx in the Critique of the Gotha Program. Both principles were enshrined in the 1960 Constitution: Art II stated that the socialist principle (‘according to his work‘) was reality, and Art III promised that the communist principle (‘according to his needs’) was soon to be achieved. 120  J Mazanec, ‘Význam péče ženy o dítě v důchodovém zabezpečení [The Importance of Childcare in Pension Security]’ [1975] Socialistická zákonnost 348, 350. The need-based understanding of social security is common in capitalist countries as well, so this conceptualisation is not too surprising. 121  ibid, 349.

Conclusions 103 This understanding was truer to the Marxist-Leninist ideal of the division of everything ‘according to needs’, and probably closer to the prevailing statesocialist understanding. This interpretation is, however, less progressive from a gender perspective, because caring for home and children would no longer be seen as ‘work’ but merely as other ‘socially important activity’.122 While under state socialism the distinction between the care-as-work approach and the benefits-according-to-need approach might not have been crucial, it played a decisive role in the post-socialist period. Had home-­ caring and child-raising truly become widely understood as work, continuing generous social payments to women and mothers might have been sustainable. But as it was more widely perceived as payment based on needs, and need became seen as anti-liberal after 1989, the support was rhetorically discredited and often diminished in this period.123 VI. CONCLUSIONS

Equality was an important principle under state socialism. The socialist state strived for, and overwhelmingly succeeded in, eliminating traditional legal privileges of men. It also guaranteed access of women into hitherto restricted arenas of education, work and politics. But looking beyond these two tenets, equality was limited. It did not contain a legal right to ­non-discrimination that would protect both from direct individual prejudice or its indirect expression through structural set-up. The concern of equality policy was overwhelmingly that of economic levelling—the axis of disadvantage tackled was class, not gender or other characteristics often protected in the West. And although the understanding of equality was ­substantive, in that it recognised differences between men and women, the ‘special’ treatment of this difference often meant over-protection that limited women’s (and men’s) choices and autonomy and entrenched gender roles. The ready acceptance of difference also justified individual acts and structural mechanisms of discrimination. Lastly, even though the state-socialist equality policy had ‘transformative’ hallmarks, it only applied to the socio-economic sphere—it cared about redistributive but not cultural transformation. Many of these limitations were connected to the ideological, political and epistemological confines of the socialist state, in particular its blindness to gender as a social construct and patriarchy as a specific system of oppression. I turn to this debate in greater detail in the following chapter. What happened to equality and anti-discrimination law after 1989? I show in Chapter 8 that it has not fared much better. New guarantees, 122 

ibid, 350. debate has clear parallels in the West. For the UK, see Fredman, Women and the Law (1997), 91–91, 150–51. 123  This

104  Equality as Socio-Economic Levelling including the prohibition of direct and indirect discrimination, may have been transposed into Czech law because of EU membership obligations, but the emphasis on difference, the bemusement as to why law should interfere with discriminatory acts, and scepticism regarding substantive equality provisions along axes such as sex/gender or race, persist. Equality law has suffered a double disadvantage since 1989. In reaction to the previous period, the socio-economic, substantive and transformative approach to equality has been discredited as ‘communist’, while the lack of understanding discrimination has not been remedied.

5 Blindness to Gender and Patriarchy

I

N THE PREVIOUS chapters, I noted the successes as well as the flaws or failures of the state socialist project regarding the ‘woman question’ and ‘the equality of the sexes’. I noted that public equality was a­ ccompanied by private difference, and I showed that even in the public spheres of work and politics, the limited legal guarantees and understanding of equality prevented effective confrontation of discrimination. This chapter tries to get to the bottom of why gender inequality was not dealt with better, more ­comprehensively and effectively. When trying to understand the limitations, flaws and failures of gender equality under state socialism, it is helpful to distinguish between several layers within which they can be assessed. One layer was the lived reality of gender relations. Assessing what men’s and women’s lives were like under state socialism is not the primary aim of this book, although I reference certain aspects of it for illustration both in the previous chapters as well as below.1 Another layer was the law. I dedicated the previous chapters to it, discussing the legal regulation of women and gender in Chapter 2, the characteristics of law and rights more generally in Chapter 3, and the notion legal of equality in Chapter 4. In this chapter, I turn to the intellectual and conceptual underpinnings that framed the legal regulatory choices. The most obvious source of ideas was the Marxist-Leninist theory, as adopted by the Communist Party as the official ideology of the socialist state. It is perhaps worth noting that the two were not always identical. Some drawbacks to gender equality under state socialism could be traced directly to the limits of Marxist-Leninist ­theory, such as seeing childcare as biologically determined, or the inability to understand violence against women as gender-based. Others, though, were the result of a particular twist given to Marxism-Leninism by state-socialist ideologues. For example, the gender wage gap between heavy industry on the one hand and light and service industries on the other, was connected to a very specific—and not theoretically inevitable—interpretation of the ­Marxist-Leninist distinction between production and reproduction. Even where the theorists of Marxism-Leninism got equality right and the socialist 1 

See p 98–99 above and section I.B below.

106  Blindness to Gender and Patriarchy state formally incorporated an aim, the equality project was harmed by other obstacles. For example, the promise to bring domestic labour and childcare into the public sphere was never fully realised, in large part because it would have been too costly. This shows that the actual law and policy were also framed by other considerations. Recent Czech scholarship2 has shown that relatively early into the period, in part because the change brought by the 1948 communist ­takeover did not automatically bring about the expected wide-ranging transformation of society and its mores,3 the agenda of the ‘woman question’ and ‘equality of the sexes’ was handed over to experts. These experts’ ideas were, of course, partly informed by the orthodoxies of Marxism-Leninism.4 In some cases, however, they were informed by pre-Communist notions of equality, which could be described as first-wave feminism.5 And in many cases, the experts also tapped into pre-Communist traditional conservative bourgeois gender norms.6 Lastly, the experts’ approach was often technocratic and pragmatic, involving engineer-like problem-solving,7 without any strong ideological charge.8 A closer analysis of the experts’ stance, which would require an institutional analysis and even a look at individual actors and their intellectual positions, goes beyond the scope of this book. In the following, I firstly concentrate on Marxism-Leninism. This is in part because Marxism-Leninism was the specific framework of the period and the region, different from the ­‘Western’ experience, which needs to be understood, and also because 2 Notably H Havelková, ‘(De)centralizovaná genderová politika: role Státní populační komise [(De)Centralized Gender Politics: the Role of the State Population Committee]’ in H Havelková and L Oates-Indruchová (eds), Proměny genderové kultury české společnosti 1948–1989 [The Metamorphoses of Gender Culture in Czech Society 1948–1989] (SLON, 2015). 3  I have discussed this in the example of legal responses to prostitution in B Havelková, ‘Blaming All Women: On Regulation of Prostitution in State Socialist Czechoslovakia’ (2016) 36 Oxford Journal of Legal Studies 165. 4  See eg Knapp’s analysis of equality on p 92–93 above. 5  Eg, the first director of the influential State Population Committee, František Fajfr, was an adherent to the humanism and first-wave feminism of the First Republic’s President, Tomáš Garrigue Masaryk. Havelková, ‘(De)centralizovaná’ (2015), 140. 6 This was the case with most marriage-counselling experts, especially during the period of Normalisation. See I Vodochodský and P Klvačová, ‘Normativní podoby manželství v předlistopadové populárněnaučné literatuře [The Normative Forms of Marriage in Pre1989 Popular-Science Books]’ in Havelková and Oates-Indruchová (eds), Proměny genderové ­kultury (SLON, 2015). A return to bourgeois ideas about gender has also been a feature of the mainstream literature during Normalisation. See L Oates-Indruchová, ‘The Beauty and the Loser. Cultural Representations of Gender in Late State Socialism’ in H Havelková and L Oates-Indruchová (eds), The Politics of Gender Culture under State Socialism: An Expropriated Voice (Routledge, 2014) 195; J Matonoha, ‘Dispositives of Silence: Gender, Feminism and Czech Literature between 1948 and 1989’ in Havelková and Oates-Indruchová (eds), The Politics of Gender (2014), passim. It was also true of much of the writing on prostitution in the 1960s, as I have shown in Havelková, ‘Blaming all Women’ (2016). 7  I noted, eg, the technocratic solutions to the ‘population crisis’ in Ch 2 section II.C. 8  Havelková, ‘(De)centralizovaná’ (2015), passim.

Blindness to Gender and Patriarchy 107 a look at the underlying Marxist-Leninist theory and ideology helps highlight the existence of specific aspirations and their inherent limitations. Aside from the Marxist-Leninist theory, I also look at a specific subset of experts—legal scholars—and examine whether they noticed and reflected upon either the gaps in aspirations, or the gaps in the implementation of the existing aspirations. The first three sections of this chapter explore these questions. First, I briefly explain what the aspirations were, ie how Marxism-Leninism responded to the ‘woman question’ (section I.A). I then briefly look at whether these aspirations were achieved. I do so by presenting some basic data about the reality of women’s lives under state socialism (section I.B). As I stated in the Introduction to this book, this is not an empirical project: I do not aim to trace the impact of the legal regulation on the lives of men and women, nor fully empirically assess whether the Marxist-Leninist promises were carried out. What this section illustrates are the considerable limitations to the ‘equalisation’ brought about by the socialist state. This is, of course, helpful in presenting the unfamiliar reader with some basic data. But the section mainly aims to show that these inequalities were stark, and would have be known to the experts and legal scholars, which ought to have—and indeed had to some extent—triggered some reflection on their part. This reflection by legal scholars of the time is the subject of section II. Using the example of the gender wage gap, I explore how statesocialist legal scholars reacted to its persistence. I note that some of them denied this inequality (section II.A), many denied that it was a problem (section II.B), and most denied the state’s and the law’s responsibility for it (section II.C). The thread running through these attempts to explain away the gender wage gap was the clear inability to perceive gender and the gender order (section II.D). I then turn to the underlying ideas from Marxist-Leninist theory that can help elucidate these limitations and help explain how and why g­ ender and the gender order were obscured (section III). I discuss the inability to see patriarchy as a separate system of oppression (section III.A), and the biological determinism regarding women’s characteristics, abilities and ­ preferences, as well as their ‘roles’ and ‘functions’ (section III.B). I show how the conceptual distinction between production and reproduction led to the undervaluation of work by women and the underfunding of industries that could have alleviated their burdens (section III.C). I then discuss how the materialistic orientation of Marxist-Leninist theory made cultural ­oppression difficult to identify and comprehend (section III.D). The first three sections show that neither the official ideology nor the legal experts tasked with reacting to contemporary social problems saw gender and the gender order, or could be perceived as feminist. Were feminist ideas generated elsewhere, to contradict, critique or complement the official

108  Blindness to Gender and Patriarchy policy and narrative? In the fourth section, I answer this question in the negative. The regime ‘expropriated’9 the agenda of women’s emancipation, with the object of managing it itself. And although it did not do an entirely competent job of it, no one—not the ‘women’s organizations’,10 the dissident movement, nor ordinary men and women—stepped forward to fill in the gap (section IV.A). I then explore the question of whether and how social and cultural conditions under state socialism might have obscured patriarchy. My answer is tentative, because it requires a look at the institutional, symbolic and personal, the assessment of which lies largely outside my methodology. Here, I draw on secondary literature from a range of disciplines, ­including sociology,11 literary theory12 and discursive psychology.13 I explore both the shifts brought by state socialism as well as the continuities with the pre-Communist period, in social and cultural terms. In social terms, it is important to see what happened to the gender roles and relations; in cultural terms, it is crucial to understand whether and how these were reflected and interpreted. There were reconfigurations of men’s and women’s status and their relationship in relation to the public sphere of work and politics as well as family. Amongst others, women, in failing to fulfil the expectations of a good ‘Communist subject’, were paradoxically liberated from the expectation to participate in the oppressive and corrupt public sphere (section IV.B). As for men, those involved in Communist Party politics might have been strengthened, but the status of ordinary men was rather diminished. For most men, ‘their’ traditionally public sphere of politics lost its appeal, and without private property ‘their’ public world of economic relations became unavailable. The paternalistic socialist state assumed some traditionally male functions in the family, such as material provision. This diminished the status of men, but arguably did not enhance the status of women. On the contrary, men’s ‘weakness’ arguably assigned yet another task to women—that of supporting their men (section IV.C). I note that the official emancipatory policy and discourse seems to have triggered a reaction of retreat to pre-Communist residual patriarchal imagery.

9 H Havelková, ‘Dreifache Enteignung und eine unterbrochene Chance: Der „Prager Frühling“ und die Frauen- und Geschlechterdiskussion in der Tschechoslowakei’ (2009) 20 L’Homme 31; H Havelková and L Oates-Indruchová, ‘Expropriated Voice’ in Havelková and Oates-Indruchová (eds), The Politics of Gender (2014), 10–11. 10 These were almost entirely disempowered and were used to promote official policy rather than form it. D Nečasová, ‘Women’s Organizations in the Czech Lands, 1948–89’ in ­Havelková and Oates-Indruchová (eds), The Politics of Gender (2014). See also fn 141 below. 11 Eg I Vodochodský, ‘Patriarchát na socialistický způsob: k genderovému řádu státního socialismu [Socialist-wise Patriarchy: on Gender Order of State Socialism]’ (2007) 8 Gender, rovné příležitosti,výzkum 34; Havelková, ‘(De)centralizovaná’ (2015). 12  Eg Oates-Indruchová, ‘The Beauty’ (2014). 13  Eg K Zábrodská, ‘Between Femininity and Feminism: Constructions of a “Czech PostCommunist Woman” in Biographical Interviews’ in Havelková and Oates-Indruchová (eds), The Politics of Gender (2014).

Aspirations versus Reality 109 Women recognised gender-related problems, but without having the tool of gender or feminist analysis to assess and fight them, they turned to a—counterproductive and injuring—emphasis on traditional femininity (section IV.D). Lastly, I note that the divide between ‘haves’ and ‘have nots’ under state socialism ran largely between the regime and its supporters on the one hand, and the rest of the population on the other. Many thus saw the regime as a source of oppression, which would have impeded the emergence of awareness of patriarchy. Indeed, gender and patriarchy were doubly obscured—the socialist state’s official ideology and policy saw only class, and, in reaction to the oppressive regime, the structure the people would have seen was ‘the regime’ (section IV.E). I.  ASPIRATIONS VERSUS REALITY

A. The ‘Woman Question’ in Marxism-Leninism and State-Socialist Aspirations Before I present the aspirations of Marxism-Leninism regarding the ‘woman question’, a brief caveat regarding the fluidity of the theoretical canon is called for. Any analysis of Marxism or Marxism-Leninism will greatly depend on the authors one studies. If one only looks at Marx and Engels,14 there is little to go on.15 Their writings are opaque on the ‘woman question’, as it is rarely at the centre of their argument, and comments that are scattered through several works do not create a consistent message. Later Russian revolutionaries, such as Alexandra Kollontai16 and even Lenin,17 to some extent flesh out the ideas of the founders of Marxism. In this section, I draw on these primary ‘Marxist-Leninist’18 texts, acknowledging, h ­ owever, 14  As Alison Jaggar does, see AM Jaggar, Feminist Politics and Human Nature (Rowman & Allanheld, 1983). 15 A much more comprehensive treatment of the subject was offered by August Bebel (1840–1913), a German Social Democratic politician and writer. His book Woman under Socialism addressed a much broader range of issues than either Marx or Engels, including prostitution, and was in favour of rights otherwise considered bourgeois, such as suffrage. It first appeared in 1879, and saw further 50 editions during the author’s lifetime alone. Gustav Bareš, the author of its first translation into Czech, recalled, in an introduction to a later edition in 1962, that the book was widely read among Czechoslovak socialists and communists in the first half of the 20th century. See H Scott, Does Socialism Liberate Women? Experiences from Eastern Europe (Beacon Press, 1974) 57. 16 A Russian Menshevik and later Bolshevik revolutionary (1872–1952); Europe’s first female government minister (1919) and the world’s first female ambassador (1923). She famously criticised the institution of family, calling for sexual and economic freedom of women as well as communal life. 17  C Zetkin, ‘Lenin on the Women’s Question’ (Marxists Internet Archive, 1920), available at www.marxists.org/archive/zetkin/1920/lenin/zetkin1.htm. 18  Marxism-Leninism, which incorporated late 19th- and early 20th-century developments, especially Lenin’s work, was the preferred term used during state socialism in Czechoslovakia, as well as in other Eastern bloc countries.

110  Blindness to Gender and Patriarchy that these sources are diverse, their interpretations vary greatly and are disputed. A more in-depth analysis of the development of the theoretical Marxist debates, however, lies outside the scope of this book.19 Inequality between men and women was acknowledged by Marxist-­ Leninists. Friedrich Engels20 identified the organisation of the family under capitalism as the origin of women’s oppression. The inter-generational passing of private property through the male line required children of undisputed paternity, which was guaranteed by the institution of monogamous marriage, an institution in which women were enslaved. Engels believed that the abolition of private property and of capitalism would automatically lead to a change in relations between the sexes. This was an astute analysis, as, historically,21 the lack of women’s property rights, especially within marriage, has been a crucial element of patriarchal oppression. Indeed, the abolition of private property by the socialist state was a very radical way of addressing socio-economic inequality, one which did have an equalising effect on women. It also had a ‘minimising’ effect on men, as it stripped them of their previous sources of dominance: private property and enterprise.22 Engels himself realised, however, that the abolition of private property would not be sufficient. He identified three further necessary steps: (i) formal equalisation of the legal position of men and women, (ii) inclusion of women in employment, and (iii) the collectivisation of household duties: And in the same way, the peculiar character of the supremacy of the husband over the wife in the modern family, the necessity of creating real social equality between them, and the way to do it, will only be seen in the clear light of day when both possess legally complete equality of rights. Then it will be plain that the first condition for the liberation of the wife is to bring the whole female sex back into public industry, and that this in turn demands the abolition of the monogamous family as the economic unit of society.23

The Czechoslovak socialist state adopted24 these aims and, as I have shown on legal regulation in the previous chapters, succeeded in fulfilling some of their aspects. The socialist state abolished many of men’s privileges, as well 19  I also draw on secondary feminist analyses of Marxism, which help me identify key points in the theory. Eg Jaggar, Feminist Politics (1983); CA MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, 1989); Scott, Does Socialism Liberate Women? (1974); A Heitlinger, Women and State Socialism: Sex Inequality in the Soviet Union and Czechoslovakia (Macmillan, 1979); A Heitlinger, ‘Marxism, Feminism, and Sex Equality’ in T Yedlin (ed), Women in Eastern Europe and Soviet Union (Praeger, 1980), amongs others. 20  F Engels, The Origin of the Family, Private Property, and the State (Kerr and Co, 1909 (1884)). 21  Certainly at the time of Engels’ writing. See S Fredman, Women and the Law (Oxford University Press, 1997) 44–49. 22  Vodochodský, ‘Patriarchát’ (2007). See also section IV.C below. 23 Engels, Origin (1909 (1884)), Ch IV (2) (emphasis added). 24  The Marxist-Leninist theory was interpreted differently in the different countries of the Eastern bloc and during different periods. In this section, I discuss Marxist-Leninist theory as such, as well as the particular Czechoslovak brand or interpretation of the canon.

Aspirations versus Reality 111 as exclusions or disqualifications of women that had previously been explicitly established in law. It proclaimed ‘equal rights of the sexes’ a constitutional principle (if not a real right), and also guaranteed women access to the public spheres of education, work and politics. But while women were brought into public realm, they were not brought in on equal terms. In addition, although some attempts at collectivisation of housework and childcare were made, they did not abolish ‘the monogamous family as the economic unit of society’. Rather than putting consistent, full and enduring effort into liberating women from ‘household drudgery’25 through collectivisation, as promised, the socialist state instead increasingly turned to supporting them as the exclusive individual carers in the home.26 B.  (In)Equality in Reality Did the state-socialist law and policy translate into noticeable changes to women’s lives? Certainly in some respects. The socialist state’s project of public equality dramatically improved women’s access to, and participation in, education, paid labour and politics.27 While women made up only 18.5 per cent of full-time students in higher education in 1945, that figure had risen to 37.1 per cent by 1960.28 The percentage of women among university graduates rose from 20 to 34 per cent between 1950 and 1960, and to 44 per cent in 1987.29 Similarly, the percentage of women in the workforce rose from 37 in 1948 to 43 in 1960 and to 46 in 1984.30 In the 1960s, Czechoslovakia had the third highest rate of women’s employment in the world.31 The share of employed women rose from 53.7 per cent in 1948 to 87 per cent in 1989.32 25 

Zetkin, ‘Lenin’ (1920). Ch 2 section III. 27  For a comparative study including Czechoslovakia, see SL Wolchik, ‘The Status of Women in a Socialist Order: Czechoslovakia, 1948–1978’ (1979) 38 Slavic Review 583. 28  ibid, 584. 29  SL Wolchik, ‘Ideology and Equality’ (1981) 13 Comparative Political Studies 445, 449; J Bauerová and E Bártová, Proměny ženy v rodině, práci a ve veřejném životě [Transformations of Women in the Family, Work and Public Life] (Nakladatelství svoboda, 1987) 159. For a more detailed breakdown and information about primary and secondary education, see A Köhler-Wagnerová, Die Frau im Sozialismus, Beispiel ČSSR (Hoffmann und Campe, 1974) 41–47. 30 The number may appear low, but as it includes women of all age groups, it actually indicates a very high level of female workforce participation. Comparable numbers in the West were lower throughout the period, with 43.7% in the US and 38.7% in neighbouring Austria in 1978. Wolchik, ‘Ideology and Equality’ (1981), 452. See also Bauerová and Bártová, Proměny ženy (1987), 188. See also Köhler-Wagnerová, Die Frau (1974), 34. 31 Nečasová, ‘Women’s Organizations’ (2014), 70. 32 H Hašková and M Vohlídalová, ‘The Labour Market and Work-Life Balance in the Czech Republic in Historical Perspective’ in H Hašková and Z Uhde (eds), Women and Social ­Citizenship in Czech Society: Continuity and Change (SOÚ, 2009) 40. 26 

112  Blindness to Gender and Patriarchy Similarly to the spheres of education and work, the state-socialist regime successfully pushed for an increase in women’s participation in political decision-making. Before the communists came to power, notwithstanding the equal guarantee of passive and active voting rights in 1920,33 the proportion of women in representative bodies was no greater than 5 per cent during the inter-war period, and rose only slightly up to 12 per cent after World War II.34 Women’s representation during state socialism was much higher. The average proportion of women in the National Assembly was 23 per cent, and around 30 per cent at the communal level.35 The access and high levels of participation in the ‘public’ spheres of education, work and politics was marred by inequality, however. Horizontal36 segregation prevailed. In education, girls made up the majority of apprentices in the fields of textile and dress-making, health as well as economics,37 organisation, trade and services.38 A similar trend could be seen in university education, in particular in technical fields and engineering, where the percentages of women remained in single digits.39 This horizontal segregation in education was mirrored in segregation in the workplace.40 In politics, too, segregation persisted—women were present in the legislative bodies but practically entirely absent from the executive, both in the formal government41 and in the de facto government, which was the Central ­Committee of the Communist Party and its Presidium and Politburo.42 33 Act No 121/1920 Coll, Introducing the Constitutional Charter of the Czechoslovak Republic, s 9. 34 In 1948–54, the Constitutional Assembly had 8% and the National Assembly 12% women: Bauerová and Bártová, Proměny ženy (1987), 234–35. 35 ibid, 234–35. These high numbers have to be interpreted cautiously, however. Hana Havelková argues that ‘the number of women deputies in parliament had in fact almost no impact, for women as well as men were not able to act as political agents but only as ­puppets [–] every law was approved by 100 per cent of parliament and [deputies] were nominated and then permanently manipulated by the Communist Party’: H Havelková, ‘Women in and after a “Classless” Society’ in C Zmroczek and P Mahony (eds), Women and Social ­Class—International Feminist Perspectives (Taylor and Francis/UCL, 1999) 75. 36  The term ‘horizontal segregation’ is used to describe the concentration of workers of one sex (or other characteristic, such as race) in one segment of the labour market (eg men in the car industry and women in the textile industry). 37  Due to the central-planning character of the economic system, this education would provide mostly clerical, administrative skills. 38 In the 1980s, 98%, 85.6%, and 85.1% respectively. Bauerová and Bártová, Proměny ženy (1987), 152. The situation was similar in secondary vocational education. The following fields were dominated by women: health (97.3%), teaching professions (96.7%), librarianship (89.7%) and economics (87.2%). From a 1970/1971 statistic, Köhler-Wagnerová, Die Frau (1974) 45. See also Bauerová and Bártová, Proměny ženy (1987), 157. 39 Köhler-Wagnerová, Die Frau (1974), 45 and 48. 40  ibid, 36. 41 During the entire period, only three women were either state or federal ministers. H Havelková, ‘Jako v loterii: politická reprezentace žen v ČR po roce 1989 [Like A L ­ ottery: The Political Representation of Women the Czech Republic after 1989]’ in H Hašková, A Křížková and M Linková (eds), Mnohohlasem (Sociologický ústav AV ČR, 2006) 30. 42 Scott, Does Socialism Liberate Women? (1974), 14.

Grappling with Explanations of Inequality 113 Vertical segregation43 was also rampant. Scott, writing in the 1970s, observes that only 4 to 5 per cent of decision-making posts and responsible government jobs were occupied by women:44 It is known that in agriculture, where 52 per cent of all workers are women, only 20 of the country’s 5,800 farm cooperatives are headed by women. There are no women ministers or vice ministers or ambassadors or member of the Presidium of the Central Committee of the Communist Party. … There are no women members of the Academy of Sciences and only two corresponding members. Only two of the more than three hundred district national health centres are directed by women, in spite of the “feminization” of medicine.45

A corollary of horizontal and vertical segregation was a persistent gender wage gap. In 1962, a woman earned on average 64 per cent of a man’s wage. By 1988, the proportion had risen to only 71 per cent.46 The lack of equality in remuneration is particularly disheartening, as the socialist state (being de facto the only employer in the economy)47 had a historically unique chance to completely disregard the costs of men’s and women’s pay on the labour market (the often cited cause of wage differentials in capitalist societies)48 and remunerate jobs on the basis of their inherent value.49 I use the gender wage gap in the following to assess how state socialist legal scholars reflected its causes. II.  GRAPPLING WITH EXPLANATIONS OF INEQUALITY

Deborah Rhode described the failure to recognise the seriousness of gender inequality in the West as the ‘“no problem” problem’.50 She notices, in ­particular, three patterns in Western states’ treatment of gender equality: (i) the denial of gender inequality; (ii) the denial of injustice; and (iii) the

43  The term ‘vertical segregation’ is used to describe the concentration of workers of one sex at a certain career level (for example female workers and male managers). Vertical segregation is often perpetuated by the ‘glass ceiling’. 44 Scott, Does Socialism Liberate Women (1974), 14. 45  Ibid, 14. 46  Hašková and Vohlídalová, ‘The Labour Market’ (2009), 46. 47  The state was responsible for the structural differences in pay even from a legal point of view, as the wage policy was subject to central planning. The exact institutional set-up varied slightly over time. It was observed in 1990 that pay was governed by roughly 800 separate legal norms published in the Collection of Statutes. M Trstenský, ‘Market Economy and Labor Law: Czechoslovak Report’ in M Bogdan (ed), Legal Aspects of Market Economy. Reports from a Czechoslovak-Swedish Symposium (Acta Societatis Juridicae Lundensis, 1990) 40, see also Ch 4 fn 103. 48  Eg E Ellis and P Watson, EU Anti-Discrimination Law (Oxford University Press, 2012) 223–24. 49  See also p 99–100 above. 50  D Rhode, Speaking of Sex: Denial of Gender Inequality (Harvard University Press, 1997).

114  Blindness to Gender and Patriarchy denial of responsibility. All of these mechanisms were equally prominent in the reaction of Czechoslovak legal scholars to the persistent wage gap. A.  Denials of Inequality The first denial Rhode identifies is the rejection of the very existence or the dimensions of the problem. Indeed, some authors bluntly denied the existence of the wage gap, at a time when women earned 66 per cent of men’s wages, in a logical fallacy of inferring ‘is’ from ‘ought’, as can be seen in the excerpt below from an article in a Czech legal journal in 1964:51 The remuneration for work ceased to be the price of labour power, which is determined by the economic laws of supply and demand, but became a share of the worker in the national income. The amount of remuneration is set based on amount, quality and the social importance of work done. Work (and not sex or race) became the measure … This basic change guaranteed women actual real equal wages for equal work with men.52

Others, such as Senta Radvanová, in her 1971 monograph Woman and the Law, acknowledged the gap: It is true that women participate in the productive social process en masse, but the internal, qualitative comparison of this participation comes out disproportionately adversely for women … their average earnings are lower.53

When a difference was acknowledged, was it perceived as unjust? B.  Denials of Injustice ‘A second way of denying inequality’, according to Rhode, ‘is to deny that gender disparities reflect social injustice’.54 Rhode points out that as most people want to ‘believe in a just world’, they often blame women’s individualised conduct, capabilities or their choices for gender inequality.55 Rather than blaming individual women, in the Czechoslovak case, at least with regard to the wage gap, the denial of injustice took another form. Many authors assessed men’s work as harder and more demanding, and therefore as more important and valuable, thus legitimately more highly r­ emunerated: ‘The social importance of work which is physically more d ­ emanding and 51 

Hašková and Vohlídalová, ‘The Labour Market’ (2009), 46. Jirásek, ‘Některé otázky postavení žen v pracovněprávních vztazích [Some Issues of Women’s Standing in Labour Relations]’ [1964] Právník 177, 178. 53 S Radvanová et al, Žena a právo [Woman and the Law] (Orbis, 1971) 16 (emphasis added). 54 Rhode, Speaking of Sex (1997), 9. 55  ibid, 9–10. 52 J

Grappling with Explanations of Inequality 115 difficult, done mostly by men, is valued higher than other work.’56 They were also unreflective and uncritical about how the value of work was determined: [Gender wage gap] is not due to discrimination or exploitation. It is based on the different structure of men’s and women’s work and on the fact that difficult, physically and health-wise demanding, and consequently wage-preferred jobs can only be done by men.57

Radvanová was more conscious of the fact that the mere presence of women sometimes determined that work was less valued: ‘It cannot be ignored that the feminization of some industries led to a lesser valuation of the social importance of these professions (for example education).’58 However, she too stopped short of an analysis that would uncover the androcentrism of the assessment of both the difficulty—such as physical strength in maledominated jobs as opposed to attention to detail or psychological demands of female-dominated jobs—and the ascription of value. The obvious disparity in wages between the sexes was thus not identified as unjust by contemporary legal scholars. C.  Denials of Responsibility Rhode goes on to outline how gender inequality also persists because we ‘relocate responsibility for finding solutions’.59 In the West, she argues that responsibility is often shifted to individual women. Again, the denial of responsibility for the gender wage gap in the state-socialist East took a slightly different form. The responsibility was individualised, but with respect to the offender, for example the employer, and it was historicised. In other words, it was treated as something that was a vestige of previous mores and would eventually disappear. Radvanová thus blamed mostly ‘anachronistic individuals’ and the prejudice of managers: It cannot be ignored that men often get work which is better paid than women. … Sometimes the position gets redefined to a lower pay grade when a woman is about to take it up. In the subconscious of many managers, women are still ­considered an auxiliary source of labour power.60

Another author critically highlighted the fact that ‘men often get better paid positions because a woman’s wage is still considered a supplement to

56 Radvanová

et al, Žena a právo (1971), 149. Bauerová and Bártová, Proměny ženy (1987), 210. 58 Radvanová et al, Žena a právo (1971), 149. 59 Rhode, Speaking of Sex (1997), 13. 60 Radvanová et al, Žena a právo (1971), 149 (emphasis added). 57 

116  Blindness to Gender and Patriarchy a man’s wage [by the management]’.61 Yet neither author inquired as to whether these attitudes might have a common support system in gender stereotypes. Thus, they did not conclude a responsibility on the part of state and the need for a legal response.62 D.  Seeing Gendered Causes? What I have been exploring in this section is whether there was an awareness of gender (such as gender stereotypes) and the gender order (such as horizontal and vertical segregation, or women’s unpaid work in the home) in the explanations given for the gender wage gap. So far, the analyses seem blind to it. Radvanová came closest to a reflection of a structural problem in observing that women’s position in the labour market was impacted by the ‘burden of their “second shift”’:63 The core of the problem is that it is the woman’s role to be a mother, not only in the biological sense (give birth to a child following a pregnancy), but also in the broader social sense, ie to provide it with the necessary maternal care needed for its development and its socialisation as a human individual. A woman, however, alongside [being a mother] fulfils her role (mostly in parallel) in the work process and in other public activity.64

This would be a very important analytical point65 in Radvanová’s account had she been critical of the roles of the sexes and the domestic division of labour. Yet her analysis oscillates between decrying the disadvantage women face as ‘prejudice’ and uncritically using the term ‘role’ herself. She recognised that ‘the biological-social role of the woman-mother’ was connected to the ‘survival of various traditional opinions, or prejudices and ­anachronisms’,66 but at the same time failed to reflect further upon it.67 In reality, the gender wage gap most likely had both inherited and contemporary causes. It was influenced both by external issues, such as level of education,68 and by issues internal to the relevant employment relationship. 61 M Kalenská, ‘K postavení žen v pracovněprávních vztazích v ČSSR [Woman in ­Czechoslovak Labour Relations]’ [1976] Socialistická zákonnost 18, 25. 62  See also discussion on the lack of anti-discrimination guarantees in Ch 4. 63 Radvanová et al, Žena a právo (1971), 19. 64  ibid, 19 (emphasis added). 65  For an analysis of how patriarchal division of labour impacts segregation, see H Hartmann, ‘Capitalism, Patriarchy, and Job Segregation by Sex’ (1976) 1 Signs 137. 66 Radvanová et al, Žena a právo (1971), 19. 67  ibid, 6, 32, 33, 207. 68 Radvanová also offered the explanation that women’s qualifications were lower: ibid, 16, 277. This would have been a correct assessment of one of the causes at the time of writing, because of the educational legacy of the 1950s and 1960s, as has been noted by ­Köhler-Wagnerová, Die Frau (1974), 57. The persistence of the gap into the late 1980s and beyond, however, shows that even when younger generations of women (whose education and qualifications were equal to those of men) joined the workforce, the gap remained.

Intellectual Roots of the Limitations 117 It could probably also be traced both to individual decisions and to the structural set-up, such as pay scales that undervalued work predominantly done by women. The only cause that can be safely excluded was market forces, due to the public nature of all employment. But it is not my aim here to provide an authoritative empirical answer. Rather, I am interested in the fact that the ability to explain the gender wage gap was diminished by the inability to see gender and the gender order.69 The authors failed to see that the individual behaviour of both employers and the central planners who determined wages was tapping into a wider societal gender stereotype about women’s difference (in characteristics, ability and preference), the lower value of work typically done by women, the lower importance of their wage for the family, their role in the family, the impact their ‘caring’ work for house and children had on their working life, etc. III.  INTELLECTUAL ROOTS OF THE LIMITATIONS

Although the socialist state cared about women and even the equality between the sexes, it was unable to see gender as a social construct that hierarchically organises society. It did not identify it in social reality, nor in its own assumptions and starting points. The ideas underlying policy were unreflectively gendered; explicitly,70 by being biologically deterministic about the nature and role of women and men, as well as implicitly, for example in the analysis of production and reproduction, which considered work typically done by women as less valuable. Why were the causes not seen? The obvious answer is blindness to gender and the gender order. It is its specific form during state-socialism and its intellectual and conceptual roots that I explore in the following subsections. I start with the limitations found in Marxism-Leninism, and then discuss the state-socialist legal expert perspectives too. A.  Capitalism, not Patriarchy One underlying problem with Marxism-Leninism, in terms of women’s rights and gender equality, was that it had never considered patriarchy as 69  It was, of course, also impacted by a very limited equality guarantee. I addressed this issue in Ch 4, section II. 70  Denise Réaume, drawing on earlier philosophical work by Jean Grimshaw, distinguishes between two types of exclusion: one that relies on ‘explicitly misogynistic conceptions of woman that exclude women from key philosophical ideals’ and another, which ‘implicitly incorporate[s] masculine gender traits into those ideals to the exclusion of traits associated with women’. In D Réaume, ‘What’s Distinctive About Feminist Analysis of Law?: A Conceptual Analysis of Women’s Exclusion from Law’ (1996) 2 Legal Theory 265, 274.

118  Blindness to Gender and Patriarchy an independent system of oppression. It was capable of seeing an unjust ­structure, but not an unjust gender structure. In her criticism of Marxism, radical feminist Catherine MacKinnon pointed out that a theory that exempts a favoured male group [the workers] from the problem of male dominance necessarily evades confronting male power over women as a distinctive form of power, interrelated with the class structure but neither derivative from nor a side effect of it.71

Similarly, socialist feminist Alison Jaggar noted that Marxism was capable of showing how the sexual division of labour benefited capital, but failed to look at how it benefited men: ‘From the point of view of Marxist political economy, men have no special privileges and there are no special needs and interests that are shared by women and which are in opposition to the interests of men.’72 Arguably, this blinded the Marxist-Leninists, as well as state-socialist ideologues, to specifically gendered forms of oppression. For example, this blindness made it impossible to understand why women were more liable to be subjected to rape, physical abuse, sexual objectification and ­harassment.73 In other words, inter-personal violence, from rape to domestic violence to sexual harassment, mostly perpetrated against women, was not seen as gender-based violence, understood here as defined by CEDAW’s General Recommendation 19,74 as ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’.75 The concept of ‘gender-based violence’ did not exist in law, and its existence in real life went largely unacknowledged.76 Not a single article in Právník or Socialistická zákonnost, the two legal journals examined here, addressed it. The legal journal articles devoted to questions of marriage, divorce and family, which mostly discussed ways of keeping marriages together, did not mention the possibility of spousal abuse.77 Nor did any of the publications dedicated specifically to women and their rights78 treat it.

71 MacKinnon,

Toward (1989), 34. Feminist Politics (1983) 78. 73  ibid, 77. 74 United Nations Committee on the Elimination of Discrimination Against Women, ­General Recommendation No 19, A/47/38 of 29 January 1992. 75  ibid, art 6. 76  Its occurrence is only slowly coming to light, thanks to oral history. In Zábrodská’s s ­ ample of 20 women, eight reported personal experience with some form of sexual abuse. Zábrodská, ‘Between Femininity and Feminism’ (2014), 127, 129. 77  The exception was Schiller, who points out that the obligatory reconciliation of spouses is absurd in situations of ‘physical attacks’. His commentary was gender neutral, however, and was not elaborated upon. M Schiller, ‘Řízení o smíření manželů [Proceedings towards Reconciliation of Spouses]’ [1965] Socialistická zákonnost 24, 25. 78 Radvanová et al, Žena a právo (1971); M Šolcová, Postavení ženy v socialistické společnosti [The Position of Women in a Socialist Society] (Horizont, 1984); Bauerová and Bártová, Proměny ženy (1987). 72 Jaggar,

Intellectual Roots of the Limitations 119 For example, with regard to domestic violence, the author of Woman and the Law, after having dealt with alcoholism on several pages, comments in one paragraph that ‘bad behaviour’ and ‘inordinate lifestyle’ also happen in marriages and that some husbands are ‘bullies and brutes’,79 without discussing or analysing this fact any further. This individualisation of the problem—individual men being bad—which I also noted above in explanations of the gender wage gap, is what the legal scholars resorted to. A structural explanation did not appear to be intellectually available. It could be counter-argued that there was recognition that certain types of crimes were more often perpetrated against women. Certain crimes80 could by definition only be perpetrated against women during state socialism, such as rape and trafficking.81 But this did not imply any more sophisticated understanding of the embeddedness of male-on-female violence in gender power relations. It can rather be traced back to very crude ideas about male sexual instincts. This view naturalises and biologically essentialises a problem that is, as radical feminists have persuasively argued,82 overwhelmingly social in nature. This brings me to another root of difficulties gender equality faced: the essentialisation of gender and the collapsing of the biological and the social. B.  The ‘Natural’ Difference of Women The revolutionary character of Marxism-Leninism was to a large extent premised on the realisation that ‘class’ was a social construct, that it was contingent on external conditions, and that it was therefore not inevitable and unchangeable. This insight did not extend to gender.83 Alison Jaggar has observed that Marxist84 understanding of women’s nature was very 79 Radvanová

et al, Žena a právo (1971), 83. Other forms of gender-based violence, such as domestic violence or harassment, were not specifically regulated and would have been punishable only in advanced stages, when serious bodily harm was inflicted or murder perpetrated. 81  Act No 86/1950 Coll, ss 238 and 243; Act No 140/1961 Coll, ss 241 and 246. 82  S Brownmiller, Against our Will: Men, Women, and Rape (Simon and Schuster, 1975); MacKinnon, Toward (1989), 172–83. 83  In the West, this distinction between sex as biological and gender as socially constructed has, of course, been problematised and challenged, notably by Judith Butler. See J Butler, ­Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990). There is, however, a difference between problematising a distinction that has been intellectually, and arguably even politically, well established and internalised in the West on the one hand, and not having arrived at the distinction at all in the East. It is hard to deconstruct without having constructed. Arguably, in many Western European countries, especially on the Continent, this intellectual shift took a while to be judicially acknowledged too. Susanne Baer notes that in Germany, ‘the interpretation of Article 3 [of the Basic Law] only moved away from simple biologism in the 1980s’: S Baer, ‘The Basic Law at 60— Equality and Difference: A Proposal for the Guest List to the Birthday Party’ (2010) 11 German Law Journal 67, 82. 84  She discusses Marx and Engels only. 80 

120  Blindness to Gender and Patriarchy ambiguous. On the one hand, Marxists ‘emphasise[d] that women’s subordination result[ed] not from biology, but from the social phenomenon of class’.85 They imagined that through the abolition of sexual distinction in the market, an ‘androgynous future’86 was possible. On the other hand, they saw ‘human nature as being biologically sexed’.87 They believed in ‘the division of labour in the sexual act’,88 understood sexuality in a gendered way,89 and understood women’s role in the home and with children as ‘natural’ and—in the words of Marx—‘based on a purely physiological foundation’.90 Because Marxism-Leninism combined the understanding of some phenomena as socially constructed (such as the role of classes) and others as biological (such as the roles of men and women in the home), it was also able to combine an assertion of sameness (men and women are the same human beings for the purposes of paid work) with an insistence on difference (biological difference that determines roles in the home). This ‘uniting’ of dichotomies trapped women in an oppressive matrix. Jaggar summarises: By obscuring women’s oppression, Marxist theory provides a rationale for its perpetuation. The biologistic conception of procreation legitimates women’s continuing responsibility for procreative labour. This responsibility, in turn, hinders women’s full participation in non-procreative labour and legitimates sex-­segregation in that sphere. At the same time, the biologistic conception of procreation leads to the devaluation of procreative labour: women’s work may be socially necessary, but it is not fully historical and hence not fully human work. Similarly, the biologistic assumption of heterosexuality, together with the view that men’s sex drive is biologically determined to be stronger than that of women, legitimates sexual harassment and rape.91

This essentialism regarding men and women, male and female, was descriptive as well as prescriptive. A perception of natural, inborn differences between the sexes enabled assumptions about differences in characteristics, abilities and preferences. Thus, crude ideas about male sexual instincts were

85 Jaggar,

Feminist Politics (1983), 67. ibid, 67. 87  ibid, 67–68. 88  Ibid, 67–68. 89  Both Marx and Engels took for granted that men’s sexual drive was biologically stronger. Engels, according to Jaggar, eg, assumed that ‘women had to overcome men’s resistance in order to secure the restrictions of sexual relations to a single partner’: Engels in Origin, summarised by ibid, 82. This can be contrasted with Bebel, who saw both sexes as equal in their sexuality, and thought that both should be treated as such as regards the ‘gratification of the identical natural impulse’: A Bebel and D De Leon, Woman under Socialism (Labor News Co, 1904) 146. Eg, his account of prostitution was thus constructivist—it saw prostitution as tied to particular historical forces, rather than to men’s or women’s inherent, essential biology or nature. 90 From Das Kapital, cited in Jaggar, Feminist Politics (1983), 68. 91  ibid, 78. 86 

Intellectual Roots of the Limitations 121 all that legal scholars had at their disposal to explain gender-based violence, as exemplified by a 1981 legal article about sexual crimes: All human behaviour in the area of sexuality is determined by sexual instinct. This sexual instinct, libido sexualis, is made up of unconditioned reflexes, which are, as is well-known, innate. They are the force driving the interests and behaviour of humans in their sexual life.92

The fact that the (male) sexual instinct was considered ‘innate’ meant that it was taken to be unchangeable. We saw another example of the impact of gender stereotypical assumptions about characteristics and abilities of men and women among the reasons behind the gender wage gap. Work typically done by men, or when done by men, was uncritically seen as more demanding, valuable and therefore legitimately more highly remunerated. Alongside these descriptive assumptions about what men and women are, there were prescriptive ideas about what they ought to be. Women’s social ‘roles’ or ‘functions’ were seen as being biologically determined too, especially their role in the family: A woman, while of equal rights in society, is different from a man through her social-biological function with regard to the sustenance of human kind, which leads to a range of differences in anatomy, physiology, in social roles, especially in relationship to offspring, etc.93

As I have shown above, the emphasis on women as mothers meant that all specific provisions relating to childcare were addressed to them only. This also led to over-protection, for example with regard to the ban on certain types of work, which limited women’s opportunities in the labour market.94 Beyond being mothers, women had other specifically delineated roles: a woman was ‘not only a citizen of the socialist state, but also a worker, wife, a mother or a widow’.95 It is telling that single or divorced women were not worth mentioning. Women were appreciated only within certain defined categories and roles, and the law often incentivised the fulfilment of these roles and either prevented or disciplined non-compliance. Essentialist ideas about women’s supposed roles thus both drew on and entrenched a narrow conception of what it meant to be a woman.96

92  M Mitlöhner, ‘K některým příčinám sexuálních trestných činů [On Some Causes of Sexual Crimes]’ [1981] Socialistická zákonnost 602, 602. 93 Radvanová et al, Žena a právo (1971) 6 (emphasis added). 94  See Ch 2 section II.D.ii. 95 Radvanová et al, Žena a právo (1971), 6. 96  My research on the legal regulation of prostitution during state socialism revealed a strong gender-role normativism, not just towards women in prostitution, but towards all women. Women in prostitution were condemned for their sexually promiscuous behaviour, while all women were blamed for failing in their gender roles as good women, wives and ­mothers. Havelková, ‘Blaming all Women’ (2016).

122  Blindness to Gender and Patriarchy Were men also such subjects of attention? Whether addressing the ‘woman question’ or ‘equality of the sexes’, the problem, as it were, and the target of the regulation, was always women. Marriage, family, housework, reproduction and children were equated with women and regulated through them.97 Men did not have ‘roles’; they were men.98 Their social or legal status was not to be altered, as there was no ‘man question’ to be answered, and the equality of sexes was not about them. The blindness to men explains, for example, why even those state-socialist commentators who acknowledged the problem of the ‘triple burden’,99 such as Radvanová, struggled to propose a solution to it. Because the problem could not be analysed through the gender perspective, it was blamed on ‘the lack of help from the society’.100 This was an important and valid point by Radvanová: she bravely criticised the socialist state for not fulfilling one of its promises, namely, that of the abolition of the monogamous family as the economic unit of society101 and the ‘freedom [of women] from household drudgery’.102 However, because she did not identify gender roles in the family as the core of the problem, she turned to a material solution of improving the state’s contribution to childcare and housework. Alleviating women’s workload with regard to children and the household is laudable, especially through collectivisation, and should be a part of any gender equality policy. However, it cannot be the only element. A redefinition of the male norm and male role is essential. The male-centred understanding of a worker as someone who is a solely a worker would need to be redefined to encompass a person who is both a worker and a carer. Moving the idea of a worker away from androcentric assumptions based on traditionally male needs and experience would allow for the accommodation of typically women’s experiences—the need for flexibility, part-time work, interruptions in career, support for childcare, etc. This would facilitate reconciliation of private and work life for both men and women, and facilitate the second necessary transformation: that of the ‘male role’ in the family, from breadwinner to co-breadwinner and co-parent. A last point ought to be made about why the inequality between the sexes was not, as time progressed and its persistence became apparent, more keenly perceived; moreover why it was not perceived as a problem, and i­deally also as a problem to be addressed through law and policy.

97 

See Ch 2 section III.D. A Heitlinger, ‘The impact of the transition from communism on the status of women in the Czech and Slovak Republics’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993). 99  See Ch 2 section II.B.i. 100 Radvanová et al, Žena a právo (1971), 24. 101 Engels, Origin (1909 (1884)). 102  Zetkin, ‘Lenin’ (1920). 98  Similarly,

Intellectual Roots of the Limitations 123 In the ­Marxist-Leninist understanding of inequalities, there was not only the already mentioned assumption that differences between men and women were natural and biologically determined, but also an in-built confirmation that these differences were a natural consequence of how economy and society interact. Inequality between the sexes in society was understood to be a consequence of class inequalities under capitalism—even Engels’ perceptive analysis of the family was tied to the ownership of private property. Once capitalism was abolished, the canonical Marxist-Leninist analysis assumed that if the socio-economic conditions (the base) were changed, society and culture, including gender inequality (the superstructure),103 would automatically change too. Accordingly, whatever inequality did not disappear would have had to stem from natural differences. In this manner, any continuing gender inequality could be used to confirm the naturalness of differences between men and women.104 C.  Production versus Reproduction Another important tenet of Marxist-Leninist economic theory that had repercussions for state-socialist policies toward women was the distinction between production and reproduction.105 In Marxist-Leninist theory, productive labour could be sold on the market. It was seen to have exchange value, and as such was a source of surplus value.106 Reproduction of labour power, consisting of the daily maintenance of labour power, such as being taken care of in the home, and of the biological reproduction and socialisation of the future labour force,107 was not seen as productive. Work typically done by women, such as housework and child-bearing and child-rearing— were understood not as productive but as reproductive.108 As far as housework was concerned, Jaggar has pointed out a further distinction between production and consumption. She gives an example: A modern meal … is the result of an enormously long and complex labour process that includes growing, picking, transporting, packaging, shopping and cooking. In Marxist theory, however, the last two processes count as consumption rather than production, at least if they are done in a household rather than a restaurant.109 103 

On historic materialism, see section III.D below. I thank Michael Wrase for helpful discussions on this point. 105 Jaggar, Feminist Politics (1983), 76–77; Heitlinger, Women (1979), 24 ff. 106 Heitlinger, Women (1979), 24. 107  ibid, 24. 108  Marxist theory distinguished between value for use (the utility of consuming a good) and value for exchange (when a commodity is traded on a market). While production for use was typical for pre-capitalist societies, Marxism analysed most production under capitalism as production for exchange, basically ignoring housework and other non-industrial production, such as the labour of the self-employed such as peasants. 109 Jaggar, Feminist Politics (1983), 75. 104 

124  Blindness to Gender and Patriarchy Housework was thus not merely ‘outside the market, but … outside of production altogether’.110 Soviet theorists went even further, counting only ‘labour that [was] eventually embodied in a material product’111 as truly productive. As a result, ‘labour involved in administration and public services (the latter including institutionalized forms of social reproduction of labour power) came to be regarded as socially necessary, but unproductive’.112 Before I elaborate on the practical negative consequences of this distinction for women, a comment should be made on how the original MarxistLeninist critique of capitalism turned into a prescription for socialism. Much of Marxist-Leninist writing was dedicated to the analysis of capitalism, less so to what socialism or communism would look like. As a result, I believe, socialist states often ended up replicating what Marxism-Leninism saw and criticised under capitalism. The description of production, reproduction and consumption under capitalism became—for lack of presented alternatives— the framework for assessing labour and its worth under state socialism too. What was the relationship of the distinction between production and reproduction to gender? First, the assessment itself was quite clearly androcentric, as it assessed work traditionally done by women as unproductive and work traditionally done by women outside of the home (light industry, services, etc) as less productive than men’s (heavy industry). And it had gendered impacts. The preference for heavy industry—‘defined as the most productive’113—over light industry and services meant that this was where most centrally distributed resources were allocated. Also, as the workforce in these sectors was mostly male, this underpinned the wage gap. The androcentric understanding of production thus synergised with a gendered understanding of the value of ‘male’ and ‘female’ work,114 which together meant that feminised sectors were not getting enough money to provide equal pay for work of equal value.115 Secondly, the inhibition of light industries and services, together with not seeing housework as productive at all, led to a lack of attention to supplying 110  ibid, 75. Heitlinger notes that while there were some Soviet theorists (eg SG Strumilin) who argued for the conceptual inclusion of housework into production, that view did not ­prevail: Heitlinger, Women (1979), 25. 111 ibid. 112 ibid. 113 ibid. 114  See also section II above. 115  Goran Selanec points to another theoretical underpinning of the gender wage gap. Considering ideas about the biologically determined nature of differences between men and women, ‘accepting that the sexes ought to be treated the same regardless of their physical differences would violate the principle of socialist equality “from each according to their abilities” … At the same time, however, different participation in the process of production entailed different “rewards” for the sexes according to the principle “to each according to their contributions”.’ G Selanec, ‘A Betrayed Ideal: The Problem of Enforcement of EU Sex Equality Guarantees in the CEE Post-socialist Legal Systems’ (SJD thesis, University of Michigan Law School, 2012).

Intellectual Roots of the Limitations 125 the goods and services that would have truly brought about the promised ‘abolition of the monogamous family as the economic unit of society’.116 I noted in Chapter 2 that one of the dysfunctions of the economy was shortages of consumer goods and services.117 Neither the development and production of domestic goods or appliances that could ease the burden of housework for women, nor public services such as laundries, ­canteens or childcare were properly funded. This was noticed by legal scholars. ­Radvanová noted that the problem of the ‘double-burden’ facing women would be ‘solved by [improved] services, technical advancement, [the r­ighting of] management wrongs, and better productivity of the national economy… [as well as] the little mechanisation of the household and c­ollective catering for children and collective childcare’.118 But the system would not budge. In a capitalist system, supply is dictated by demand and availability is determined by whether and how much individuals want a product or service (and whether and how much they are willing to pay). Under the state-socialist system of central planning, the question was how much the state was willing to invest into the production of a particular good or the availability of a particular service. The fact that women (given that they were largely responsible for addressing domestic needs) would have bought certain products or used certain services in itself did nothing for their availability. Heitlinger has thus observed that ‘it is ironic that advanced capitalism has produced more significant changes in the nature of domestic labour than state-socialism, [with capitalism’s] semiprocessed foods, expanded and rationalized shopping facilities, dry-cleaning and laundering services, … [and] household appliances’.119 Here, the androcentric understanding of production synergised with a practical financial concern: as I noted in Chapter 2, from the 1960s onwards, the socialist state realised that it was too costly to provide childcare and housework services collectively, when women did it for free,120 which led to a turn to gender-conservative, pro-family policies. The Marxist-Leninist aspiration to abolish the monogamous family as the economic unit of society, the early state-socialist promise of collectivisation of housework and childcare, as well as some scholars’ later calls to deliver goods and services needed by women, gave way to the narrow conceptualisation of what was productive work, aided by the practical realisation of the costs of bringing housework and childcare outside of the family.

116 

See p 110 above. See p 31 and 57. et al, Žena a právo (1971), 27. 119 Heitlinger, Women (1979), 26. 120  See p 43 above. 117 

118 Radvanová

126  Blindness to Gender and Patriarchy D.  Materialism and Culture Marxist-Leninist theory was concerned with economics and material aspects of life, not culture. Scott has observed that the Marxist movement has always ‘put heavy emphasis on the tangible, material, economic, and political at the expense of the more ephemeral personal and p ­ sychological’.121 This ­materialism was expressed in Marx’s ‘material conception of history’,122 according to which: The mode of production of material life conditions the general character of the social, political and spiritual processes of life. It is not the consciousness of men that determines their existence, but, on the contrary, their social existence determines their consciousness.123

Marxism-Leninism and state socialism had an understanding that humans were beings whose needs were primarily determined by their physical integrity and material well-being.124 Above, I stated that the oppressive structure seen by Marxist-Leninist theorists and state-socialist scholars was capitalism and not patriarchy. By focusing on capitalism, Marxist-Leninist theorists and state-socialist scholars were focusing on economic structures. An understanding of patriarchy, however, needs more: the ability to perceive not just socio-economic, but also socio-cultural structures. Nancy Fraser’s analytical unfurling of social injustice is useful here. She distinguishes between redistributive (socio-economic) and recognition (socio-cultural) harms.125 The emphasis on redistribution is historically older, connected to both Marxist and social-democratic traditions. It has

121 Scott,

Does Socialism Liberate Women? (1974), xii. Marx, A Contribution to the Critique of Political Economy (Charles H Kerr and Co, 1904 [1859]), passim. 123  ibid, Preface, 11–12. 124  R Procházka, ‘Všetkým telám rovnako [To Every Body Equally …]’ in M Bobek, P Molek and V Šimíček (eds), Komunistické právo v Československu. Kapitoly z dějin bezpráví [Communist Law in Czechoslovakia. Chapters from the History of Unlawfulness] (Mezinárodní politologický ústav Masarykovy univerzity, 2009) 98. 125 N Fraser, Justice Interruptus: Critical Reflections on the “Postsocialist” Condition (Routledge, 1997); N Fraser and A Honneth, Redistribution or Recognition (Verso, 2003). In her more recent writing, Fraser has added a third dimension to her theory of justice, that of ‘representation’. Representation means both ‘ensuring [an] equal political voice for women in already constituted political communities’ and the ‘reframing [of] disputes about justice that cannot be properly contained within established polities’. (She points to a ‘misframing’ in the globalised world, ‘when the state-territorial frame is imposed on transnational sources of injustice’). N Fraser, ‘Mapping the Feminist Imagination: From Redistribution to Recognition to Representation’ (2005) 12 Constellations 295, 305. As these political questions to a large extent ‘precede’ law (it is prior to questions of how the law addresses inequality), and are largely outside the realm of national laws, I do not employ the category of ‘representation’ in the book. For a discussion of the specific role of ‘participation’, see K Olson (ed), Adding Insult to Injury—Nancy Fraser Debates Her Critics (Verso, 2008) pt III. 122  K

Intellectual Roots of the Limitations 127 been concerned with economic inequality and injury in the material sphere. Some Western feminists since the 1970s126 have, however, considered the redistribution paradigm insufficient to capture gendered injustice, especially its cultural disrespect toward ‘the other’ and the symbolic construction of patriarchy:127 ‘More concerned with insults than injuries … [their aim was] to combat the depreciation of their identities, ways of life, and social contributions.’128 The emphasis on redistribution,129 concerned with economic inequality and injury in the material sphere, was central to state socialism in ­Czechoslovakia.130 But Marxist-Leninist theory and state-socialist ideology lacked an understanding of cultural, recognition wrongs. Stereotyping, bias, cultural and social devaluation of women, gender-conservative notions of ‘role’ or ‘sexuality’131 were not merely ignored, they were not cognisable under the state-socialist framework. This turn to recognition did not happen during the period of state socialism, nor has it truly happened after its fall, as I argue in Chapter 9. The lack of an intellectual tool-set in this regard among lawmakers or scholars of the socialist state had an impact on law and policy. Allowing or facilitating women to live lives not defined by their traditional gender roles would require a recognition of the fact that women were performing these roles not by individual free choice, but because they were subject to normative socio-cultural pressures, cemented by various aspects of the legal system. A true understanding of the gender wage gap would have required a recognition of the undervaluation of women and the ‘feminine’ in society. The redefinition of the male norm would have required a sensitivity to its socio-cultural construction. The recognition of the gendered nature of certain types of violence would have required that the cultural phenomenon of objectification be perceived.

126 Especially cultural feminists, as well as other ‘progressive social movements’, such as multiculturalists and those identifying as ‘queer’. K Olson, ‘Introduction’ in Olson (ed), Adding Insult (2008), 2. 127  Fraser, quoted ibid, 3. Fraser has argued that the dichotomy needs to be overcome, that both are necessary aspects of justice, and that the struggle needs to be for ‘socialism in the economy’ with reference to gender injustice as well as ‘deconstruction in the culture’. 128  ibid, 3 (emphasis added). 129  The state socialist leaders must have been to some extent aware of issues of representation, since the Communist Party did have quotas for women. On representation more generally see fn 125 above. 130  In the West, too, this is a particular concern of Marxists and Social Democrats. 131 This was not limited to women but to regulation of gender more generally. It helps explain why questions of sexual identity have been understood entirely as medical problems, not just during state socialism but by the medical establishment up to today. I have discussed the reduction of transgender identity to transsexuality in B Havelková, ‘The Legal Status of Transsexual and Transgender Persons in the Czech Republic’ in J Scherpe (ed), The Legal ­Status of Transsexual and Transgender Persons (Intersentia, 2015).

128  Blindness to Gender and Patriarchy IV. FEMINISM?

In the previous section I have shown that Marxism-Leninism offered little guidance to state-socialist experts looking at persistent inequalities. Neither did first-wave feminism, which, as I mentioned above, was the inherited intellectual tool-box of at least some of the socialist-era experts. While second-wave feminism—especially radical feminism, with its ability to identify the gendered nature of social structures, including law—would have been particularly useful, its rise in the West, from 1970s onwards, coincided with a particularly harsh intellectual isolation of Czechoslovakia. As a result, it never penetrated, and no home-grown equivalent was ever born.132 The intellectual limitations were thus not only ideological, but also epistemological. Hana Havelková summarises: [From 1970s onwards,] an epistemological turn happened in Western social sciences and humanities (constructivism, the linguistic turn, the ethnological turn with an emphasis on qualitative research, post-structuralism). Feminism and feminist research played an important role in this turn. … [This is the context] in which radical feminists came up with the analytical concept of ‘gender’ and the ‘gender order’.133

This turn did not happen in Czechoslovakia, and many experts thus ended up working within the pre-Communist conservative, bourgeois frameworks regarding gender. The little Western intellectual production that entered Czechoslovakia in the 1960s only exacerbated the problem. Sociologists looked to structural functionalism,134 which—by emphasising how society is structured to maintain stability and how its institutions and practices are functional for society—tends to justify the status quo.135 Psychological studies concentrating on deprivation, in addition, with their emphasis on the irreplaceable emotional role of the mother in early childhood development, fuelled the law and policy push towards individual care in the family in the 1970s and 1980s.136 The question lends itself of whether there was any bottom-up feministlike awareness in the population, and to what extent ordinary men and women continued to adhere to traditional gender notions. I examine this

132 

But see discussions of possible ‘proto-feminism’ or ‘latent feminism’ in fn 183 below. Havelková, ‘(De)centralizovaná’ (2015), 145. 134 V Šprincová, ‘Postavení žen v Československu v období let 1948–1989 v dobových sociologických výzkumech a datech [The Situation of Czechoslovak Women 1948–1989 in Contemporary Sociological Studies and Data]’ in H Havelková and L Oates-Indruchová (eds), Proměny genderové kultury české společnosti 1948–1989 [The Metamorphoses of Gender Culture in Czech Society 1948–1989] (SLON, 2015) 121; Havelková, ‘(De)centralizovaná’ (2015), 154. 135  For a discussion of how this prevents and undermines feminist critical analysis, see, eg, C Renzetti, D Curran and S Maier, Women, Men, and Society (Pearson, 2012), Ch 1, passim. 136  See Ch 2 section III.D. Havelková, ‘(De)centralizovaná’ (2015), 22–23. 133 

Feminism? 129 question in the following section, looking beyond Marxist-Leninist theory, official ideology, expert positions and the law, as well as the legal discourse. I look at how gender was lived under state socialism, and at the gender culture of the period. The following section fulfils several functions. To the unfamiliar reader, it is an informative insight into the practice and understanding of gender in the wider Czech culture and society of the era. Its main aim, in the context of this book, is to assess whether any ground had been prepared outside the state-socialist officialdom for when the politically unfree regime was over. I have emphasised earlier that this book is not about the impact of law on society. But because the relationship is circular—society influences law influences society influences law—it is essential to consider the reaction of the Czech society to 40 years of state socialism and of state-socialist gender law and policy to understand what was inherited after 1989. The answer that emerges from the following pages is that the social reality and the sociocultural understandings and discourse were a less than fertile hatchery for any new, gender-progressive project of gender equality after 1989. A. The Prevented Bottom-Up Critique and the ‘Threefold Expropriation’ When looking at the limitations and gaps in the aspirations of the ­socialist state in the area of ‘equality of men and women’, one might ask why the project did not evolve to transcend the limits and fill the gaps over the 40 years of state socialism. State-socialist Czechoslovakia was a paradox of ‘totalitarian practices [that] both enabled radical processes aimed at social equality … and on the other hand they blocked it’.137 The authoritarian nature of the state, with its single and unimpeachable ideology, combined with curbs on the freedom of speech, assembly and association, were important contributing factors. There was very limited space for a bottom-up critique, both institutionally and intellectually. Hana Havelková has argued that any ‘spontaneous development’ among women was halted both directly and indirectly. Directly, as the women’s movement was stopped … Indirectly, any activity from below was paralysed because women were [officially] strongly supported and protected by the state so, theoretically, they had no reason to complain.138

Hana Havelková has described this as modernisation without liberation.139 The modernisation was top-down and paternalistic, and because of the 137 

Havelková, ‘Women in and after’ (1999), 70. ibid, 70. 139 ibid. 138 

130  Blindness to Gender and Patriarchy authoritarian character of the system, it was not accompanied by the liberation and empowerment of women. Alternative voices were largely silenced, including those of women.140 The socialist state squeezed the pluralistic women’s movement into a single entity,141 by and large instrumentalising it as an agent of communist power.142 A ‘threefold expropriation’143 of the feminist agenda took place under state socialism in which none of the relevant actors—the regime, the social scientists writing on women’s issues from the position of expertise, not even the dissident movement—felt or remedied the absence of an independent women’s movement. On the contrary, these actors themselves often acted in anti-feminist ways.144 The lack of gender counter-narrative from the dissident movement or alternative culture145 is particularly noteworthy, as it suggests a missing background for feminist ideas after 1989. The conspicuous absence of ‘emancipatory consciousness’,146 especially compared to the West,147 ­continued into the post-socialist period, a discussion to which I return in Chapter 9. B. Women as ‘Communist Subjects’ and their ‘Liberation’ from the Public Sphere Eva Fodor, writing about Hungary, has argued148 that Eastern women were seen as different and inferior in the East, but in a manner different from how this played out the West. She observes that whereas Western liberal political philosophy works with the concept of a rational individual, the Eastern communist political ideology was based on the idea of a ­‘communist

140 ibid.

141 There were four successive organisations: the Council of Women, the Czechoslovak’s Women’s Union, the Czechoslovak Women’s Committee, and the revived Czechoslovak’s Women’s Union. Nečasová, ‘Women’s Organizations’ (2014), 61–62. 142 As summarized in Havelková and Oates-Indruchová, ‘Expropriated Voice’ (2014); Nečasová, ‘Women’s Organizations’ (2014), 57-74. 143  Havelková, ‘Dreifache Enteignung’ (2009). 144 ibid. 145  Matonoha’s literary analysis has shown the alternative culture to be very mainstream in gender terms, while Kolářová’s film analysis revealed how the gender hegemony was created and sustained by official and alternative culture alike. Summaries in Havelková and OatesIndruchová, ‘Expropriated Voice’ (2014), 15; Matonoha, ‘Dispositives of Silence’ (2014). 146  G Šmausová, ‘Emancipace, socialismus a feminismus [Emancipation, Socialism, Feminism]’ Kontext: časopis pro gender a vědění (on file with the author). 147  SL Wolchik, ‘Introduction’ in SL Wolchik and AG Meyer (eds), Women, State, and Party in Eastern Europe (Duke University Press, 1985) 8. 148  E Fodor, ‘Smiling Women and Fighting Men: The Gender of the Communist Subject in State Socialist Hungary’ (2002) 16 Gender & Society 240.

Feminism? 131 subject’. She argues that both of these concepts are gendered, but in a different way: While on the surface genderless, the ideal communist subject had distinctly masculine features, and women could never completely satisfy the requirements. In particular, because of their reproductive duties, which were left unchallenged by state socialist policy makers, women could never be considered as reliable and as devoted to the communist cause as men were. Hence, their enforced participation in the world of work and politics could only be segregated and inferior.149 [W]hile in liberal political ideology, pregnancy and child-bearing were seen to damage women’s rationality and individuality, in [state-socialist] Hungary, these were considered to impair women’s political devotion and reliability … [Women were] people less able to devote themselves to the communist cause, given that their primary allegiance went to their offspring.150

Women were thus considered a politically inferior ‘communist subject’. Ironically, this expectation of women as less devoted became, to a large extent, liberating, especially during Normalisation, when the regime and politics were discredited in the eyes of a large swathe of the population and the desirability of engagement in the public sphere decreased. While women could choose to participate in political power in the 1950s (when the communist ideal was still believable), and could choose to contribute to the reform attempts in the 1960s, they could also choose not to engage in the 1970s and 1980s, when Marxist-Leninist rhetoric and socialist ideals became a camouflage for naked power over the population. It has been noted that ‘women often used their maternal duties as an excuse to avoid party membership, a strategy not available to men’.151 Women were thus able to avoid the moral corruption of the regime in a way that men could not. This lends a different interpretation to the previously mentioned fact of the low numbers of women in high government executive positions and organs of the Party. A similar observation can be made about the public world of work. Especially during the Stalinist period of labour mobilisation, but also beyond, women had to work a lot (full-time).152 While Western feminists fought for a full and equal access to work, Eastern women had it. But because it was practically obligatory,153 it was not quite liberating, as much as work was not quite liberating for working-class women in the West. With the public worlds of work and politics less appealing, the family became a shelter. The private sphere of family in the East was thus not the

149 

ibid, 241. ibid, 244. 151  H Havelková, ‘“Patriarchy” in Czech Society’ (1993) 8 Hypatia 89. 152  See Ch 2 fn 158. 153  With some exceptions, see Ch 2 section I.F.i. 150 

132  Blindness to Gender and Patriarchy same ‘velvet prison’ as family was sometimes portrayed by feminists in the West.154 This peculiar constellation of the public/private divide155 and reverence of family continued into the post-socialist period, and meant that some Western feminist demands or slogans, such as the phrase ‘the personal is political’, were met with misunderstanding and distrust among the Czechs. C.  What Happened to Men? The construction of the ‘communist subject’156 as strongly gendered to the benefit of men and to the detriment of women would suggest that the status of men was increased and strengthened by state socialism. Ivan ­Vodochodský157 offers a different interpretation of what ‘patriarchy of the state socialist type’ meant for men, describing a ‘strong party—weak men’ paradigm. He observes that even though most communist functionaries were men, they were not a positive example for other men.158 ­According to him, the party functionaries came across as ‘gender-less individuals or an animal species, with which it is impossible to identify, humanly, let alone ­gender-wise’.159 Many ordinary men did not participate in the power of the regime, and were thus seen not as powerful but as ‘weak, insecure and impractical’.160 Due to nationalisation, men lost an important previous source of their dominance—private property and enterprise.161 Wagnerová observed: Nationalization not only hit capitalists and small and large landowners as such but also men, striking at the core of their identity and self-awareness, since in taking away their property it also deprived them of an important attribute of their social dominance.162

In this sense, Marxism-Leninism was right when it assumed that the power of men over women would be affected by the abolition of private property.

154 

Eg B Friedan, The Feminine Mystique (Dell, 1974). S Gal and G Kligman, The Politics of Gender after Socialism: A Comparative-Historical Essay (Princeton University Press, 2000) 50. 156  Fodor, ‘Smiling’ (2002). 157  Vodochodský, ‘Patriarchát’ (2007), 40. 158 ibid, 40; See also A Wagnerová, ‘Emancipace a vlastnictví. Příspěvek do diskuze o chybějících předpokladech pro vznik feminismu v předlistopadovém Československu [Emancipation and Ownership. A Contribution to the Debate about the Missing Prerequisite for the Birth of Feminism in pre-November Czechoslovakia]’ (1995) 31 Sociologický časopis/Czech Sociological Review 77, 82. 159  Vodochodský, ‘Patriarchát’ (2007), 40. 160  ibid, 41. 161  ibid, 41; see also Wagnerová, ‘Emancipace a vlastnictví’ (1995), 85. 162 A Wagnerová, ‘Emancipation and Ownership’ (1996) 4 Czech Sociological Review 101, 104. 155 

Feminism? 133 This resonates with the observation that the state-socialist system ‘replace[d] traditional forms of paternalist authority by a similar authority embodied in the state’163 and that ‘the state act[ed] as the head of a family’.164 What could be described as yet another ‘expropriation’—of traditional male power—arguably had a minimising effect on men’s status.165 In the public sphere, men were subject to persecution and blackmail,166 which earned them sympathy and support within the family. Whereas the wife had to be a ‘superwoman’ (managing paid work, housework and childcare), the man was a ‘big child’.167 Vodochodský observes a paradox: [We have here a society] in which, on one hand, most power is in the hands of men and where women hold only segregated and inferior positions. On the other hand a society, in which the majority of men are weakened in their traditional roles and dependent on the support from women to whom they are close.168

These debates are important for understanding the status of women, as one could assume that a decrease in men’s status meant an improvement of ­women’s status. Gender relations, however, are not a zero sum game.169 It can be argued that men’s ‘weakness’ assigned yet another task to women— that of supporting their men, discounting their flaws, tolerating their ‘aggression, alcoholism, womanizing and absenteeism’.170 Hana Havelková noted that ‘Many women agree that they themselves deliberately encouraged the patriarchal manners of their husbands so as to boost their husbands’ selfconfidence, which the latter had difficulty maintaining in the public and work spheres.’171 One could also hypothesise that the diminished power of men in the public sphere led to a reassertion of their power in the home, for example through domestic violence.172 For women to denounce this to the oppressive state would be seen as an unacceptable breach of solidarity.173 While I have

163  P Kenney, ‘The Gender of Resistance in Communist Poland’ (1999) 104 The American Historical Review 399, 405, cf references there. 164  ibid, 405. 165  Zábrodská, ‘Between Femininity and Feminism’ (2014), 114–16. 166  Vodochodský, ‘Patriarchát’ (2007), 41. 167  Gal and Kligman, The Politics (2000), 54. 168  Vodochodský, ‘Patriarchát’ (2007), 42. 169  Wagnerová has described this as a ‘negative “redistribution”’, ‘during which men lost but women did not gain’: Wagnerová, ‘Emancipation and Ownership’ (1996), 104. 170  Gal and Kligman, The Politics (2000), 54. Zábrodská notes that this was reflected by women. She identified an interpretative repertoire in the narratives of women that she calls ‘men are no heroes’. It constructs men as lacking in real responsibilities, self-centred, incompetent and morally weak: Zábrodská, ‘Between Femininity and Feminism’ (2014), 114–16. 171  H Havelková, ‘A Few Prefeminist Thoughts’ in Funk and Mueller (eds), Gender Politics and Post-Communism, 69. 172  The occurrence of domestic violence is only slowly being uncovered. See fn 76 above. 173  See section IV.E below.

134  Blindness to Gender and Patriarchy not found any research to support this argument with regard to Czechoslovakia under state socialism, a similar mechanism is well documented in racialised societies, where minority women are torn between their loyalty to themselves and other women on the one hand, and their loyalty to their racial or ethnic group and their community on the other.174 D.  Residual and Reactive Turn to Traditional Gender I have noted above175 that in the official ideology and policy, gender-­ progressive ideas and aspirations co-existed with gender-conservative ones. Libora Oates-Indruchová, in her analysis of texts from late state socialism, distinguishes between two types of discourse with regard to gender: (i) a dominant authoritative ideological discourse, emphasising women’s emancipation and the equality of men and women; and (ii) a ‘residual patriarchal discourse’, which had ‘fairly conservative feminine and masculine ­connotations’.176 She observed about a 1988 novel177 that femininity linked to the bourgeoisie or middle class may take on a subversive role with respect to the state-socialist ideology of classlessness. … [F]emininity at the same time subverts the image of the state-socialist superwoman (that self-effacing helpmate of the public sphere and ‘angel’ of the private sphere) but also endows that superwoman with an empowering corona of individuality and achievement in the world of men precisely by drawing on the residual patriarchal discourse’s repository of images.178

The return to the ‘traditional’ as a subversive tactic or a strategy of resistance has been noted by others, especially as far as Normalisation was ­concerned.179 Kateřina Zábrodská, who has explored the negotiation of identity of the ‘Czech socialist woman’ through discourse analysis of interviews with Czech women, has noted that women articulated a nostalgia for a ‘natural’, dignified femininity,180 a desire to accentuate gender differences that had been ‘wiped away’ by state socialism, and to occupy the position

174 See, eg, E Stark, ‘Race, Gender and Woman Battering’ in DF Hawkins (ed), Violent Crime. Assessing Race and Ethnic Differences (Cambridge University Press, 2003) 194. More generally on the divided loyalties, see K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and ­Antiracist Politics’ [1989] University of Chicago Legal Forum 139, 161–62. 175  See eg Ch 2 section II.B. 176  Oates-Indruchová, ‘The Beauty’ (2014), passim. 177  Z neznámých důvodů [Reasons Unknown] by Zdena Frýbová. 178  Oates-Indruchová, ‘The Beauty’ (2014), 197. 179  Havelková, ‘Women in and after’ (1999), 73. 180  Zábrodská, ‘Between Femininity and Feminism’ (2014), 121.

Feminism? 135 of a ‘woman’ again.181 She notes that women observed a lack of fairness,182 and formulated a desire to improve their position in society:183 Yet, in the absence of a viable feminist discourse, the women attempted to address these issues through identifications with subject positions that were potentially counterproductive and injuring; these subject positions drew them back to biologism and essentialism, and to conventional women’s roles based on a ‘natural’ or ‘genetically encoded’ capacity for caring and mothering.184

While I have argued that the state-socialist programme of changing traditional gender roles was limited, it is important to realise that no matter what its attempt, it might have struggled and failed in the face of a preference, whether residual or reactive, for femininity, rather than feminism. E.  The Regime as the Perceived Source of Oppression Ivo Možný distinguishes between two types of patriarchy of which women were aware under state socialism: patriarchy of the state and ‘familial ­patriarchy’.185 Under the former, the responsibility for a woman’s (unsatisfactory and unequal) position, such as the triple burden, was ascribed to the regime; under the latter, it was attributed to the concrete man in her family. Možný argues that women oscillated between the two, but eventually tended to adopt the former.186 This would have obscured the specific nature of some of the gendered difficulties women encountered. Similar observations have been made by others who pointed out a certain solidarity between the sexes.187 Vodochodský noted that state-socialist society was not divided between the worlds of women and the worlds of men, but between those who ruled and those who were ruled.188 The solidarity was, of course,

181 

ibid, 119–21. as ‘power asymmetry in heterosexual relationships, discrimination in the workplace, lack of respect for women, the continuation of the women’s double burden and the unequal gender distribution of work’: ibid, 125. 183  Zábrodská even speaks of ‘latent feminism’: ibid, 128. Other authors confirm this observation, speaking about ‘proto-feminism’, see, eg, Oates-Indruchová, ‘The Beauty’ (2014), 197–201. 184  Zábrodská, ‘Between Femininity and Feminism’ (2014), 125 (emphasis added). 185  I Možný, Moderní rodina [Modern family] (BLOK, 1990). 186  ibid, 123–25. Cited in Vodochodský, ‘Patriarchát’ (2007), 39. 187  Gerlinda Šmausová has argued that the ‘non-meritocratic political rule flattened the vertical structure’ of power hierarchies and that the ‘equal political and economic deprivation of men and women’ led to their solidarity: Šmausová, ‘Emancipace’ (2006). Zábrodská noted that women have spoken of more solidarity with men than with other women. Men were portrayed as ‘sympathetic, supportive and loyal’, whereas attributes of ‘“envy”, “jealousy”, and “rivalry”’ were given to other women: Zábrodská, ‘Between Femininity and Feminism’ (2014), 122. 188  Vodochodský, ‘Patriarchát’ (2007), 39. Similarly Wagnerová, ‘Emancipace a vlastnictví’ (1995), 83. 182 Such

136  Blindness to Gender and Patriarchy limited—it did not end the cultural disrespect of women,189 nor did it lead to men’s alleviating women’s triple burden in the home, as we have seen. Moreover, any solidarity would have been reactive to a ‘common enemy’, and therefore limited in scope and time: once that enemy disappeared in the post-socialist period, any solidarity would have dissolved. But the fact that the primary axis that divided the ‘haves’ from the ­‘have-nots’ under state socialism was not social status190 or gender191 but political affiliation and Party membership, is important. Political reliability was crucial for career advancement, pay rises,192 for a job itself,193 as well as ­housing194 and one’s children’s education.195 It was also essential for access to goods and services, which were always in short supply.196 The access to all these benefits was used as an enticement or a pressure tool to make ­people enter the Communist Party. These observations point to a possible mis-attribution, by women, of the problems they were facing. For example, their triple burden would be blamed on insufficient collectivisation rather than on the lack of help by men in the family, or on corrupt and rigged distribution networks of the regime. For many, the perceived primary axis of problems and oppression would have been the regime, or the Party, which could have obscured the pervasive nature of patriarchy as an organising structure in society. This meant a double defeat for gender—the socialist state’s official ideology and policy saw only class, and, in reaction to the oppressive regime, the structure that people would have seen was ‘the regime’.

189 

Havelková, ‘Women in and after’ (1999), 77. I originally used the term ‘class’ here, but that is not accurate. Although the state-­socialist society was officially ‘class-less’, class origin played a very important role in people’s lives. Especially during the Stalinist period, ‘class origin’ was used as a criterion for sentencing by the activist Stalinist courts against previously propertied individuals. See p 67 above. 191  Race and ethnicity still arguably played an important role. The socialist state applied forceful assimilation policy to Roma and was arguably anti-Semitic in its core, which came through during the political processes in the 1950s. 192  Recounted from personal experience by Havelková, ‘Women in and after’ (1999), 81–82. 193  Recounted from personal experience by, eg, H Kovály, Under a Cruel Star: A Life in Prague 1941–1968 (Plunkett Lake Press, 1986). 194 ibid. 195  From personal accounts of contemporaries in conversations with the author. 196 Dana Hamplová has described the distribution networks under state socialism in the following terms: ‘[M]embers of the nomenklatura [Communist Party members in positions of power in the government, industry, agriculture, etc, ie the ruling communist elite in the Eastern bloc during state socialism] had the first right of choice; the leftovers then entered the official distribution, but the employees of storehouses, warehouses and supermarkets would first supply themselves, their relatives and their networks; only then would the leftovers enter the freely accessible “market”.’ D Hamplová, ‘Stručné poznámky o ideových přístupech k rodině v období socialismu [Brief Observations about Ideological Approaches to Family under State Socialism]’ (CEFRES, 2010), available at www.cefres.cz/IMG/pdf/hamplova_2001_ideove_pristupy_ rodina_socialismus.pdf. 190 

Conclusions 137 V. CONCLUSIONS

In this chapter, I have argued that gender and patriarchy were unseen under state socialism. At the level of official ideology, they were obscured by a limited understanding of social inequalities beyond class in Marxism-Leninism, and by its understanding of a wide range of differences between the sexes as biological, natural and therefore unchangeable. Shortly after it turned out that the mere overthrow of capitalism was not going to abolish remaining inequalities between the sexes and various injustices faced by women, the sex equality agenda was largely handed over to experts. For some of them, the blindness to gender and patriarchy would have been at least partly ideological (ie tied to the limitations of Marxism-Leninism). But importantly, it was epistemological—the tools to see gender and nurture it as an analytical category were not developed. This blindness was not remedied by the dissent. Meanwhile, ordinary women, although cognizant of inequalities and injustices, did not turn to feminism as a solution, but rather to gender-conservative strategies, centred around femininity and the private sphere of the family. When 1989 came, the ground was not fertile for a gender analysis or a feminist perspective, a topic to which I return in Chapter 9.

138 

Part II

Post-Socialism

140 

6 Women and Gender After 1989

T

HE MORE THAN a quarter of a century since the fall of Communist Party rule has been a time of change as well as continuity. In this chapter, I explore these dynamics and present a brief chronology of the political, economic and legal developments as they relate to gender equality (section I). I note that social policy continued to be social-­democratic, despite the prevalence of market liberal rhetoric in politics, well into the 2000s, but that the deep budget cuts by consecutive right-wing governments in the later 2000s and early 2010s have made the situation of women precarious. This has been exacerbated by the mostly gender-conservative orientation of law and policy. Only since 2014 has the Government’s1 programme turned more gender-progressive, especially in terms of alleviating the burden of care and attempting to distribute it more equally between men and women. The chronology offered is tentative. First, not enough time has passed yet for a more precise delineation and full understanding of longer-term trends. Secondly, due to the pluralism of the period, different trends and narratives can coexist. Section I does, however, provides tools to orientate oneself in the deeper discussion of policies that is the subject of the rest of this chapter. Chapter 2, which analysed the development of women’s legal situation under state socialism, looked primarily at family and work, as these were the two legal platforms on which the ‘woman question’ played out. Sections II and III of this chapter look at what happened to women’s situation in these areas after 1989. I observe that the model state-socialist family— heterosexual, un-divorced, with two children and a traditional division of labour—has persisted despite its apparent ‘loosening’, for example through the legal recognition of same-sex partnership (section II). I then turn to the question of work and care. Under state socialism, childcare was exclusively and directly regulated through women as mothers. This has changed de jure since 1989, with gender-neutralisation of many provisions of labour and social security law, and the formal enabling of men to be carers. I argue, however, that this development, too, has only been superficial. Aside from the bias towards a particular type of family, there is a bias towards a 1 

I return to the issue of political parties and their programmes in Ch 9 section I.B.

142  Women and Gender After 1989 particular type of motherhood: married rather than divorced or single, which is exemplified, for example, by the fact that single women cannot legally avail themselves of assisted reproduction. There has also been a bias towards a particular type of care: individual, in the home and largely by the mother. There has been continuity with state socialism in that the assumptions, norms and preferences with which the law works show a gender bias, of which the lawmakers remain largely unreflective (section III). While the ‘woman question’ under state socialism consisted largely of issues of family and work, in the post-socialist period the legal platforms on which gender equality has played out have multiplied and diversified. Previously neglected issues, such as same-sex partnerships, discrimination,2 political quotas for women, domestic violence, sexual harassment, stalking or prostitution, have started to be discussed and addressed. In section IV, I draw on the examples of prostitution, rape, domestic violence and sexual harassment to assess the regulation and understanding of gender-based violence in the post-socialist period. I argue that notwithstanding some positive legislative developments, there has been no shift in understanding how and why certain types of violence are gendered. There is little appreciation of the power dynamic in gender-based inter-personal violence, the gender bias in enforcement of the law or seeing and understanding the specific vulnerabilities of the—mostly female—‘victims’.3 The law and the legal community have often cared more for the aggressor (or the client in the context of prostitution) than for the victims. A ‘male perspective’ thus often unwittingly and unreflectively continues to be adopted. I.  A QUARTER CENTURY OF POST-SOCIALISM

A.  Changes and Legacies The so-called Velvet Revolution of 1989 brought about a time of dramatic change. The state, law, economy and society were transformed through processes of globalisation, democratisation and marketisation.4 Globalisation, 2 

Ch 8. am familiar with the feminist critique of this term and the suggestion to use the term ‘survivor’ instead of ‘victim’. Eg L Kelly, Surviving Sexual Violence (Polity Press, 1988). Nevertheless, I continue to work with the term ‘victim’, which is used in Czech law. In addition, the term ‘survivor’ does not have a suitable equivalent in Czech. Using the English term might thus suggest an understanding in the Czech discourse that is not yet present. 4  I offer only a very brief discussion of the development. For a more detailed account, see S Saxonberg, The Czech Republic Before the New Millenium: Politics, Parties and Gender (East European Monographs, 2003) 1–103; E Weiner, Market Dreams: Gender, Class, and Capitalism in the Czech Republic (University of Michigan Press, 2007) 41–69; J True, Gender, Globalization, and Postsocialism: The Czech Republic after Communism (Columbia University Press, 2003) 10–27; H Hašková and Z Uhde (eds), Women and Social Citizenship in Czech Society: Continuity and Change (SOÚ, 2009). 3  I

A Quarter Century of Post-Socialism 143 or rather the end of international isolation, rhetorically supported by the slogan of a ‘return to Europe’ and to ‘normality’,5 framed these changes. Much of the pressure for political, economic and legal change came from the outside, from the IMF, the World Bank, the EU6 and the Council of Europe.7 This has also been largely true for gender equality reforms—the EU8 has been an especially prominent driver toward the adoption of new legislation, which I discuss in greater detail in Chapter 8. As far as democratisation is concerned, Czechia was deemed to fulfil the EU’s accession requirements of ‘liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law’ by 2004 when it was admitted into the European Union.9 But much still remains to be done; less with regard to a system of free competition between political parties, which has been established, and more with regard to the rule of law: corruption has been rampant and demoralising, and human rights, especially with regard to the Roma minority, often disregarded.10 Democratisation brought about a rise of civil society, including women’s and human rights non-governmental

5  A Sajó, ‘Rights in Post-Communism’ in A Sajó (ed), Western Rights? Post-Communist Application (Kluwer Law International, 1996) 142. 6  Membership in the EU in particular has been seen as a guarantee that democracy will become entrenched, strong and resilient to crises—a ‘civilisational’ step. W Sadurski, ‘Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe’ (2004) 10 European Law Journal 371. 7  For a discussion of the role of these institutions, as well as that of individual Western states and experts, for the ‘importation’ of law in CEE, see C Dupré, Importing the Law in Post-Communist Transitions: the Hungarian Constitutional Court and the Right to Human Dignity (Hart Publishing, 2003) 10, 49. 8 Beyond the EU (which is discussed in greater detail in Ch 8 section II), the CEDAW and the Beijing Platform for Action have also been significant impetuses and yardsticks: UN Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 14; the Fourth World Conference on Women, ‘Beijing Declaration and Platform for Action’ A/177/20 (1995) and A/177/20/Add.1 (1995). For a critical assessment of the Czech fulfilment of CEDAW obligations, see Z Uhde (ed), Shadow Report: Czech Republic The 63rd CEDAW Session (Czech Women’s Lobby, 2015), available at www. czlobby.cz/sites/default/files/spolupracujeme_download/2015-czl_shadow_report_cedaw_ final_1.pdf. For a critical reflection of the fulfilment of the Beijing criteria, see, eg, P Kubálková and T Wennerholm Čáslavská (eds), Ženy a česká společnost. Hodnocení implementace Pekingské akční platformy v národních a mezinárodních politikách ČR (Peking +15) [Women and Czech Society. An Evaluation of the Implementation of the Beijing Platform for Action in National and Internation Policies of the Czech Republic (Beijing +15)] (Otevřená společnost, 2010); P Kubálková (ed), Ženy a česká společnost. Hodnocení implementace Pekingské akční platformy v národních a mezinárodních politikách ČR (Peking +20) [Women and Czech Society. An Evaluation of the Implementation of the Beijing Platform for Action in national and internation policies of the Czech Republic (Beijing +20)] (Cats2Cats, 2016). 9 Arts 6 and 49 TEU. The process of checking the fulfilment of these criteria has been subject to criticism. See, eg, D Kochenov, EU Enlargement and the Failure of Conditionality (Kluwer Law International, 2008). 10  Both corruption and the treatment of Roma remained a concern during the entire process of pre-accession reporting and assessment by the European Commission. G Pridham, ‘Democratic Consolidation in the Czech Republic: Comparative Perspectives after Twenty Years of Political Change’ (Paper for a conference titled 20 Years of Czech Democracy), available at

144  Women and Gender After 1989 organisations (NGOs), which slowly started to bring feminist and genderrelevant issues to the table and to campaign for legal and policy reform. They have been critical, for example, for the adoption of the law on registered partnerships and the provisions on domestic violence, discussed in detail in this chapter. Political pluralism also meant a diversification of the political spectrum. Partly in reaction to the previous period, partly due to the prevailing international political climate, which in the early 1990s saw market liberalism and ‘democratic capitalism’11 as triumphant, right-wing politics gained a lot of ground. Neoliberals12 challenged the ideas of redistribution and equality, and social conservatives have attacked some long-established policies, such as the broad availability of abortion.13 I discuss the gender-relevant aspect of political party programmes in Chapter 9. The economic aspect of the transition to a ‘capitalist democracy’14 was marketisation or market liberalisation.15 This included an influx of foreign capital, privatisation of large segments of the economy, a massive reduction of heavy industry and the creation of small and medium-sized enterprises. The attendant16 rise in unemployment17 and various reforms of the social welfare system, adopted to cut state spending, have had a gendered impact. This raises the question whether the Velvet Revolution of 1989 made women worse off or better off. The question is to a large extent impossible to

http://ispo.fss.muni.cz/uploads/2download/Working_papers_2009/ISPO_WP_2009_1.pdf. Regarding the Roma, their situation remains highly problematic. For example, in 2014, the European Commission initiated proceedings against Czechia for non-conformity with Directive 2000/43/EC (Race Directive) due to discrimination of Roma children by disproportionally and systematically placing them in special schools intended for children with disabilities. European Commission, ‘Commission Staff Working Document Part I: Policy Areas Accompanying the Document Report from the Commission Monitoring the Application of Union Law 2014 Annual Report, SWD/2015/0134 final)’ (EUR-Lex, 2014), available at http://eur-lex.europa. eu/legal-content/en/TXT/?uri=CELEX%3A52015SC0134. 11 True,

Gender (2003), 11. For a discussion of neoliberalism, see Ch 7 section IV. A and Ch 9 section I.A. 13  The conservative attack on abortion was unsuccessful, however. R Dudová, Interrupce v České republice: zápas o ženská těla [Interruptions in the Czech Republic: The Struggle for Women’s Bodies] (SOÚ AV ČR, 2012). 14 True, Gender (2003), 11. 15  Market liberalisation was supported by Western institutions; a ‘functioning market economy’ was part of the EU’s Copenhagen criteria. According to Weiner, the process required economic stabilisation, liberalisation, privatisation and deregulation: Weiner, Market Dreams (2007), 41–45. 16  The rise of unemployment was in part the result of economic changes, but also legal ones. Prior to 1989, due to the formal obligation to work, much employment was merely formal. Moreover, as unemployment was officially non-existent, pre-1989, it is hard to make statistical comparisons between the periods. 17  H Hašková and M Vohlídalová, ‘The Labour Market and Work-Life Balance in the Czech Republic in Historical Perspective’ in Hašková and Uhde (eds), Women and Social Citizenship (2009) 49. 12 

A Quarter Century of Post-Socialism 145 answer, as the gain of political freedoms on the one hand and the loss of some social securities on the other are ultimately incomparable. They also impact different groups of women differently. What can confidently be said is that the Velvet Revolution diversified Czech women’s status and their experiences. If more general observations were to be made, at the cultural level, women, like everyone else, benefited from the new political freedoms. The year 1989 opened up new spaces for constructions and negotiations of gender, for ‘­gender multiplication’ in the sense of the possibility for ‘more and more various forms of gender’,18 and the potential for cultural change. In material terms, many feminist commentators have been critical of postsocialism,19 possibly in an attempt to curb the general ‘market triumphalism’20 and enthusiasm about the ‘end of history’21 where ‘democratic capitalism’22 emerged victorious. It is not my aim here to give a detailed and comprehensive empirical answer to the question of whether ‘women’ have been the winners or losers of post-socialism,23 although I do present a few illustrative figures in the following sections of this chapter. Nevertheless, as with the rest of the book, the main question I aim to answer remains whether and how gender equality has been addressed in legal regulation and the legal discourse, and to assess whether these developments have been gender-progressive24 or not. I have so far mentioned what changed post-1989, but the post-socialist period has also built on the previous system. There was continuity of law,25 many legal professionals including judges26 stayed in previously held positions, and there was an intellectual continuity, with regard to certain concepts or their absence. The continuities and discontinuities with the 18  Johnson and Robinson speak about ‘an opportunity for gender to multiply’. JE Johnson and JC Robinson, ‘Living Gender’ in JE Johnson and JC Robinson (eds), Living Gender after Communism (Indiana University Press, 2007) 1–2. 19  S Gal and G Kligman, The Politics of Gender after Socialism: A Comparative-­Historical Essay (Princeton University Press, 2000) 3; FE Olsen, ‘Feminism in Central and Eastern Europe: Risks and Possibilities of American Engagement’ (1997) 106 The Yale Law Journal 2215, 2217; S LaFont, ‘One Step Forward, Two Steps Back: Women in the Post-communist States’ (2001) 34 Communist and Post-Communist Studies 203. 20 Weiner, Market Dreams (2007), 43. For a description of the apparently limited options of the ‘postsocialist condition’, see N Fraser, Justice Interruptus: Critical Reflections on the ‘Postsocialist’ Condition (Routledge, 1997) 1–3. 21 Defined by Fukuyama as the exhaustion of reasonable systematic alternatives to economic and political liberalism. F Fukuyama, The End of History and the Last Man ­ (Maxwell M ­ acmillan, 1992) 235. 22 True, Gender (2003), 11. 23  For an empirical analysis, see ibid, or Hašková and Uhde (eds), Women (2009). 24  See Ch 1 section III.A.ii. 25  Some individual provisions were abolished or amended, but the legal system as a whole was retained. 26  The process of ‘lustrations’ (vetting) prevented people who were in positions of power before 1989 from holding positions of power in the newly democratic state, especially in administration and the police. For a summary of the features of the process, see D Kosař, ­‘Lustration and Lapse of Time’ (2008) 4 European Constitutional Law Review 460.

146  Women and Gender After 1989 previous period are the red thread that informs the discussions in Part II of this book. I argue that there has been considerable intellectual and conceptual ‘path dependence’ with regard to the regulation of women and their status (this chapter), the characteristics of law and the understanding of rights (Chapter 7), equality and anti-discrimination law (Chapter 8) and understanding of gender (Chapter 9). B.  The ‘Star Pupil’ (1989–97) The Velvet Revolution saw the peaceful fall of the authoritarian Communist Party rule within the course of a mere one and a half months—starting with the student protests on 17 November 1989 and ending with the election of Václav Havel as the new President on 29 December 1989.27 This was followed by a ‘Velvet Divorce’ of Czechia and Slovakia in 1993. The Czech Republic was in a good position for economic reform in 1989, compared with some of its neighbours.28 Its early economic reform was deemed a success story up until 1996.29 The ‘anti-inflationary program of financial stabilization, price liberalization, and privatization’,30 launched in January 1991, was complemented by ‘a package of welfare policies crafted to cushion the worst consequences of the liberalization of the economy and to ensure public support for the reform’.31 Price controls were retained ‘in the housing, energy and healthcare sectors, and healthcare, education and university tuition remained free’.32 Thus, interestingly, although the narrative was strongly anti-socialist and neoliberal, rejecting ‘third ways’33 and proposing a ‘market without adjectives’,34 the policy reality continued to be ‘social’ or ‘social-democratic’, considering the overall measure of general welfare and relatively low levels of social inequality.35 This ‘disjuncture between 27 

The first free parliamentary elections were held six months later. Gender (2003), 11. 29 Weiner, Market Dreams (2007), 53. 30 True, Gender (2003), 11. 31  ibid, 12. 32 Saxonberg, The Czech Republic before the New Millenium (2003). 33 Weiner, Market Dreams (2007), 55. This rhetoric has been largely connected Václav Klaus. 34  ibid, 58. 35  The rise of social inequality after 1989 was dramatic, as the starting point of state socialism was egalitarian. True, Gender (2003), 19. However, Hamplová, analysing the first 14 years of post-socialism, argues that according to measures of general welfare and relatively low levels of social inequality, Czechia’s policies were best described as ‘social-democratic’. D Hamplová, ‘Women in the Labour Market in the Czech Republic: Transition from a Socialist to a SocialDemocratic Regime?’ in H-P Blossfeld and H Hofmeister (eds), Globalization, Uncertainty and Women’s Careers: An International Comparison (Elgar, 2007). Others speak about a compromise between social democratic and liberal concepts: M Potůček and I Radičová (eds), Sociální politika v Čechách a na Slovensku po roce 1989 [Social Policy in the Czech Republic and Slovakia after 1989] (Karolinum, 1998) 17. 28 True,

A Quarter Century of Post-Socialism 147 discourses and practices’36 has been identified as a more general feature of post-Communist transitions. This combination of market rhetoric and policies to placate the population, with added social conservatism, is strongly associated with the figure of Václav Klaus, who was Finance Minister (1989– 92), later Prime Minister (1992–98) and eventually President (2003–13). Despite mitigating measures, the economic transformation had a negative impact on women. Women’s unemployment rose, and has remained about one-third higher than men’s ever since the early 1990s.37 The state also encouraged older workers to retire, an option of which many women availed themselves. However, a mass exit of women from the labour market into the home, predicted by some, did not materialise.38 First, women needed to work, because the generally low wage levels meant that families needed two incomes. Secondly, they wanted to work, for reasons of status and personal satisfaction.39 A rise in gender-conservative rhetoric,40 combined with a need to cut public spending, led to a decline in the provision of collective childcare.41 There was a marked drop in the number of available childcare facilities, a trend that has not been reversed to this day. The decrease has been noticeable especially with regard to the care of very young children. The number of public crèches decreased from 1,043 in 1991 to 54 in 2007,42 to 45 (with 1,425 spaces) in 201143 and to 31 (with 972 spaces) in 2013.44 Similarly, 36 

Gal and Kligman, The Politics (2000), 113 ff. Hašková and Vohlídalová, ‘The Labour Market’ (2009), 50. 38  ‘In the 1990s, women accounted for more than 44% of all employees, and since then the figure has never fallen below 43%.’ (ibid, 49–50) 39  C Bretherton, ‘Gender Mainstreaming and EU Enlargement: Swimming against the Tide?’ (2001) 8 Journal of European Public Policy 60, 61 and references cited therein. 40 H Hašková, H Maříková and Z Uhde, ‘Leaves, Allowances, and Facilities: Childcare past and present’ in Hašková and Uhde (eds), Women and Social Citizenship in Czech Society (2009), 102. 41 True, Gender (2003), 24. 42 The drop in the number of kindergartens was less dramatic. Hašková, Maříková and Uhde, ‘Leaves’ (2009), 105. See also M Marksová-Tominová, Gender Assessment of the Impact of EU Accession on the Status of Women and the Labour Market in CEE (Czech Republic) (Karat, 2003) 60–63. 43  The institutional aspects of the provision of crèches are interesting. The actual provision is in the hands of regional administrations. The regional distribution is very uneven. There are some that have no public crèches, as these are mostly concentrated in big cities. Výzkumný ústav práce a sociálních věcí (Research Institute for Labour and Social Affairs), ‘Síť zdravotnických zařízení 2011—Jesle [Health Facilities System 2011—Crèches]’ (VUPSV, 2012), available at www.vupsv.cz/index.php?p=cze_2a&site=default. At the top level, the reason for the poor provision has been ‘competence’ battles over who was responsible for the central management of the issue. The original guarantor, the Ministry of Health, argued that crèches had nothing to do with health and were therefore outside its portfolio, and the Ministry of Education argued that children under the age of 3 were not educable. More recently, the Ministry of Labour and Social Affairs has stepped up to address the issues of early childcare provision. I thank Pavla Špondrová for this insight. 44  Complete information after 2013 is difficult to obtain, as the Ministry of Health ceased to be the central overseeing institution. Výzkumný ústav práce a sociálních věcí (Research ­Institute 37 

148  Women and Gender After 1989 public subsidies for childcare services were cut, so that as early as 1990, ‘fees for day-care increased by 36.5 per cent and fees for kindergartens by 86.3 per cent’.45 Some gendered decrease of social protection can be seen in other areas as well, for example maternity benefits were lowered from 90 to 69 per cent of wages in 199346 and never substantially increased again.47 Despite this decrease, family policy was conservative, aiming to support private care of children by women in the family.48 Between maternity leave and ‘further maternity leave’49 and the related benefits, a mother of two could stay out of the labour market for up to eight years.50 The rise of new political parties without internal quotas for women51 brought a sharp decrease in women’s participation in politics. The proportion of women in the Chamber of Deputies had hovered around 15 per cent throughout the 1990s and 2000s; in 2010, it increased somewhat, to 22 per cent.52 Currently, women make up 21 per cent53 of Deputies and 18.5 per cent of Senators.54 A masculinisation of the formal democratic processes and a feminisation of the civic sphere (NGOs) has been noted by commentators.55 This highlights the fact that women have not become uninterested in public affairs, merely that they have disappeared from the part where resources and power are distributed and reproduced.

for Labour and Social Affairs), ‘Síť zdravotnických zařízení 2013 [Health Facilities System 2013]’ (Ústav zdravotnických informací a statistiky ČR (ÚZIS; Czech Institute for Healthcare Information and Statistics), 2013), available at www.uzis.cz/katalog/zdravotnicka-statistika/ sit-zdravotnickych-zarizeni. 45  A Heitlinger, ‘The Impact of the Transition from Communism on the Status of Women in the Czech and Slovak Republics’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993) 99. The current levels of fees are set by the organising municipality or region, so they vary. 46  Act No 308/1993 Coll. 47  It is now 70% of average daily wage in the last year worked. Act No 187/2006 Coll, s 37. 48 Saxonberg, The Czech Republic before the New Millenium (2003). 49  It only changed into ‘parental leave’ in 2000. 50 Similarly, Saxonberg, The Czech Republic before the New Millenium (2003), 15 and 129–54. 51  The Communist Party has had women’s quotas throughout the state-socialist period as well as the post-socialist period. Some parties instituted quotas later, as I discuss in Ch 9 ­section I.B. 52  Fórum 50%, ‘Vývoj zastoupení žen v PSP ČR (1996–2010) [Women’s Representation in the Chamber of Deputies 1996–2010]’ (Fórum 50%, 2012), on file with the author; see also P Rakušanová, ‘Česká politika: Ženy v labyrintu mužů? [Czech Politics: Women in the ­Labyrinth of Men?]’ (Fórum 50%, 2006), available at www.padesatprocent.cz/docs/zeny-labyrint-muzu.pdf. 53  Poslanecká sněmovna (Chamber of Deputies), ‘Poslanci [List of Deputies]’ (Poslanecká sněmovna Parlamentu ČR, 2016), available at www.psp.cz/sqw/fsnem.sqw. 54  Senát (Senate), ‘Senátoři [List of Senators]’ (Senát ČR, 2016), available at www.senat.cz/ senatori/index.php?par_2=2. 55 True, Gender (2003), 137–62; Gal and Kligman, The politics (2000), 92–98.

A Quarter Century of Post-Socialism 149 Notwithstanding the gendered impact of the early transformations, a discussion of post-socialism’s effect on women was absent during this period: [S]ociety was absorbed by … major and fundamental themes [such] as the new constitution, charter of human rights, nationalism, privatisation, Czecho-Slovak relations, rehabilitation, the general moral atmosphere of society, return to Europe and so forth. The only voices raised on gender issues were from the Christian side, on the themes of abortion and motherhood … Politics and economics … were regarded as entirely gender-neutral.56

C.  Sobering Up and Trudging Along (1997–2006) Economically, the period beginning in 1997 has been described as a ‘fall from grace’.57 It saw a macroeconomic crisis marked by the slowing of capital and labour productivity, caused largely by inadequate legislative and institutional restructuring of the banking and industrial sectors.58 An increase in unemployment,59 a ‘slew of bank failures’ and corruption scandals connected to privatisation60 brought about a dramatic decrease of confidence in market reform,61 and, after eight years of right-wing government dominated by the Civic Democratic Party (ODS), led to an electoral victory by the Social Democrats (ČSSD) in 1998. The Social Democrats, however, entered into a de facto coalition with the ODS for the period 1998–2002. This ‘opposition agreement’ led to a disillusionment with democratic institutions among the electorate.62 The Social Democrats stayed in power, under four different Prime Ministers, until 2006. In the first half of the 2000s, much political effort was directed towards EU membership. Notwithstanding Czechia’s success in fulfilling EU criteria, and its accession to the EU in 2004, the 2000s made it clear that the process of transition was not over. For example, many previously state-owned

56  H Havelková, ‘The Political Representations of Women in Mass Media Discourse in the Czech Republic 1990–1998’ (1999) 7 Czech Sociological Review 145, 150. In lacking a prominent gender-relevant topic immediately after the fall of the state-socialist regime, Czechia differed from other CEE countries. The issue of abortion quickly became prominent in Romania and Poland, while in East Germany it was women’s skyrocketing unemployment. H Havelková, ‘Transitory and Persistent Differences: Feminism East and West’ in JW Scott, C Kaplan and D Keates (eds), Transitions, Environments, Translations: Feminism in International Politics (Routledge, 1997). 57 Weiner, Market Dreams (2007), 63. 58  ibid, 63–65. 59 ibid. 60 True, Gender (2003), 14. 61  ibid, 14. 62  ibid, 15.

150  Women and Gender After 1989 companies that had been voucher-privatised in early 1990s, ie through a system of giving citizens books of vouchers that represented potential company shares, experienced governance problems and had to be renationalised before ultimately being sold to foreign investors. And while basic democratic structures had been put in place, the Czech democracy had yet to consolidate, especially in terms of internalisation of rules and procedures and a true re-making of political culture based on democratic values.63 Corruption scandals repeatedly erupted throughout the 2000s, some involving political party interference with the justice system, some inappropriate entwining of business and politics. As regards women and gender in the late 1990s, the overall public attitude to feminism remained extremely hostile.64 Only slowly did some issues come to be discussed. The political under-representation of women became an issue in the media in the late 1990s,65 especially as there was not a single woman in the Social Democratic Cabinet of the now President Miloš Zeman between 1998 and 2002.66 The Beijing Platform of Action of 1995 led the Government to start tentative discussions about gender equality.67 Women’s activism rose slowly throughout the 1990s, for example on issues of discrimination in the labour market and domestic violence.68 In the 2000s, the public as well as employers became increasingly more open to, and supportive of, equal opportunities for women.69 The NGO sector further strengthened.70 For gender-related projects, equality in the labour market remained the main issue, both in academic research as well as in NGO activities, largely due to the EU funding this issue was attracting.71 The question of political representation began to gain ground, especially after the founding, in 2004, of the feminist NGO Fórum 50%.

63  ‘Democratic consolidation’ is understood as stabilisation, routinisation, institutionalisation and legitimation of patterns of politically relevant behaviour. Pridham, ‘Democratic consolidation’ (2009), 3. 64  Ch 9 section III.A. 65  Havelková, ‘The Political’ (1999). 66 Czech Government, ‘Přehled členů vlády (22.7.1998–12.7.2002) [List of Members of the Cabinet 1998–2002]’ (Úřad vlády ČR, 2009), available at www.vlada.cz/cz/clenove-vlady/ historie-minulych-vlad/prehled-vlad-cr/1993-2007-cr/milos-zeman/prehled-ministru-24634/. 67  K Ciprová and L Sokačová, ‘Neziskové organizace [NGOs]’ in L Sokačová (ed), Gender a demokracie: 1989–2009 [Gender and democracy: 1989–2009] (Gender Studies, 2009) 94. 68 ibid. 69 L Sokačová, ‘Genderové změny po roce 1989 v České republice [Gender Transformations in the Czech Republic after 1989]’ in Sokačová (ed), Gender a demokracie: 1989–2009 (2009), 9. 70  Eg, Czech Women’s Lobby, a member of the European Women’s Lobby, was founded in 2004. As of August 2016, it had 30 members. Women’s NGOs have grown and professionalised; Ciprová and Sokačová, ‘Neziskové organizace [NGOs]’ (2009), 94. 71  ibid, 96–97.

A Quarter Century of Post-Socialism 151 The early 2000s also saw a number of gender-progressive legislative changes. Due to EU membership demands, first anti-discrimination provisions were inserted into the labour law,72 although it took until 2009 for the Anti-Discrimination Act73 to be adopted.74 But not all change was ­EU-driven. Proposals for at least some form of legal recognition of gay partnerships, which had been on the table since the mid-1990s,75 finally came to fruition in 2006 when the Act on Registered Partnership was adopted.76 Domestic violence was criminalised during this period as well, and police and civil law measures were adopted to assist its victims.77 D.  Cuts and a Conservative Turn (2006–14) Although the result of the 2006 election was a tie for the biggest right- and left-wing parties, ODS and ČSSD,78 it ushered in a right-wing Government. The Government promised to balance public finances, which included tax reforms and budget cuts. Their gender dimension was ignored, but these reforms had a considerable negative impact on women, even when they appeared gender-neutral. For example, the increase in the basic rate of VAT from 5 to 10 per cent mostly affected the poor, who are disproportionately women.79 Several proposals that were originally floated in a ‘pro-family’ package were eventually scrapped for financial reasons. These included paternity leave and benefits, and the permission80 to receive both a parental benefit and use public childcare facilities concurrently. The global financial crisis, which started in 2007, did not hit Czechia as hard as it did other CEEs.81 But the fear of ‘becoming Greece’ galvanised fiscal conservatives, and the 2010 parliamentary elections were won by rightwing parties promising belt-tightening and further fiscal consolidation. The Government was criticised from the left side of the political spectrum for not having a plan for economic growth and for drastically cutting social spending

72 

Ch 8 fn 73. It entered into force in 2009. Act No 198/2009 Coll, Anti-Discrimination Act. 74  For detail, See Ch 8 section II. 75  The first addressed only inheritance and tenancy rights. 76  Act No 115/2006 Coll. 77  See section IV.A below. 78  Ch 9 section I.B. 79  For a discussion, see P Pavlík and I Smetáčková, ‘Dopady vládní reformy na rovnost mužů a žen [The Effect of the Government’s Reforms on Equality on Men and Women]’ in P Pavlík (ed), Stínová zpráva v oblasti rovného zacházení a rovných příležitostí žen a mužů [Shadow Report on the Equal Treatment and Equal Opportunities for Women and Men] (Open Society Fund Praha, 2008). 80  See p 179–180 below. 81  Pridham, ‘Democratic consolidation’ (2009), 18. 73 

152  Women and Gender After 1989 under the guise of ‘social reform’.82 Although a full time-comparison is not yet available, it might be that the ‘social democratic’ welfare provision, which persisted long after the fall of communism, was finally dismantled. The support of motherhood and family certainly decreased—the Government, for example, scrapped a social supplement for low income families, of particular import to single mothers,83 and made birth grants (porodné) means-tested.84 Although some authors have spoken about a ‘conservative turn’ in relation to the whole of the post-socialist period,85 social conservatism only became a perceptible part of the high-level political mainstream in the 2010 Government. The Education Minister, for example, launched a campaign to replace sex education with abstinence education during this period.86 The cultural hostility to gender on the side of the Government led to difficulties in the NGO sector, which found it challenging to sustain funding.87 Nonetheless, most established NGOs survived, and the subjects of activism and study even diversified. Reproductive rights, LGBT rights, and inter-­ sectionality (Roma women, older women, migrants, single mothers, etc) and gender-based violence became increasingly addressed, and also addressed as a gender issue.88 E.  Arrival of the New Left? (2014 Onward) A new Coalition Government entered office in 2014. It is led by the Social Democrats, who have been the drivers behind a considerable reversal not just of some social welfare cuts, but also of the conservative turn by the

82 Social Watch, Česká republika se řítí do smrtící spirály. Národní zpráva české ­koalice Social Watch za rok 2011 [Czech Republic Is Plumetting into a Death Spiral. National Report 2011] (Social Watch: Poverty Eradication and Gender Justice, 2012), available at www.socialwatch.org/node/15271. 83  The provision was originally abolished by Act No 347/2010 Coll. This scrapping was, however, declared unconstitutional for procedural reasons in a Constitutional Court Decision of 14 March 2011, Ref No Pl.ÚS 55/10. The provision was then revoked by Act No 366/2011 Coll, in a way that was formally constitutional. 84  Act No 117/1995 Coll, current version, s 44. 85  N Funk, ‘Feminism East and West’ in Funk and Mueller (eds), Gender Politics and PostCommunism (1993), 328; Sokačová, ‘Genderové změny’ (2009), 9. 86  L Jarkovská and K Lišková, ‘Je to k nevíře aneb Obrat k prudérii v české sexuální výchově? (A Turn to Prudery in Czech Sexual Education?)’ Sborník z kongresu Pardubice 2011 (Společnost pro plánování rodiny a sexuální výchovu, 2011), available at www.planovanirodiny.cz/ view.php?cisloclanku=2011092602. 87  P Havlíková and B Nyklová, ‘Neziskový a akademický sektor [The Non-Governmental and Academic Sectors]’ in I Smetáčková (ed), Stínová zpráva o stavu genderové rovnosti v České republice v roce 2015 [Shadow Report on Gender Equality in the Czech Republic in 2015] (Česká ženská lobby, 2015) 88  See, eg, K Ciprová (ed), Pod hladinou: fakta a mýty o znásilnění (Gender Studies, 2010).

A Quarter Century of Post-Socialism 153 previous right-wing governments. Perhaps for the first time, there has been genuine attention to gender equality. A personified example of this is the fact that the Ministry of Labour and Social Affairs is headed by a self-proclaimed feminist and a former director of the NGO Gender Studies, Michaela Marksová.89 As a minister, Marksová set up an Expert Committee on Family Policy, which in September 2015 proposed several gender-progressive measures aiming to support better reconciliation of family and work life, and help women stay in and return to the labour market: ‘paternity care’, ‘leave to care’, adjustments to the parental benefit, and introduction of microcrèches.90 I discuss the changes to parental benefits in greater detail below in section III. As for the other measures, they largely aim to alleviate the negative impact of individualised care on the care-provider. The Government has thus undertaken to improve the provision of collective childcare outside of the home. In 2014, Parliament passed an Act on Childcare in Children’s Groups91 (dětské skupiny), which created a framework for privately but non-commercially run small crèches/kindergartens, for example by employers or universities. Another proposed measure is ‘leave to care’92 (volno na péči), which would cover up to six months’ leave with a benefit paid out of sickness insurance to correspond to up to 60 per cent of previous earnings. As women tend to be the majority of those who care for sick or old relatives, this would be an important alleviation of the impact this has on their working lives. At the time of writing in August 2016, the proposal has yet to be presented to the Cabinet. Finally, as for ‘micro-crèches’, a pilot project has been administered by the Ministry of Labour and Social Affairs since 2016.93 The difference between the current and previous governments has also been in their attitudes to EU measures. While the previous Government objected to the pro-active substantive equality aims94 of the proposed

89 I, too, have become involved, acting as an Advisor to the Prime Minister, Bohuslav Sobotka, on issues of gender and law, since 2014. 90 Ministry of Labour and Social Affairs (MPSV), ‘Ministryně představila čtyři opatření, která podpoří rodiny [Press Release: The Minister Introduces Four Measures to Support Families]’ (MPSV, 2015), available at www.mpsv.cz/cs/21781. 91  Act No 247/2014 Coll, on Childcare in Children’s Groups 92  Internal MPSV Ref No 2015/55743-51 (on file with the author). 93  Czech Government, Zpráva za rok 2015 o rovnosti žen a mužů a o naplňování Vládní strategie pro rovnost žen a mužů v ČR na léta 2014–2020 [2015 Report on Equality of Women and Men and Fulfilment of the Czech Government's Strategy for Equality of Women and Men 2014–2020] (Ref No 8070/2016-OLP; on file with the author, 2016) 42–43. 94  The Government as well as the Parliament also considered it in breach of subsidiarity and proportionality. A summary of the Cabinet’s and Parliament’s position can be found in Czech Parliament Chamber of Deputies, ‘274. usnesení výboru pro evropské záležitosti z 39. schůze konané dne 6. prosince 2012 [Resolution No 274 of the Committee for European Affairs from its 39th meeting of 6 December 2012]’ (IPEX, 2012), available at www.ipex.eu/IPEXL-WEB/ scrutiny/COD20120299/czpos.do.

154  Women and Gender After 1989 Directive on Improving the Gender Balance among Non-Executive Directors,95 the current Government96 agreed to support it.97 Some positive steps have been institutional. In 2014, for example, the Government reinstated the position of Minister for Human Rights, Equal Opportunities and Legislation,98 who has been responsible for the equality agenda since 2015.99 The Minister, Jiří Dienstbier, has paid considerable attention to the topic and supported gender-progressive legislation. The current Government has also finally taken steps to increase the powers of the Czech ‘equality body’ (in the sense of EU directives), the Public Defender of Rights (Ombudsperson).100 There has also been a marked improvement in strategic documents101 and national action plans on gender-relevant issues.102 The Government has also adopted internal procedural rules for gender impact assessments of public

95  Proposal for a Directive of the European Parliament and of the Council on Improving the Gender Balance among Non-executive Directors of Companies Listed on Stock Exchanges and Related Measures (COM (2012) 614 final). 96  Against were all Christian Democratic Ministers, as well as some ministers representing the ANO party, notably the only female ANO Minister, Karla Šlechtová. Novinky, ‘Vláda je pro spravedlivější zastoupení žen v dozorčích radách [The Government Wants a Fairer Representation of Women on Non-Executive Company Boards]’ (Novinky.cz, 3 December 2015), available at www.novinky.cz/kariera/388135-vlada-je-pro-spravedlivejsi-zastoupeni-zen-v-dozorcichradach.html. 97  Admittedly, the proposal has changed somewhat in the meantime at the European level; it can thus be presented in more palatable terms and the changes as a negotiating victory by earlier objectors. 98  This has been noted as positive by the CEDAW Committee in 2016. Committee on the Elimination of Discrimination against Women, Concluding Observations on the Sixth Periodic Report of the Czech Republic (CEDAW/C/CZE/CO/6) (CEDAW, 2016), available at https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N16/069/81/PDF/N1606981.pdf?OpenElement. 99  Czech Government, 2015 Report (2016), 96. 100  See p 233 below. 101  The Government adopted a comprehensive Strategy for Equality of Women and Men in the Czech Republic for 2014 to 2020. Czech Government, ‘Vládní strategie pro rovnost žen a mužů v ČR na léta 2014–2020’ (Úřad vlády ČR, 2014), available at www.vlada.cz/ assets/ppov/rovne-prilezitosti-zen-a-muzu/Projekt_Optimalizace/Strategie-pro-rovnost-zen-amuzu-v-CR-na-leta-2014-2020.pdf. This has been positively noted by CEDAW Committee in its last report. CEDAW Committee, Concluding Observations (2016). 102  Eg, the Action Plan for Equal Representation of Women and Men in Decision-­Making Positions 2016–2018 is new, and the Action Plan for the Prevention of Domestic and GenderBased Violence 2015–2018 for the first time addresses all of gender-based violence, not just domestic violence. Czech Government, ‘Akční plán pro vyrovnané zastoupení žen a mužů v rozhodovacích pozicích na léta 2016–2018’ (Úřad vlády ČR, 2016), available at www. vlada.cz/cz/clenove-vlady/pri-uradu-vlady/jiri-dienstbier/aktualne/vlada-schvalila-akcni-planpro-vyrovnane-zastoupeni-zen-a-muzu-v-rozhodovacich-pozicich-146798/; Czech Government, ‘Akční plán prevence domácího a genderově podmíněného násilí na léta 2015–2018 [Action Plan for the Prevention of Domestic and Gender-Based Violence 2015–2018]’ (Úřad vlády ČR, 2015), available at www.vlada.cz/cz/clenove-vlady/pri-uradu-vlady/jiri-dienstbier/ aktualne/vlada-schvalila-akcni-plan-prevence-domaciho-a-genderove-podmineneho-nasilina-leta-2015-_-2018-126943/.

A Quarter Century of Post-Socialism 155 institutions.103 It has further been committed to gender issues internationally. For example, after several years of stalling, the Cabinet finally agreed to the signing of the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence104 (the so-called ‘Istanbul Convention’) in 2016. The NGO sector has also strengthened during this period. One example is the founding of the Gender Expert Chamber in 2015.105 Another is expansion of topics, notably around transgender rights.106 Several caveats should be mentioned in relation to what appears to be a gender-progressive shift in the Czech Government. First, as far as the new measures proposed by the Ministry of Labour and Social Affairs are concerned, it bears emphasising that as of the time of writing, many are merely at the stage of proposals. Not all gender progressive proposals end up being successful. Some have failed already at the stage of a Cabinet vote. So, for example, the Cabinet did not agree to a proposal to increase political participation of women via the principle of ‘zipper’ lists.107 The 2014 proposal would have required a minimum 40 per cent of women on candidate lists, with women and men alternating.108 A breach of this requirement would have led to a reduction in state payment per mandate to the political party. The Cabinet, however, rejected the proposal in 2015. Secondly, while the Social Democratic ministers in the Cabinet mostly support gender-progressive measures, their coalition partners, the Christian Democrats and ANO,109 do not. The political participation proposal thus failed due to the

103  Czech Government, ‘Metodika hodnocení dopadů na rovnost žen a mužů pro materiály předkládané vládě ČR [Guidelines for Gender Impact Assessment for Materials to be Presented to the Czech Cabinet]’ (Úřad vlády ČR, 2015) available at www.vlada.cz/assets/ppov/rovneprilezitosti-zen-a-muzu/Projekt_Optimalizace/Metodika_GIA.pdf. 104  The Istanbul Convention has been signed by the Czech Republic in 2016 and ratification is expected in 2018. Council of Europe Convention on preventing and combating violence against women and domestic violence (Council of Europe, 2001) available at http://rm.coe. int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680 46031c. 105  A Bičáková and K Kalíšková, ‘Od mateřství k nezaměstnanosti: Postavení žen s malými dětmi na trhu práce [From Motherhood to Unemployment: The Position of Young Women with Children on the Labour Market]’ (IDEA-CERGE/EI, 2015), available at www.genderstudies.cz/download/IDEA_Studie_8_2015_Od_materstvi_k_nezamestnanosti.pdf. 106 Bottom-up organising around transgender rights has consolidated in this period, and together with international networking has led to a challenge of the Czech legal regime before the European Committee of Social Rights. Complaint to the European Committee of Social Rights, Transgender-Europe and ILGA-Europe v Czech Republic (Complaint No 117/2015) (pending). 107  MV, Ref No MV-75344-4/LG-2014. 108  It would have required one man and one woman in the first two places. Beyond that, both sexes were to be represented among every three places. Czech Government, 2015 Report (2016), 24–25. 109  Akce nespokojených občanů (Action of Dissatisfied Citizens; in Czech, the acronym means “yes”). Centre-right party. I discuss the parties and their programmes further in ch 9 section I.B below.

156  Women and Gender After 1989 votes of all Christian Democratic and ANO ministers.110 Nor did they support the previously mentioned change of position on the EU directive on women on company boards.111 Thirdly, the Government still very much relies on the NGO sector for the fulfilment of its aims and development of methods, as well as information gathering.112 Fourthly, financially, many of these programmes, and even civil service job positions, are externally funded, especially by the European Social Fund and Norwegian Funds.113 Lastly, the gender-progressive programme appears to rely on one political party, the Social Democrats, while other political parties are generally opposed. Even within the Social Democrats, however, it relies on a somewhat narrow group of members. This shift, although perceptible, should thus be viewed as relatively fragile and easily reversible. It should also be mentioned that many years of cuts and gender-­ conservative policies have negatively impacted on the situation of women to an extent that will take more than a few years to overturn. Women are at high risk of poverty and social exclusion. This is especially true of ­single-parent families, which in 90 per cent of cases are headed by women. In 2013, almost 28 per cent of single-parent families were close to the ­poverty line.114 Failure to pay child support has exacerbated the situation: according to some estimates, 38 per cent of divorced parents, overwhelmingly men, who have been ordered by the court to pay child support, do not pay it.115 The lack of affordable social housing for poor families adds to the problem.116 Women’s poverty leads to an intergenerational poverty transfer, with Czech children being ‘an age group with the highest risk of poverty and social exclusion (higher than seniors)’.117 The Government is aiming to respond to some of these problems; I discuss the possibility of a system of state advances of child support below. In the labour market, Czechia continues to have one of the highest gender employment gaps in the EU, at 16 per cent, and around the same level of difference of economic activity between men and women.118 Unlike in other 110  Český tisková kancelář (ČTK; Czech Press Agency), ‘Dienstbierův návrh s kvótami pro ženy vláda shodila ze stolu (Dienstbier’s Quota Proposal Rejected by the Cabinet)’ (Týden, 2015) www.tyden.cz/rubriky/domaci/politika/dienstbieruv-navrh-s-kvotami-pro-zeny-vladashodila-ze-stolu_347858.html. 111  See fn 96 above. 112  Czech Government, ‘Answers to Preliminary Questions in Relation to the Sixth Periodic Report of the Czech Republic Concerning Compliance with CEDAW’ (Úřad vlády ČR, 2015), available at www.vlada.cz/assets/ppov/rovne-prilezitosti-zen-a-muzu/dokumenty/CEDAW_ answers_to_preliminary_questions_na_web.pdf. 113  ibid, paras 12, 22, 57. 114  Uhde (ed), Shadow Report CEDAW (2015), 22. 115  ibid, 22. 116 ibid, passim. 117  ibid, 18. 118  L Formánková and L Sokačová, ‘Trh práce a politika zaměstnanosti [The Labour Market and the Employment Policy]’ in I Smetáčková (ed), Stínová zpráva o stavu genderové rovnosti

A Quarter Century of Post-Socialism 157 EU countries, this disparity did not diminish during the financial crisis.119 Particularly vulnerable are mothers of young children. Over 98 per cent of the recipients of the parental allowance are women.120 They most often take parental leave of three years per child,121 for a combination of reasons, including social pressure and lack of collective childcare facilities.122 When their children are three years old, the unemployment rate of mothers with a secondary or higher education degree is 12 per cent; for women with only elementary-level education, it is 28 per cent.123 As the authors of a recent study on the subject observe, ‘[w]omen often become unemployed immediately after returning to the labour market. Almost 30% of women with two-year-old children, and 60% of women with three-year-old children become unemployed as soon as their parental leave ends’,124 despite the legal guarantees I discuss below. The authors conclude that the adverse impact of motherhood on Czech women’s employment is among the greatest in the EU.125 Czech women also suffer from one of the highest gender wage gaps in the EU. The difference between an average man’s wage and a woman’s wage has hovered around 25 per cent since the mid-1990s, and was 22 per cent in 2015.126 One of the causes of the gap is continued vertical segregation: Vertical segregation of the Czech labour market is constantly strong. Only 3.1% of employed women are employed in the management positions (compared to 6.7% of men) and this proportion has been decreasing from 3.8 in 1995 and 3.9 in 2001. Even though women prevail among university graduates (61% in 2014), they represent only 26% of legislators, senior officials and managers.127

Many of these numbers have not changed for the better since 1989; many— such as the number of available crèche and kindergarten places—have changed for the worse. While it is beyond the scope of this book to conclusively empirically link the law and policy to these numbers, they are important contexts to be borne in mind when considering my analysis of the legal regulation in the following sections.

v České republice v roce 2015 [Shadow Report on Gender Equality in the Czech Republic in 2015] (Česká ženská lobby, 2015) 77. The latter figure includes self-employment as well. 119 

ibid, 77. Český statistický úřad (CZSO; Czech Statistical Office), ‘Zaostřeno na ženy a muže 2015 [Focus on Women and Men 2015]’ (CZSO, 2015), available at www.czso.cz/csu/czso/ zaostreno-na-zeny-a-muze-2015. 121 Bičáková and Kalíšková, ‘Od mateřství’ (2015), 4–5. 122  See p 147–148. 123 Bičáková and Kalíšková, ‘Od mateřství’ (2015), 2. 124  ibid, 2. 125 ibid 126  CZSO, ‘Zaostřeno 2015’ (2015). 127  Uhde (ed), Shadow Report CEDAW (2015), 18. 120 

158  Women and Gender After 1989 II.  THE MODEL FAMILY—COMPLETE, MARRIED, HETEROSEXUAL AND WITH A TRADITIONAL DIVISION OF LABOUR

In Chapter 2, I observed that towards the end of state socialism there was a regression in gender equality. While equality in the family and the modernisation of women’s status were the policies in the 1950s, complete128 heterosexual marriage with children became the norm by the 1970s and 1980s, and legal scholarship urged women to shoulder the burden of housework and childcare in order to preserve harmony in marriage. In the following, I argue that this strong marital normativism has continued into the post-socialist period. The preference for married heterosexual relationships continues to this day. Small steps in a more gender-progressive direction, such as the adoption of the Act on Registered Partnership in 2006, or the recent invalidation of a prohibition on individual adoption by registered partners by the Czech Constitutional Court, should be seen as exceptions to the rule of support for traditional families, as I discuss in section II.A. The bias toward complete families with a gendered division of labour has also been notable in certain tax regimes, such as the use of common taxation of spouses and the ‘wife discount’, which advantages traditional families with one breadwinner and one homemaker (section II.B). Indeed, there has been a strong preference for ‘complete’ families. Single parents—in reality overwhelmingly mothers—have been considered undesirable, and have been disadvantaged in legal regulation and rebuked in parliamentary debates. I illustrate this by reference to the debates surrounding the possibility of state involvement in the enforcement of child support in families with separated parents (section II.C). Lastly, I discuss reproduction. I note the state-socialist legacy of not seeing women’s reproductive choices as an issue in which authentic women’s experiences, nor their rights, have a place (section II.D). A.  The Rise of a ‘New’ Family? Same-Sex and Unmarried Partners It could be concluded, from the fact of the adoption of an Act on Registered Partnership (ARP) in 2006, that a new acceptance of family forms beyond the traditional heterosexual family with married parents has been taking hold. I show below that this has not really been the case, neither in the legislature nor before the Czech Constitutional Court (CCC). Proposals for some legal recognition of gay partnerships have been on the table since the mid-1990s,129 mostly thanks to the lobbying efforts of LGBT

128  I use this term in the European and North-American sense of a nuclear family consisting of two parents and children. 129  The first addressed only inheritance and tenancy rights.

The Model Family—Complete, Married, Heterosexual 159 rights NGOs. A total of six proposals were unsuccessful.130 The seventh proposal was vetoed by the then President Klaus, but this veto was overturned in Parliament and the Act came into force in 2006.131 The majority of MPs eventually supported the bill,132 but mostly based on the pragmatic argument that the law should to some extent recognise the reality of these partnerships.133 The debates surrounding its adoption, as well as the actual legal regulation enacted, indicate that while same-sex partnerships could be tolerated, they were not seen as equal to marriage, nor as deserving of the full range of rights and options that heterosexual marriages have. This chimes well with Sokolová’s observation that ‘[o]n one hand, the Czech society likes to define itself as tolerant, but it can be argued that this tolerance is an expression of passivity rather than active understanding and respect’.134 There was no consideration of opening marriage itself to gay and lesbian couples, with many—especially Christian Democratic MPs135—seeing registered partnership as a threat to the traditional family. The law enacted was based on the Act on Family,136 and thus on marriage with regard to conditions of eligibility, the procedure for establishment and dissolution, inheritance and legal status as ‘close persons’.137 However, the law did not provide an equivalent of joint marital property, or common taxation of spouses, immigration rights or survivors’ pensions. Recently, the new Civil Code stipulated that for the purposes of its ‘general part’138 and parts governing property rights,139 registered partners are to be treated analogously

130  Four (1995, 1997, 1999, 2004) were prepared by individual MPs, and two (2000, 2003) were prepared by the Ministry of Justice. 131  Act No 115/2006 Coll. 132  The majority of the population was behind this bill throughout (over 50% supported it between 1990 and 2003). V Sokolová, ‘Koncepční pohled na sexuální menšiny aneb vše je jen otázka správné orientace [A Conceptual Look at Sexual Minorities or Everything is Just a Matter of the Right Orientation]’ in H Hašková, A Křížková and M Linková (eds), Mnohohlasem (Sociologický ústav AV ČR 2006), 259. 133  The selection of rights guaranteed and not guaranteed does not appear to have any clear explanation. Each subsequent proposal had fewer legal guarantees. One could speculate that that the proposal was eventually accepted as minimal enough and different enough from marriage to be acceptable to more conservative MPs. 134  Sokolová, ‘Koncepční pohled’ (2006), 255. 135  The one-time leader of the Christian Democrats, Cyril Svoboda, stated: ‘I have to say that we have to insist on conservative values. Just some minutes ago, we were discussing problems of [child] support in broken families. I believe that the only thing that can help our society is to adhere to conservative values.’ Cyril Svoboda (KDU-ČSL), Chamber of Deputies Debate, 24/6/2005, Print No 969 (2005). 136  Act No 94/1963 Coll, Act on Family. 137  This is a term used throughout the legal system, and gives for example the right of refusal to testify in criminal proceedings. 138  Act No 89/2012 Coll, Civil Code, pt I. 139  Act No 89/2012 Coll, Civil Code, pts III and IV.

160  Women and Gender After 1989 to spouses.140 The provision does not, however, apply to the part where analogous application would have been most needed—part II on family law. Indeed, it is in particular in relation to children where the Czech legislator has been reluctant to guarantee equality. The Act on Registered Partnership contained an explicit ban on adoption,141 an exclusion that was met with an almost unanimous support from the legislators. There has, however, been a judicial development since then. In June 2016,142 the CCC invalidated the provision prohibiting adoption by people living in a registered partnership.143 The CCC found it to be a violation of equality,144 human dignity and the right to private life. Although the decision can be seen as a victory for the original claimant, a man living in a same-sex registered partnership who wished to adopt a child, and a step in the right direction, it should be viewed with some caution. First, it has only a limited impact on samesex couples’ adoption rights. Three types of adoption can be distinguished: (i) joint adoption, (ii) successive or ‘second parent’ adoption, and (iii) individual adoption. The first two types remain firmly reserved to married couples and a married person (married to one of the child’s ­ ­biological parents) respectively, by virtue of the Civil Code.145 Individual adoption by ‘another person’ (ie not a spouse) was allowed ‘exceptionally’ by the Civil Code, but prohibited to those living in a registered partnership by the Act on Registered Partnership. This difference of treatment—the fact that those living in a state-recognised and state-sanctioned union of registered partnership were given fewer rights than ‘other persons’—was at the core of the CCC’s decision. This inconsistency was considered ‘illogical and ­irrational’146 by the Court. There is a second reason for caution. In its reasoning—albeit mostly obiter— the majority147 of the Court made a number of unnecessary conservative 140 

Act No 89/2012 Coll, Civil Code, s 3020. Act No 115/2006 Coll, s 13(2). 142  CCC decision of 14 June 2016, Ref No Pl.ÚS 7/15. 143  The following analysis first appeared in B Havelková, ‘The Czech Constitutional Court Strikes Down a Ban on Individual Adoption by Registered Partners’ (Oxford Human Rights Hub Blog, 13 July 2016) http://ohrh.law.ox.ac.uk/the-czech-constitutional-court-strikes-downa-ban-on-individual-adoption-by-registered-partners/. 144  It was the first case of discrimination on the basis of sexual orientation decided by the CCC. The equality analysis, however, was very brief. Most space was dedicated to the analysis of dignity, although it was closely woven together with questions of equality. For example, the Court mentioned that the ban ‘excludes a particular group of people, namely registered partners, and makes them de facto into “second class” citizens and stigmatises them without any reason’. CCC Pl.ÚS 7/15, esp [43], [46] (citation here) and [48]. 145  Act No 89/2012 Coll, Civil Code, s 800. 146  CCC Pl.ÚS 7/15, [41]–[42]. 147  The case was decided by a plenary of 14 judges. Ten of them joined in the—quite brief— majority decision. Three judges wrote concurring opinions agreeing with the outcome, but disagreeing somewhat with the reasoning. One did so from a more gender-progressive position (David J), two from a more gender-conservative position (Jirsa J and Zemánek J). Sládeček J dissented, seeing the judgment as an instance of judicial activism. 141 

The Model Family—Complete, Married, Heterosexual 161 statements regarding the nature of the family. The Court was very explicit, in that it considered the continued privileging of marriage in the legal system, on its own and in relation to children, fully justified and constitutional.148 The Court stated that it ‘understands the term “family” primarily not as some kind of an artificial social construct, but above all as a biological construct’,149 and that through its decision-making ‘it does not wish to erode traditional family’.150 This despite the fact that the Czech Charter is relatively open-ended: it specifies that ‘parenthood and the family are under the protection of the law’,151 but does not tie this protection to marriage. This narrow interpretation is thus entirely of the Court’s making. This position was not new: in 2015,152 the CCC upheld provisions of the Civil Code that facilitate second parent adoptions only for a spouse of a biological parent, denying it to cohabiting unmarried couples. The commitment to traditional conservative values is thus clear, despite the gender-progressive result of the particular case of individual adoption by registered partners. It should be mentioned that a private member’s bill to amend ARP,153 explicitly allowing second parent adoption, was before the Parliament at the time of writing. The proposal was discussed in its first reading by the Chamber of Deputies in July 2016. Members of Parliament made both strongly conservative or even homophobic contributions,154 as well as supportive contributions. The Government has now also prepared a proposal, considerably more detailed and legally more comprehensive, to facilitate second parent adoption. It passed the Legislative Council in July 2016, but has yet to be agreed by the Cabinet.155 The most recent changes suggest a shift in at least parts of the Government, but the success of the proposals in the legislature remains to be seen. At the Constitutional Court, strong marital normativity prevails, despite apparent advances. 148 

CCC Pl.ÚS 7/15 [37]–[39]. ibid [36]. 150  ibid [37]. 151 Constitutional Act No 2/1993 Coll, Charter of Fundamental Rights and Freedoms, art 32(1). 152  CCC decision of 19 November 2015, Ref No Pl.ÚS 10/15, published as No 44/2016 Coll. 153 Group of MPs, ‘Proposal to Amend the Act on Registered Partnership (Print No 320/2016)’ (Poslanecká sněmovna Parlamentu ČR, 2014), available at www.psp.cz/sqw/ historie.sqw?o=7&t=854. 154 MP Pavlína Nytrová presented a particularly homophobic contribution in which she suggested that the ultimate aim of the ‘homolobby’ is to legalise sex with children. Pavlína Nytrová (ČSSD), Chamber of Deputies Debate, 13/7/2016, Print No 320 (2014). Her contribution, in particular her reliance on Russian conspiracy websites for evidence, was criticised by various media, notably in I Svobodová, ‘Radí mi internet a mé srdce, říká poslankyně, která za gayi a lesbami vidí sex s dětmi [The Internet and My Heart Advise Me, Says MP who Sees Sex with Children behind Gays and Lesbians]’, Respekt, 14 July 2016, available at www.respekt.cz/ politika/radi-mi-internet-a-me-srdce-rika-poslankyne-ktera-za-gayi-a-lesbami-vidi-sex-s-detmi. 155  Internal Legislative Council Ref No 10534/2016-LRV. 149 

162  Women and Gender After 1989 B.  Supporting a Traditional Division of Labour The preference for complete heterosexual families of married partners, moreover with a specialised division of labour, has been evident in tax rules. The common taxation of spouses and the ‘wife discount’ have both worked on the premise of a traditional family, in contrast with the trend for individualisation of tax provisions adopted in much of Western Europe in the 1980s.156 The common taxation of spouses157 was adopted in 2004 and was available to spouses during the fiscal years 2005–07. It aggregated the married couple’s income and then divided it by two, thus giving the advantage of a lower tax rate to families with one breadwinner and one homemaker, and comparatively disadvantaging non-heterosexual families, unmarried couples, families with two higher earners and single households.158 Considering the gender-wage gap,159 which means that a man’s income is more likely to be higher than that of a woman, as well as the fact that the overwhelming majority of women take maternity leave and then continue on parental leave,160 the likely family model these tax rules were indirectly supporting was one with a male breadwinner and a female homemaker. The provision was abolished in 2007, not for gender equality reasons but out of budgetary concerns, and was replaced, in 2008,161 with a ‘wife discount’. The provision162 lowers the tax rate of a husband if the wife’s annual income is below 68,000 CZK (roughly three average monthly wages). This advantage is unavailable if the wife earns more. Both laws are most favourable163 to a model where one spouse earns very little (typically the female) and one spouse is the breadwinner (typically the male), and are therefore indirectly gendered. But strikingly, the ‘wife discount’ provision is also expressly and directly gender-specific. Although the Czech law normally uses generic masculine nouns and pronouns, the formulation here speaks of a discount for a ‘wife’. ‘Husband’ is only mentioned

156  C Saraceno, ‘Means-Testing Family Benefits in Europe: Explicit and Implicit Goals and Contemporary Trends’ in P Herrmann (ed), Human Beings—Between the Individual and the Social (Nova, 2006) 84. 157  Act No 586/1992 Coll, as amended by Act No 669/2004 Coll, s 13a. 158  The provision was optional, ie low-earner, two-income families could opt for separate taxation. 159  See p 157. 160  See p 157. 161  Act No 482/2008 Coll 162  Act No 586/1992 Coll, current version, s 35ba. 163  The provisions do not directly penalise other family models, but by not offering the same benefit of lower taxation they do comparatively disadvantage them. And while the material impact might be small (if the wife earns a full salary, the family would be better off overall than if she stayed at home), symbolically, the model shows a preference for a certain organisation of labour in the family.

The Model Family—Complete, Married, Heterosexual 163 in brackets. The gender-stereotyping character of the provision was never raised in the parliamentary debates. C.  Bias towards Complete Families, Against Single Parenthood The preference for complete families with a married father and mother was apparent in the CCC decision denying the extension of second parent adoption to unmarried couples. It has also been apparent among lawmakers. For example, it featured prominently in the debates surrounding the proposals for greater state involvement in the enforcement of child support payments.164 The Czech Republic faces a serious problem of enforcement of child support payments once the parents’ relationship breaks down. The divorce rate is high,165 and there is a high default rate on child support payments,166 coupled with a slow and ineffective system of enforcement through the courts.167 The level of child support awarded is also very low—in 2013, it was on average 2,900 CZK per child per month (approximately €100).168 As the caring parents who depend on child support from the non-resident parents are overwhelmingly women,169 the problem is a gendered one. As I mentioned in Chapter 2, the state guaranteed child support throughout the state-socialist period, but the system was gradually eliminated in the post-socialist period. Children are only guaranteed social security payments when the parents’ actual income falls below the existential minimum170—the level of court-awarded child support is irrelevant, and the policy thus addresses only the problem of absolute child poverty, rather than assuring healthy and full child development. To remedy this situation, a system of ‘state advances’ was proposed, in which the state would temporarily financially support the caring parent and child and then collect the amount due from the non-resident parent. This builds on the practice of many European states that, urged by a Council of Europe Recommendation,171 have

164  The following analysis is taken from B Havelková and K Cidlinská, ‘Genderové aspekty neúspěchu českých návrhů zákonů upravujících náhradní výživné na dítě [The Gender Aspects of the Failure to Adopt a Law on State Advances for Child Maintenance Payments in the Czech Republic]’ (2010) 11 Gender, rovné příležitosti, výzkum 60. 165  In 2014, there were 45,600 weddings and 26,764 divorces. CZSO, ‘Zaostřeno 2015’ (2015). 166  See p 156. 167  Havelková and Cidlinská, ‘Genderové aspekty’ (2010). 168  M Marksová, ‘Připravíme zákon o zálohovaném výživném [We Will Prepare a Law for State Advances of Child Subsidy]’ (ČSSD, 2016), available at www.cssd.cz/aktualne/aktuality/ michaela-marksova-pripravime-zakon-o-zalohovanem-vyzivnem/. 169  See p 156. 170  For details, see Havelková and Cidlinská, ‘Genderové aspekty’ (2010). 171  Council of Europe Recommendation 869/1979 on Payment by the State of Advances on Child Maintenance.

164  Women and Gender After 1989 adopted systems where the state temporarily steps in and provides payments when they are discontinued by the non-resident parent.172 Between 2001 and 2009, four proposals were presented to Parliament, all by female MPs, all unsuccessfully. The debates surrounding the proposals showed a strong bias against divorced and single parents, exemplified here by a statement by the then Deputy, later Prime Minister, Petr Nečas (ODS): The proposal is socially unjust … because in certain circumstances a whole lowincome family will have less money for their child than a broken family. This turns the whole social system, not only its motivational elements, on its head. It is against common sense.173

In the debates, the following four strategies were offered to single mothers to resolve their financial difficulties: (i) stay with the father; (ii) find a new provider; (iii) enforce the child support order themselves through the courts; or (iv) take on enough work to support a single-parent family.174 These strategies illustrate well the ‘marriage’ between social conservatism and market liberalism that has characterised the post-socialist period. On the one hand, a socially conservative position is present—women are urged to accept the traditional gender role of a dependant—a wife to the father or a new man. On the other hand, a market-liberal position is also ­apparent—it considers that women should be responsible for their choices, and there is nothing hindering them from taking care of themselves like anyone else. The fact that the ‘motherhood penalty’175 might need to be alleviated and mothers empowered was not considered. I return to the coexistence of social conservatism and economic liberalism in greater detail in Chapter 7 with regard to attitudes to law and rights, and in Chapter 9 in relation to gender. Linda Gordon, writing about the US, has analysed the peculiar position of ‘single mothers’ in welfare: ‘pitied but not entitled’.176 She notes that the category ‘single mother’ has several subcategories: widowed, divorced, separated or abandoned, and never married. Each of these comes with its own moral judgements and social policy solutions, with widows generally the most and unmarried single mothers the least ‘deserving’. A similar

172  Eg A Corden, ‘Comparing Child Maintenance Systems: Conceptual and Methodological Issues’ (2001) 4 International Journal of Social Research Methodology 287; C Winkler, ‘Sweden’s Child Support Guarantee and Women’s Economic Independence’ (2001) 5 Journal of Poverty 29. 173  Chamber of Deputies Debate, 27/1/2010, Print No 849 (2009), emphasis added. 174  Havelková and Cidlinská, ‘Genderové aspekty’ (2010). 175  The term is used, eg, by MJ Budig and P England, ‘The Wage Penalty for Motherhood’ (2001) 66 American Sociological Review 204. 176 L Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare (Free Press, 1994). For a discussion of the ‘desert’ of ‘single mothers’ in the Swedish context, see Winkler, ‘Sweden’ (2001).

The Model Family—Complete, Married, Heterosexual 165 hierarchy can be seen emerging from the parliamentary debates on state advances of child support, where divorced mothers were blamed for leaving their socially acceptable dependence on the man and becoming unacceptably dependent on the state, and where single mothers were treated as calculating ‘free riders’ and their support was considered to be against common sense. Greater attention has been paid to the issue in the last several years. The non-payment of child support has been a crime since 1950.177 Although it is one of the most commonly committed crimes in the Czech Republic,178 for a long time it was difficult to enforce, since a later repayment was considered ‘active repentance’ (účinná lítost), which extinguished criminal liability even if prosecution was already underway.179 The new 2009 Criminal Code no longer contains that possibility.180 Since the primary aim of any criminal provision is to punish the breach of the duty, rather than guarantee its fulfilment, the criminalisation of the non-payment has been of little help to caring parents, however. Thus, more recently, a private members’ bill181 was adopted that amended the Enforcement Code.182 It entered into force in 2013. It enables the enforcement of child support debt through the suspension of the debtor’s driver’s licence. Although somewhat unorthodox, this has proved to be an effective tool to make parents—mostly fathers—pay child maintenance.183 Furthermore, following the Policy Statement of the Czech Government, the Ministry of Labour and Social Affairs has prepared a legislative intent document on an Act on State Advances of Child Support as part of a set of measures to support incomplete families.184 As of August 2016, the proposal has yet to be discussed by the Cabinet. It will be interesting to observe whether these measures pass the scrutiny of the Cabinet and the Parliament, and whether a shift has now occurred beyond conservative traditional marital normativity and/or the narrative of individual responsibility that had been so prominent in the previous debates.

177  Act 86/1950 Coll, Criminal Code, s 210; Act No 140/1961 Coll, Criminal Code, s 213; Act No 40/2009 Coll, Criminal Code, s 196. 178  Over 12,000 instances were uncovered in 2015. Police Presidium, ‘Statistické přehledy kriminality za rok 2015’ (Policie ČR, 2015), available at www.policie.cz/clanek/statistickeprehledy-kriminality-za-rok-2015.aspx. 179  Act No 140/1961 Coll, Criminal Code, s 214. 180  Act No 40/2009 Coll, Criminal Code, s 33. 181  The provision was introduced in the Chamber of Deputies as an add-on to a governmental proposal on a different subject. Ministry of Justice, ‘Proposal to Amend the Code of Civil Procedure (Print No 537/2011 became Act No 396/2012)’ (Poslanecká sněmovna Parlamentu ČR, 2011), available at www.psp.cz/sqw/historie.sqw?o=6&t=537. 182  Act No 120/2001 Coll, Enforcement Code, s 71a, as amended by Act No 396/2012 Coll. 183  ČT24, ‘Možnost odebrat řidičák snížila dluh na výživném o tři miliardy [Suspensions of driver’s licences cut child maintenance debt by three billion]’ (ČT24, 2015), at http://www. ceskatele­vize.cz/ct24/domaci/1570179-moznost-odebrat-ridicak-snizila-dluh-na-vyzivnem-otri-miliardy. 184  MPSV Ref No 2016/11639-44.

166  Women and Gender After 1989 D.  Women’s Reproductive and Health Autonomy? The just-mentioned couple heteronormativity, apparent in the legal regulation of family relations, extends to reproduction too. Access to assisted reproduction in Czechia is limited to opposite-sex ‘infertile couples’.185 Possible relaxation of this rule has only been suggested in 2016, by Minister Marksová, and has met with considerable backlash.186 In Chapter 2, I noted a very early and wide guarantee of reproductive freedom via the legalisation of abortion in state-socialist Czechoslovakia. Unlike many other post-communist countries in CEE, which—often due to a stronger position of the Catholic Church—have either limited access to abortion or have subjected it to continuous debate,187 Czechia’s legal regulation has not changed. Does this mean that women are seen as the legitimate bearers of rights and decisions in relation to reproduction? Also in Chapter 2, I mentioned the policy of sterilisation, a way for public authorities to control the ‘quality’ of the population.188 Shockingly, this practice continued not just after 1989 but well into the first decade of the new millennium.189 In 2014, the Minister for Human Rights prepared a legislative intent document, proposing to start work on an Act on Compensation of the Illegally190 Sterilised. This was rejected by the Cabinet in 2015, and no other steps have been taken since.191 The lack of attention to this issue has been repeatedly criticised, including by the CEDAW Committee.192 The lack of a compensation193 scheme shows that a fundamental and

185 

Act No 373/2011 Coll, on Specific Health Services, s. 6. Novotná, ‘Další návrh Marksové: Umělé oplodnění pro nezadané ženy i lesby [Another Proposal by Marksová: Artificial Insemination also for Single Women and Lesbians]’, Echo24, 23 March 2016, available at www.echo24.cz/a/iLbVk/ dalsi-navrh-marksove-umele-oplodneni-pro-nezadane-zeny-i-lesby. 187  Gal and Kligman, writing in 2000, noted that ‘in East Germany, Hungary, Poland, Serbia, Slovenia, and Croatia, new laws were proposed, often by religious and conservative political organizations, attempting to use parliamentary means to restrict women’s access to abortion’: Gal and Kligman, The Politics (2000); S Gal, ‘Gender in Post-Socialist Transition: The Abortion Debate in Hungary’ in I Grudzinska-Gross and A Tymowski (eds), Eastern Europe: Women in Transition (Peter Lang, 2013); J Mishtal, The Politics of Morality. The Church, the State, and Reproductive Rights in Postsocialist Poland (University of Ohio Press, 2015). 188  See Ch 2 section III.C. 189 Czech Ombudsman, Závěrečné stanovisko veřejného ochránce práv ve věci sterilizací prováděných v rozporu s právem a návrhy opatření k nápravě [Final Report on Illegal Sterilizations and Proposals for Remedy] (No: 3099/2004/VOP/PM a násl, 2004). 190 The Act would have compensated those women who were sterilised without their informed consent, minors and the legally incapable. 191 L Otáhalová, ‘Právo a diskriminace [Law and Discrimination]’ in I Smetáčková (ed), Stínová zpráva o stavu genderové rovnosti v České republice v roce 2015 [Shadow Report on Gender Equality in the Czech Republic in 2015] (Česká ženská lobby, 2015) 52. 192  CEDAW Committee, Concluding Observations (2016), para 29. 193 Compensation has been awarded in individual cases. Some Czech courts have compensated victims since 2005. Czech Ombudsman, Závěrečné stanovisko (2004). Following a decision by the ECtHR (RK v The Czech Republic, App no 7883/08 (ECtHR, 27 186  K

The Model Family—Complete, Married, Heterosexual 167 unjustifiable violation of women’s bodies and their reproductive autonomy is not seen as sufficiently serious.194 In a weaker form, this dismissive attitude is mirrored in the treatment of women in relation to childbirth. In its last report, the CEDAW Committee expressed its concerns about continued reports on the conditions for childbirth and obstetric services in the State party unduly curtailing women’s reproductive health choices, including: (a) Unnecessary separation of newborns from their mothers without medical grounds; (b) Disproportionate limitations on home childbirths; (c) Frequent use of episiotomy195 without medical need and in contravention of the mother’s preference to abstain from them; and (d) Undue restrictions on the use of midwives in lieu of physicians/gynecologists in situations where such use does not pose a health risk.196

For example, an episiotomy, a cut to the perineum, which is performed in about 5–8 per cent of cases in countries like Sweden or Denmark, is carried out on half of women giving birth vaginally in Czechia. In some hospitals, the number reaches 80 per cent.197 Procedures are routinely performed without a woman’s consent, her knowledge, or even against her will.198 Women’s NGOs working in the area have considered many of the instances to be breaches of women’s human rights, including the rights to dignity, privacy, and even the right not to be subject to violence, torture and other cruel, inhuman and degrading treatment.199 Mostly unsuccessful before Czech courts,200 Czech women have started bringing cases to the European Court of Human Rights (ECtHR). For November 2012), the Czech Government reportedly settled with one victim (K Červená, ‘Vláda přiznala pochybení za nezákonnou sterilizaci, ženu odškodní 10 000 eury [Government Acknowledges Responsibility for Illegal Sterilization and Offers a 10,000 Euro Compensation]’ (Liga lidských práv, 11 December 2012), available at www.llp.cz/2012/12/ vlada-priznala-pochybeni-za-nezakonnou-sterilizaci-zenu-odskodni-10-000-eury/. 194  The Government did issue an apology in 2010, but this obviously falls seriously short of genuine reparation. 195  Episiotomy is a cut to the perineum (the muscular area between the vagina and the anus) made just before delivery to enlarge the vaginal opening. M Pavlíková, ‘Problematické postupy v českém porodnictví [Problematic Practices of Czech Obstetrics]’ (‘Biostatistička’ Blog, 11 December 2014), available at www.biostatisticka.cz/problematicke-postupy-v-ceskem-porodnictvi/. 196  Committee on the Elimination of Discrimination against Women, CEDAW Czech 2016 (2016), para 30. 197  Pavlíková, ‘Problematické’ (11 December 2014). 198  Dubská and Krejzová v the Czech Republic, App nos 28859/11 and 28473/12 (ECtHR Chamber, 11 December 2014) [32]; for more detailed results of qualitative research from S­ lovakia, see J Debrecéniová et al, Ženy, matky, tela. Ľudské práva žien pri pôrodnej ­starostlivosti v zdravotníckych zariadeniach na Slovensku [Women, Mothers, Bodies. ­Women’s Human Rights in Slovak Obstetric Care] (Občan, demokrácia a zodpovednosť, 2015), ­available at www.odz.sk/wp-content/uploads/Z-M-T_publ_el1_pod_sebou.pdf, 189. 199 Debrecéniová et al, Ženy, matky, tela (2015), 189–90. 200  Eg CCC Decision from 28 February 2012, Ref No Pl.ÚS 26/11.

168  Women and Gender After 1989 e­xample, the case Hanzelkovi v the Czech Republic201 concerned a ­court-ordered interim measure that required a mother with a newborn baby to be returned to hospital. The Court found a violation of Article 8 ECHR (right to respect for private and family life) and a violation of Article 13 ECHR (right to an effective remedy). Another recent case, Dubská and Krejzová v the Czech Republic,202 concerns the Czech law and its implementation, which de facto prohibits health professionals from assisting at home births. A Chamber judgment did not find a violation of the right to privacy. The case is pending before the Grand Chamber at the time of writing.203 The Grand Chamber will have to reconcile the Chamber judgment with a conflicting previous decision in Ternovszky v Hungary.204 There have been a number of similar cases coming from post-communist countries, and indeed comparative research205 reveals a ‘gender curtain’ hanging between Western and CEE countries. In post-communist countries, women’s health is not seen as an issue in which authentic women’s experiences, or their rights, have a place.206 Instead, the treatment relies solely on ‘authoritative views of medical science and practice (represented mainly by male obstetricians in the public space) that remain unchallenged, and which, in addition, are granted both official and high-profile status within the public discourse’.207 I noted earlier that a peculiarity of the ‘liberal’ approach to abortion in state-socialist Czechoslovakia was driven by a ‘collective’ concern for ­women’s health (and later population quantity and quality), rather than

201  Hanzelkovi v the Czech Republic, App no 43643/10 (ECtHR Chamber, 11 December 2014). 202  Dubská and Krejzová. 203 For a discussion, see B Havelková and Y Ioffe, ‘Grand Chamber of the ECtHR to Review Limitations on Choice of Birthplace for Women’ (Oxford Human Rights Hub, 10 July 2015), available at http://ohrh.law.ox.ac.uk/grand-chamber-of-theecthr-to-review-limitations-on-choice-of-birthplace-for-women-2. 204  Ternovszky v Hungary, App no 67545/09 (ECtHR Chamber, 14 December 2010). 205  Oxford Pro Bono Publico, ‘The Legal Regulation of Home Birth in the Domestic Jurisdictions of the Council of Europe Research prepared for the League of Human Rights, the Czech Republic’ (Oxford Human Rights Hub, 2015), available at http://ohrh.law.ox.ac.uk/ wordpress/wp-content/uploads/2015/03/LHR-Project-Final1.pdf. 206  This is slowly changing. Eg, the Working Group on Obstetrics, attached to the Governmental Council for Equality of Women and Men, has created a Facebook discussion group for women with recent childbirth experience and commissioned a quantitative content analysis of it. L Vondráčková, ‘Analýza diskuse “Zkušenosti z porodnic” založené Ministerstvem zdravotnictví na Facebooku [Analysis of the Discussion “Obstetrics Experiences” FB Group founded by the Ministry of Health]’ (Úřad vlády ČR, 30 June 2016), available at www.vlada.cz/assets/ ppov/rovne-prilezitosti-zen-a-muzu/dokumenty/Analyza-diskuse-_Zkusenosti-z-porodnic_-naFacebooku-Ministerstva-zdravotnictvi-CR-.pdf. 207 Debrecéniová et al, Ženy, matky, tela (2015), 195. This medicalisation is apparent in other gender-relevant areas, such as the treatment of transgender people. See B Havelková, ‘The Legal Status of Transsexual and Transgender Persons in the Czech Republic’ in J Scherpe (ed), The Legal Status of Transsexual and Transgender Persons (Intersentia, 2015).

From Motherhood to Parenthood? The Question of Childcare 169 women’s rights208 or support for women’s reproductive autonomy. The ultimate d ­ ecision-making during most of the period was in the hands of Abortion Committees. The fact that pregnancy and births are still seen as a matter for the medical establishment today, appears to be at least in part a legacy of this approach. At the same time, it is surprising that the prominent narrative of freedom, which has had so much traction after 1989, has not been applied to this area. I return to how a market liberal notion of rights as freedoms has failed women’s rights in the following chapter. III.  FROM MOTHERHOOD TO PARENTHOOD? THE QUESTION OF CHILDCARE

As I noted in Chapter 2, legislating on motherhood/parenthood and care is difficult. The law needs to recognise, on the one hand, that many women are mothers and that it is overwhelmingly women who are carers. But it must not over-protect women to an extent that limits their choices and weakens their position on the labour market, nor should it cement their social ‘role’ as the caring parent. Gender-progressive regulation would instead encourage fathers to participate in childcare, and make sure that a meaningful reconciliation of private and work-life is available to both. Under state socialism, in the 1950s, law saw women primarily as workers. This early model was based on the norm of a full-time working mother, supported (at least in theory) by collectivised childcare and housework. The collectivisation, however, was insufficient, and as there was no change in the division of labour in the family, women ended up with a triple burden. This period subsequently became viewed as emancipation gone wrong. The 1960s saw calls for greater protection and support of motherhood, and in the 1970s and 1980s women were indeed primarily legally treated as mothers, and mothers, in turn, as the only caring parent. The regulation from the period of Normalisation inherited in the post-socialist period thus had women at the centre of pro-natal and pro-family policies. In the following, I look at the legal regulation of motherhood and parenthood in labour and social security law. I argue that labour law, as it is today, is overall well suited to address the special needs of workers who are vulnerable due to motherhood or parenthood. It is neither over- nor underprotective, and it limits the protection of women to issues connected with biological aspects of motherhood (pregnancy, childbirth and breastfeeding),

208  Some feminists in the West have pointed out that the use of rights in relation to abortion can be treacherous, as a counter-narrative of rights of the foetus often arises. C Smart, Feminism and the power of law (Routledge, 1989) 146–52. In the Czech context, where there is very little understanding of decisions relating to birth as belonging to women, the use of rights, or at least a narrative of autonomy, could be beneficial.

170  Women and Gender After 1989 while protecting both men and women as parents (section III.A). I point out, however, that until late in the post-socialist period, and to some extent still today, the law has continued to treat all women as potential mothers (through bans on work), and that this over-protection, when repealed, was not eliminated because of any changing understanding of the issue, but mainly for reasons of EU membership (section III.B). The inclusion of fathers in the protection and support of parents was also overwhelmingly EU-driven. Furthermore, the opening of parenthood to fathers was not done comprehensively and with a view to truly facilitating caring by fathers, so considerable gaps have remained (section III.C). Lastly, I look more closely at the parental benefit. I assess whether it facilitates the reconciliation of family and professional life, or rather keeps the caring parents—overwhelmingly the mothers—in the home. I argue that while some positive changes have been made and are currently proposed, the ‘norm’ is still individualised care of several years in length (section III.D). Thus, overall, while there have been changes that can be seen as a ‘loosening’ of the role of the mother, such as the gender neutralisation of provisions on parental leave and benefits, or the permissibility of childcare by a nonparent, the emphasis continues to be on private personal care in the home. This care continues to be overwhelmingly that of the mother; fathers are not yet sufficiently encouraged to participate. A.  Protecting Motherhood and Parenthood in Labour Law The protection of pregnant women and mothers as vulnerable workers in labour law, inherited from state socialism as gender-specific, was largely kept in the post-socialist period. Provisions on care not connected to the biological aspects of motherhood, on the other hand, have been gender-­neutralised to include fathers. The Labour Code, which regulates the employment relationship, now protects pregnant women, mothers on maternity leave and either parent on parental leave from dismissal.209 The provisions often go beyond the minimum standards required by EU law. For example, in guaranteeing maternity leave of 28 weeks,210 Czech law goes beyond the Pregnancy Directive’s minimum required length of 14 weeks.211 The leave is mandatory for 14 weeks in Czechia,212 but only for two weeks under the 209  Act No 262/2006 Coll, Labour Code, ss 53(1)(d), 54(b), (c), (d), 55(2). The exceptions are situations of dissolution of the employer and gross misconduct. Even then, the dismissal cannot be effective immediately (okamžité zrušení) but has delayed effect (výpověď). 210  ibid, s 195. It is also available to either parent in cases of adoption: ibid, s 197. 211  Council Directive 92/85/EEC (Pregnancy Directive) on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, [1992] OJ L348/1, art 8(1). 212  Act No 262/2006 Coll, Labour Code, s 195(5).

From Motherhood to Parenthood? The Question of Childcare 171 Directive.213 Czech law also guarantees new mothers breastfeeding breaks, a measure that is only being debated at the EU level today. Czech mothers are entitled to two half-hour breaks for children aged under 1 year, and one break a day for a further three months after that. These breastfeeding breaks count towards working time and pay.214 But the protection of pregnant women and new mothers does not end there. If a pregnant woman is doing unsuitable work, the employer is obliged to reassign her, if possible, to a position with equal remuneration. Should her pay be lower than her previous wage, a benefit under the sickness insurance scheme tops up her income.215 Pregnant women or caring parents216 are also protected from obligatory night work,217 overtime,218 change of workplace and work-related travel.219 The employer is generally required to consider pregnant women or caring parents when assigning work shifts,220 and unless there are serious operational reasons against it, must agree to an adjustment of working time, including a conversion to part-time work.221 With regard to care, the already mentioned maternity leave provisions in labour law are complemented by financial provisions in social security. A maternity allowance222 is available, paid from sickness insurance and not by the employer, and is counted as a percentage of previously earned salary. For a part of the period—after the seventh week following childbirth—it can be paid out to fathers too.223 The Labour Code provisions ensure that the mother has a right to return to the same work position and, as required by EU law,224 is newly protected from discrimination.225 Parental leave, which follows maternity leave, is available for three years.226 It is accompanied by a parental allowance, available to either the mother or the father. The monthly sum227 paid out of the social security system can be drawn for up

213 

Pregnancy Directive, art 8(2). Act No 262/2006 Coll, Labour Code, s 242. 215  Act No 187/2006 Coll, ss 42–44. 216  Employees are protected when they have children up to 8 or even 15 years old. 217  Act No 262/2006 Coll, Labour Code, s 239(1). 218  ibid, s 241(3). 219  ibid, s 240(1). 220  ibid, s 241(1), (2). 221  Ibid, 241(2). 222  Act No 187/2006 Coll, ss 32–38. 223  ibid, s 32(1)(e). 224 Directive 2006/54/EC on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (Recast), [2006] OJ L204/23, art 2(2)(c). 225  Act No 198/2009 Coll, Anti-Discrimination Act, s 2(4). 226  Act No 262/2006 Coll, Labour Code, s 196. 227  The calculation of the benefit changed from a flat-rate sum in Act No 382/1990 Coll, s 7, to a set amount counted on the basis of the national social security ‘personal need figure’ in Act No 117/1995 Coll, s 32. Parental allowance was increased in 2004 (Act No 237/2003 Coll) and again, considerably, in 2006 Act No 112/2006 Coll. But this change, just before the 2006 elections, was arguably adopted for populist reasons. See R Dudová, ‘Promarněná šance 214 

172  Women and Gender After 1989 to four years. The time spent caring for a child still counts as an equivalent of work for the purposes of pensions.228 These provisions address the particular vulnerability on the labour market of pregnant women, mothers immediately after giving birth and of carers, and recognise their contribution to society. As they are today, the provisions both fulfil and go beyond the minimum requirements of EU law in the area of employment, and are quite generous compared to other EU systems.229 But this apparent generosity can be counterproductive. Despite their ­gender-neutralisation, women are still overwhelmingly availing themselves of these provisions, which leads to their already discussed severe disadvantage in the labour market.230 It is worth emphasising, moreover, that the legal set-up, which is meant to guarantee women access to and equality in the labour market, is not mirrored by the reality of women’s work experiences. I noted above that the right to return to a previous job, for example, is often breached. Indeed, anecdotal evidence suggests than many of these provisions, especially the right to working-time adjustments for parents of children under 15 years of age, are widely disregarded. Much-needed comprehensive research on compliance with these measures is yet to be done, but it can be said that the situation of de jure guarantees combined with widespread de facto breaches and the inequality I noted in relation to the state-socialist period in Chapter 2, continues today. B.  Protecting all Women as Mothers? As I observed in Chapter 2, the state-socialist law contained wide-raging protections for women and limitations on work by women. The period of Normalisation in particular was characterised by a strong pro-maternity policy targeting population growth. This policy suited many women who retreated into the private world of motherhood and family to escape the ‘living of a lie’ in the public sphere. A strong understanding of women’s role as mothers existed under state socialism and was carried over into the

na změnu: zhodnocení reformy rodičovského příspěvku [A Lost Chance: Assessing the Reform of Parental Allowance]’ in A Křížková et al (eds), Práce a péče [Work and care] (SLON, 2008) 29. As of 2008 (based on Act No 261/2007 Coll), the amount depends on the length of time the caring parent chooses to stay at home. 228 

Act No 155/1995 Coll, s 5(1)(r), (s). eg, European Network of Legal Experts in the Field of Gender Equality, ‘Legal Approaches to Some Aspects of the Reconciliation of Work, Private and Family Life in Thirty European Countries’ (European Commission, 2008), available at www.ec.europa.eu/justice/ gender-equality/files/reconciliationfinal28aug2008_en.pdf. 230  See p 156–157 above. 229 See,

From Motherhood to Parenthood? The Question of Childcare 173 post-socialist period. Throughout the 1990s, public opinion surveys demonstrated a continued perception of motherhood as the most fundamental female role.231 This perception, but also (over)protective legal provisions, carried over into the post-socialist period as well. Until the mid-2000s, the Labour Code continued to speak about the ‘maternal role’. It prohibited ‘all inadequate or harmful work, especially work which endangers women’s maternal role’.232 The provision was based on the assumption that all women were actually or potentially mothers, whether or not that was the path they chose.233 The formulation was amended in 2004234 to ban employment of women in works endangering motherhood, thus tailoring the protection more narrowly only to those women who are mothers. Similarly, an Ordinance of the Ministry of Health,235 which prohibited certain works and working conditions to all women, was abolished and replaced with a new Ordinance236 in 2003 that only restricts the employment of pregnant and breastfeeding women and mothers until the end of the ninth month after giving birth, in accordance with the Pregnancy Directive. A Government Ordinance on Health and Safety at Work,237 however, still distinguishes between men and women in relation to certain limitations. For example, the manual lifting of freight is limited to 20kg for women and 50kg for men,238 which can exclude women from certain jobs, such as paramedics or fire-fighters.239 An investigation into its compliance with EU law is currently being undertaken by the Ombudsperson. The comparative survey conducted as part of this assessment has revealed a considerable gap between the regulation of freight-lifting in Western Europe and in post-­communist CEE countries;240 another example of a ‘gender curtain’ between the two regions. Bans on certain types of work affecting all women, notably night work and work underground, have been abolished entirely. Historically, these bans were considered necessary to prevent the exploitation of women. This was reflected in the adoption of international instruments in the first half

231 

Havelková, ‘The Political’ (1999), 157. Act No 65/1965 Coll, Labour Code, as valid before 2005, s 150 (emphasis added). 233  On the issue of whether greater protection of women, and especially their reproductive capacity, is justified, see S Fredman, Women and the Law (Oxford University Press, 1997) 306–08. 234  Act No 436/2004 Coll. 235  Ordinance of the Ministry of Health No 261/1997 Coll. 236  Ordinance of Ministry of Health No 288/2003 Coll. 237  Government Ordinance No 361/2007 Coll, on Health and Safety at Work, s 29. 238  ibid, s 29. 239  J Kvasnicová et al, Antidiskriminační zákon. Komentář [Anti-Discrimination Act. Commentary] (Wolters Kluwer, 2015) 236. 240  Internal document; on file with the author. 232 

174  Women and Gender After 1989 of the twentieth century.241 With time, the bans came to be seen more as a patronising limitation, based on stereotypical ideas about women’s physiological weaknesses and their role as mothers.242 Bans on night work243 and work underground244 were considered in breach of EU law by the European Court of Justice, which saw them as a limitation of women’s autonomy in the labour market and ultimately as a breach of equality. In Czechia, the question of the desirability—and constitutionality—of the ban on night work was resolved relatively early. A challenge245 was brought to the Constitutional Court in 1994. The Court, looking at a new ILO Convention on the subject and the EU law for guidance, considered the ban incompatible with gender equality.246 The current provision on night work is gender neutral.247 The elimination of the prohibition on work underground for all women was longer in coming, however. The provision, originally contained in the 1965 Labour Code,248 was carried over into the new 2006 Labour Code.249 The Czech provision was adopted and kept to comply with a 1935 ILO Convention,250 and was only abolished in 2012.251 The fact that the changes to ‘maternal role’ as well as bans happened relatively late in the post-socialist period, and only due to requirements of EU equality law, means that this change in the legislative framework does not necessarily imply or show any substantive shift in understanding. It cannot be taken as an indicator that it is now understood that the over-emphasis on women’s biological difference in relation to men, and the equating of all women with motherhood, can be gender-cementing and limiting of women’s choice. It also highlights the contours of the EU’s role in legal developments during the post-socialist period. The Czech law has gone beyond EU law requirements where older, mainly originally state-socialist, protective provisions

241  Eg, the ILO Convention concerning the Employment of Women on Underground Work in Mines of all Kinds No 45 of 1935; or ILO Convention concerning Night Work of Women Employed in Industry No 89 of 1948. 242  For a discussion, see Fredman, Women (1997), 304-08. 243 Case C-345/89 Criminal proceedings v Alfred Stoeckel, 25 July 1991, [1991] ECR I-04047. 244  Case C-203/03 Commission v Austria, 1 February 2005, [2005] ECR I-935. 245  Act No 65/1965 Coll, Labour Code, version before 1994, s 152. 246  Discussed on p 217–218 below. 247  Act No 262/2006 Coll, Labour Code, s 94. Night work is in principle allowed for all, but is subject to limitations, especially with regard to working time. 248  Previously, Act No 65/1965 Coll, Labour Code, s 150. 249  Act No 262/2006 Coll, Labour Code, s 238(1). The reason was that the Czech Republic missed several occasions to withdraw from the 1935 ILO Convention. 250  ILO Convention concerning the Employment of Women on Underground Work in Mines of all Kinds No 45 from 1935. 251  Act No 365/2011 Coll, Amending the Labour Code amending Act No 262/2006 Coll, Labour Code.

From Motherhood to Parenthood? The Question of Childcare 175 on motherhood have existed and been retained. On the other hand, anything that has to do with discrimination against women and mothers, reconciliation of work and professional life, and the involvement of men in caring, to which I turn now, has been longer in coming and fulfils only the minimum requirements of EU law. C.  Bringing Fathers into Care? As already mentioned, many provisions originally working with the assumption that only women were child-carers were gender-neutralised after 1989. The system inherited from state socialism consisted of maternity leave accompanied by maternity benefits, followed by ‘further maternity leave’ accompanied by a motherhood allowance. In the post-socialist period, these provisions were slowly amended to include fathers—ie, they were levelled up to include men. As early as 1990, the childcare benefit, ‘motherhood allowance for further leave’, was changed to a parental allowance (rodičovský příspěvek).252 Inclusion of child-caring periods in calculating pensions was extended to men in 1995.253 In labour law, ‘further maternity leave’ changed into ‘parental leave’ in 2000.254 Special treatment with regard to care, which was available only to women until 2005,255 such as adjustments of working time and schedule, protection from dismissal, limitations on the change of workplace and work travel, was made available to caring fathers in the new 2006 Labour Code. The change of heading from ‘Working conditions of women and minors’256 to ‘Special working conditions of certain employees’257 in 2006 is illustrative. The inclusion of fathers, however, has been patchy. For example, as far as parental allowance was concerned, it was made available to caring fathers in 1990, as previously mentioned.258 In reality, however, this gender neutralisation was notional, as the Labour Code only recognised ‘parental leave’ in 2000.259 Thus, for a decade, a father could receive the benefit but had no guarantee of a workplace nor protection from dismissal during the period of care.

252 

Act No 382/1990 Coll. Act No 155/1995 Coll. 254  Act No 155/2000 Coll. 255  Act No 65/1965 Coll, Labour Code, last version, ss 154–156. 256  ibid, Head VII. 257  Act No 262/2006 Coll, Labour Code, Part X, head IV. 258  Act No 382/1990 Coll. 259  Act No 155/2000 Coll. 253 

176  Women and Gender After 1989 The pension system also retained different provisions for women and men as regards retirement age.260 Women’s already lower retirement ages benefited from further lowering based on the number of children they had; no comparable provision existed for fathers. Furthermore, men but not women were required to inform the social security administration of caring periods, for the purposes of inclusion of these caring periods in pension calculations.261 Both provisions were subject to constitutional review for breach of the right to equality of the sexes. The Constitutional Court declared the administrative obligation of men to inform the administration about periods of care unconstitutional in 2006, but upheld the different retirement ages in 2007. I discuss the way the CCC applied the constitutional sex equality guarantee in these cases in more detail in Chapter 8. Can the partial gender neutralisation be taken to signify a real and earnest attempt to draw men into parenting? The answer is probably still no, despite the fact that in 2016, the Government presented a proposal to Parliament262 to institute ‘paternity care’ (otcovská poporodní péče). It is the first measure to specifically encourage greater engagement of men in parenting. The benefit, to be paid out of sickness insurance, would allow fathers to take seven days off while receiving 70 per cent of their previous wage,263 at any point during the first six weeks after the birth of their child.264 The seven-day period is, however, rather short, considering that it is mothers, who—on average—spend three years265 at home with every child.266 And it certainly stops short of a more proactive encouragement, such as specific periods of parental leave and benefit for each parent, known from Nordic countries,267 or even the support of concurrent care by both parents (at the moment, the contemporaneous receipt of maternity and parental allowance is not available).268

260 

Act No 155/1995 Coll, s 32. ibid, s 5(3), 2nd and 3rd sentence; and Act No 582/1991 Coll, s 6(4)(a) point 11. 262  Czech Government, ‘Governmental Proposal of an Act Amending the Act on Sickness Insurance (Print No 821 of 2016)’ (Poslanecká sněmovna Parlamentu ČR, 2016), available at www.psp.cz/sqw/historie.sqw?o=7&t=821. 263  The benefit would be paid out of sickness insurance and is thus dependent on previous employment. The maximum amount that can be paid out is, however, limited. 264  Or receipt of the child into their care in cases of adoption. 265  See p 157 above. 266  Moreover, during the period, both the mother and the father would be at home with the child, which might not necessarily guarantee that the father would take over the whole range of tasks of childcare. I thank Pavla Špondrová for this addition. 267  European Network of Legal Experts in the Field of Gender Equality, ‘Legal Approaches’ (2008). 268  Act No 117/1995 Coll, s 30b(3). 261 

From Motherhood to Parenthood? The Question of Childcare 177 D.  Work or Care? A Closer Look at the Parental Benefit In reality, parenting continues to be a woman’s job in Czechia.269 Provisions for parenting, both in labour law and in social security, even if they no longer directly and explicitly regulate motherhood, continue to do so indirectly.270 In the following, I look in more detail at the institution of parental benefit, and analyse how it indirectly regulates and constructs motherhood. In particular, I examine whether it aims to facilitate the reconciliation of the private and professional lives of women, or whether it encourages and supports private individual childcare by women in the home. The way that parental leave and benefit are set up influences women’s decisions and their ability to reintegrate into the labour market, as well as their ability to care for young children. Two questions are particularly pertinent: (i) what is the duration of parental leave/benefit, and (ii) does it compensate for the costs of care without regard to who performs it, or does it advantage a particular form of care (by the mother, in the home)? As for the length of the leave and benefit, arguably, a very short leave keeps the caring parent well integrated in the labour market, but might not allow for sufficient personal care for a new-born child. On the other hand, a longer period of care might be counterproductive with regard to labour market participation, as young mothers—and women more generally—become perceived by employers as workers with ‘issues’. The Czech state has been ‘generous’ in terms of the length of maternity and parental leave. The period of absence from the workplace when dismissal is illegal is three years,271 and the duration of benefit payments is up to four years.272 This ‘generosity’ has, however, created problems for mothers, as well as for women more generally in the labour market. I mentioned above that the impact of motherhood on Czech women’s employment is among the greatest in the EU.273 Questions about labour rights of women on maternity and parental leave, and those returning to work, dominate legal clinics and counselling centres for women,274 and discrimination on the basis of pregnancy and motherhood appears to be rampant.275 269 

See p 157 above. the term ‘indirect’ in the sense it has in anti-discrimination law—an apparently neutral provision that disproportionately impacts on persons of one sex. 271  See fn 226 above. 272  Act No 117/1995 Coll, s 30(1). 273  See p 157 above. 274  Enquiries about maternity and parental leave constitute the majority of questions in the legal clinic of the NGO Gender Studies. For example, in August and September 2012, twothirds of all queries were on the subject; the ratio was the same from July to mid-August 2016. Gender Studies, ‘Bezplatná právní poradna Gender Studies [Free Legal Clinic by Gender Studies]’ (Právní poradna Gender Studies, 2016), available at www.rovneprilezitosti.cz/cz/. This finding has been confirmed in personal conversations with female lawyers, in which I have been repeatedly asked why I cared about anti-discrimination law when the biggest problems faced by Czech women were connected to motherhood. 275  See p 157 above. 270  Using

178  Women and Gender After 1989 While one might have expected a decrease in the length of the leave and duration of benefit since 1989, this has not been the case. The motherhood allowance was available for up to three years for second and further children until 1989; the new parental allowance became available for three years unconditionally (for every child) in 1990.276 In 1995, the provision of parental allowance was extended to four years.277 ‘Further maternity leave’ was not extended in labour law, however, which meant that women who availed themselves of the full four-year duration of the social benefit had no right to return to their original workplace. Overall, these policies encouraged women to stay at home with their children for longer. The sharp decline in crèche and kindergarten places278 basically precluded alternative arrangements—while during state socialism a woman stayed home on average for two years per child, this rose to three years between 1987 and 2009.279 A seemingly positive development was the ‘flexibilisation’ of the system of parental leave. A ‘three-speed parental leave’280 was introduced in 2008. It allowed the child-caring parent the choice of receiving a higher allowance for shorter periods of time.281 Given that the previous length of parental leave was making the return to the labour market more difficult for carers,282 the availability of well-paid, short-term parental leave was welcome, as it gave the caring parent a good income for the initial period of care and then motivated her to return to the labour market more quickly. The system, as originally adopted, was criticised by feminist commentators.283 Many of the deficiencies identified were remedied in 2011. For example, while the length of receipt of benefit originally had to be chosen a priori, and the decision could not be changed,284 a change of length during the period of receipt was introduced.285 Another point of criticism—the fact that the system disadvantaged the unemployed because it was conditional on the previous receipt of maternity benefit, which is in principle only available to employed women—was changed too.286 The criticism that can

276 

Act No 382/1990 Coll. Act No 117/1995 Coll, ss 30–32. 278  See p 147–148 above. 279  The values are median. Hašková, Maříková and Uhde, ‘Leaves’ (2009), 104. 280  Act No 261/2007 Coll. 281  Originally, the options were two, three or four years—the shorter the time, the higher the monthly allowance. The idea was that over the whole period, the total amounts paid out would be equal. Currently, the parent can go on leave for as long as (s)he wishes; the only limitation is the monthly maximum of 11,500 CZK and the total maximum of 220,000 CZK. 282  See p 157 above. 283  Hašková, Maříková and Uhde, ‘Leaves’ (2009); Dudová, ‘Promarněná’ (2008). 284  Act No 117/1995 Coll as amended by Act No 261/2007 Coll, s 30(2). 285  Act No 117/1995 Coll as amended by Act No 366/2011 Coll, s 30(7). 286  It is now based on the income of either parent, not the actual recipient parent. Act No 117/1995 Coll as amended by Act No 366/2011 Coll, s 30(3), (4), (5). 277 

From Motherhood to Parenthood? The Question of Childcare 179 still be made, however, is that the system disadvantages the poor. The total amount that can be paid is 220,000 CZK (€8,150), which can be paid out in larger sums over a shorter period, or as lower sums over a longer period. The level of the monthly benefit is dependent on the average earnings of parents. The highest monthly amount—and the logical corollary, the shortest leave—would thus be available only to high earners. This in practice means that the carers in low-income couples would receive a lower income for longer periods. Thus, there remains little incentive to return to the labour market earlier. Furthermore, the possibility of counting the amount based on the partner’s earnings, while positive for couples with one higher earner (due to the gender wage gap, usually the man), further comparatively disadvantages single parents (in reality, mothers). This shows that the default option is still implicitly a longer period of care. The new system merely allows a specific group of parents to ‘opt up’ to a shorter and better-paid parental leave. Here, too, the current Government is proposing changes. The proposed reform of the current parental allowance would allow the drawing of the benefit for as short a period as one year, and the total monthly sum could be as high as the maternity allowance (currently, there is a cap of 11,500 CZK = approx €425 per month). It also represents an improvement for those who are unemployed, who are not entitled to maternity benefits, as it increases the maximum amount of parental allowance they can get instead. A bill containing these changes was presented to the Parliament in 2016;287 it remains to be seen whether it will find support. As for whether the system financially compensates the costs that families incur in connection with care for their children, or whether it expresses a preference and advantages a particular form of care, the latter seems to have been the case. For most of the period of post-socialism, the system has encouraged private individual care in the home. Minor changes have occurred since the mid-2000s. First, from 2004 onwards,288 the recipient parent could have an unlimited income while still drawing benefit. Dudová argues that the allowance could thus no longer be interpreted as a substitute for lost pay but as a contribution toward caring.289 The system also saw some loosening of the ‘personal care’ prerequisite for eligibility. Since 2007, the person caring does not have to be the parent; it could be a nanny.290 However, the child cannot be put into public collective care for any­

287  Czech Government, ‘Governmental Proposal to Amend the Act on State Social Support (Print No 854/2016)’ (Poslanecká sněmovna Parlamentu ČR, 2016), available at www.psp.cz/ sqw/historie.sqw?o=7&t=854. 288  Act No 453/2003 Coll. 289  Dudová, ‘Promarněná’ (2008), 32. 290  Act No 117/1995 Coll, s 31(2); after Act No 261/2007 Coll, s 31(3).

180  Women and Gender After 1989 considerable time291 without the benefit’s being lost, which understandably continues to be a disincentive for parents to enrol children into crèches and kindergartens even on a part-time basis. The 2016 reform has proposed lifting this restriction. It would be a welcome step towards loosening the idea that childcare has to be done by the mother, privately and individually. IV.  ADDRESSING GENDER-BASED VIOLENCE WITHOUT SEEING GENDER

I argued in Chapter 5 that the socialist state, as well as its experts and legal scholars in particular, failed to see, understand and adequately address gender-based violence.292 In the following, I observe that these limits persisted in post-socialism, despite considerable improvements in gender-based violence legislation293 in the 2000s. A wider range of harmful behaviour is now covered thanks to changes in the substantive criminal law (section IV.A). But the acknowledgement that the violence is not random but is gender-based is still missing (section IV.B). Lawmakers and judges continue to have trouble understanding and addressing the specific vulnerability of the victims of gender-based violence. On the contrary, I show—using the examples of prostitution, rape and sexual harassment—that victims are often the targets of repression, primary scrutiny and blame (section IV.C). Unaware and unreflective of any gender bias in life and law that needs to be fought consciously, the Czech law, lawmakers and judges continue to adopt a ‘male perspective’.294 A.  Positive Developments in Substantive Criminal Law and Beyond Gender-based violence was not specifically legally addressed under state socialism, and it was not identified as a problem by legal scholars. The level and duration of oblivion and denial is striking; in the parliamentary debate about specific criminalisation of domestic violence in 2003, a Communist Party MP still insisted that domestic violence did not even exist under state

291  Before 2012, the maximum was five days a month, which was increased to a maximum of 46 hours a month in 2012 (Act No 117/1995 Coll, current version, s 31(3)(a). Currently, the use of collective childcare is no longer monitored for children over 2 years of age. 292  For a definition, see p 118. 293 I draw on the research done and the national report submitted for B Havelková, ­Feasibility Study on National Legislation on Gender Violence and Violence Against Children— European Commission JLS/2009/D4/018—National Report for the Czech Republic (unpublished, 2010). 294  CA MacKinnon, ‘Reflections on Law in the Everyday Life of Women’, in A Sarat and T Kearns (eds), Law in Everyday Life (University of Michigan Press, 1994); CA MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, 1989) 216.

Addressing Gender-Based Violence without Seeing Gender 181 socialism and only occurred post-1989: ‘The Communist Party in Parliament will support the proposal, aware of the fact that various negatives were brought into our society after 1989; and one of these negatives is the rise of domestic violence.’295 From the 2000s onwards, the existence of gender-based violence was finally acknowledged and started to be specifically legislated. Domestic violence, defined as ‘maltreatment of a person living in a jointly occupied flat or house’, was criminalised in 2004296 after several unsuccessful attempts. The new 2009 Criminal Code adopted297 the provision.298 The definition now covers opposite-sex as well as same-sex partners, and does not specify any regularity of the relationship (marriage or registered partnership). It is, however, limited to situations of cohabitation, and thus does not cover all instances of intimate partner abuse. The new 2009 Criminal Code, aside from incorporating the domestic violence provision,299 also newly criminalised stalking.300 Further, it introduced a more comprehensive definition of trafficking,301 driven by EU law302 and very close to the formulations of the Palermo Protocol.303 The definitions of sexual offences were broadened as well, to cover a wider range of behaviour. Rape304 is now defined not only as ‘intercourse comparable to genital intercourse’, but also any other sexual intercourse—action by which the perpetrator achieves sexual gratification using the body of another person (groping of genitals, breasts, etc). A new offence of ‘sexual coercion’305 was also inserted, which also covers coercion for ‘self-gratification, denudation or similar behaviour’.

295  Ladislav Mlčák (KSČM), Chamber of Deputies Debate, 25/6/2003, Print No 298 (2003) (emphasis added). 296  Act No 140/1961 Coll, Criminal Code, as amended by Act No 91/2004 Coll, s 215a. 297  The new provision increased the minimum sentence for the basic offence to six months and the maximum sentence from three to four years. 298  Act No 40/2009 Coll, Criminal Code, s 199. 299 ibid. 300  ibid, s 354, entitled ‘dangerous pursuit’. 301 ibid, s 168. The definition of trafficking evolved gradually. In 2002, the provision ‘trafficking in women for the purpose of sexual intercourse’ was gender-neutralised (Act No 140/1961 Coll as amended by Act No 134/2002 Coll, s 246), and in 2004 ‘trafficking of human beings’, originally addressing only sexual exploitation, was amended to also cover other forms of exploitation such as forced labour (Act No 140/1961 Coll as amended by Act No 537/2004 Coll, s 232a). 302  The explanatory memorandum informs that the changes are meant to implement Council Framework Decision 2002/629/JHA on Combating Trafficking in Human Beings, [2002] OJ L203/1. 303  Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime (United Nations A/55/25, 8 January 2001), available at http://documents-dds-ny.un.org/doc/UNDOC/ GEN/N00/560/89/PDF/N0056089.pdf?OpenElement. 304  Act No 40/2009 Coll, Criminal Code, s 185. 305  ibid, 186.

182  Women and Gender After 1989 Gender-based violence has been addressed beyond criminal law. In 2006, the Protection against Domestic Violence Act306 was adopted, which aimed specifically at improving the situation of victims. It enabled the police to temporarily evict the aggressor from the shared dwelling, provided for a court-ordered civil law territorial and personal injunction against the aggressor, and set up a system of social help through intervention centres.307 Protection from harassment and sexual harassment on the basis of sex, sexual orientation and other protected grounds is now guaranteed by the AntiDiscrimination Act (ADA).308 For a long time, the amendments to the substantive provisions of criminal law were not accompanied by equivalent procedural measures. This changed in 2013,309 when the Act on the Protection of Victims of Crime310 was adopted. The Act guarantees a range of rights to victims, including the right to information,311 the right to protection from imminent danger,312 the right to the protection of privacy,313 the right to be protected from material harm314 and a right to financial help.315 The Act amended the Code of Criminal Procedure, introducing a range of interim measures. A perpetrator can now be prohibited from contact with the ‘aggrieved’ (poškozený), from entering a shared residence and from visiting certain environments, places or events.316 During the process of drafting the Act, NGO suggestions were

306 

Act No 135/2006 Coll. Voňková and I Spoustová, Domácí násilí v českém právu z pohledu žen [Domestic violence in Czech law from women’s perspective] (ProFem, 2008) 219. 308  The provision on sexual harassment was part of EU implementation obligations, specifically the Directive 76/207/EEC (Equal Treatment Directive) as amended by the Directive 2002/73/EC (Amending Directive), art 2(2); now Directive 2006/54/EC (Recast Directive), arts 2(1)c, d and 2(2)a. The original transposing provision in Act No 65/1965 Coll, Labour Code, s 7(2), enacted in 2000, covered only quid pro quo harassment, ie situations where the ­employee’s submission to or rejection of the harassing behaviour is used to determine their status; and it only addressed sexual harassment. It was thus not compliant with the EU definition. A new definition was introduced in 2004 to comply with the Amending Directive. With the adoption of a new Labour Code, Act No 262/2006 Coll, Labour Code, which counted on the contemporaneous adoption of the first proposed ADA, the protection disappeared. This situation was only remedied in 2009, when the second proposal of an ADA was passed and entered into force (Act No 198/2009 Coll, Anti-Discrimination Act, ss 2(2), 4(1), (2)). 309  The following analysis is based on B Havelková and Z Holakovská, ‘Násilí na ženách [Violence Against Women]’ in P Kubálková (ed), Ženy a česká společnost. Hodnocení implementace Pekingské akční platformy v národních a mezinárodních politikách ČR (Peking +20) [Women and Czech Society. An Evaluation of the Implementation of the Beijing Platform for Action in national and international policies of the Czech Republic (Beijing +20)] (Cats2Cats, 2016) 39–40. 310  Act No 45/2013 Coll, on the Protection of Victims of Crime. 311  ibid, ss 7 et seq. 312  ibid, s 14. 313  ibid, s 15. 314  ibid, s 17. 315  ibid, s 23. 316  Act No 141/1961 Coll, Code of Criminal Procedure, ss 88b et seq. 307 J

Addressing Gender-Based Violence without Seeing Gender 183 taken on board. For example, it is positive that the interim measures are no longer made dependent on the perpetrator’s being held in custody (for which there are limited permissible reasons under Czech law),317 which will broaden victim protection. The Act requires all institutions of the criminal justice system to show ‘respectful and considerate behaviour’ towards victims, with the aim of ‘preventing the deepening of the harm caused by the crime and preventing secondary victimisation’.318 The Act introduces the concept of an ‘especially vulnerable victim’, which is particularly important for victims of genderbased violence.319 They are given increased levels of protection, including the rights to be questioned by a person of the same sex and to be protected from contact with the perpetrator,320 and can receive free expert counsel. Too little time has elapsed for these new guarantees to be evaluated, but they do signify a new concern for vulnerable victims. Notwithstanding the fact that most developments in this area have been positive, some changes have been for the worse. In particular where there has not been unambiguous external guidance from international law or the EU, such as in the area of prostitution, the legislator has had trouble identifying vulnerability, and has targeted and repressed the weaker party—the prostitute—as I discuss below. B.  Refusal to See Gender From the 1970s onwards, Western feminists have thematised the problem of violence against women as a problem connected to gender and the gender order. By taking the perspective of the (overwhelmingly female) victims, feminists321 have been able to show how and why a range of harmful acts overwhelmingly perpetrated against women have been ignored, misrepresented and legitimised.322 They have identified the gender biases about women, sex, sexuality and intimate relationships that underlie legal rules and their application, and which have often worked to the detriment of victims. Radical feminists323 have observed the structural aspects of gender-based 317 

ibid, s 68. Act No 45/2013 Coll, on the Protection of Victims of Crime, s 3. 319  ibid, s 2(4). 320  ibid, ss 17(2), 5. 321  Eg MacKinnon, Toward (1989). 322 I borrow this formulation from R Whisnant, ‘Feminist Perspectives on Rape’, The Stanford Encyclopedia of Philosophy (2011), available at http://plato.stanford.edu/archives/ spr2011/entries/feminism-rape/. 323 Eg, S Brownmiller, Against our Will: Men, Women, and Rape (Simon and Schuster, 1975); A Dworkin, Our Blood: Prophecies and Discourses on Sexual Politics (Perigee Books, 1976); CA MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987). 318 

184  Women and Gender After 1989 violence: that it is not accidental that the aggressors are predominantly male and the victims are female; and that it is not ‘anomalous but paradigmatic— that it enacts and reinforces, rather than contradicting, widely shared cultural views about gender and sexuality’.324 The fact that violence against women is a gendered phenomenon has been largely ignored or denied in Czechia. In debating an amendment to the Criminal Code to insert a provision specifically addressing domestic violence, as well the connected bill containing policing, civil and social provisions,325 the majority of the MPs speaking were adamant as to the gender neutrality of the proposal. A female Cabinet Minister stated, ‘I will deliberately not speak about violence against women, but about domestic violence, because the violence in families can go both ways’.326 An MP, speaking about the problems of a civil injunction, used the example of ‘a janitor beating his wife or a janitor beating her husband’.327 Typically, all other causes have been identified, but not the gendered power relations under a patriarchy, a particular conception of masculinity, or the subordination of women: [V]iolence is often generated by something, it is not like the perpetrator was born violent. It is often so that he becomes an alcoholic … drug user, or it is because he cannot get employment for extended periods of time, he fails his social function and solves this in a way by discharging this situation on the members of his own family.328

This eerily echoes state-socialist formulations of the problem of domestic violence.329 In this connection, a 2008 NGO Shadow Report pointed out that domestic violence is ‘conceived of as a gender-neutral phenomenon, which means that the government policy adopts a criminological approach. As a consequence, gender-oriented NGOs are excluded from active participation in formulating policy.’330 C.  Criminalising and Blaming the ‘Victim’ Among the dynamics of patriarchy feminists have identified as problematic are its assumptions about what constitutes the normal or desirable sexual or intimate behaviour of men, women and couples. These, naturally, include

324 

Whisnant, ‘Feminist Perspectives’ (2011). The bill eventually entered into force as Act No 135/2006 Coll. 326  Petra Buzková (ČSSD), Chamber of Deputies Debate, 22/10/2003, Print No 298 (2003). 327  Jan Kasal (KDU-ČSL), Chamber of Deputies Debate, 16/6/2005, Print No 828 (2004). 328  Josef Janeček (KDU-ČSL), Chamber of Deputies Debate, 22/2003, Print No 298 (2003). 329  See p 119 above. 330 M Lienau and I Spoustová, ‘Domácí násilí na ženách [Domestic Violence against Women]’ in P Pavlík (ed), Stínová zpráva [Shadow Report] (Open Society Fund Praha, 2008). 325 

Addressing Gender-Based Violence without Seeing Gender 185 assumptions about ‘normal’ women’s behaviour. These allow the non-conforming woman to be the subject of scrutiny, repression and blame.331 Women have often been at the centre of scrutiny and blame in the area of gender-based violence. This is arguably connected to a perception that women do not really mind certain types of ‘attention’,332 or that violence does not happen to ‘normal’ women and thus when it does, they must have somehow been at fault. The first dynamic was apparent in parliamentary debates on the prohibition of sexual harassment. A view that ‘normal’ women do not need or want a provision on sexual harassment, that they enjoy the attention and that those who do not have a chip on their shoulder, was apparent, among others, from the following statement: [The women] want to hear they have a beautiful haircut, beautiful skirt or pants— low cut, so they will destroy their kidneys, but they will sacrifice everything, just to appeal to us. This is why I cannot support our paternalistic protection or the desires of never gratified feminists, who are in no danger of harassment.333

The second dynamic is more insidious. Because the feminist insight that gender-based violence might be both a product and an instrument of patriarchy is missing, gender-based violence is seen as exceptional and deviant. There is an assumption that it does not happen to ‘normal’ women, and if it does, the woman must have chosen or contributed to it. This can be through an activity she chose, such as prostitution, or her behaviour, through which she invited sexual harassment or even rape. I discuss these examples in turn. With regard to prostitution, women who engage in it have long been seen as a legitimate primary target of restriction and regulation.334 Prostitution, which was criminalised during state socialism as an act of work avoidance under the provision on ‘parasitism’,335 was decriminalised in 1990,336 but a repressive administrative framework has continued to target persons engaging in prostitution rather than their clients. This culminated in 2010, when the new Criminal Code introduced the offence of ‘prostitution endangering the moral development of children’.337 It criminalises ‘practising prostitution’338 331  See, eg, M Nussbaum, ‘“Whether from Reason or Prejudice”: Taking Money for Bodily Services’ (1998) 27 Journal of Legal Studies 693, 709. 332  Senate Debate, 10/12/2003, Print No 119 (2003). All translations are mine unless otherwise indicated. The language and syntax of this particular quote is peculiar in Czech, so I have tried to translate as closely as possible. 333  Jaroslav Kubera (ODS), Senate Debate, 10/12/2003, Print No 119 (2003). 334  B Havelková, ‘European Gender Equality under and after State Socialism: Legal Treatment of Prostitution in the Czech Republic’ (MSt thesis, University of Oxford, 2010) 76–108. 335  For more detail on the state-socialist regulation of prostitution and its gender dimension, see B Havelková, ‘Blaming all Women: On Regulation of Prostitution in State Socialist Czechoslovakia’ (2016) 36 Oxford Journal of Legal Studies 165. 336  Act No 175/1990 Coll. 337  Act No 40/2009 Coll, Criminal Code, s 190. A definition of what constitutes prostitution is not given in the Criminal Code. 338  ibid, s 190(1).

186  Women and Gender After 1989 and ‘organising, guarding or providing access to prostitution in the vicinity of a school or a similar establishment or a place assigned for children to stay in or visit.339 The provision thus criminalises the prostitute and the pimp, while completely ignoring the client. Not all feminists conceptualise prostitution as gender-based violence, but they are generally in agreement that targeting and criminalising only prostitutes violates gender equality,340 and endangers the safety and security of people working in prostitution.341 The condemnation and targeting of prostitutes’ behaviour is, moreover, in stark contrast to the perspective and treatment of the client, whose ‘need’ for prostitution is recognised, and thus normalised and legitimised by law. The Act of Trades, indeed, speaks of prostitution as ‘the offering or provision of services aiming directly at satisfying sexual needs’.342 That these ‘sexual needs’ are the needs of the male clients and not of the women engaging in prostitution, is obvious. A (male) legal academic wrote in support of legalisation of prostitution, ‘After the [1989] November revolution, one of the first demands of our citizens was the reopening of brothels. The Czech citizen was demanding that paid sex be accessible to him, not just to foreigners providing strong currencies.’343 That the ‘Czech citizen’ is a potential male client of prostitution is clear; and yet the one-sidedness of such a perspective is not acknowledged. The fact that it is the victim’s and not the perpetrator’s behaviour that is subject to scrutiny is also apparent from court decisions on harassment in the workplace. Among the discrimination cases that have reached the ordinary courts, and which I discuss further in the following chapter,344 were two concerning workplace harassment, understood here as ‘unwanted conduct related to the sex of a person [that] occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment’.345 One case was brought by a female diplomat against the Czech Ministry of Foreign Affairs (the AB

339 

ibid, s 190(2). B Havelková, ‘Using Gender Equality Analysis to Improve the Well-being of Prostitutes’ (2011) 18 Cardozo Journal of Law and Gender 53. 341  See a careful assessment of the social science on the matter in Bedford v Canada 2010 ONSC 4264, Superior Court of Justice of Ontario. 342  The Act of Trades explicitly excludes it from being a trade in Act No 455/1990 Coll, as amended, s 3(3)(p) (emphasis added). 343 R Bláha, Trestněprávní aspekty prostituce v České republice [Criminal Aspects of ­Prostitution in the Czech Republic] (LexisNexis, 2008) 22. 344 Harassment is considered discrimination (eg CA MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (Yale University Press, 1979) or Directive 2006/54/EC (Recast Directive), art 2(1)(c)), but it also constitutes gender-based violence. I therefore discuss it in both places. 345  Directive 2006/54/EC (Recast Directive), art 2(1)(c). This classification is mine, as the courts did not explicitly identify the behaviours as harassment. This is in part due to the fact that the definition of harassment changed several times between 2000 and 2012, and the behaviours fell under two different legal regimes. 340 

Addressing Gender-Based Violence without Seeing Gender 187 case),346 another by a servicewoman against a local Fire Department (the PS case).347 The judgments, too, illustrate a tendency to blame the victim. It has to be said that both cases are hard to assess, as the courts did not take care to fully establish what happened between the claimants and their superiors.348 However, even just based on the meagre established facts recited by the courts, female employees were being mistreated by superiors. In the AB case,349 the court considered as established fact that the superior made ‘spiteful and ridiculing comments’ about the claimant, but dismissed these as mere ‘personal antipathy’.350 Similarly, in the PS case, notwithstanding witness and expert evidence about the unusual behaviour of the superior towards the claimant, best described as a ‘hostile environment’, the court merely concluded that the parties had ‘problems of communication’.351 In both cases, the court went out of its way to assess the personality of the claimant and show that she might have been ‘arrogant’352 or had ‘communication problems’.353 No such examination of the harasser was undertaken. In establishing the facts in the AB case, credence was given to a male colleague as a witness, who also stated that ‘staffing a diplomatic position in an Arab country with a female is not the ideal solution’.354 The court did not stop to ponder whether witnesses with such attitudes can be sensitive to noticing and correctly assessing harassing behaviour. An unreflective blaming of the victims of gender-based violence has also been prevalent in the public discourse on rape.355 This includes statements made by law enforcement officers. One criminologist and policeman, in his contribution to a leading monograph on sexual violence, commented, ‘If the victim of vice crime is a woman, we often find her contribution to the causes

346  Judgment of the District Court for Prague 1, AB proti Ministerstvu zahraničních věcí, from 6 September 2007, Ref No 27C 90/2004-123. See discussion on p 246. 347  Judgment of the District Court in Pardubice, PS proti Hasičskému záchrannému sboru, from 12 March 2008, Ref No 8C 373/2006-107. 348  In the AB case in DC Prague 1, 27C 90/2004-123, the court did not more closely examine the claims that she had been called a ‘whore’ who had ‘sexual relations with Libyans’ and was ‘going to the beach with browns’. 349 ibid. 350  ibid. The reason why the court did not investigate harassment more thoroughly was that it—erroneously—believed that harassment did not constitute discrimination and that therefore there was no remedy under labour law. 351  PS case, DC Pardubice, 8C 373/2006-107. 352 ibid. 353 ibid. 354  AB case, DC Prague 1, 27C 90/2004-123. 355  I have documented this in media excerpts in B Havelková, ‘Znásilnění—několik úvah nad právní úpravou a její aplikací [Rape: Some Comments about the Law of Rape and its Application]’ (Jiné právo, 2009), available at www.jinepravo.blogspot.com/2009/06/barbarahavelkova-znasilneni-nekolik.html.

188  Women and Gender After 1989 of the commission of the crime; for example garish or provocative dress, flirting, teasing behaviour, etc.’356 These widespread cognitive stereotypes about sexual violence, or ‘rape myths’,357 that persist even among the expert community, hardly contribute to respect for the dignity and protection of the victims or aid proper assessment in sexual violence cases. The statistics,358 indeed, show that the chances of punishment are minimal. Of the 500–600 annually notified cases of rape, only in about 150 is the perpetrator sentenced. In a full third of these, the perpetrators are sentenced to probation, that is, they do not spend any time in prison.359 At a minimum, Czech law therefore does not take into account women’s experiences as victims of inter-personal gender-based violence; at worst, it appears to adopt a ‘male perspective’. This bias underlies the concept of the ‘sexual needs’ of clients of prostitutes and the criminalisation of prostitutes and not of clients, the idea that women trigger harassment in the workplace or ‘contribute’ to rapes. The insufficient recognition of the need to consider gender-based violence from women’s perspective, and the ignorance of, or refusal to apply, gender analysis, is connected to anti-feminist attitudes prevalent in Czechia. I return to the conceptual deficiencies connected to the lack of gender analysis and missing feminism in the post-socialist period in Chapter 9. V. CONCLUSIONS

This chapter has shown that since 1989, despite some gender-progressive developments in family, labour, social security and criminal law, there has been very little shift in the understanding of gender inequality, in reality and in law. Women continue to be the child-caring parents, and although the law no longer explicitly identifies them as such, not much has yet been done to actively encourage the greater involvement of men in parenting. Czech women also continue to experience a vast motherhood penalty in the labour market. This disadvantage and discrimination in the labour market continues to not be perceived as problematic. Rather, it is seen as an 356  L Valerián, ‘Mravnostní kriminalita z pohledu Policie ČR [Vice Crime from the Perspective of the Police]’ in P Kovář (ed), Sexuální agrese: znásilnění z pohledu medicíny a práva [Sexual Aggression: Rape from Medical and Legal Perspectives] (Maxdorf Jessenius, 2008) 156 (emphasis added). 357  For a list and analysis, see, eg, M Torrey, ‘When will we be believed? Rape myths and the idea of a fair trial in rape prosecutions’ (1991) 24 University of California Davis Law Review 1013. 358  Police Presidium, ‘Statistické přehledy kriminality za rok 2015’ (Policie ČR, 2015), available at www.policie.cz/clanek/statisticke-prehledy-kriminality-za-rok-2015.aspx. 359  Havelková, ‘Znásilnění’ (2009).

Conclusions 189 obvious and acceptable consequence of motherhood. As for gender-based violence, in continuity with the previous period, the fact that it is both enabled by and contributes to a specific socio-cultural gender order, has yet to be acknowledged. Incidents of gender-based violence are individualised; the gendered distribution of perpetrator and victim is seen as accidental rather than structurally determined. The lawmakers and the law often adopt the ‘male perspective’. A full incorporation of the ‘victim’s’ perspective has yet to take place. Are the problems encountered by gender equality law, as shown in this chapter, related to the characteristics of law and rights in the post-socialist period, and their understanding among lawmakers, judges and legal scholars? I turn to this question in the following chapter.

7 Post-Socialist Law and Rights

S

TATE-SOCIALIST LAW WAS retained after 1989, but legal reforms were necessary. I briefly present the most important ones in section I below. In section II, I look at which characteristics of law and understanding of rights, discussed in Chapter 3, survived the Velvet Revolution. Some of the traits of state-socialist law have disappeared in the postsocialist period: the underlying Marxist ideology and the influence of the Communist Party understandably vanished; the emphasis on ‘coercive’, ‘vertical’ and public law diminished as ‘reciprocal’ and private law gained importance under market conditions; and the importance of due process replaced the state-socialist concern with ‘correct outcomes’. I argue, however, that there are some characteristics the post-socialist period shares with state socialism.1 First, a disregard for the law has continued, which has, I believe, desensitised private individuals, as well as judges, to breaches of law and to breaches of individual rights (section II.A). Secondly, legal formalism has prevailed in judicial decision-making, which has meant that the courts have refused to engage with teleological interpretation of norms and substantively to engage with the social realities of gender inequality (section II.B). In discussing rights under state socialism, I noted that they were a mirage for several reasons. One of the reasons, missing or insufficiently independent institutions,2 was remedied in the post-socialist period. But some institutional enforcement problems do continue to exist, such as the length of proceedings3 and the insufficiency and lack of transparency of the ­system 1 Markovits problematises the assumption that the traits ‘remained’ or were ‘holdovers’. She notes that some were reinstituted, based on a variety of influences. In particular she points out that ‘Western’ law has itself become more ‘parental’ and educational, and therefore closer to ‘socialist law’. I Markovits, ‘The Death of Socialist Law?’ (2007) 3 Annual Review of Law and Social Science 233. 2  See Ch 3 section III.C. 3 In 2007, there were around 70,000 pending cases going back more than three years. K Koldinská, ‘Gender Equality: Before and After the Enlargement of EU: The Case of the Czech Republic’ (2007) 13 European Law Journal 238, 251. In 2011, the average length of a pay discrimination claim was 4.5 years: Ministry of Justice, ‘Average Length of Proceedings’ (Ministry of Justice, 2012), available at http://cslav.justice.cz/InfoData/servlet/FileServlet?tabulka=ccav_ dokument_sestavy&sloupec=obsah_dokumentu_html&where=id_dokumentu=453744&typS loupce=html&fileName=null. In the 2016 Ministry of Justice tables, equal pay and generally

Post-Socialist Law and Rights 191 of legal aid.4 Another, the preference for socio-economic rights and the understanding of rights as aspirational or educational proclamations ­ rather than enforceable individual entitlements, has diminished, but is still ­relevant. Rights continue to be perceived as connected to obligations on the part of the rights-bearer, and to notions of desert and conditionality (section III.A). Lastly, the emphasis on the ‘collective interest’ has not disappeared. Rights’ anti-majoritarian role is underestimated, especially when it comes to rights claims by ‘unpopular’ groups, or ‘unpopular’ rights claims by anyone (­ section III.B). In section IV, I turn to discuss the principal new influence on law and rights, and on their understanding in the post-socialist period: economic neoliberalism, which has been very hostile to civil society and rights, as well as to the rule of law, and which often went hand in hand with socially conservative attitudes (section IV.A). I note its distaste for legal regulation. The often repeated critique of ‘attempt[s] to regulate human life through law’5 has, however, completely ignored the fact that the law already regulates human behaviour—indeed that is its primary purpose—as well as the fact that the way law currently does so is neither gender-neutral nor objective (section IV.B). The refusal to legally establish gender-progressive measures has stemmed in part from an understanding of gender inequality as an issue of manners or morals, not of law (section IV.C), and in part because the rhetoric of the protection of privacy has been mobilised against it (­section IV.D). A new narrative on rights also emerged, one in which rights are understood as freedoms from coercion and where the actual ability to exercise them is irrelevant. This ‘negative liberty’ understanding has also been applied selectively as regards gender: men’s freedom from is untouchable, while constraints on women’s autonomy are accepted. And while a positive enabling of women’s autonomy (freedom to) is rejected as a request for paternalistic protection, the fact that the law’s androcentrism has always facilitated men is largely ignored (section IV.E). A fear that if women were given (new) rights, they would abuse them or use them against men has been prominent (section IV.F).

anti-discrimination categories are listed as having zero cases, so an average length of proceeding is not provided: Ministry of Justice, ‘Average Length of Proceedings’ (Ministry of Justice, 2016), available at http://cslav.justice.cz/InfoData/servlet/FileServlet?tabulka=ccav_dokument_ sestavy&sloupec=obsah_dokumentu_html&where=id_dokumentu=1036918&typSloupce=ht ml&fileName=null. 4 Legal aid is not uniformly and clearly regulated. It is largely provided (and the ­ nancial ­burden carried) by the Czech Bar Association. An assessment of need is not uniform. fi The system has been widely criticised and a new Act is being discussed. See, eg, at www.bezplatnapravnipomoc.cz/. 5  V Klaus, Letter Explaining the Veto of ADA (16/5/2008) (on file with the author).

192  Post-Socialist Law and Rights I.  TRANSFORMING STATE-SOCIALIST LAW

The Velvet Revolution did not deliver a complete overhaul, but it did bring about many changes. The entirety of the state-socialist legal system was retained after 1989, but much of the law was no longer fit for purpose and most branches required modification and amendments. Civil law required a recreation of ‘private property’ and the law of contract.6 Constitutional law needed to set up democratic institutions, establish the rule of law and guarantee enforceable human rights. Entire branches of law had to be created anew or rewritten to be adapted to new economic conditions—commercial, financial, intellectual property or competition law were either non-existent, or extremely limited under state socialism. It was also necessary to weed out state-socialist relics: crimes connected to the pre-1989 ideology, such as ‘desertion of the republic’,7 which was used to sentence émigrés in absentia, or ‘parasitism’, which was used against prostitutes, amongst others. These were abolished in 1990.8 The sheer scale of the necessary changes has meant that the reform project has, essentially, lasted up to the present day. As I mentioned in Chapter 3, many crucial areas of law ended up being recodified only recently: a new Labour Code was adopted in 2006 and entered into force in 2007,9 a new Criminal Code was adopted in 2009 and entered into force in 2010,10 and a new Civil Code was adopted in 2012 and entered into force in 2014.11 Central areas of public law were also addressed only very recently: the Act on Civil Service, which regulates the employment of state employees, was only adopted in 2014 and entered into force in 2015.12 Civil and criminal procedure are still governed, albeit in amended forms, by codifications from the 1960s.13 Institutional reform took place as well. Although the system of ordinary courts was kept without change, new courts were created. Most notable were the Czech Constitutional Court (CCC), which was established in 1993, and the Supreme Administrative Court, established in 2003.

6 

For a discussion, see Markovits, ‘The Death’ (2007), 239–40. S 190 of Act No 140/1961 Coll, pre-1990. 8  Act No 175/1990 Coll. 9  Act No 262/2006 Coll, Labour Code. 10  Act No 40/2009 Coll, Criminal Code. 11 Act No 89/2012 Coll, Civil Code, which also abolished the Act on Family (Act No 94/1963 Coll, Act on Family). 12  Act No 234/2014 Coll, on Civil Service. 13  Code of Civil Procedure (Act No 99/1963 Coll, Code of Civil Procedure) and Code of Criminal Procedure (Act No 141/1961 Coll, Code of Criminal Procedure). 7 

Law—Legacies of State Socialism 193 II.  LAW—LEGACIES OF STATE SOCIALISM

A.  Continued Disregard for the Law In Chapter 3, I noted that the period of state socialism was characterised by widespread disregard for the law. Although this is hard to quantify, many academic observers14 have argued that this has continued into the post-socialist period. Necessary legal frameworks were sometimes not created. Law was thus suppressed in the process of economic transition15 and was considered a harmful retardant, especially by the long-term leader of the dominant right-wing Civil Democratic Party (ODS), former Finance Minister, Prime Minister and later President, Václav Klaus.16 Existing regulation has also been widely circumvented or disregarded.17 For example, the Labour Code’s (arguably quite rigid)18 protective provisions for employees have been widely circumvented. Companies would contract workers as selfemployed persons with a trade licence, under a commercial law regime, rather than employing them under the regime of labour law. This so-called ‘Švarc systém’19 has been illegal since 1992, but remained common well into the 2000s.20 Systematic breaches of labour rights and widespread discrimination against the Roma and women have been documented, for example in the context of retail chains.21 Olsen has noted similar occurrences in other post-socialist countries: in East Germany, for example, women would show employers certificates documenting their sterilisation in order to obtain a job; and in Slovenia, some women were required to sign undated letters of resignation so they could be let go if pregnant.22 In Czechia, I noted

14 FE Olsen, ‘Feminism in Central and Eastern Europe: Risks and Possibilities of American Engagement’ (1997) 106 The Yale Law Journal 2215, 2235; A Sajó, ‘Rights in ­Post-­Communism’ in A Sajó (ed), Western Rights? Post-Communist Application (Kluwer Law International, 1996) 149. 15  ‘Poor capital market regulation and weak rule enforcement’ as regards ‘voucher privatisation’ has been noted, eg, by The World Bank, Transition. The first ten years (The World Bank, 2002) 71. 16 M Mejstřík, ‘Privatization in the Czech Republic and Russia: The Voucher Model’ in H Giersch (ed), Privatization at the End of the Century (Springer Verlag, 1997). 17  Esp in Labour law. See, eg, p 157. 18  Many provisions, such as those governing dismissal, were retained from state socialism and were arguably unsuitable for the more flexible needs of the new economy. 19  Named after a businessman who only contracted workers with trade licences and was prosecuted by the authorities in the early 1990s. 20  I discussed this previously in B Havelková, ‘Effectiveness of the Transposed EU Equality Law in the Czech Republic’ (2006) 2 Croatian Yearbook of European Law and Policy 299, 309. 21  J Koukalová, Diskriminace a porušování práv zaměstnanců obchodními řetězci v České republice [Discrimination and Breaches of Workers’ Rights by Retail Chains] (Ekologický právní servis, 2008). 22  Olsen, ‘Feminism’ (1997), 2235.

194  Post-Socialist Law and Rights violations of guarantees with regard to working hours and the guarantee of a place for caring parents and parents returning from parental leave.23 The general disregard for the law is worth bearing in mind, as I believe it desensitises individuals, as well as judges, to breaches of the law and of individual rights. This can be seen as contributing to the low levels of litigation and the lack of success of anti-discrimination litigation by women in Czechia, which I discuss in Chapter 8. B.  Legal Formalism In Chapter 3, I noted that Czechoslovak law turned formalistic towards the end of the state-socialist period. During the period of Normalisation, legal positivism, centred around textual interpretation and the mechanical application of the law by judges, prevailed. Many authors have noted that the formalistic paradigm24 survived the Velvet Revolution of 1989. Legal scholars have called post-socialist legal cultures in CEE ‘authoritarian’, ‘positivistic’, ‘dogmatic’ and ‘formalistic’.25 Post-socialist judges have been described as ‘enslaved by textual positivism’,26 as judicial formalists who embrace arguments based on a literal reading of the statutory text and a disregard for other arguments,27 as continuing to ‘demonstrate a clear aversion towards open-textured principle, such as legal norms that require courts to assume responsibility for sensitive normative decisions’.28 As Selanec writes, [p]ost-socialist courts will justify their holding exclusively in terms of the positive text of the applied rule. Their decisions are ‘free’ from any overt normative considerations based on legal principles, policy justifications, or value arguments. This is a direct consequence of the fact that post-socialist judges as well as the post-socialist legal profession in general still perceive the law as strictly separated from justice … From the perspective of a post-socialist judge, the law consists

23 

The parents in both instances are overwhelmingly women. See p 157. For a discussion of its rise during Normalisation, see Ch 3 section I.C. 25 See, eg, S Rodin, ‘Discourse and Authority in European and Post-Communist Legal Culture’ (2005) 1 Croatian Yearbook on European Law and Policy 1; Z Kühn, ‘The Authoritarian Legal Culture at Work: The Passivity of Parties and the Interpretational Statements of Supreme Courts’ (2006) 2 Croatian Yearbook on European Law and Policy 19; Z Kühn, ‘Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement’ (2004) 52 American Journal of Comparative Law 531. 26  Kühn, ‘Worlds Apart’ (2004), 549. 27 Z Kühn, Aplikace práva soudcem v éře středoevropského komunismu a transformace [The Judicial Application of Law During Central European Communism and Transformation] (CH Beck, 2005), passim; Z Kühn, ‘The Application of European Law in the New Member States: Several (Early) Predictions’ (2005) 6 German Law Journal 563, passim. 28  G Selanec, ‘A Betrayed Ideal: The Problem of Enforcement of EU Sex Equality Guarantees in the CEE Post-socialist Legal Systems’ (SJD thesis, University of Michigan Law School, 2012) 219. 24 

Law—Legacies of State Socialism 195 purely of ‘positive rules as independent actors’. Normative considerations are left to the realm of political decision-making.29

In other words, textual, systematic and ‘logical’ interpretation dominates; purposive, or teleological, interpretation has mostly been absent from judicial reasoning.30 But teleological interpretation is particularly useful in ‘hard cases’, where the law is not completely determinate and there are many available answers that appear legally equally correct and justified. One would expect to find it especially in decisions of the CCC that deal with the compatibility of statutory rules with constitutional rights. As I show in the next chapter, the CCC has been called on to decide five cases that centred on sex equality. Among them, the case regarding women’s night work31 and the two cases regarding presumptions in pension law about women being carers32 had an EU dimension, and the CCC cited EU law and a ruling of the European Court of Justice that used teleological interpretation.33 But the CCC did so for reasons of authority rather than argument.34 Teleological interpretation arguably becomes more useful the more ‘substantive’ a particular equality measure. In order to understand why the burden of proof needs to be shifted, a judge needs to understand the informational asymmetries between plaintiffs and defendants in anti-discrimination­ cases. They also need to understand that there is unlikely to be proof that the defendant acted ‘because of’ a protected ground, such as sex/gender, and it certainly would not be available to the plaintiff. Similarly, to apply

29 

ibid, 234. See similarly ibid, 219 ff. 31  CCC Decision from 23 November 1994, Ref No Pl.ÚS 13/94, published as No 3/1995 Coll. For a discussion, see p 217–218. 32 CCC Decision of 6 June 2006, Ref No Pl.ÚS 42/04, published as No 405/2006 Coll, CCC Decision from 16 October 2007, Ref No Pl.ÚS 53/04, published as No 341/2007 Coll. See p 218–220. 33  Especially in the first of these cases, as I discuss in see p 217–218. 34  This point can be illustrated on other decisions as well. In 2005 and 2006, the Czech and the Slovak Constitutional Courts adjudicated on the conformity of two domestic measures implementing EU Directive 2000/43/EC (Race Directive) in their respective countries. Whereas the provision on the shift of the burden of proof was upheld by the Czech Constitutional Court, the Slovak Constitutional Court declared a provision allowing positive action unconstitutional. I argued that the difference ought primarily to be imputed to the different character of the obligation under EU law, which is that while the Member States were required to implement the mandatory burden of proof provision, the positive action provision was merely permissive in nature. The Slovak Constitutional Court was particularly reluctant to engage with non-formalistic reasons and go beyond a formal understanding of equality. B Havelková, ‘Burden of Proof and Positive Action in Decisions of the Czech and the Slovak Constitutional Courts—Milestones or Mill-Stones for Implementation of EC Equality Law?’ (2007) 32 European Law Review 686. Selanec has argued that post-socialist courts are actually generally unwilling to use interpretive aids beyond the very concrete legal norm they are applying. He illustrates instances in which courts avoid using international law, including EU law, their domestic constitutional law, as well as other open-textured provisions of domestic law: Selanec, ‘A Betrayed Ideal’ (2012), 222–28. 30 

196  Post-Socialist Law and Rights the prohibition of indirect discrimination correctly, a judge needs to understand that the aim of the prohibition is to correct systemic disadvantages. The misapplication of the burden of proof and misunderstanding of indirect discrimination have plagued Czech ordinary courts, as I illustrate in greater detail in the following chapter.35 The failures show that anti-discrimination­ law can be interpreted and applied properly only when its aims are understood. III.  RIGHTS—LEGACIES OF STATE SOCIALISM

A. Primacy of Socio-Economic Rights and a Parental Conception of Rights? I have noted that the state-socialist period was characterised by the primacy of socio-economic rights. Somewhat surprisingly, the emphasis on socioeconomic rights has continued after 1989, both in constitutions36 and in their judicial application.37 The Czech Charter of Fundamental Rights and Freedoms thus still contains the right ‘to acquire the means of livelihood by work’,38 as well as, for example, the comparatively quite rare constitutional guarantee of free healthcare.39 This continuity has been largely positive for socio-economic aspects of gender equality, but two caveats should be mentioned. First, the continued relatively high level of protection means that satisfactory levels of socioeconomic rights are often assumed. The existing provisions are considered generous enough, and going beyond them has been hard to justify. The apparently generous continuity of existing social protection and rights can and has been used to argue against instituting new pro-equality and gender-progressive provisions, including anti-discrimination law.40 ­Secondly, as I showed in Chapter 6, the inherited, socially generous provision has been gender-conservative. It has thus supported certain life choices considerably more than others. Another observation I made in Chapter 3 was that rights under state socialism could not be understood as enforceable individual entitlements. Several authors have remarked on the continued conception of rights as

35 

See Ch 8 section III.C and D. Markovits, ‘The Death’ (2007), 243–50. 37  Sajó criticised the Hungarian Constitutional Court for being ‘communist’ when it struck down a series of austerity cuts to pension and welfare benefits: A Sajó, ‘How the Rule of Law Killed Hungarian Welfare Reform’ [1996] East European Constitutional Review 31. 38  Constitutional Act No 2/1993 Coll., Charter of Fundamental Rights and Basic Freedoms, art 26(3). 39  ibid, art 31. 40  See Ch 8 section II and p 269. 36 

Rights—Legacies of State Socialism 197 ‘social entitlements against the state’,41 or as ‘particular kind[s] of benefit’.42 Markovits has observed that the drafters of post-socialist constitutions ‘still seem to view the state not as an opponent but as a collective of which all are part’,43 and that law continues to be ‘parental’. The ‘parental’ attitude has been quite gender-selective: limits on women’s autonomy are readily accepted, while any limitation on male-centred freedoms is clearly considered unacceptable.44 Furthermore, the conceptual link between rights and duties, typical of the state-socialist understanding, has not been entirely extinguished. Wojciech Sadurski points out that all but three of the post-socialist CEE countries45 place ‘affirmative duties upon citizens’.46 The Czech Charter speaks of an obligation in relation to ownership: it states that ‘ownership binds’, sometimes translated as ‘ownership entails obligations’.47 Following the guarantee of a right to education, it also states that the period of ‘compulsory education’ shall be specified by law.48 What is perhaps more important than the presence of these black-letter provisions is ‘the concept of an interdependence of rights and duties’.49 Legally, the question of the denial of rights for non-fulfilment of duties does not come up in constitutional case law, but expressively50 the concept of the interdependence of rights and duties sends a message of conditionality. This weakens rights claims made by unpopular groups, such as the Roma, or unpopular claims by anyone, such as for rights against sexual harassment. This is perhaps less evident in constitutional adjudication, but certainly apparent in law-making deliberations and before trial courts. B.  ‘Collective Interest’ or Anti-Majoritarianism? The connection of rights to duties is linked to perhaps the most harmful continuity of all: an emphasis on the collective interest. There is a limited acceptance of human rights’ anti-majoritarian role, meaning the fact that 41 

Sajó, ‘Rights’ (1996), 150. GA Bermann, ‘The Struggle for Law in Post-Soviet Russia’ in A Sajó (ed), Western Rights? Post-Communist Application (Kluwer Law International, 1996) 41. 43  Markovits, ‘The Death’ (2007), 242. 44  I return to this point in section IV.E below. 45  Unlike other surveys concentrating on the new EU Member States, he includes members of the Council of Europe and beyond (eg Belarus). 46  He points out, however, that this is ‘not unusual against the background of the European [Continental] constitutional tradition’: W Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, 2014) 411. 47 Constitutional Act No 2/1993 Coll, Charter of Fundamental Rights and Freedoms, art 11(3). 48  ibid, art 33(1). 49  Markovits, ‘The Death’ (2007), 248. 50  Similarly Sadurski, Rights Before Courts (2014), 414–15. 42 

198  Post-Socialist Law and Rights rights might be needed to protect individuals especially in situations where the majority is unsupportive or hostile. This appears to be the case despite the fact that an anti-majoritarian understanding of rights was at the core of the institutional design of the new constitutional courts in many CEE countries,51 and that these courts were endowed with powers of judicial review52 that have rarely been contested, politically and academically.53 Nonetheless, in Czechia, many believe that rights of particular groups should not be protected if the majority disagrees. This argument has been used to deny equality and anti-discrimination rights, often shockingly by the very institutions tasked with their protection. The former Czech Ombudsman, Pavel Varvařovský, who denounced the ADA as useless in a newspaper interview and was then challenged on this by the Czech Helsinki Committee, responded to the criticism by pointing out that he is not alone in his aversion: ‘The reactions of many readers [below the original article] show that they appreciate that the Czech Ombudsman has his own common sense and is not buffeted by the winds of current fads [of anti-discrimination law].’54 The comparative evidence from the CEE region, as assessed by Wojciech Sadurski, shows that post-socialist constitutional courts rarely complement popular electoral politics with an anti-majoritarian element.55 Minority and equality rights have rarely been deployed to protect minorities.56 I would add that if anti-majoritarianism is weak within the constitutional courts, it is even weaker with trial courts applying statutory prohibitions of discrimination, both in terms of expectations on the courts and the reality of their decision-making.57 IV.  A NEW UNDERSTANDING OF LAW AND RIGHTS

When it comes to legal reality and narratives about law and rights, three elements have been woven together in the post-socialist period. First, there was continuity, discussed above, in the form of constitutional guarantees of socio-economic rights,58 or the relatively generous social ­welfare ­provision.59 ­ Secondly, as I have shown, these provisions were set up 51 

ibid, xii–xx. ibid, 3–43. 53  ibid, xii, 45–89. 54 P Varvařovský, Letter in response to a Czech Helsinki Committee communication (22/2/2011) (on file with the author) (emphasis added). 55  Sadurski notes that some judges claim to see that as their role, but the evidence does not support the claim. Sadurski, Rights Before Courts (2014), 84 ff. 56  ibid, 88–89, 289–328. 57  See Ch 8 section III below. 58  See p 196 above. 59  See Ch 6 fn 35. 52 

A New Understanding of Law and Rights 199 g­ ender-conservatively. Czech social conservatism after 1989 was both an expression of continuity from the era of Normalisation as well as newly reinforced in the post-socialist period. In legal terms, the fact that Germany and Austria, both gender-conservative countries in terms of social policy, have been important models for legal reform60 and adjudication,61 is illustrative. Thirdly, and particularly importantly for law and rights, was a strong neoliberal shift. The mix of social conservatism and economic neoliberalism has created a particular narrative about law and rights to which I now turn. A. Neoliberalism Liberalism is a contested category, but for the purposes of this discussion, I am using Krygier and Czarnota’s understanding of ‘liberal commitments’ as being ‘to privacy, freedom, rights, civil society, markets and the rule of law’.62 I believe that the liberalism of many in Czechia has been partial. Three types of ‘liberalism’ have to be distinguished. There are political commitments of liberal democracies, among them the rule of law, rights and civil society.63 There is an economic liberalism tied to capitalism, with an emphasis on the free market. And there is ‘social’ liberalism, understood as being in opposition to ‘social conservatism’ with its support for traditional social structures, values and gender roles.64 In the Czech context, the dissent during the state-socialist period, especially the 1970s and the 1980s, was a political anti-communist liberalism. This humanist reaction to the socialist state’s assault on rights and civil society65 was embodied by the first Czech President, Václav Havel.66

60 

Domestic violence legislation was largely modelled on Austria, see Ch 9 fn 9. The only comparative material used by the CCC in the ‘individual adoption’ case by registered partners, was Austrian. See Ch 9 fn 10. 62  M Krygier and A Czarnota, ‘Rights, Civil Society, and Post-Communist Society’ in A Sajó (ed), Western Rights? Post-Communist Application (Kluwer Law International, 1996) 103. 63  ibid, 101–37. 64  This ‘social conservatism’ is particularly well represented in the US, and is often taken to define the political right. There are, of course, several varieties of conservatism in America (classical conservatives, libertarians, and neoconservatives), but their shared moral underpinnings, based on Christian values, tend to result in opposition to gay rights and abortion, and support for traditional family and distinct gender roles. For a summary, see P Berkowitz, ‘Introduction’ in P Berkowitz (ed), Varieties of Conservatism in America (Hoover Press, 2004). 65  See also Krygier and Czarnota, ‘Rights’ (1996), 106. 66  Jan Komárek points out that by setting its opposition to the Communist régime in very personal, moral and existential terms, and by their ‘anti-politics’ stance, the Czech dissents’ project of political liberalism was weak to begin with. There was insufficient emphasis on building democratic institutions, and the ‘Velvet Revolution [thus] resulted in the Velvet Corruption’. J Komárek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 International Journal of Constitutional Law 190, 208, and the references therein. 61 

200  Post-Socialist Law and Rights However, liberalism understood in economic terms prevailed,67 especially early in the post-socialist period.68 This approach has been concerned with unbounded freedom of markets and individual entrepreneurs. The term ‘neoliberalism’, understood as ‘the general idea that society works best when the people and the institutions within it work or are shaped to work according to market principles’,69 encapsulates it well. This economic neoliberalism has been very hostile to civil society and rights,70 as well as to the rule of law, and often went hand in hand with socially conservative attitudes.71 It is perhaps telling that the prominent proponents of this Czech neoliberal narrative, the Civil Democratic Party and its long-time Leader, former Prime Minister and former President, Václav Klaus, have self-­identified as ‘liberal-conservative’.72 B.  The Anti-Regulation Narrative and Its Selectiveness The Czech neoliberal understanding of the market has been characterised by a disregard for institutions,73 law in particular. For example, Klaus stated in 199974 that ‘it is not necessary to adopt statutes. Small shareholders will be

67  For Poland, see Krygier and Czarnota, ‘Rights’ (1996), passim. Jan Komárek similarly notes that ‘market-building was identified as state-building’, or even that democracy was reduced to mean private property and the free market. Moreover, the neoliberal project was presented as having ‘no alternatives’: Komárek, ‘Waiting’ (2014), 198–200. 68  The 1990s and to some extent the 2000s. 69  L Spence, Knocking the Hustle: Against the Neoliberal Turn in Black Politics (Punctum Books, 2016) 3. 70 Czech political scientist Jiří Pehe speaks about ‘democracy without democrats’. J Pehe, ‘Life Beyond Communism: Democracies Without Democrats’ (Oct 2009) Transitions Online 3. 71  Fredman, in her analysis of theories that fought over the terrain of equality, distinguished between ‘market liberalism’, which combines liberal political theory with neoliberal economic analysis, and ‘modified liberalism’, which has ‘develop[ed] the tenets of liberalism in the direction of social justice’. The Czech neoliberalism comes close to ‘market liberalism’; they both draw on Hayek and emphasise individualism and state non-interference. However, the Czech neoliberalism does not subscribe to liberal political theory. As I discuss below, it is comfortable with many limitations on individuals and a dubious standard of the rule of law. Thus, Czech neoliberalism is not value-neutral, but rather than being consciously concerned with values such as social justice, as ‘modified liberalism’ is, it represents an unreflective adherence to the status quo. S Fredman, ‘Discrimination’ in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford University Press, 2003) 206. 72  Eg, the educational academy founded by ODS members, CEVRO, chose the name ‘Liberal-­ Conservative Academy’. Available at www.cevro.cz/cs/241494-liberalne-konzervativni-akademie. 73  Criticised, eg, by the institutional economist L Mlčoch, ‘Restructuring of Property Rights: An Institutional View’ in L Mlčoch (ed), Economic and Social Changes in Czech Society after 1989 (Karolinum, 2000) 58. 74  He was then the leader of the ODS and the Speaker of the Chamber of Deputies.

A New Understanding of Law and Rights 201 governed by the invisible hand of the market.’75 The idea of a limited role of law also manifested itself in the party’s dislike of the judiciary.76 I noted in Chapter 3 that state socialism understood law as a legitimate tool for social change and social progress. Although this was put in practice mainly in the early Stalinist period, and the revolutionary zeal diminished during Normalisation, the memory has persisted. In the post-socialist period, the negative phrase ‘social engineering’,77 and its association with state socialism, has been used to discredit regulatory interventions. Attempts to use law to effect social change have been considered sometimes naive,78 often harmful and illegitimate. The last has been the case with much genderprogressive legislation79 and anti-discrimination law.80 In the Introduction to this book, I cited the CCC judge Vojtěch Šimíček’s concern about antidiscrimination rights as encroaching on the freedom of individuals, and how evasion is an understandable consequence of overly intrusive rules: ‘As much as a river eventually finds its way to its own river bed, so does real life reject regulations which are not natural.’81 What men like Šimíček tend blithely to ignore is that this anti-regulation narrative is highly selective. Two aspects are worth noting. First, the narrative does not acknowledge that the absence of regulation is regulation too. It is not recognised that a lack of prohibition of discrimination has direct, real consequences for some people’s freedom and their ability to act on the basis of their free will. Or, in another context, that the lack of legal recognition of same-sex partnership is a regulatory choice too;82 and it is as much a legal intervention in ‘human life’ as its regulation. The assumption that if something is not one’s problem, it is not a problem at all,

75 

V Klaus (Lidové noviny, 18/6/1999) (on file with the author). Centrum pro ekonomiku a politiku, a liberal think-tank Klaus founded in 1998, has repeatedly challenged the legitimacy of the courts and warned of ‘judicio-cracy’. M Loužek (ed), Soudcokracie v ČR. Fikce nebo realita? [Judiciocracy in the CZ. Fiction or Reality?] (Centrum pro ekonomiku a politiku, 2006). 77  This expression is frequently used in the context of the fight against anti-discrimination rights, eg by Senator Miroslav Škaloud. M Škaloud, ‘Antidiskriminační zákon—více škody nežli užitku [Anti-Discrimination Law—More Harm Than Good]’, previously available at www.skaloud.net, 2006; on file with the author. 78  Prostitution has been seen as pathological but inevitable in the post-socialist period, and most debates about its legal regulation are concerned with public order. No suggestion about decreasing or eliminating the demand by targeting clients has been considered. B Havelková, ‘European Gender Equality under and after State Socialism: Legal Treatment of Prostitution in Czechia’ (MSt thesis, Oxford 2010) 95–106. B Havelková, ‘Prostitution Law and Policy in the Czech Republic’ in S Jahnsen and H Wagenaar (eds), Assessing Prostitution Policies in Europe (Routledge, forthcoming). 79  This has, eg, been the case with prostitution. 80  See p 269. 81  V Šimíček, ‘Lidská práva na rozcestí [Human Rights at the Crossroads]’ in J Přibáň et al (eds), Lidská práva. (Ne)smysl české politiky? [Human Rights. The (Non)Sense of Czech Politics?] (SLON, 2015) 149–50 (emphasis added). 82  On the adoption of the Act on Registered Partnership, see Ch 6 section II.A. 76 

202  Post-Socialist Law and Rights is here relatively carelessly used to demarcate what is and is not legitimate for the law to do. Secondly, it does not recognise that existing legal regulation might not be the best possible for every individual’s freedom and self-realisation. The concept of ‘naturalness’ is used to hide the fact that law is the result of a certain social order, and that that order is gender-conservative; and that, in turn, status-quo law cements these gender-conservative or unequal structures. It fails to note that the way the law currently regulates family or gender-based violence shapes lives toward the preferred types of family, motherhood or parenthood, and encourages or discourages particular types of sexual and/ or violent behaviour, as I showed in the previous chapter.83 It is only newly proposed gender-progressive laws that are recognised as being harmful regulation. In the words of the then President Václav Klaus, justifying his veto of the ADA, they are ‘merely the exploitation of the state to further the demands and claims of certain groups’.84 C.  Manners or Morals, not Law The rejection of a legal response to gender inequality and discrimination is often based on an understanding that it is not a legal issue but rather a problem of manners or morals. The view that law is not the proper means for addressing gender inequality and discrimination was recurrent in the parliamentary debates surrounding the transposition of EU anti-discrimination law. In the debate on sexual harassment, one Senator opined that ‘[t]here is something like public morality, a certain state of society that should be improved by moral means; and what is a moral issue, should not be a matter for the law’.85 Similarly, President Klaus, in explaining his ADA veto, stated: The Act gives citizens the right to equal treatment in private relations which is by definition impossible. It interferes—in a considerable way—with an area that has for centuries in Europe been formed by customary principles and ethical standards. With this Act, the state tries to ‘legislate good behaviour’ and tells us that the law should primarily lead us to good behaviour, and not education in the family, generally accepted and unwritten patterns of behaviour typical of our society, natural models, conventions, etc. It is yet another attempt to regulate human life through law.86

83 

Ch 6 sections II, III and IV. Klaus, Letter Explaining the Veto of the Act on Registered Partnership (16/2/2006) (on file with the author) (emphasis added). 85  Daniel Kroupa (KDU-ČSL), Senate Debate, 10/12/2003, Print No 119 (2003) (emphasis added). 86 Klaus, Letter ADA (2008) (emphasis added). 84  V

A New Understanding of Law and Rights 203 Even the former Ombudsman, Pavel Varvařovský, whose office has been tasked with the promotion of equality and anti-discrimination under the EU Directives,87 observed about the ADA: To regulate decent behaviour and reciprocal respect and tolerance among people is impossible, or, rather, it can be done but will have no effect whatsoever. Other instruments are better suited to serve the equal (but not egalitarian) treatment of a fellow man—education in the family, natural examples and patterns of behaviour, which are passed from generation to generation.88

The reluctance to provide a legal remedy stalled and minimised the transposition of the EU anti-discrimination acquis. It has also been perpetuated, or at least mirrored, in the Czech courts’ reluctance to find breaches and award compensation in discrimination cases. I discuss both of these issues in greater detail in the next chapter.89 D.  Conflating Economic and Social Notions of Privacy The argument that law should stay out of ‘private’ relations has been repeatedly used against gender-progressive legislation and anti-discrimination. It was one of the reasons why the specific criminalisation of domestic violence was so long in the making.90 It was prominent in the opposition to legal recognition of same-sex partnerships as well. A Christian-Democratic Deputy stated: The relations between partners are not dependent on their sexual orientation and can be sorted through private law means. I do not need a public law institution for that; I do not need public law regulation, because it is about the relationship between two people.91

Regarding the rejection of anti-discrimination law, let us recall Vojtěch Šimíček’s statement that law should not ‘have the ambition to interfere with private relations’.92

87  The directives require the establishment of ‘equality bodies’ for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on the protected grounds. For sex, see Directive 2006/54/EC (Recast Directive), art 20. 88 Varvařovský, Letter (2011) (emphasis added). 89  Ch 8 sections II and III. 90 In 2004, the privacy concerns seemed to have been finally outweighed by the need to protect the ‘life of dependent persons’, and domestic violence was specifically criminalised. The exceptionality of breaching the requirement of non-interference in the family was, however, highlighted in the parliamentary debates. Jitka Seitlová (unaffiliated), Chamber of Deputies Debate, 25/6/2003, Print No 298 (2003). 91 Cyril Svoboda (KDU-ČSL), Chamber of Deputies Debate, 24/6/2005, Print No 969 (2005) (emphasis added). 92 Šimíček, ‘Lidská práva na rozcestí’ (2015), 150 (emphasis added).

204  Post-Socialist Law and Rights The refusal to involve the state in private family matters was also ­crucial in the refusal to guarantee state advances for child support. It ought to be clarified that although these advances would have involved a financial guarantee, they were not social benefits. They would merely have guaranteed a steady income to single-parent families where the other parent was not paying child maintenance (from whom the state would eventually collect). A female Deputy argued, ‘The state justifies its expanding social paternalism through an interest in a proper and materially sound child development. Will the state resist the temptation to take over parental rights, after it took over parental obligations?’93 The then Prime ­Minister, Petr Nečas (ODS), compared state advances to ‘making a “daddy” out of the state’.94 The state’s interference with the ‘private’ sphere was seen as the opening of a ‘Pandora’s box’,95 regarding intervention in the family as a dangerous precedent that could lead to state intervention in other ‘private’ areas: ‘[State advances] could lead to extreme demands in other areas. Such as: someone is not getting wages, and the state steps in. Or [a private company could demand help]; how do you then get to be a careful entrepreneur[?]’96 Three different notions of ‘public’ and ‘private’ interact here. One is the distinction between public and private law. This, in a way, is a shorthand for specific regulatory (ie, public law) intervention in what is otherwise governed by private law, such as the renting of houses, employment of workers or other legal relations between private individuals.97 Arguably, the particular scepticism regarding regulatory private law can be seen as a reaction to the ‘publicisation’ of law under state socialism discussed in Part I of this book.98 The connection to state socialism makes its denunciation and rejection easier to sell—if the Communists did it, it has to be illiberal and wrong. The second understanding of the distinction between public and private is neoliberal economic. The market-liberal understanding identifies the ‘private sphere’ with private property, enterprise and markets. The third is social. Here the private sphere describes the intimate sphere of the family. The second and third meanings, economic and social, are often conflated in the Czech discourse about the role of law. 93  Lucie Talmanová (ODS), Chamber of Deputies Debate, 10/4/2004, Print No 848 (2001) (emphasis added). 94  Chamber of Deputies Debate, 27/1/2010, Print No 849 (2009). 95 Jiří Pospíšil (Minister of Justice), Chamber of Deputies Debate, 24/10/2007, Print No 132 (2007). 96 Ladislav Šustr (KDU-ČSL), Chamber of Deputies Debate, 24/6/2005, Print No 964 (2005). 97  This is what both Cyril Svoboda and President Klaus (in his justification of the veto of the Act on Registered Partnership) meant was at same-sex couples’ disposal: they could have arranged things between themselves privately, using private law contractual tools. See p 203 and 191 respectively. 98  Ch 3 section II.B.

A New Understanding of Law and Rights 205 After the ineffectiveness of state-socialist central planning, the neoliberal emphasis on private property and free markets as a guarantee for the creation of wealth, access to goods, etc, has been very popular in the postsocialist period. It instrumentally tapped into the post-socialist glorification of ‘freedom’ and rejection of pre-1989 statism and paternalism.99 However, this narrative, of protecting the ‘private’ sphere in the economic sense, has been used to criticise interference by the state with the ‘private’ sphere in the social sense.100 This is disingenuous, as legislating against domestic violence, status recognition for same-sex couples or granting anti-discrimination­ rights, has little to do with a ‘big state’ in the economic sense. But it also taps into another legacy of state socialism, one actually relating to the private sphere of the family. I have noted previously101 that family became a sanctuary from the corruption and lies of public life during the state-socialist period of Normalisation. The private sphere has continued to be seen as a refuge,102 to be protected from negative outside interference.103 In reaction to the expansion of the public sphere under state socialism, the necessity to protect the private sphere from state intervention has resonated in the post-socialist period. The legacy of scepticism towards state intervention in the family, inherited from Normalisation, thus synergises with the neoliberal narrative against state intervention in the economic private sphere. The new melts together with and reinforces the old, offering a powerful rhetorical device against gender-progressive laws. E.  Rights as Freedoms for Some Many of the statements on rights in Czechia after 1989, especially in parliamentary debates on gender-relevant legislation examined in this book, have conceived of rights as freedoms. In Isaiah Berlin’s terminology, they have subscribed to a negative understanding of liberty.104 In the Czech context, 99 The pre-1948 Czechoslovakia saw similar argumentation against state interference in the family (M Feinberg, Elusive Equality. Gender, Citizenship, and the Limits of Democracy in Czechoslovakia, 1918–1950 (University of Pittsburgh Press, 2006)). It is interesting that, in the post-socialist period, a return to ‘normality’ is that of a return to the ‘First Republic’ and not necessarily through adopting modern 21st-century solutions. 100  It is true that political liberals often call for a core of privacy not to be intruded upon, and the privacy they mean is the intimate sphere rather than the economic private property (eg I Berlin, Four Essays on Liberty (Oxford University Press, 1969) 124). The argument has rarely been presented thus in the Czech context, however. 101  Ch 2 section III.B. 102  H Havelková, ‘A Few Prefeminist Thoughts’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993); S Gal and G Kligman, The Politics of ­Gender after Socialism: A Comparative-Historical Essay (Princeton University Press, 2000) passim. 103  See also p 134–134. 104 Berlin, Four Essays on Liberty (1969), 121 ff.

206  Post-Socialist Law and Rights the conception involves two steps: rights are understood negatively as freedoms, and these freedoms are the only or main thing that is seen to matter, not justice or equality.105 In other words, rights have been widely understood as freedoms from coercion where the actual ability to exercise the freedom is irrelevant,106 not as concerned with context-influenced autonomy107 where capabilities108 to make use of rights has to be enabled.109 This negative liberty has been very prominent in the post-socialist period, and it has been used gender-selectively. It is applied to arguments for securing the freedom from state intervention of men, but not to secure similar freedom from interference for women (or other minorities). And it has been used against any guarantees of new rights or regulation that would enable autonomy for women (and other minorities) and give them freedom to pursue their choices. First, rights have been largely understood as the freedom of some from being in any way obstructed, limited and regulated in doing as they have always done and as they wish to do. Thus, the legal treatment of prostitution rests on the assumption that men should be free to avail themselves of it,110 and managerial prerogatives of the employer are granted strong protection in anti-discrimination lawsuits.111 In the debate on the prohibition of sexual harassment, Senator Kubera explicitly stated that he did not intend to alter his harassing behaviour: ‘[W]hat I have done until now, I will do forever, on top of everything else, because of my age, I do not have another option.’112 When the freedoms of the strong, propertied, male, ‘Czech’ majority and the potential curbing of them are at stake, freedom is invoked to protect them. When a request for freedom from limiting regulation or practice is raised by women, however, it is often rejected. The recent discussion about home births, mentioned in the previous chapter,113 is a good illustration. Here, women’s request114 to be able to choose to give birth attended by a midwife, and to be able to do so outside of hospital, was dismissed, and women

105 

Berlin is careful to distinguish these concepts from liberty: ibid, 125. understanding is best represented by Friedrich Hayek, a favourite of many proponents of Czech liberalism. 107  This understanding, represented, eg, by Joseph Raz, is very little known in Czechia. 108 M Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge University Press, 2000) 1–15, Ch 2. 109  This would correspond to the notion of positive freedom in Berlin’s typology: Berlin, Four Essays on Liberty (1969), 131 ff. 110  See p 186. 111  See Ch 8 section III. 112  Senate Debate, 10/12/2003, Print No 119 (2003). 113  Ch 6 section II.D. 114 The request has been formulated by several NGOs promoting women’s reproductive well-being and choice, such as ‘Aperio’ or ‘Liga lidských prav’. It has also been raised by an—unsuccessful—applicant in one constitutional case; CCC Decision from 28 February 2012, Ref No Pl.ÚS 26/11. 106 This

A New Understanding of Law and Rights 207 continue to be ‘protected’ against their will.115 An even starker example is the practice of forced sterilisations, also discussed in the previous chapter,116 which started under state socialism and continued into the postsocialist period. First, the authorities denied the existence of the practice (until 2004).117 Even now, compensation continues to be denied.118 The protection of women’s reproductive freedom and autonomy has been very low on the Government’s and courts’ agenda. Secondly, the request from women and other disadvantaged groups that their ‘freedom to’ ought to be facilitated has been rejected as asking for help. The request for legislation that would allow women to lead a harassmentfree working life was interpreted as a request for ‘paternalistic protection’ in the parliamentary debates.119 The request to be free from gender-based discrimination has been pitted against ‘freedom’ rather than interpreted as its expression.120 And, as I mentioned above, the request for legal recognition of same-sex partnerships has been described as an ‘exploitation of the state to further the demands and claims of certain groups’ and the securing of ‘advantages’ by the then President Klaus.121 The rejection has been even stronger when the involvement of the state would not constitute a mere provision of regulation of private relations, but where the state would take a more active role, such as with state advances of child support.122 While this selectiveness is clearly gendered, it is unwittingly so. In Czechia, among lawmakers, judges and in the legal scholarship, the blindness to the gendered nature of law and society under state socialism, which I observed in Part I of this book, has survived the Velvet Revolution. F.  Fears of Abuse of Legal Provisions The worry about granting new rights or rights to new constituencies can somewhat casually be paraphrased as a sense that ‘when you are accustomed to a privilege, the granting of rights to others feels like oppression’.123

115 

See Ch 6 section II.D. See p 166–167. 117  A full-fledged critical report was only published in 2004 by the Ombudsman, Otakar Motejl. Office of the Czech Defender of Rights, Závěrečné stanovisko veřejného ochránce práv ve věci sterilizací prováděných v rozporu s právem a návrhy opatření k nápravě [Final Report on Illegal Sterilizations and Proposals for Remedy] (No: 3099/2004/VOP/PM a násl, 2004). 118  With one exception, which I mention in Ch 6 fn 193. 119  Jaroslav Kubera, Senate Debate, 10/12/2003, Print No 119 (2003). 120  See eg quote by judge Šimićek on p 1. 121 Klaus, Letter on Registered Partnership (2006). 122  See p 163–165. 123  Variations on this statement have been prominent slogans among social movements for equality, such as Black Lives Matter in the US. 116 

208  Post-Socialist Law and Rights The worry about what new rights will do, and the dread of the abuse of these rights by women, has been noticeable in the Czech discussions. The fear of free-riding and exploitation of financial help has been prominent in the debates surrounding the possible provision of state advances of child maintenance payments, as mentioned previously.124 Concern was expressed that the system would be perceived as ‘easy money’ by divorced or separated mothers. One Deputy expressed a worry that ‘certain social groups’ would make the state advances into a ‘tendentious living’,125 as it would discourage divorced or separated mothers from staying at work or looking for it.126 The fears that socially weak groups would abuse the ­financial generosity of the state are, arguably, a fixture of market-liberal rhetoric and are not limited to women; the fears of abuse of regulatory generosity is perhaps more specific to women and minorities. An even more obviously gendered strand of this abuse-of-rights anxiety is the fear that the newly entitled women will use the law to ‘retaliate’. This concern has been expressed in particular in connection to regulation of various forms of gender-based violence. When the criminalisation of domestic violence was discussed, the dangers of sentencing an innocent man were stressed, notwithstanding the fact that all regular safeguards of the criminal justice system apply in these cases.127 On the accompanying law, which gave the police a right to temporarily evict an aggressor, MPs voiced fears that the law could be abused for ‘settling family or property disputes or some love triangles with the involvement of a police officer’.128 Comparable worries were raised with respect to provisions on sexual harassment. A Senator pointed out the ease with which one can be accused of it, and stated that ‘every day brings a thousand chances … to unleash this absurd farce’.129 Another Senator feared that ‘the courts will end up doing nothing else’.130 The fear expressed in these debates is that of a potentially accused party, that of a potential perpetrator. It is overwhelmingly the perspective of a man, and the view of the law is that of an institution meant to support and defend the status quo, which is perceived as neutral. It assumes that the existing legal and social situation is desirable and justified.

124 

See p 163–165. Doktor (then ODS), Chamber of Deputies Debate, 24/6/2005, Print No 964 (2005). 126  Then Deputy and later Prime Minister, Petr Nečas (ODS) was particularly worried about abuse by single mothers. Chamber of Deputies Debate, 27/1/2010, Print No 849 (2009). 127  Radim Chytka (ODS), Chamber of Deputies Debate, 25/6/2003, Print No 298 (2003). 128  Marek Benda (ODS), Chamber of Deputies Debate, 16/6/2005, Print No 828 (2004). 129  František Mezihorák (ČSSD), Senate Debate, 10/12/2003, Print No 119 (2003). 130 Přemysl Sobotka (ODS), ibid. 125 Michal

A New Understanding of Law and Rights 209 G.  Lack of Critical Reflection The selective refusal to regulate, the denial of a need for legal remedies addressing gender inequality, the limited interpretation of rights as negative freedoms and the fear of abuse of gender-progressive legal provisions, are ways of preventing the law and rights from serving a ‘new’ constituency—women. It is perhaps important to stress that I do not ­ believe that this is done maliciously, intentionally or even consciously; I believe it to be an unwitting assumption that the status quo, both societal and legal, is fair and neutral. Although many legal scholars and lawmakers have been capable of seeing how inherited ‘socialist’ laws were biased by the ideological environment at the time of their creation, and were moulding economic and social relations in a particular direction, they have been overwhelmingly blind to the fact that the same happens with ‘patriarchal’ society and law. I consider this selectiveness to be in breach of the principle of gender equality, as widely conceived, but it has not been seen that way in the Czech context. The reason is that since women are to some extent in ‘different’ life situations, they might need slightly ‘different’ things from law and rights. Men have many freedoms in society by virtue of patriarchy; any state intrusion into their negative ‘freedom from’ is very visible and tangible. What is not seen is that the state already heavily facilitates men by basing all of law on the model of their lives, their concerns and their wishes. Law has forever been enabling a ‘freedom to’ for men. It has just been doing it through androcentrism, rather than through legislation specifically addressing men. This gives a false sense of neutrality and objectivity to the existing legal set-up. Moreover, as mentioned previously, no regulation is regulation too. Law’s inactivity allows existing social power inequalities and hierarchies to prevail. Lack of legal response can diminish rights and freedoms too.131 When these two realities—of the gendered nature of law and society—are ignored, as they mostly are in the Czech context, it is very easy to (mis)interpret women’s calls for the law and rights to reflect their lives, their concerns and their wishes, as specific and special, calls from advantage or privilege rather than mere equality in difference. They thus end up denied, because they are seen to conflict not only with the freedom/liberty of others, but also with a particular—very formal—understanding of equality. This blindness is partly rooted in the intellectual isolation of Czech legal scholarship during state socialism. In the West, from 1970s onwards this

131  Something that theorists of liberty understood as early as John Stuart Mill, but which is not appreciated widely among Czech liberal-conservatives.

210  Post-Socialist Law and Rights included much critical legal scholarship, from legal realism, socio-legal studies, critical legal studies and critical race theory to gender legal studies and feminist jurisprudence. In the Anglo-American legal space these bodies of scholarship might not have been central, but they have had a significant presence in academic critique and engagement with law and rights. This has not been the case in Czechia during state socialism and for most of the postsocialist period.132 The negative synergy between missing critical theories of law and feminism has made any debate about the non-neutral nature of the law, its application and legal scholarship difficult. I return to this point in Chapter 9.133 V. CONCLUSIONS

In this chapter, I have looked at continuities and discontinuities between state socialism and the post-socialist period, in legal reality and in narratives about law and rights, relevant for gender equality. In terms of legacies, perhaps the strongest observation to be made is that the old and the new have often synergised in ways that have obstructed the use of law and rights to further gender equality. For example, in reaction to the perceived ‘social engineering’ of the past, and connected to a new narrative of freedom from the state, there emerged a strong anti-regulation narrative, which has been an obstacle to the adoption of gender-progressive legislation. Moreover, there is a notable, albeit unwitting, gender-selectiveness in the application of these notions. Regulation is thus seen as unacceptable when it interferes with entrepreneurial freedom or sexist behaviour, but acceptable when, for example, it imposes a particular idea of reproductive healthcare on women. Rights are seen as legitimate when protecting existing negative freedoms of the strong, but illegitimate when guaranteeing freedoms, let alone creating capabilities, for the vulnerable. Although these narratives and perspectives insist on their neutrality and objectiveness, they are clearly not gender-neutral but gendered. The blindness to gender, noted for state socialism, clearly continues here. I return to the persisting ideological and epistemological difficulties of seeing and critically reflecting upon gender and the gender order in Chapter 9. In the following chapter, I turn in greater detail to equality and antidiscrimination law. Many of the traits of, and perspectives on, law and rights, identified and analysed in this chapter, form a necessary background

132  Critical voices have recently been lifted from a generation of young academics, among them Zdeněk Kühn, Michal Bobek, Jan Komárek, Kristina Koldinská and David Kosař, amongst others. 133  Ch 9 section III.D

Conclusions 211 to be borne in mind, since many have been particularly detrimental to the adoption, interpretation and application of anti-discrimination law. Thus, the perceived need to protect the ‘private’ sphere from (over)regulation has delegitimised statutory provisions that prohibit discriminatory behaviour between private actors. Similarly, the continued interpretive formalism has fitted poorly with the need for teleological interpretation, especially of the more substantive elements of anti-discrimination law, such as the procedural shift of the burden of proof or indirect discrimination.

8 Equality and Anti-Discrimination after 1989: Resisting the Ideas and the Legal Concepts

I

N CHAPTER 3, I argued that while the socialist state had a political project of equality that was socio-economically substantive and transformative, it did not include any individual anti-discrimination right. This has been remedied in the post-socialist period through the adoption of a number of constitutional and statutory guarantees. Those notwithstanding, however, the interpretation, application and enforcement of equality and anti-discrimination rights have been problematic. The adoption of antidiscrimination guarantees has been strongly and persistently resisted in Parliament, and no woman thus far has won a sex discrimination case outright before any Czech court. Sex equality and anti-discrimination rights are largely still a mirage. This chapter explores the constitutional and statutory equality and anti-discrimination guarantees, the difficulties they faced in the process of their adoption, most notably the Anti-­Discrimination Act (ADA), and how they have been interpreted and applied by the Czech courts. I also examine the underlying conceptualisations and understandings of equality and discrimination that have posed challenges to the lawmakers and judges. Section I looks at constitutional law and adjudication. Only a handful of sex equality cases have so far been decided by the Czech Constitutional Court (CCC), and all of them were brought by men. This makes it difficult to come to any firm conclusions about the CCC’s understanding of sex/ gender equality and non-discrimination, but the picture that is emerging is of a court that is capable of declaring unconstitutional clearly stated disparate treatment, but whose sensitivity to structural bias and capability of understanding substantive equality is yet to be seen. Section II moves on to statutory law, and concentrates especially on its external origin as an EU membership obligation. The EU’s role has been paradoxical. On the one hand, one can say that without it, no antidiscrimination legislation would have been adopted. On the other hand, however, the debate surrounding the adoption of the ADA concentrated on EU membership obligations only, and not on the real importance and

Constitutional Law and the Right to Equality 213 s­ ubstance of the law itself. The transposition happened reluctantly, and as little and as late as possible. Full implementation, especially proper interpretation and application and effective enforcement of the ADA by courts, has been inadequate. Litigation has been scarce, and claimants’ chances of winning any claims they bring forward are minuscule. Out of the 17 cases examined here, only two were partly successful. Section III provides a closer look at anti-discrimination adjudication. I note that ordinary courts in particular have relied on various strategies in their reasoning, strategies that range from concentrating on very formal questions regarding temporality and the scope of legal regulation, to simply avoiding deciding on the merits. When courts address substantive questions, they generally set a very high threshold for what constitutes discrimination. They look for fault or intent in direct discrimination cases, are very reluctant to truly shift the burden of proof, and refuse to see the possibility that general structures can be biased and constitute indirect discrimination. In section IV I argue that these difficulties with interpreting and applying central doctrines of anti-discrimination law can be explained by what I term the ‘few bad apples’ understanding of anti-discrimination law that currently prevails among the Czech legal community. ‘Bad’ because only express, intentional, hateful acts are seen as discriminatory, and ‘few’ because discriminatory acts are seen as unconnected excesses, rare and individualised. While these observations harm anti-discrimination law in general, the fight against sex/gender discrimination is further hampered by the continued emphasis on the difference between the sexes. An inability to see men and women as truly comparable is acting as a constraint on judges’ abilities to perform substantive comparisons and find discrimination. I.  CONSTITUTIONAL LAW AND THE RIGHT TO EQUALITY AND NON-DISCRIMINATION

The Velvet Revolution in 1989 brought substantive, institutional and procedural changes to the constitutional guarantees of equality. The Charter of Fundamental Rights and Freedoms was adopted and the CCC1 was established in 1993. The Court was empowered to review alleged breaches of fundamental rights both on the basis of individual complaints (concrete control of constitutionality) and in challenges to statutory law (abstract

1  A federal Czechoslovak Constitutional Court existed between 1991 and 1992, prior to the establishment of the CCC in 1993.

214  Equality and Anti-Discrimination after 1989 control of constitutionality).2 The Czech Charter formulated the equality guarantee in a new way.3 Article 1 provides: All people are free and equal in their dignity and rights. Their fundamental rights and freedoms are inherent, inalienable, non-prescriptible, and irrepealable.4

Upon first reading, article 1 does not seem to express a right to equality or to discrimination, and the term ‘equal’ appears only to require a generality of application.5 Article 3(1), however, elaborates: Everyone is guaranteed the enjoyment of their fundamental rights and basic freedoms without regard to sex,6 race, colour of skin, language, faith and religion, political or other conviction, national or social origin, membership in a national or ethnic minority, property, birth, or other status.7

Similar to its state-socialist predecessor, the Czech Charter contains special provisions for women. Together with ‘adolescents, and persons with health problems’, women ‘have the right to increased protection of their health at work and to special work conditions’,8 and ‘pregnant women are guaranteed special care, protection in labour relations, and suitable labour conditions’.9 What is the constitutional equality doctrine and the exact content and extent of the right to equality and non-discrimination? Four questions in particular might arise from the wording of the Czech Charter. First, article 3(1) guarantees the equal enjoyment of fundamental rights: does it mean that the right is merely ‘accessory’10 to other Czech Charter rights? Secondly, do the listed grounds elicit a higher level of suspicion and scrutiny than ‘other 2 

Constitutional Act No 1/1993 Coll, the Constitution of the Czech Republic, art 87. from these general guarantees of equality, art 4(3) requires that ‘[a]ny statutory limitation upon the fundamental rights and freedoms must apply in the same way to all cases which meet the specified conditions’. The Charter also provides certain special guarantees: arts 37(3) and 97 (equality of the parties under due process); art 11(1) (equality in property rights); and art 24 (prohibition of discrimination on the basis of membership of a national or ethnic minority). See also A Ščotková, ‘Rovnost a zákaz diskriminace v judikatuře Ústavního soudu ČR [The Prohibition of Discrimination in the Case-Law of the CCC]’ in M Bobek, P Boučková and Z Kühn (eds), Rovnost a diskriminace [Equality and Discrimination] (CH Beck, 2007) 177–78. 4  Official translation available at www.concourt.cz. The term ‘non-prescriptible’ is perhaps not the best choice here. The Czech original speaks about non-expiry, or inability to be statutebarred (nepromlčitelné). 5  Some authors consider formal promises of ‘general application’ not to be true egalitarian principles. Joseph Raz, The Morality of Freedom (Oxford University Press, 1988) 220–22. See also Ch1 fn 72 above. 6  The word ‘pohlaví’ in the list of grounds would be more accurately translated as ‘sex’ rather than ‘gender’. 7  Official translation available at www.concourt.cz (emphasis added). 8  Constitutional Act No 2/1993 Coll., Charter of Fundamental Rights and Basic Freedoms, art 29(1). 9  ibid, art 32(2). 10  Here I use the words ‘accessory’ and ‘accessority’ as directly translated from Czech to describe the fact that the equality right can only be invoked in connection with other substantive rights guaranteed in the Charter, as is the case with art 14 of the ECHR. 3  Aside

Constitutional Law and the Right to Equality 215 status’? Thirdly, since ‘discrimination’ is not mentioned in the text of the Czech Charter, should one presume that both direct and indirect discrimination are covered by its terms? Lastly, one might ask what the Czech Charter’s reiteration of special protection for women means for the concept of equality in Czechia today. The first of these questions was answered in the positive relatively early on, perhaps under the influence of the ECtHR, which has expansively interpreted the similarly worded article 14 of the ECHR.11 But the CCC has gone further than the ECtHR, since it has treated a right to equality and non-discrimination as an independent right,12 ie the issue does not have to fall within the ambit of any other substantive rights guaranteed by the Czech Charter.13 In 2015, the Court provided doctrinal clarification that since article 1 stipulates the right to equality non-accessorially, and since article 3 is its particular expression, both should be treated as independent of other Czech Charter rights.14 As for the second and third questions, I discuss them in greater detail below when I assess the Czech courts’ understanding of central concepts of anti-discrimination law.15 Similar to what I previously observed about gender equality in Chapter 6, the answer to this question would have been different just a few years ago. Up until about 2014, the CCC was quite inconsistent in its case law. Indeed, in a commentary on article 3(1), Michal Bobek stated in 2012: To infer a uniform test for breaches of the prohibition of discrimination from the existing case-law of the Czech courts, especially the Constitutional Court, is difficult to impossible. The case-law repeats several formulae … [but] instead of creating a clear test of review, [the decisions] accumulate these statements, without truly considering their actual usefulness. It is not [the CCC’s] custom to move beyond the framework of repeating prefabricated paragraphs, to recast the categories into an intelligible test, and to apply it [to the case].16

11  While earlier case law of the ECtHR required an actual breach of another substantive Convention right, currently the Court only requires that discrimination falls under ‘the ambit’ or ‘general scope’ of one of the substantive rights guaranteed by the Convention. See Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgian Linguistic Case (No 2)) App nos 1474/62 and others (ECtHR, 23 July 1968); and EB v France, App no 43546/02 (ECtHR, 22 January 2008). 12  This despite the fact that the Czech Republic has yet to ratify Protocol 12 to the ECHR, which creates an independent right to non-discrimination. 13  It therefore does not require any substantive right to be breached, or even for the situation to fall within the scope of a guaranteed substantive right. E Wagnerová et al, Listina základních práv a svobod. Komentář [The Charter of Fundamental Rights and Freedoms. A Commetary] (Wolters Kluwer, 2012) 100. See also Ščotková, ‘Rovnost’ (2007) 182–85. 14  CCC Decision from 26 June 2016, Ref No Pl.ÚS 18/15 [100]. 15  See section III below. 16 Wagnerová et al, Listina (2012), 98. For a critique of the CCC’s test, see also J Wintr, ‘Jak zacházet s ústavním principem rovnosti? [How to Treat the Constitutional Principle of Equality]’ [2007] Jurisprudence 44.

216  Equality and Anti-Discrimination after 1989 As I show below, the CCC has now developed a sophisticated approach to grounds of discrimination, and has clearly included both concepts of direct and indirect discrimination in its case law. As for the fourth question, the role of difference in equality and antidiscrimination law continues to be fraught with difficulty, and I return to it in greater detail below.17 The main problem with the sex equality case law of the CCC is that it has been mostly men who have brought challenges against legislation containing explicit different treatment provisions based on sex. It therefore might be too early to really know how the Court would react to a claim brought by a woman that the Government discriminates in ways that are more subtle and merely mirror and cement women’s real-life situations or disadvantages. The following section offers a closer look at the sex equality case law of the CCC. A.  Sex Equality for Men? The CCC has ruled on only five cases thus far concerning discrimination on the basis of sex.18 The first three were challenges to legislative measures benefiting women, all legacies of state-socialist protectionism towards women. The first case was brought by a group of MPs,19 who challenged a genderprogressive norm that abolished the ban on night work for women.20 The second and third cases were brought by men21 challenging special legislative provisions for women with regard to pensions.22 The fourth case was brought by a man claiming discrimination in the practice of ordinary courts to grant child custody to mothers.23 In the fifth case, the male claimant challenged what he felt was the improper application of the procedural requirement on ordinary courts to shift the burden of proof when reviewing the substantive question of sex discrimination in employment.24

17 

See section IV.B below. five were the only cases in which the CCC adjudicated on the merits. Other cases where sex discrimination was pleaded were dismissed, mostly as manifestly unfounded. 19  A group of Deputies is entitled to submit statutory provisions to abstract constitutional review. 20  CCC Decision from 23 November 1994, Ref No Pl.ÚS 13/94, published as No 3/1995 Coll. 21  Strictly speaking, these cases were not brought by individual applicants before the CCC, but had an individual applicant before ordinary courts who suspended the proceedings to ask the CCC a preliminary question. 22  CCC Decision of 6 June 2006, Ref No Pl.ÚS 42/04, published as No 405/2006 Coll; CCC Decision from 16 October 2007, Ref No Pl.ÚS 53/04, published as No 341/2007 Coll. 23  It is unclear whether the claim was made for direct or indirect discrimination. CCC Decision from 26 May 2014, Ref No I.ÚS 2482/13. 24  CCC Decision from 8 October 2015, Ref No III.ÚS 880/15. 18  The

Constitutional Law and the Right to Equality 217 i. The Early Cases—Addressing Protection and Preferential Treatment of Women The first case, decided in 1994, concerned night work by women.25 The provision challenged was an amendment made to the Labour Code in 199426 that eliminated a previously existing ban on all night work for women and preserved only a few gender-neutral limits to it. A group of Deputies claimed that the amendment was incompatible with ILO Convention No 89 of 1948,27 and therefore unconstitutional. The Government defended its legislative decision by pointing to EU law28 and a new, unratified ILO Convention,29 arguing that there had been a change of perception in both bodies, EU and ILO, about there being any need to prohibit night work for women. Furthermore, in the Stoeckel judgment the European Court of Justice had found that ‘the concern for protection which originally inspired [instruments banning night work] is no longer well founded’.30 The CCC acknowledged this shift, stating that ‘the ban [on night work for women], although until now presented as a sign of care for women, was in practice felt as a discrimination of women’.31 The Court’s decision, however, ultimately turned on the technical question of whether ILO Conventions should be counted as ‘international agreements about human rights’,32 the breach of which would be unconstitutional, while breaches of other types of agreements might not. In the end, the CCC chose not to consider the 1948 ILO Convention as a ‘human rights’ agreement and upheld the Government’s gender-neutralising amendment. Thus, while the case can be considered a victory for gender equality that emphasises women’s choice,33 it was also an overall loss for the protection of socio-economic rights, by relegating them to a non-human rights status for the purposes of the Czech Constitution. Even from a gender equality perspective, however, the decision should not be regarded as too indicative or momentous. The pivotal issue was not substantive, and the Court did

25 

CCC Pl.ÚS 13/94. Act No 74/1994 Coll. 27  International Labour Organisation (ILO) Convention concerning Night Work of Women Employed in Industry No 89 of 1948. 28  Case C-345/89 Criminal proceedings against Alfred Stoeckel [1991] ECR I-04047. 29  ILO Convention concerning Night Work No 171 of 1990. 30  Stoeckel, at [11]. This passage was not cited in the CCC judgment. 31  CCC Pl.ÚS 13/94, paragraphs unnumbered. 32  The CCC could review state action against the fundamental rights standard as contained in the Charter or ‘international agreements on human rights’ under art 10 of Constitutional Act No 1/1993 Coll, the Constitution of the Czech Republic. The current wording of art 10 covers all international agreements, so the distinction between agreements on human rights and other agreement has lost its importance. 33  This is the current interpretation of equal treatment of women in the EU, as expressed in Stoeckel with regard to night work, and in Case C-203/03 Commission v Austria [2005] ECR I-935, [45], regarding underground work. 26 

218  Equality and Anti-Discrimination after 1989 little gender equality analysis in reaching its decision. Instead, it relied entirely on an external assessment of what gender equality meant, which had been provided by the EU and the ILO.34 The second ruling on sex equality came in 2006,35 concerning provisions governing pension insurance.36 The provisions in question stipulated that in order to receive pension benefits for the period of childcare, fathers had to register the time they spent caring for a child within a two-year period after they ceased to be the main carer. Mothers, on the other hand, were not restricted by any deadline, and could inform the authorities years later when they claimed their pension benefits. The CCC declared that this provision was unconstitutional. It was not persuaded by the Government’s argument of administrative and fiscal effectiveness, nor by its ‘procedure by presumption’ that was based on the reality that primary carers were overwhelmingly mothers. Materially, this outcome might be welcome37—some feminists38 would approve a decision that promoted gender neutrality and that treated fathers as full parents with equal rights.39 Disappointingly, however, the CCC did not address the question of how the law should respond to the disparate realities of men’s and women’s lives with regard to caring. The CCC saw two groups treated differently, and rendered its decision with no genderconscious argumentation nor any consideration that equality might in some cases require different treatment.40 The language of the decision was overwhelmingly that of formal equality and reflected a belief that gender-neutral legislation is what gender equality means. 34 The prohibition on work by women underground was only recently abolished. See p 173–174 above. 35  CCC Pl.ÚS 42/04. An earlier version of this case analysis was published in B Havelková, ‘The Legal Notion of Gender Equality in the Czech Republic’ (2010) 33 Women’s Studies International Forum 21. 36  CCC Pl.ÚS 42/04. Relevant provision: Act No 155/1995 Coll, s 5(3) 2nd and 3rd sentences; Act No 582/1991 Coll, s 6(4)(a)(11). 37  In reaction to the judgment, the Government eliminated the time-limited administrative obligation for men. In the future, therefore, both women and men will have to prove they are caring for children when claiming the pension benefit. Act No 582/1991 Coll, s 6(4)(a)(11). 38  This is a typical liberal feminist position. For a summary, see R Tong, Feminist Thought (Westview, 2009) 32. For a general argument about the ‘primary nurturer’ criterion in child custody, see C Smart, Feminism and the Power of Law (Routledge, 1989) 158. 39 For a discussion and a critique of the equality-difference dichotomy, see S Fredman, ‘A Difference with Distinction: Pregnancy and Parenting Rights Reassessed’ (1994) 110 Law Quarterly Review 106. 40  The task of drawing a line between special treatment of motherhood and general treatment of parenting is a difficult one, and requires a thorough assessment of factual circumstances and the purpose of the rules. For a well-reasoned and conscientious judgment, see Case C-476/99 Lommers, 19 March 2002, [2002] ECR I-02891, in which the European Court of Justice reviewed a scheme set up by a Minister giving subsidised nursery places only to female officials, and to male officials only in cases of emergency. The European Court of Justice considered this, partly for the ‘safety valve’ provision for emergencies, as compatible with the principle of equal treatment.

Constitutional Law and the Right to Equality 219 The third case,41 decided in 2007, also dealt with pensions. It was a challenge to a rule that set pension ages immovably for men, but flexibly and lower for women, depending on the number of children they had.42 The CCC in this case came to the opposite conclusion to that in the previous case. It upheld the law, notwithstanding the fact that the ingression into child-caring men’s lives was greater here than in the previous case: the existence of a right itself was at stake and the presumption of a female carer was irrefutable—only women could lower their pension age for reasons of childcare; whereas in the previous case, the presumption was refutable— fathers could prove that they were carers by so informing the social security administration. The Court’s judgment provided only extremely brief reasoning that left many questions open, but its deference to the legislature and the executive in the area of setting pension ages and pension systems can be seen as the main reason for its upholding the rule. This case had its postlude at the ECtHR, in Andrle v Czech Republic.43 Considering the wide margin of appreciation the Court generally affords its signatory states in the area of social policy, it is not surprising that it also did not find any violation of article 14 of the ECHR in this case.44 It has to be said that none of these three cases was ‘easy’.45 They concerned questions that have been difficult for both courts and feminists in the West, and on which thinking has evolved.46 Is protective legislation that bans women from certain types of work necessary to prevent their exploitation, or is it a patronising limitation based on stereotypical ideas about women’s physiological weaknesses and their role as mothers? Should women be specifically protected as mothers, or should law recognise parenthood only? As I observed earlier in Part I, one of the great challenges for equality law is that its aim to eliminate inequality, which it understands as hierarchy and disadvantage, sometimes requires the same treatment and sometimes requires different treatment.47 Anti-discrimination provisions and gender neutralisation are necessary to facilitate women’s equal access and rights protection in the labour market, as well as men’s access and rights to

41 

CCC Pl.ÚS 53/04. Act No 155/1995 Coll, s 32. 43  Andrle v Czech Republic, App No 6268/08 (ECtHR, 17 February 2011). 44  ibid [50]. For a discussion of the case, see K Koldinská, ‘Shouldn’t Fathers Raise Their Children? Two ECHR and ECJ Cases on Gender Equality in Pension Rights’ [2011] European Gender Equality Law Review 14. The ECtHR could be criticised for accepting the Czech Republic’s argument that the system was under review and that the disparate treatment in question was being remedied. That was not the case at the time the ECtHR judgment came out. The amending legislation was only adopted in June 2011. See Act No 220/2011 Coll. I thank Jan Kratochvíl for bringing my attention to this timeline. 45  In the Dworkinian sense that these were cases in which the rules could not be mechanically applied. R Dworkin, Taking Rights Seriously (Harvard University Press, 1977) 81 ff. 46  See Ch 2 section II.D and Ch 6 section III. 47  See p 49 above. 42 

220  Equality and Anti-Discrimination after 1989 childcare. However, women’s particular vulnerability during pregnancy and early motherhood might need special protection in labour relations and support through social security, and the systemic bias that women face sometimes needs to be overcome through preferential treatment in the form of temporary positive measures. One challenge, therefore, is to choose ‘correctly’ when to treat situations the same and when to differentiate. Another challenge is to make such choices for the right reasons, ones that do not unreflectively draw on and reproduce existing gender hierarchies and disadvantages. In finding disparate treatment to be unconstitutional, a court might aim to overcome stereotypical ideas about women’s abilities and roles, possibly by adopting a gender-progressive position that fully recognises that protective legislation might limit women’s choices, and that what appears to be ‘special’ treatment could in reality be gender-cementing and materially and symbolically oppressing and disadvantageous. Or the court might reach the same conclusion by merely expressing a very formal and limited idea of what the equality law is, namely the elimination of difference. Similarly, in finding disparate treatment constitutional, a court might be recognising vulnerabilities caused by biological differences or social disadvantage, using a substantive understanding of equality and a gender-progressive perspective.48 Or, conversely, it could be merely basing itself on gender-conservative essentialist assumptions about roles or characteristics of men and women.49 The critique I raise against the three CCC decisions it not so much about the outcomes of the cases, but rather about the reasoning that the courts employed. One can observe three approaches to equality in the cases: (i) a residual, protective, pro-maternity understanding of women’s rights inherited from state socialism;50 (ii) a formal understanding of what equality and anti-discrimination provisions mean;51 and (iii) a more sophisticated understanding of gender equality that is currently gaining ground in much academic writing in the West and that is entering the Czech legal system via EU or international law.52 The CCC was truly committed to none of the three, although I would argue that in these cases the Court tended toward the second, formal understanding. First, the cases all address carry-overs from state-socialist women-orientated protectionism, whether in terms of black-letter provisions originating in

48 The EU limits biology-based protection to vulnerability during pregnancy and early motherhood. See Directive 2006/54/EC on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (recast) [2006] OJ L204/23, art 28, where the social role of parenting is gender-neutral. The social disadvantage that women face is addressed, amongst other things, through positive action: ibid, art 3. 49  On essentialism, see Tong, Feminist Thought (2009) 90–91. 50  See esp Ch 2 section II.D and III.D and Ch 6 section III. 51  See section IV.A below. 52  See, eg, section II.A below.

Constitutional Law and the Right to Equality 221 the state-socialist era, such as the ban on night work, or ideology, such as the pension provisions, which although following state-socialist antecedents were actually both adopted in the 1990s.53 In the third case, the CCC accepted that the type of provision in question was constitutionally compatible, not for substantive reasons but rather because it felt the need to exercise extremely light judicial review in the face of the possibility of upsetting the pension system. In my earlier analysis of the state-socialist period in Chapter 3, I noted that the special provisions for women often expressed essentialist ideas about the sexes. In a dissenting opinion by Stanislav Balík in the second case, one can observe hints of biological determinism, but generally the Court has been careful to speak about the realities of women’s lives rather than about ‘roles’ of the sexes,54 and in doing so has in that sense broken with state-socialist essentialism. Nevertheless, in its reasoning the Court does appear to be quite sympathetic to different treatment when it comes to motherhood. Secondly, the decision regarding the requirement for fathers to register the time they spent caring was based on a formal assessment of equality. This decision is the longest and the reasoning the most thorough of the three. I would argue that the Court felt most at ease with this formal understanding of equality. A legal provision that establishes an explicit distinction by reference to sex is, after all, the simplest of possible discrimination scenarios for a court to assess. The fact that the CCC can apply a direct discrimination test to a case like this tells us little, however, about its sensitivity to real-life discrimination and gender inequality. Lastly, the CCC has also been exposed to more current substantive understandings of equality from EU and international law, and this is what guided its decision in the first case. There are problems with using an external standard and analysis, however. For one, the Court might not be learning to refine and exercise its own reasoning, and one cannot assume that it internalises the insights of the external standard it employs. For another, the outcome very much depends on the Court’s willingness to give effect to that external understanding.55

53 

See fn 36 and 42 above. CCC Pl.ÚS 53/04. 55  The CCC has so far been relatively good in giving effect to EU equality law. Eg, the CCC upheld as constitutional the EU law that mandated the shifting of the burden of proof provision of the Code of Civil Procedure in a case concerning race discrimination. See CCC Decision of 26 April 2006, Ref No Pl ÚS 37/04, published as No 419/2006 Coll. See also discussion in section III.C. Other CEE courts have a worse record. When faced with a weaker EU obligation, CEE judges typically employ a completely formal assessment of equality. The Slovak Constitutional Court, eg, struck down a provision enabling affirmative action as violating the Slovak constitutional equality guarantee. This was possible under EU law, because it allowed for positive action but did not require it. Decision of the Constitutional Court of the Slovak Republic of 18 October 2005, Ref No Pl ÚS 8/04-202, published as No 539/2005 Coll. See also fn 332 below. The CCC has been famously reluctant to implement EU law on only one 54 

222  Equality and Anti-Discrimination after 1989 ii.  Newer Cases The fourth case was brought by a man claiming discrimination in the practice of ordinary courts to grant child custody to mothers.56 The applicant won the case, but did so for reasons of a violation of the right to family life57 and the right to care for and raise children,58 and not for a breach of the equality provisions of the Czech Charter. In its decision, the CCC included an elaborate examination of direct and indirect discrimination in the abstract, but when it came to its assessment of the breach, the Court concluded that the question of discrimination raised no other questions than those already discussed in relation to the other constitutional provisions.59 It is worth noting that claims of discrimination on the basis of sex have been raised with more frequency over the past few years. Very often parents, and more often men than women, have raised the issue in custody cases, claiming discriminatory treatment by ordinary courts. These cases tend to be dismissed by the CCC as manifestly unfounded.60 Finally, the fifth and most recent case was brought by a man claiming employment discrimination.61 He was the only male employee of a childcare institution designed to replace parental care (dětský domov). He claimed that, unlike all the female employees, he was not allowed to attain further education, and was unfairly relegated to more difficult work tasks and lower pay than his colleagues.62 He brought a discrimination challenge before ordinary courts but lost the case. When he brought the claim before the CCC, the claimant contended that the application of the burden of proof in his case by the ordinary courts was not constitutionally compliant. The CCC found that the application of the burden of proof provision of the Code of Civil Procedure63 by the ordinary court had indeed been flawed, mainly occasion, outside the area of anti-discrimination law (although internal market nationality discrimination was at stake). In the Landtová decision, concerning Slovak pensions, the CCC disobeyed a previous CJEU decision, contrary to the EU doctrine of supremacy: CCC decision of 31 January 2012, Ref No Pl.ÚS 5/12. Landtová should be seen very much as an exception, however. For a discussion, see, eg, J Komárek, ‘Playing with Matches: The Czech Constitutional Court Declares a Judgment of the Court of Justice of the EU Ultra Vires’ (2012) 8 European Constitutional Law Review 323; M Bobek, ‘Landtová, Holubec, and the Problem of an Uncooperative Court: Implications for the Preliminary Rulings Procedure’ (2014) 10 European Constitutional Law Review 54. 56 

CCC I.ÚS 2482/13. Act No 2/1993 Coll, Charter of Fundamental Rights and Freedoms, art 10(2). 58  ibid, art 32(4). 59  CCC I.ÚS 2482/13, [50]. 60  For a case brought by a mother, see, eg, CCC Decision from 30 June 2015, Ref No I.ÚS 822/15. For cases brought by fathers, see, eg, CCC Decision From 24 February 2015, Ref No I.ÚS 38/15; and CCC Decision from 27 January 2015, Ref No II.ÚS 2122/14. 61  CCC III.ÚS 880/15. 62  ibid, [7]. 63  Act No 99/1963 Coll, Code of Civil Procedure, s 133a. 57  Constitutional

Constitutional Law and the Right to Equality 223 because of the court’s formalistic over-reliance on findings of other public institutions on the matter, notably the Labour Inspectorate. The findings of the Labour Inspectorate were, however, previously found to be incomplete by the Ombudsperson, in part because important avenues of examination of the case were not pursued. For example, the inspectors did not hear any witnesses suggested by the applicant, namely former male employees of the same institution. In a nuanced decision that was sympathetic to the need for an effective shifting of the burden of proof in discrimination cases, the CCC found in favour of the male employee applicant. Importantly, it stated that the submissions by the applicant gave rise to the ‘reasonable probability’64 that the acts of the employer were based on sex, and thus the burden of proof should have shifted to the defendant. The ordinary court’s failure to proceed this way amounted to a breach of the applicant’s right to a fair trial65 and proper judicial protection66 under the Czech Charter. Since the applicant claimed breaches of procedural constitutional rights only, the Court did not examine the case under article 3(1), although it did discuss the fact that the underlying substance of the case was sex discrimination. iii.  What Can Cases Brought by Men Tell Us about Gender Equality? It is noticeable that basically all the challenges in which the CCC discussed article 3(1) and sex discrimination on the merits were brought by men.67 This is not an uncommon occurrence from a comparative perspective. Similar challenges by men were common in the US in the early days following the adoption of anti-discrimination guarantees; US courts often responded by abolishing the difference of treatment, often ‘levelled down’ for women.68 Feminist scholars have noted the phenomenon of men using sex equality rights in many jurisdictions. Carol Smart, writing about the UK, describes this phenomenon as ‘counter-use of law’ and a reason for women to be more generally sceptical of rights, pointing out that the recourse to law and rights by women can sometimes create a backlash effect for the groups it is meant to protect.69 It therefore should not be surprising that the same might occur

64 

CCC III.ÚS 880/15, [38]. Act No 2/1993 Coll, Charter of Fundamental Rights and Freedoms, art 6(1). 66  ibid, art 36(1). 67  See fn 19 and 21 above. 68  Eg, the US Supreme Court in Califano v Goldfarb 430 US 199 (1977) struck down meanstesting for widower pensions because women’s widow pensions were awarded automatically, while in Califano v Webster 430 US 313 (1977) it struck down a provision that allowed women to discount their three lowest earning years for the purposes of pension calculations. 69 Smart, Feminism (1989), 138. 65 Constitutional

224  Equality and Anti-Discrimination after 1989 in Czechia as well. Moreover, one cannot blame the CCC for not deciding cases it has not received. What should be noted, however, is that, based on the limited sample we have, we cannot truly know whether the CCC understands the reality of sex/gender inequality and discrimination. It is much easier, and requires only a formal understanding of equality, to see different treatment in provisions privileging or specifically protecting women, where ‘discrimination’ is explicitly embedded in law that refers to sex. Whether the CCC has a substantive understanding of sex equality will become clearer only once it starts deciding cases in which it is invited to recognise more subtle forms of discrimination without external guidance from entities like the EU. One possible indicator of the CCC’s attitude could be the cases that it has dismissed, mostly as manifestly unfounded. For the purposes of this study, I have not carried out a comprehensive analysis of all of them, mainly since the CCC’s dismissal resolutions are often brief and do not always provide all the information necessary to support a critique, and thus any proper analysis would require access to the case files. However, there are a few dismissed cases on the record that do obviously raise questions of whether the CCC is sensitive to the reality of discrimination as experienced by women. For example, sex discrimination was pleaded in a constitutional complaint about the way ordinary courts handled a claim of a Roma woman for compensation for the immaterial harm caused to her by involuntary sterilisation.70 The CCC acknowledged a violation of ‘personality rights’ (osobnostní práva) and the dignity of the claimant, but largely ignored the question of intersectional discrimination on the basis of race and sex. It was reluctant to review the low compensation awarded by the ordinary court, limiting itself to an observation that the reasons that led the ordinary courts to their decisions did not appear arbitrary. It should be pointed out that the CCC is not formally limited to a mere review of arbitrariness; in other words, the light-touch review was its own choice. Formally, the reluctance of the CCC to second-guess ordinary courts’ assessments, as well as its caution not to act as yet another appellate body, is understandable. Such light-touch review is, however, problematic in that discrimination involving already disadvantaged groups, be they women, Roma or Roma women, is more likely to have complex causes and subtle manifestations than are found in cases brought by men against legislation differentiating on the basis of sex. Public authorities, including ordinary courts, might be more likely to ignore or perpetuate pre-existing reallife disadvantages, rather than actually cause discrimination in clear and direct ways, as the legislator clearly does when using sex as a criterion of distinction.

70 

CCC Decision from 30 May 2012, Ref No II.ÚS 3894/11.

Statutory Law and the EU as a Driver of Legal Change 225 To summarise, it might be too early to draw any conclusions about a constitutional sex equality and anti-discrimination doctrine in Czechia. The early cases on it have oscillated in both their results and their reasoning, and in the later cases the CCC did not perform a thorough examination. In any event, the CCC has not yet adjudicated on the merits a sex equality case brought by a woman that would bring the Court to apply a substantive understanding of equality. II.  STATUTORY LAW AND THE EU AS A DRIVER OF LEGAL CHANGE

Because the Czech Charter only guarantees equality in vertical relations between the citizen and the state, it was necessary to enact statutory provisions in order to protect individuals from discrimination in horizontal relations. For horizontal protection, as well as for gender equality in general, the primary driver of legal development has been the EU. The incorporation of the EU gender equality acquis was a condition of and an obligation under EU membership. The EU gender framework was already on the radar in Czechia in the early 1990s.71 It was, for example, expressly mentioned as an important consideration for relaxing the prohibition of night work for women by the CCC in 1994.72 The actual harmonisation of Czech law with the EU’s antidiscrimination acquis only started towards the end of the 1990s, though.73 And particular efforts to transpose it into Czech law were made after 2004, when Czechia, as a member of the EU, became subject to its infringement proceedings. In this section, I show that the EU’s role has been paradoxical. The EU drove the adoption of the legislation, but its external origin prevented true substantive debate. Moreover, while Czechia has formally transposed the EU gender equality acquis, it has done so without its lawmakers and judges really subscribing to and understanding its rationales. This has resulted in a poor standard of implementation of anti-discrimination law in terms of its transposition, application and enforcement. In the following section, I first briefly introduce the EU gender equality acquis (section II.A) and discuss what the harmonisation obligation under EU law has meant for Czech law (section II.B). I then show that the 71  N Funk, ‘Introduction: Women and Post-Communism’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993) 14; also A Heitlinger, ‘The Impact of the Transition from Communism on the Status of Women in the Czech and Slovak Republics’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (1993) 101. 72  CCC Pl.ÚS 13/94. 73  The prohibition of discrimination was inserted into the Act on Employment in 1999 by Act No 167/1999 Coll. The first ‘Euro-amendment’ to the Labour Code was passed in 2000: Act No 155/2000 Coll.

226  Equality and Anti-Discrimination after 1989 adoption of anti-discrimination measures has been cast largely as a mere EU membership obligation (section II.C), and how difficult and protracted their transposition has been in practice (section II.D). Lastly, I look at implementation beyond transposition, and show that the courts have not been making use of relevant EU doctrines to give anti-discrimination law its full effect (section II.E), and that both the scale of litigation and the rates of success of anti-discrimination claims have been extremely low (section II.F). A.  The EU Equality Acquis and its Rationales Based on the original legal basis in the 1957 Treaty Establishing the European Economic Community,74 which set out the equal pay princi­ ple, and the new legal basis for equality legislation created in 1999 by the Treaty of Amsterdam,75 the EU has adopted 14 directives implementing the principle of equality between men and women in the areas of employment, work, social security and access to goods and services.76 Especially since the Treaty of Amsterdam, the EU’s equality acquis has expanded in terms of both grounds77 and scope.78 The roots of EU equality and anti-discrimination law lie in the project to create the common market.79 The original EU-wide requirement for equal pay was introduced in 1957 to level the playing field for France, which already had such a provision.80 The social aims of the equal pay provisions were first recognised in the mid-1970s,81 and are currently largely 74 

Now TFEU, art 157. Now TFEU, art 19. 76 The full list is available on the European Commission website, at europa.eu/rapid/ pressReleasesAction.do?reference=MEMO/07/426. 77  Racial or ethnic origin, religion or belief, disability, age and sexual orientation were all added along with sex. See Council Directive 2000/43/EC Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, [2000] OJ L180/22 (Race Directive); Council Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Occupation [2000] OJ L303/16 (Framework Directive). 78  Discrimination has been prohibited beyond the workplace in access to goods and services for race and gender. See Council Directive 2004/113/EC Implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services, [2004] OJ L373/ 37; Directive 2000/43/EC (Race Directive). 79  One could argue that the EU’s overall aim has been to support economic growth through market integration complemented by only a small and selective set of social rights. For a retrospective analysis, see, eg, S Deakin, ‘The Lisbon Treaty, the Viking and Laval Judgments, and the Financial Crisis: In Search of New Foundations for Europe’s “Social Market Economy”’ in N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Hart Publishing, 2011). 80  C Barnard, ‘The Economic Objectives of Article 119’ in T Hervey and D O’Keeffe (eds), Sex Equality Law in the European Union (Wiley, 1996) 321–34; G More, ‘The Principle of Equal Treatment: from Market Unifier to Fundamental Right’ in P Craig and G de Bùrca (eds), The Evolution of EU Law (Oxford University Press, 1999). 81  Case 43/75 Defrenne II [1976] ECR 455. 75 

Statutory Law and the EU as a Driver of Legal Change 227 considered primary.82 Equality and non-discrimination have since become one of the EU’s core policies,83 and have acquired the status of fundamental rights.84 Arguably, EU equality law and policy have evolved to promote substantive equality.85 The EU thus not only requires its Member States to prohibit direct discrimination, but it also strives to address existing inequalities and hierarchies through a prohibition on indirect discrimination. Although it does not mandate positive action,86 it allows it and requires that reasonable accommodation must be made for the disabled. Procedurally, it requires a shift in the burden of proof in discrimination cases. Arguably, it is thus concerned with disadvantage rather than merely with difference. And although EU anti-discrimination law has been the subject of criticism87 and contestation,88 the fact that it subscribes and ought to subscribe to a substantive understanding of equality has been widely accepted.89 B.  The EU as a Driver for Change As I discussed in Chapter 6,90 the continuing generosity of Czech law to pregnant workers and working mothers is a persistent feature of its 82  Case 50/96 Deutsche Telekom AG v Schröder [2000] ECR I-00743, [57]. The aims of EU equality law are not undisputed, however. See, eg, C McCrudden, ‘Theorising European Equality Law’ in E Barry and C Costello (eds), Equality in Diversity: The New Equality Directives (ICEL, 2003). 83  Expressed in TEU, art 2 and TFEU, arts 8, 10 (gender mainstreaming) and 19 (competence). 84  Case 149/77 Defrenne III [1978] ECR 1365, [26]. This was confirmed by the insertion of art 23 into the European Charter. See also C Barnard, ‘Gender Equality in the EU: A Balance Sheet’ in P Alston (ed), The EU and Human Rights (Oxford University Press, 1999). 85  For a definition, see Ch 4 section I.A. For a discussion, see section IV.A below. 86 The equivalent of ‘affirmative action’ in the US terminology. It comprises a range of ‘measures [which aim at] ensuring full equality in practice between men and women’. Directive 2006/54/EC (Recast Directive), art 3. 87  The EU’s interference with the use of age as a criterion in various aspects of social policy has been viewed with scepticism on the Continent, and triggered a series of preliminary questions going to the ECJ from Germany. See, eg, D Mabbett, ‘EU Age Discrimination Law in Germany and the UK: Legal Irritant and Reform Lever’ (Johns Hopkins School of Advanced International Studies, unpublished first draft, 2010), available at www.jhubc.it/ecpr-porto/ virtualpaperroom/043.pdf. 88  See, eg, the critiques of EU law from mostly North-American feminist perspectives contained in RA Elman, Sexual Politics and the European Union: the New Feminist Challenge (Berghahn Books, 1996); RA Elman, Sexual Equality in an Integrated Europe: Virtual Equality (Palgrave Macmillan, 2007). 89  One could add that this statement is true with the exception of post-communist countries. This is apparent, eg, in relation to the proposal for a Directive on Improving the Gender Balance among Non-Executive Directors of Companies Listed on Stock Exchanges and Related Measures, to which several national parliaments submitted reasoned opinions under the Subsidiarity Protocol. While the submissions from the ‘old’ Member States targeted constitutional issues, such as competence or subsidiarity, or the more technical aspects of the directive, such as its understanding of corporate governance and the potential for its effectiveness, those coming from the new, post-communist Member States tended to object to the project of ‘substantive equality’ instead. 90  See esp Ch 6 section III.

228  Equality and Anti-Discrimination after 1989 state-socialist heritage. The EU’s minimum requirements in these areas, as contained especially in the Pregnancy Directive91 and the Parental Leave Directive,92 have been met and exceeded for women, but not for men. It is questionable whether, without the EU, provisions of care would have been gender-neutralised to include fathers as early as they were. The EU was quite clearly the impetus behind the adoption of statutory prohibitions on discrimination. It has thus contributed in the areas of protection or special care, as well as equality and anti-discrimination. Aside from being an important impetus for change in labour and antidiscrimination law,93 as well as market-related areas where it has well-established competence, the EU has, more surprisingly, influenced gender-relevant provisions in other areas, including criminal law. For example, measures adopted under Justice and Home Affairs powers94 led to improvements in the protection of victims of crime and the definition of trafficking.95 Thus, the influence of the EU on Czech law has to be seen as positive. Where the EU has not provided guidance, the Czech Government’s gender policies were for a very long time marked either by a lack of direction, or by gender-conservative continuity. It is safe to conclude, therefore, that without the legal obligation to implement EU law, many of these provisions would not have been adopted, or at least not as early as the 2000s. In their absence from the statute books, victims of discrimination would not have been able to make use of them. On the other hand, the implementation of these provisions has also mobilised internal opposition to equality law, and

91  Council Directive 92/85/EEC on the Introduction of Measures to Encourage Improvements in the Safety and Health at Work of Pregnant Workers and Workers who have Recently Given Birth or are Breastfeeding, [1992] OJ L348/1. 92  Council Directive 96/34/EC on the Framework Agreement on Parental Leave Concluded by UNICE, CEEP and the ETUC, [1996] OJ L145/4. 93  I have previously explored the role of the EU in the development of Czech equality and anti-discrimination law in B Havelková, ‘Effectiveness of the Transposed EU Equality Law in the Czech Republic’ (2006) 2 Croatian Yearbook of European Law and Policy 299; B Havelková, ‘Burden of Proof and Positive Action in Decisions of the Czech and the Slovak Constitutional Courts—Milestones or Mill-Stones for Implementation of EC Equality Law?’ (2007) 32 European Law Review 686; B Havelková, ‘Challenges to the Effective Implementation of EC Gender Equality Law in the Czech Republic—an Early Analysis’ in K Arioli et al (eds), Wandel der Geschlechterverhältnisse durch Recht? (DIKE, 2008); and Havelková, ‘The Legal Notion’ (2010). 94 Council Framework Decision 2002/629/JHA on Combating Trafficking in Human Beings, [2002] OJ L203/1; Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, and Replacing Council Framework Decision 2002/629/JHA, [2011] OJ L101/1. 95  The new definition of trafficking, which included a broader range of forms of exploitation beyond sexual exploitation and no longer required a trans-border element, was driven by the EU law. Government of the Czech Republic, ‘Explanatory Memorandum to the Governmental Proposal of an Act Amending the 1961 Criminal Code’ (2003), available at www.psp.cz/sqw/ text/tiskt.sqw?o=4&ct=514&ct1=0; Government of the Czech Republic, ‘Explanatory Memorandum to the Governmental Proposal of a Criminal Code’ (2008), available at www.psp.cz/ sqw/text/tiskt.sqw?O=5&CT=410&CT1=0.

Statutory Law and the EU as a Driver of Legal Change 229 their impact has been diminished by the very fact that the impetus for the change they represent has come from outside the country. C.  Anti-Discrimination Law Merely a Membership Obligation When the legislation that transposed EU anti-discrimination law was first proposed, it was not seriously debated or explained in Parliament, as any references to it were almost exclusively related to the EU membership requirement.96 Both of the anti-discrimination bills that the Government presented to Parliament97 were introduced as an implementation obligation, signalling that the Government’s primary concern was not equality but accession. This is illustrated by an appeal made by the then Vice Prime Minister and Minister of Justice, Pavel Němec, during the parliamentary discussion on the first anti-discrimination bill: ‘I would like to remind you what this law is about. This law actually deals with implementing the Czech Republic’s international obligations, which are binding on the Czech Republic, and introducing them into its legal order.’98 The prevalence of this view is demonstrated by the Senate declaration that accompanied the adoption of the ADA in 2008: The Senate considers the ADA a tool for implementation of the requirements of EU law, the non-realisation of which would lead to sanctions. It does not, however, identify with the character of the norm. … The Senate urges the government not to consent to adoption of further anti-discrimination measures at the EU level.99

The fact that the proposal was passed merely to comply with EU law had an impact on its actual provisions. When the first draft of an ADA was presented by the Government Council of Human Rights to the Cabinet in 2004, the Cabinet deleted the provisions that explicitly guaranteed the right to equal treatment,100 thereby stripping the bill of its normative effect and 96  This trend of seeing implementation as merely instrumental to EU accession has been noted in other CEE countries. See B Einhorn, Citizenship in an Enlarging Europe: From Dream to Awakening (Palgrave Macmillan, 2006) xviii. 97  The first bill was presented by a Coalition Government led by the ČSSD, the second led by the ODS. 98  Chamber of Deputies Debate, 15/3/2006, Print No 866 (2005). In an exception to the overwhelming trend of viewing the bill as an EU membership obligation, Alena Gajdůšková, a Social Democratic Senator, made the following intervention in a debate: ‘The law is not necessary because we committed ourselves to its adoption in the Accession agreement, but because discrimination is not an individual problem of the discriminated, but because it always is a problem of the society, not only a moral, ethical one, but economic too.’ Senate, 26/1/2006, Print No 201 (2006). 99  Senate, Resolution No 377 of 2008 (23 April 2008, on file with the author). 100  The draft versions of s 1(2) and (3) read, respectively, ‘Everyone has a right to equal treatment and protection from discrimination’ and ‘Natural and legal persons have an obligation to guarantee equal treatment …’

230  Equality and Anti-Discrimination after 1989 turning it into a list of definitions.101 Possibly aware of the drawbacks that this deletion entailed, the Cabinet amended the wording of the first section of the proposal, replacing the phrase ‘This statute regulates, in harmony with European Community law, the right to equal treatment …’ with ‘This statute transposes relevant norms of the European Community …’. It is likely that in order to fulfil EU membership obligations, the Cabinet felt that lip service was all the more necessary the less the proposal truly transposed EU equality law in substance.102 Thus, while the importance of its adoption for the EU membership was repeatedly stressed, the Government made no separate substantive case for the new equality legislation. No political party explained why freedom from discrimination was important for social, economic and political participation or the well-being of individuals, nor were its possible benefits for society as a whole demonstrated or explained. D.  A Reluctant Transposition of Anti-Discrimination Law Although it was generally understood that non-implementation would have consequences at the EU level, Czechia continued to adopt as little and as late as possible. This led to several infringement proceedings against it. For example, in 2005, one year after accession, Czechia was the single most non-compliant Member State with regard to anti-discrimination law.103 The comprehensive ADA, meant to cover a range of areas and grounds of discrimination, had to be proposed twice, and was finally adopted only in 2009.104 More recently, proceedings were initiated against Czechia for not transposing the Race Directive and the Goods and Services Directive;105 and the ECJ found a breach in relation to the Occupational Social Security Schemes Directives.106 Currently, Czechia is once again facing proceedings 101 

For a more detailed discussion, see Havelková, ‘Challenges’ (2008), 104. Eventually, a normative prohibition was included in the new ADA. 103 Of the 10 directives addressing equal treatment mentioned in the Annual Report, infringement proceedings against the Czech Republic were initiated with regard to nine of them. European Commission, 23rd Annual Report and its Statistical Annex (2005), available at ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/annual-reports/ previous_reports_en.htm#,181–95. 104  Act No 198/2009 Coll, Anti-Discrimination Act. 105  Council Directive 2004/113/EC Implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services, [2004] OJ L373/37. 106  Council Directive 86/378/EEC of 24 July 1986 on the Implementation of the Principle of Equal Treatment for Men and Women in Occupational Social Security Schemes, [1986] OJ L225/40; Council Directive 96/97/EC of 20 December 1996 Amending Directive 86/378/EEC on the Implementation of the Principle of Equal Treatment for Men and Women in Occupational Social Security Schemes, [1997] OJ L046/20; Case C-41/08 Commission v Czech Republic [2008] ECR I-00175. The Czech Republic was subsequently sentenced to a financial penalty (lump sum) for failure to comply with the judgment: Case C-241/11 Commission v Czech Republic [2011] OJ C232/27. 102 

Statutory Law and the EU as a Driver of Legal Change 231 for breach of the Race Directive; however this time, the Commission is unusually addressing the lack of real implementation, specifically in relation to the structural segregation of Roma children in education, rather than mere lack of transposition.107 Let us now look at the substantive flaws in transposition in detail. I first discuss the development before the enactment of the ADA, and then the ADA itself.108 i.  Before the ADA Beginning in 1999, anti-discrimination provisions were introduced into much legislation governing labour relations,109 and a provision shifting the burden of proof was inserted into the Code of Civil Procedure.110 Protection was unsatisfactory, however, until the ADA came into effect in 2009. Three types of problems existed: many provisions took years to become effective; the coverage had been patchy; and the level of guarantees occasionally dropped when new legislation was enacted. First, some transpositions took years to become effective after they were enacted. For example, the new Act on Service in the Armed Forces111 and the Act on Civil Service112 were meant to enter into force in 2005, but their effectiveness was postponed several times due to financial concerns. The former only became effective in 2007. The latter never did and was replaced in 2014 by a completely new Act on Civil Service,113 which entered into force in 2014.

107 European Commission, Report Monitoring the Application of European Union Law. 2014 Annual Report (2014), available at ec.europa.eu/atwork/applying-eu-law/ infringements-proceedings/annual-reports/index_en.htm. 108  For a detailed assessment of the difference between pre-Accession and post-Accession procedures at EU level in relation to sex equality, see G Selanec, ‘A Betrayed Ideal: The Problem of Enforcement of EU Sex Equality Guarantees in the CEE Post-socialist Legal Systems’ (SJD thesis, University of Michigan, 2012) 142–217. Selanec observes that checking for transposition conformity during the pre-Accession period was very formal and quantitative, especially with regard to capacity-building and preparation of courts for the application of the new legal provisions. 109  The first were Act No 167/1999 Coll, amending the Act on Employment; and Act No 155/2000 Coll, amending the Labour Code. Laws on wages in both the private and public sectors were amended by Act No 217/2000 Coll. Anti-discrimination provisions were added to the Act on Civil Service, Act No 218/2002 Coll, as well as to the Act on Service in the Armed Forces, Act No 361/2003 Coll. A new EU-compliant Act on Employment was adopted in 2004, Act No 435/2004. The same year, a new amendment to the Labour Code was adopted, Act No 46/2004 Coll, which harmonised it with Directive 2002/73/EC (Amending Directive). 110  Act No 30/2000 Coll. 111  Act No 361/2003 Coll. The Act regulates employment relationships for police officers, firefighters, customs officers, prison guards and members of the intelligence services. 112  Act No 218/2002 Coll. 113  Act No 234/2014 Coll.

232  Equality and Anti-Discrimination after 1989 Secondly, whatever protection existed was fragmented and heterogeneous. Some areas, such as self-employment, were not covered at all. Definitions varied across different legislation, and were not always normatively connected to prohibitions and remedies. For example, while the definition of sexual harassment was inserted into the Labour Code in 2000, the Labour Code did not explicitly deem it to constitute discrimination, leaving it unclear whether any remedy was available. This has compromised its full implementation, as it created an opportunity for courts to choose to not to apply these provisions, turning instead to narrow, formalistic interpretations, as I discuss in greater detail below.114 Thirdly, the delayed adoption of the ADA led to an actual reduction in the existing level of protection when the new Labour Code entered into force in 2007.115 The Labour Code was drafted on the assumption that the ADA would become law, and accordingly contained only a very general obligation of equal treatment and a prohibition on discrimination.116 It provided neither basic definitions nor lists of available remedies. Instead, it crossreferred to the (non-existent) ADA.117 As a result, the level of protection available in labour relations was actually reduced, and the already guaranteed rights were abrogated between 2007 and 2009. ii.  The ADA—as Little and as Late as Possible During most of the 2000s, the proposals leading up to the adoption of the ADA were largely met with resistance. Work on the bill started in the fall of 2001,118 and first proposal was formally presented to Parliament in January 2005. Although the bill passed in the Chamber of Deputies, it was rejected by the Senate; and when it returned to the Chamber of Deputies, it failed to secure the absolute majority that was needed to override the Senate. A second proposal was presented to Parliament in July 2007. This time, both chambers passed the bill, but it was then vetoed by the President Václav Klaus. The Chamber of Deputies then overrode that presidential veto in June 2009, and the ADA119 finally entered into force on 1 September 2009.120

114  Judgment of the District Court for Prague 1, AB proti Ministerstvu zahraničních věcí from 6 September 2007, Ref No 27C 90/2004-123. See also p 186–187, 246 and 260. 115  Act No 262/2006 Coll, Labour Code. 116  ibid, s 13(2)(b), (c). 117  ibid, ss 16(2) and 17. 118  Government of the Czech Republic, Resolution No 170 of 20 February 2002 approving „Zpráva o možnostech opatření k odstranění diskriminace“ [“Report on the Possible Measures to Eliminate Discrimination”] (2002). 119  Act No 198/2009 Coll, Anti-Discrimination Act. 120 The Act implements the new millennium EU directives and covers employment and social areas. It guarantees equality in access to goods and services on the following grounds: race or ethnic origin, nationality, sex, sexual orientation, age, disability, religious belief, religion and worldview.

Statutory Law and the EU as a Driver of Legal Change 233 Not only was the ADA adopted as late as possible, subsequent drafts of the law reveal a decreasing generosity in protection. For example, while the original draft prepared by the Government Council of Human Rights in 2004 contained a mediation competence for the equality body and an independent right for NGOs to bring cases where an indeterminate number of individuals were victims of an act of discrimination, the final ADA contained no such provisions. Institutionally, while the original proposal contained an option to create an independent equality body, in the final version this agenda was given instead to the Public Defender of Rights (Ombudsperson). This alternative was cheaper, but also far less appropriate in terms of the overall coherence of the system, as the Ombudsperson at the time was charged with investigation of complaints of maladministration against public authorities but had no expertise to speak of in handling private disputes. The unsystematic character of this decision may have been behind the scepticism of the first two Ombudsmen, Otakar Motejl and Pavel Varvařovský, towards the anti-discrimination agenda.121 This attitude has since changed with the current Ombudswoman, Anna Šabatová, who took up the post in 2014. She has noted a shift in the powers and activities of the Office away from a purely administrative towards a more human-rights orientation.122 The shift of understanding might finally also have an impact on the powers of the Ombudsperson. In 2015, the Government proposed to amend the Act on the Public Defender of Rights.123 Under this proposal, both public and private subjects would be obliged to cooperate with the Ombudsperson’s investigations, which would include providing information in cases of suspicion of discrimination. Furthermore, under the proposal the Ombudsperson will be able to initiate proceedings before courts, including bringing challenges of statutes before the Constitutional Court, and to ordinary courts in cases of public interest (actio popularis).124 At the time of writing, the proposal is still in Parliament. It is, however, unlikely to pass, precisely because it gives greater human rights powers to the Ombudsperson.125 121  It ought to be clarified that while Otakar Motejl’s objections were competence-based, Pavel Varvařovský has expressed himself more negatively about anti-discrimination law in general. See p 198 and 203. 122  Šabatová did this in her doctoral thesis, six years prior to taking up the Ombudsperson position. A Šabatová, ‘Místo Veřejného ochránce práv v moderní demokratické společnosti— od administrativeního k lidskoprávnímu pojetí [The Place of the Public Defender of Rights in a Modern Democratic Society: From an Administrative to a Human-Rights Concept]’ (PhD thesis, Faculty of Law, Masaryk University in Brno, 2008). A similar rationale was presented in the Government’s Explanatory Memorandum that accompanies the proposal to increase the power of the Ombudsperson. Government of the Czech Republic, ‘Proposal of Act Amending the Act on the Public Defender of Rights (Print No 379/2015)’ (2015), available at www.psp. cz/sqw/historie.sqw?o=7&t=379. 123  Act No 349/1999 Coll, on the Public Defender of Rights. 124  Government of the Czech Republic, ‘Proposal of Act Amending the Act on the Public Defender of Rights’ (2015). 125  Based on private conversations with lawyers involved in the drafting of the amendment.

234  Equality and Anti-Discrimination after 1989 Since the EU directives are relatively open-ended with regard to the characteristics of the ‘equality body’, and are quite minimalist when it comes to the powers that such a body should have, the Ombudsperson’s current lack of powers is not strictly speaking in breach of the directives. ­However, there are other aspects of the law that one can more easily argue do constitute insufficient transposition. The most problematic is the provision on remedies. The EU Recast Directive126 requires that ‘real and effective compensation or reparation’ be available that is ‘dissuasive and proportionate to the damage suffered’.127 I do not believe the Czech provisions fulfil these requirements. The ADA does not explicitly provide for compensation of material harm. In 2010, the Supreme Court has remedied this lack by considering the general provisions of the old Civil Code to apply in the case of loss of income suffered due to discriminatory behaviour.128 Interestingly, it has done so without any reference to EU law. An example of insufficient transposition that has yet to be judicially remedied is the ADA’s provision on immaterial harm. According to section 10(1) and (2) of the ADA, a ­victim of discrimination can claim cessation of discriminatory behaviour, elimination of the consequences129 and satisfaction in the form of an ­apology. It is only where the apology proves insufficient, especially because of a diminution in ‘the reputation or dignity of the person or her standing in society’, that one can claim financial compensation for immaterial harm.130 Thus, according to the ADA, the provision of a remedy for immaterial harm is subsidiary and available in exceptional circumstances. Furthermore, the criteria for the award are the external effects of discrimination on a person’s reputation and standing only, rather than the full satisfaction, sanctioning and prevention of future discrimination, as required by EU law.131 The formulation of the Czech ADA provision was copied from the ‘personality protection’ clauses of the old Civil Code.132 The aims of ‘personality protection’ and discrimination law are different, however. The former is concerned with protecting one’s reputation and privacy, the latter with protection from

126  Directive 2006/54/EC (Recast Directive) incorporated previous directives implementing the principle of equal treatment between men and women, their amendments and their interpretation by the CJEU. Its implementation period expired on 15 August 2008. 127  Directive 2006/54/EC (Recast Directive), art 18. See also Case 14/83 Von Colson and Kamann [1984] ECR 1891. 128 Judgment of the Supreme Court, AL proti ČSA from 07 July 2010, Ref No 21 Cdo 1743/2009. 129  The ‘elimination of consequences’ is not an equivalent of either ‘restitution’ or ‘compensation’ under common law. It is doubtful that the courts would be willing to, for example, order an employer to employ an applicant who was not hired due to a discriminatory practice. 130  Act No 198/2009 Coll, Anti-Discrimination Act, s 10(2). 131  See fn 127 above. 132  Act No 40/1964 Coll, s 13.

Statutory Law and the EU as a Driver of Legal Change 235 insult and injury caused by discrimination. Especially important is the different role played by dignity. In the case of ‘personality protection’, dignity is an external quality of a person’s reputation and standing. In the case of discrimination, dignity is almost always harmed whenever one is discriminated against on the basis of characteristics such as race or sex.133 Zdeněk Kühn has argued134 that the new Civil Code,135 with its more generous provisions on material and immaterial harm,136 should be considered lex specialis in relation to the ADA, in its area of application. While he mounts a persuasive teleological argument that it would be paradoxical if the more serious discriminatory intrusions had lesser remedies than less severe ones, it remains to be seen whether the courts will follow his lead.137 In any event, several areas, including labour law and civil service employment, fall outside the scope of the new Civil Code. Even if the limitations on remedies were improved by the Civil Code, for situations falling within its scope, it is worth noting that as far as the legislator is concerned, this would be an accidental rather than intended consequence. Of course, all the problematic legal provisions resulting from improper transposition by the legislator could be healed by the courts’ using several doctrines aiming to ensure the effet utile of EU law. As I show in the following, this has overwhelmingly not been the case. E.  Giving Full Effect? The EU does not expect just transposition, but also implementation of its laws in a wider sense, including their effective application and enforcement by public institutions, such as the courts. Several legal doctrines relating to judicial decision-making are meant to guarantee this. Thus, under the doctrine of direct effect, national law should be disapplied when it comes into conflict with a directive in vertical relations between individuals and the states. The doctrine of indirect effect obliges ‘the national courts to … interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought

133 See, eg, Deborah Hellman’s account of the moral wrong of discrimination being tied to actions that ‘demean’ a person. D Hellman, When is Discrimination Wrong? (Harvard ­University Press, 2008). 134 P Boučková et al, Antidiskriminační zákon. Komentář [Anti-Discrimination Act— Commentary] (CH Beck, 2016). 135  Act No 89/2012 Coll, Civil Code, s 2956. 136  Monetary compensation for immaterial harm is no longer subsidiary, for example: ibid, s 2951(2). 137  The above-mentioned SC case, at fn 128 above, addressed material harm, which is not specifically regulated by the ADA, and therefore cannot be directly applied as an authority to the question of immaterial harm that the ADA regulates directly.

236  Equality and Anti-Discrimination after 1989 by the directive’.138 Furthermore, in cases where the interpretation of an EU directive is in doubt, the preliminary reference procedure is available to national courts. To the author’s knowledge, with only one exception, these doctrines have not been invoked in cases of discrimination on the basis of sex, despite the fact that there have been several cases where this would have been called for. Czech courts have, for example, not used the doctrine of direct effect to disapply an indirectly discriminatory tax provision, even when specifically, and based on the available information correctly, requested to do so by the claimant.139 Nor have they used it to repair the insufficient transposition of anti-discrimination directives in the area of public employment, which led to a formal dismissal of a case involving pregnancy discrimination that clearly had merit, as I show below.140 Furthermore, Czech courts have not considered the aims of the EU anti-discrimination directives, as interpreted by the European Court of Justice,141 to give them indirect effect either. The aforementioned textual limitations on remedies in the ADA could be healed by the harmonious interpretation (indirect effect) of the Czech provisions with the EU law’s requirement of ‘real and effective compensation or reparation’. Several cases have shown that this has not been the case. For example, in one case brought by a flight attendant against Czech Airlines for wage and promotion discrimination, the court said that an apology was sufficient as a remedy and no monetary compensation was necessary, since the complainant’s reputation or dignity had not diminished because of what happened.142 The court concluded this from several witnesses who testified that, the injury notwithstanding, they nevertheless respected the claimant very much. This presents an insurmountable obstacle to claimants, since in order to prove that they are good enough, ie deserving of appointment, promotion, pay, etc, claimants have to have the support of their colleagues who can be called as witnesses. However, if a claimant does have support of colleagues who can attest to her qualities, the courts can take this as a sign of a lack of reputation damage, and can deny pecuniary compensation as a result. This makes the payment of monetary compensation to plaintiffs for immaterial harm practically inaccessible, in clear breach of EU requirements.

138 

Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I 8835, [113]. of Municipal Court in Prague, Whelan and Whelanová from 2 May 2007, Ref No 11 Ca 161/2007-39. Discussed in section III.D below. 140  Judgment of the Supreme Court, EK proti Řediteli Policie, from 9 January 2013, Ref No 30 Cdo 2470/2012-73, see also p 246–247 and 258–259. 141  See, eg, Von Colson. 142  Judgment of the Municipal Court in Prague, AL proti ČSA from 10 July 2008, Ref No 21 Co 190/2008-199. A case summary is available in SC, 21 Cdo 1743/2009. 139  Judgment

Statutory Law and the EU as a Driver of Legal Change 237 Even more restrictively, in a recent decision on discrimination in access to employment, the Supreme Court143 refused to consider a declaratory statement about discrimination as a part of the plaintiff’s moral satisfaction. Contradicting not only EU law, but also private law doctrine regarding the role of satisfaction through a ruling of a court,144 it stated: Because appropriate satisfaction comes from the employer [in the form of an apology] and not the court, the employee cannot demand the satisfaction from a declaratory court ruling which would state that the employer’s behaviour constituted a breach of the rights and obligations flowing from the equal treatment principle or the discrimination of the employee.145

Considering the fact that Czech courts generally are not considered to be incompetent or reluctant followers of EU law,146 these examples suggest a specific and substantive objection to anti-discrimination law, rather than a general objection to EU law and its application in the domestic legal order. I give further support to this point in the following sections. As for preliminary references, only one has been submitted to the CJEU so far, by the Supreme Administrative Court. The case of Blanka Soukupová v Ministry of Agriculture147 concerned the question of what counts as ‘normal retirement age’ for the purposes of agricultural subsidies that encourage early retirement for farmers. As we have seen above,148 retirement ages in Czechia are not only set differently for men and women, but also so that women’s ages are lowered further depending on the number of children they raise. The ECJ found this to be an unjustified discrimination, but only for the purposes of the agricultural subsidy under Regulation 1257/1999.149 The case therefore does not really settle the question of whether the Czech system of different retirement ages is per se a breach of the EU’s equal treatment principle, which the CCC, as shown above, has answered in the negative. In this section, I have observed that the EU has been a crucial, but in many ways imperfect driver of legal change in Czechia. I concentrated on

143  Judgment of the Supreme Court from 18 December 2014, Ref No 21 Cdo 4429/2013, published in 116/2015 Coll Dec Civ. 144 Zdeněk Kühn referencing Jiří Švestka in Boučková et al, Antidiskriminační zákon (2016). 145  SC 21 Cdo 4429/2013. 146  M Bobek and D Kosař, ‘The Application of European Union Law and the Law of the European Convention of Human Rights in the Czech Republic and Slovakia: An Overview’ in G Martinico and O Pollicino (eds), National Judges and Supranational Laws. A Comparative Overview on the National Treatment of EU Law and the ECHR (Europa Law Publishing, 2010). 147  Case C-401/11, Blanka Soukupová v Ministerstvo zemědělství [2013] OJ C156/10. 148  See p 219 above. 149  Council Regulation (EC) No 1257/1999 of 17 May 1999 on Support for Rural Development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and Amending and Repealing Certain Regulations, [1999] OJ L160/80; corrigendum [2000] OJ L302/72, art 11.

238  Equality and Anti-Discrimination after 1989 the flaws directly connected with the technical aspects of implementation. The difficulties with transposition by lawmakers, as well as those with the interpretation, application and enforcement of EU law by the courts, are not to be imputed to the EU but are of domestic origin. I turn to the substantive, conceptual problems at the root of the imperfect implementation in section III. below. F.  Sex Discrimination Litigation before Ordinary Courts Transposition is only the first step in implementing anti-discrimination law. How has the interpretation and application by the courts fared? The scale of litigation of anti-discrimination cases has been very low, and the rate of success of anti-discrimination claims even lower. In the following, I present the sample cases that are the basis of analysis in the following sections of this chapter. I discuss the types of cases, of claimant and defendant, that have arisen, and discuss why litigation and claimant success has been so rare. Any researcher who wants to examine Czech anti-discrimination case law substantively will be faced with a problem of access. Decisions of first instance district trial courts are not publicly available, while the decisions of regional and superior courts have only been made accessible since the 2011 launch of a Ministry of Justice database.150 However, even this database is unreliable: a full-text search for the word ‘discrimination’, conducted on the database in August 2016, yielded only five results, only two of which contained decisions relating to a specifically protected ground (age in both cases). Since at least 15 cases on sex discrimination can be found in the Supreme Court (SC) and Supreme Administrative Court’s (SAC) databases, the Ministry of Justice database clearly does not offer the full picture. Although the lack of availability of trial court decisions makes the overall scale of litigation difficult to assess, it can nonetheless be said to be very low considering that a prohibition on discrimination has been present in some form in Czech law since 1999, that EU anti-discrimination provisions have been applicable and effective since 2004, and that the ADA entered into force in 2009. The following analysis is of 15 cases of discrimination on the basis of sex that reached the supreme court level: 13 in the Supreme Court, and two in the Supreme Administrative Court.151 This analysis will be supplemented by looking at two further lower court decisions that have not reached the

150  Ministry of Justice, ‘Case Law Database’ online, at www.nsoud.cz/Judikaturans_new/ judikatura_vks.nsf/uvod. 151  These were identified via searches in the SC Database at www.nsoud.cz, and the SAC Database at www.nssoud.cz/Uvod/art/1.

Statutory Law and the EU as a Driver of Legal Change 239 supreme court level, both of which were acquired by the author through personal contacts. All but one of these 17 cases concerned discrimination in employment, ranging from wage152 or promotion discrimination153 to claims of harassment.154 The single non-employment case challenged indirectly discriminatory rules of the tax code.155 Two of the cases were brought by men, the rest by women.156 Most of the female claimants were university-educated, professional women with high-achieving careers. One can therefore only guess to what extent these cases represent the tip of the iceberg in terms of the overall incidence of discrimination in the labour market and beyond. As for the defendants, most have been public employers or institutions: the Police,157 the Fire Department,158 the Ministry of Culture,159 the Ministry of Foreign Affairs,160 the National Heritage Trust (Národní památkový ústav),161 Charles University,162 the Ministry of Justice163 and Domestic Revenue.164 Several cases were brought against big corporations: Czech Airlines, in which the Czech state is majority shareholder; SPGroup, an investment company; and Pražská Teplárenská, a heating utility giant. One might

152  Judgment of District Court for Prague 1, VS proti SPGroup from 14 March 2005, Ref No 23 C 11/2003-70; Judgment of the Supreme Court, HP proti Národnímu památkovému ústavu from 12 April 2012, Ref No 21 Cdo 3984/2011; Judgment of the Regional Court in Brno, MP proti Nemocnici Boskovice from 17 September 2014, Ref No 49 Co 319/2013-217; Judgment of District Court in Blansko, MP proti Nemocnici Boskovice from 30 June 2015, Ref No 78EC 1342/2011-279. 153  Judgment of the Supreme Court, Čaušević proti Pražské teplárenské from 11 November 2009, Ref No 21 Cdo 246/2008. 154  Judgment of the District Court in Pardubice, PS proti Hasičskému záchrannému sboru from 12 March 2008, Ref No 8C 373/2006-107; DC Prague 1, 27C 90/2004-123; Judgment of the Supreme Court, KG proti Univerzitě Karlově from 16 January 2015, Ref No 21 Cdo 1165/2013. 155  MC Prague, 11Ca 161/2007-39. 156  Regarding the two cases brought by men, one was a case of alleged wage discrimination, where the claimant used the provision of equal pay for men and women but did not allege discrimination on ‘the basis of sex’, and the Supreme Court did thus not examine it as such: Judgment of the Supreme Court, IP proti Dopravnímu podniku Ostrava from 10 February 2011, Ref No 21 Cdo 5061/2009. The other was dismissed by the Supreme Court, but later won a constitutional challenge: Judgment of the Supreme Court, JK proti Dětskému domovu Uherské Hradiště from 16 January 2015, Ref No 21 Cdo 3211/2014. 157  SC, 30 Cdo 2470/2012-73. 158  Judgment of the Supreme Court, PP proti Hasičskému sboru ČR, from 9 October 2015, Ref No 21 Cdo 962/2015. 159  Judgment of the Supreme Court, HP proti Ministerstvu kultury from 27 March 2012, Ref No 21 Cdo 4586/2010. 160  Judgment of the Supreme Court, AB proti Ministerstvu zahraničních věcí from 4 April 2010, Ref No 21 Cdo 3819/2008. 161  SC, 21 Cdo 3984/2011. 162  SC, 21 Cdo 1165/2013. 163  Judgment of the Supreme Court, BV proti Ministerstvu spravedlnosti from 5 June 2007, Ref No 21 Cdo 612/2006. 164 Judgment of Supreme Administrative Court, Whelan and Whelanová from 21 May 2009, Ref No 7 Afs 103/2008-71.

240  Equality and Anti-Discrimination after 1989 have expected and hoped for a greater awareness of anti-discrimination obligations, and perhaps a greater sense of responsibility from defendants like this, due to their size and overwhelmingly public character. But this has not been the case. Most of these cases proceeded through several judicial instances, sometimes cycling back as many as three times to be re-decided by the same judges. Most took years to be finalised, causing considerable stress to the claimants.165 To give just one example, PS v Fire Department, first brought in 2006, has now gone through eight instances, and is still not over yet. In the case, Ms PS claimed that she experienced employment discrimination and harassment because of her sex. She claimed that her superior wanted a relationship with her and, when rebuffed, launched a campaign of humiliation and harassment against her and cut her bonuses. Regular personal appraisals and several witness accounts corroborated the claim. The claimant’s attempts to address the situation through internal mechanisms were ignored by superiors. From the various judgments that the case has produced, the record is not entirely clear about what the defendant claimed and proved to counter these allegations, other than presenting several witnesses who testified that the claimant had ‘problems of communication’. The first instance trial court found against Ms PS, ruling that she did not sufficiently prove that any discrimination had occurred, despite the requirement of the Code of Civil Procedure to shift the burden of proof to the defendant once the claimant has ‘presented facts from which can be deduced that the defendant committed discrimination’.166 On losing the case, the claimant was ordered to pay the defendant’s court costs of 51,527 CZK (approximately €2,000) on top of her own legal fees.167 Two years later on appeal, the Regional Court found the reasoning of the first instance court to be insufficient to the point of being unreviewable, and quashed the decision and returned the case for retrial.168 A year later, the original District Court re-decided the case, but once again ruled that no discrimination had taken place. The claimant was again ordered to pay the costs of the defendant, this time to the tune of 146,226 CZK (approximately €5,500, nearly six times the average monthly wage in Czechia at that time).169 The case was again appealed up to the Regional Court, who again assessed the facts of the

165 In personal confidential discussions, lawyers representing claimants in discrimination cases have mentioned a high level of psychosomatic problems from which their clients suffer due to their experiences with the court system. 166  Act No 99/1963 Coll, Code of Civil Procedure. 167  DC Pardubice, 8C 373/2006-107. 168 Judgment of the Regional Court in Hradec Králové, Pardubice Branch, PS proti Hasičskému záchrannému sboru Pardubického kraje from 2 October 2008, Ref No 23 Co 327/2008-132. 169  Judgment of the District Court in Pardubice, PS proti Hasičskému záchrannému sboru Pardubického kraje from 30 March 2009, Ref No 8 C 373/2006-308.

Statutory Law and the EU as a Driver of Legal Change 241 case itself and found the claimant’s version to be the ‘more probable’ one. It therefore found discrimination and awarded the claimant the apology and compensation of immaterial harm that she sought.170 The defendant duly paid the compensation to the claimant, but also brought an extraordinary appeal against the Regional Court’s judgment to the Supreme Court. In 2013, the Supreme Court, using a very strict interpretation of the burden of proof obligations upon the claimant, concluded that the Regional Court had erred, quashed both previous decisions and returned the case a third time to the District Court. The claimant at this point, satisfied that her demands had been met, withdrew her case. However, doing so left it undecided who was obliged to pay whose legal fees. The case was tried yet again at the first instance, resulting in an order that the claimant pay, followed by an appeal to the Regional Court, which reversed the order, ordering the defendant to pay. This was followed once again by an extraordinary appeal to the Supreme Court. The Supreme Court quashed the Regional Court decision and returned the case again.171 To the author’s knowledge, it is still pending. The torturous route that the case took is not unusual. Most of the cases analysed here have gone through at least three judicial instances. Moreover, there does not seem to be any more sympathy for anti-discrimination claims at any particular level of the judicial hierarchy. Most cases do not succeed at the first instance. In the exceptional cases where the claimants did win at the court of first instance,172 they then lost either on appeal (odvolání)173 or on extraordinary appeal (dovolání).174 Occasionally, appellate courts overturned decisions of trial courts because of the low quality of the judgments, as was the case in the just-mentioned PS v Fire Department. However, as we have also seen, the Supreme Court cannot be relied upon to uphold those decisions that, based on the available facts and considering the EU anti-discrimination doctrines, appear to be correct. Where the Supreme Court has exceptionally quashed and returned lower court decisions,175 it has done so mostly for procedural rather than substantive reasons, with the result that the lower courts repeat their findings of no discrimination.176 In some 170 Judgment of the Regional Court in Hradec Králové, Pardubice Branch, PS proti Hasičskému záchrannému sboru Pardubického kraje, from 27 October 2010, Ref No 23 Co 282/2009-397. 171  SC, 21 Cdo 962/2015. 172  DC Prague 1, 27C 90/2004-123; and Judgment of District Court Prague-West, BV proti Ministerstvu spravedlnosti, from 6 May 2005, Ref No 10 C 5088/2004-96, confirmed on appeal Judgment of Regional Court in Prague, BV proti Ministerstvu spravedlnosti, from 18 October 2005, Ref No 23 Co 331, 332/2005-142. 173  Judgment of the Municipal Court in Prague, AB proti Ministerstvu zahraničních věcí from 18 April 2008, Ref No 14 Co 90/2008-148. This decision was confirmed by the Supreme Court in SC, 21 Cdo 3819/2008. 174  SC, 21 Cdo 612/2006. 175  SC, 21 Cdo 246/2008. 176  Judgment of the District Court for Prague 7, Čaušević proti Pražské teplárenské from 13 December 2010, Ref No 26 C 25/2006-372.

242  Equality and Anti-Discrimination after 1989 cases, constitutional complaints would then be lodged against the decision of the Supreme Court. The CCC has found breaches regarding the incorrect application of the burden of proof in race discrimination cases.177 On sex discrimination, the one instance where the CCC found a breach was the aforementioned case brought by a man.178 Only two of these 17 cases were successful,179 and even then only partially so. In AL v Czech Airlines, the lower instance courts found wage discrimination but did not award monetary compensation. The Supreme Court later quashed the judgments, arguing that when a court establishes that a discriminatory act has taken place and caused damage, it must also award compensation.180 In HP against the National Heritage Trust,181 a case also involving wage discrimination, the claimant lost before the trial court, but later partly won on appeal and was awarded more than half of what she had demanded in back pay. Although the 17 cases analysed here cannot be seen to be representative of every Czech court at the trial level because first instance court records are not publicly available, they are the complete set of discrimination cases that have reached the supreme court level. Their low rate of success is thus very indicative of the state of anti-discrimination litigation in Czechia. It is worth noting that these results cannot be attributed to an unfavourable gender composition of within the Czech courts, as two-thirds of judges in Czechia are women.182 Rather, it is more likely due to a general lack of awareness of gender equality issues on the bench. The low numbers of anti-discrimination cases and their poor rate of success are related. Indeed, ‘distrust of favourable outcome’ was one reason cited in a recent survey conducted by the Ombudsperson of why people choose not to fight against discrimination.183 This was accompanied by 177 

See section III.C.iii below. See p 222–223 above. 179  By successful I mean where discrimination was found and the claimant received a remedy, or a lower court was explicitly directed by a higher court to both these ends. I do not include the mere overturning of a decision by a higher court. I therefore do not count, eg, the Whelan and Whelanová case SC, 21 Cdo 1743/2009. The case concerned taxation rules for spouses. The SAC quashed previous unfavourable decisions, but did not do so on the basis of the plaintiff’s indirect discrimination claim: SAC, 7 Afs 103/2008-71. A court of first instance ruled against the claimants once again in a subsequent decision concerning another tax year: Judgment of the Municipal Court in Prague, Whelan and Whelanová II. from 14 June 2012, Ref No 5Ca 336/2008-29). See section III.D below. 180  SC, 21 Cdo 1743/2009. 181  SC, 21 Cdo 3984/2011. 182  In 2012, women constituted 64% of judges at District Courts, 58% at Regional Courts, 46% at High Courts, and 30% at the SC and SAC (e-mail communication with Libor Fůs; Press Department of the Ministry of Justice on 2 August 2012; newer data have not been made available). At the CCC, in 2016, only two out of 15 judges are women (http://www.usoud.cz/ de/soucasni-funkcionari-a-soudci/). 183 Office of the Public Defender of Rights, ‘Discrimination in the Czech Republic: Victims of Discrimination and Obstacles Hindering their Access to Justice’ (Office of the Public 178 

Anti-Discrimination Law before the Courts 243 other reasons, such as the high cost and length of proceedings, as well as fear of repercussions.184 It is perhaps not surprising, therefore, that victims of discrimination seeking redress have turned instead to the Office of the Public Defender of Rights (Ombudsperson) rather than the courts in increasing numbers, despite the fact the Ombudsperson can at most issue a report rather than resolve the case. The following sections provide a detailed answer to the question of why claimants fail. It looks at the substantive and procedural defects in how antidiscrimination law is interpreted and applied, all evident in the 17 cases, as well as at underlying understandings and concepts that impede it. III.  ANTI-DISCRIMINATION LAW BEFORE THE COURTS

Most of the cases decided in Czechia and analysed in this book concern direct discrimination,185 understood as the situation where ‘one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation’.186 Despite being the more straightforward type of discrimination, Czech ordinary courts have had problems with the most basic tenets of the concept. The cases examined show both substantive and procedural defects, and flaws that have to do with inadequacies both in assessment of the facts of the cases and the legal qualification of the facts. Indirect discrimination has fared even worse, with ordinary courts practically advising negatively impacted litigants to try to overcome the structural gender bias on an individual basis. The observations made in Chapter 7 ought to be borne in mind in looking at this material, namely that the Czech courts, with their legal formalism, characterised by the primacy of textual interpretation and the mechanical application of the law,187 have trouble with anti-discrimination law’s need for purposive interpretation. Although the difficulties with purposive interpretation are general to Czech law, they are exacerbated in anti-discrimination law, since only the simplest part of it, the formal consistency of treating the same the same,188 can be applied mechanically. Beyond that, identifying the Defender of Rights, 2015), available at www.ochrance.cz/fileadmin/user_upload/DISKRIMINACE/aktuality/diskriminace_EN_titulka_zadnistrana.pdf. 184  Similarly, see Committee on the Elimination of Discrimination against Women, Concluding Observations on the Sixth Periodic Report of the Czech Republic (CEDAW/C/CZE/CO/6), available at www.czlobby.cz/sites/default/files/spolupracujeme_download/doporuceni_komise_ cedaw_2016.pdf. 185  The courts themselves do not always identify what type of discrimination they are assessing, therefore the classification is mine. 186  As defined today in Directive 2006/54/EC (Recast Directive), art 2(1)(a). 187  See Ch 7 section II.B. 188  Even ‘treating likes alike’, to use the famous Aristotelian formulation, requires an assessment of similarity and difference. The determination of when people or situation are alike and when not often requires a refined and reflective understanding of the realities of inequality.

244  Equality and Anti-Discrimination after 1989 purpose of anti-discrimination law is crucial, and it requires knowledge of the social reality of inequality and discrimination, which, as I show in detail elsewhere,189 has been invisible to Czech lawyers, including judges. In the following, I first examine several evasion strategies used by Czech courts to avoid having to decide the merits of discrimination cases (­section III.A). I then observe that both the CCC and ordinary courts have been more open to finding general breaches of the principle of equality rather than discrimination on a specifically protected ground, which indicates a lack of understanding of the types of wrong anti-discrimination aims to address (section III.B). I then note that Czech courts look for intentional use of the protected ground in discrimination cases, and rarely truly shift the burden of proof to the defendants, which makes it virtually impossible for claimants to win their cases (section III.C). Lastly, a prevailing blindness to structural inequalities and a limited understanding of discrimination as action based on unwitting prejudice leads to an interpretation of indirect discrimination that is considerably narrower than EU and ECHR law would require (section III.D). It should perhaps be clarified that the following discussion is not meant to present the ‘state of the law’ to the reader. The law190 regarding direct and indirect discrimination, harassment or burden of proof is reasonably clear, as it is contained in the Czech Charter and statutes, based on the ECHR and EU Directives, complemented by CJEU, ECtHR and sometimes CCC case law. What I examine is how ordinary courts at all levels of the hierarchy either have reinterpreted the law much more restrictively, or are incapable or unwilling to actually apply the legal doctrines, often even as already expounded by a higher court in the particular case,191 to the facts. From the perspective of the common law, where judicial decisions are the law, this might be a surprising way of approaching the problem. But it corresponds to the civil law understanding of courts as interpreters and applicants of the law, not its creators. A.  Avoiding Anti-Discrimination Adjudication Czech courts appear to apply various strategies that allow them to avoid deciding on substantive questions in anti-discrimination cases.192 They instead spend much time and effort discussing jurisdictional, procedural or

189 

See ch 5 section II. and Ch 9 section II. I use the civil law understanding of ‘law’. See Ch 1 fn 105. 191  See, eg, p 247–248. 192  Similarly Z Kühn, ‘Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement’ (2004) 52 American Journal of Comparative Law 531, 551; and Selanec, ‘A Betrayed Ideal’ (2012), 251–71. 190 

Anti-Discrimination Law before the Courts 245 other formal and technical aspects of the cases, all of which are very remote from the question of whether or not someone discriminated against another. When possible, the courts interpret the acts that are alleged to have been discriminatory as unreviewable. Often, they encourage claimants to make claims relying on legal provisions other than the right to non-discrimination. i.  Concentrating on Formal Questions One can distinguish three types of formalism in post-communist judicial decision-making in equality and anti-discrimination cases, all techniques to avoid deciding anti-discrimination cases on their merits: (i) an excessively ‘formalistic’ adjudication based on strict textual interpretation; (ii) the avoidance of substantive issues by concentrating on formal matters; and (iii) a ‘formal’ understanding of equality. I discussed the first type of formalism in Chapter 7, where I observed that the over-reliance on textual, logical and systematic interpretation, and distrust of teleological interpretation, has had damaging effects on equality and antidiscrimination law, since these types of cases require a teleological interpretation of norms and a substantive engagement with the social realities of inequality.193 As for the third point, a formal understanding of equality, it is a theme that runs through this entire chapter, and I return to it in detail in section IV.A below. With regard to the second type of formalism, ordinary courts are typically formalist in how they deal with cases. They tend to concentrate on highly technical issues of law194 and fact,195 without being required to do so by law. This formal approach is easier and faster than substantive engagement with the merits of the cases. Kühn has observed: In the course of the 1990s, the ordinary courts ratcheted up their formalism in order to quickly and easily dispose of as many cases as possible. If the plaintiff made any mistake—however trivial—it was deemed to be an irreparable error, and the action was automatically dismissed. This has been a welcome tool used by courts to lighten their increasing workload and, at the same time, to demonstrate their industry: in the bureaucratic system of judicial administration, any decision made by a court counts in its favour for the evaluation of that court’s efficiency.196

The use of avoidance techniques by Czech courts survived the 1990s and continues today. Courts continue to seek out temporal or statutory coverage gaps. Once the facts of the case or the rules fall through these cracks,

193 

See Ch 7 section II.B. DC Prague 1, 27C 90/2004-123. 195  Judgment of the District Court for Prague 7, Čaušević proti Pražské teplárenské from 22 December 2006, Ref No 26 C 25/2006; Judgment of the Municipal Court in Prague, Čaušević proti Pražské teplárenské from 23 May 2007, Ref No 54 Co 127/2007. 196 Z Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (Martinus Nijhoff, 2011) 204. 194 

246  Equality and Anti-Discrimination after 1989 the courts do not have to decide substantively, which in practice means they decide against the claimant.197 Although this ‘method’ in post-communist judicial decision-making is a more general phenomenon, it has been widely used by courts to avoid substantive engagement with discrimination cases. One example is the case of AB v the Ministry of Foreign Affairs,198 brought by a female diplomat for the harassing behaviour of a superior. The trial court was very formalistic in its interpretation of the timeline, as well as the relationship between the newly introduced provisions prohibiting harassment and provisions on remedies. As for the temporal aspect, the harassing behaviour was alleged to have occurred between 2000 and 2002. The first prohibition against harassment in Czech law was inserted into the Labour Code in 2000 and entered into force in 2001.199 This notwithstanding, the trial court chose to apply the more general Civil Code rules on ‘personality protection’ to all of the facts in the case instead,200 which were then interpreted restrictively as not covering the hostile environment in question. The court also tried to get out of applying the harassment provision by formalistically interpreting the relationships between different statutes. When the Labour Code was amended to include a definition of harassment, the legislator did not explicitly state in the new provisions that harassment was ‘a breach of rights and obligations resulting from the right to equal treatment of men and women.’201 This made it textually unclear that remedies generally available for discrimination202 were equally available for harassment. The trial court concluded they were not, despite the fact that all these provisions had been introduced together by the same ‘EuroAmendment’, and were contained in the same provision of the Labour Code, the amended section 7.203 Any basic teleological assessment would lead one to conclude that the remedies matched the breach. Nevertheless, these two moves allowed the trial court to avoid having to delve into the details of the factual situation as claimed by the plaintiff, and avoid interpreting and applying an unfamiliar provision. Another example is the case of EK v Czech Police,204 in which a policewoman claimed employment discrimination on the basis of pregnancy. The

197 Several scholars have highlighted the positive aspects of ‘decisional minimalism’ and ‘constitutional avoidance’. See respectively C Sunstein, ‘Foreword: Leaving Things Undecided’ (1995) 110 Harvard Law Review 6; and J King, Judging Social Rights (Cambridge University Press, 2012). These arguments might be persuasive for constitutional adjudication, but do not, I believe, apply to ordinary courts where ‘minimalism’ most often leads to a loss for the claimant. 198  DC Prague 1, 27C 90/2004-123. 199  Act No 155/2000 Coll, s 7(2). This amendment came into effect on 1 January 2001. 200  See also p 234 above. 201  Act No 155/2000 Coll, s 7(4), (5). 202  Act No 155/2000 Coll, s 7(4), (5). 203  See fn 73 above. 204  SC, 30 Cdo 2470/2012-73.

Anti-Discrimination Law before the Courts 247 plaintiff was effectively demoted after informing her employer of her pregnancy, and suffered loss of income as a result. The facts of the case happened in 2006 and 2007, well before the adoption of the ADA, and also before the EU anti-discrimination directives were fully transposed into the statutes governing public service employment.205 The courts at all levels, including the Supreme Court, reduced the case to a formal question of delineation of competences between the Minister of Interior, who decides on issues of police employment, and the ordinary courts tasked with ruling on cases of discrimination. After insisting on the strict separation of ‘public law’ and ‘private law’, the Supreme Court concluded that the ordinary courts were not competent to decide on the matter. The relevant provisions of the Directive, clearly prohibiting any discrimination on the basis of pregnancy,206 should have been directly applied to the case, because the employer was a public institution, but they were not.207 ii.  Shrinking the Scope of Reviewable Acts Another way in which courts have avoided adjudicating on the merits of antidiscrimination cases has been to exclude various actions of the employer as non-reviewable. A good example of this is the Čaušević case.208 The claimant, Ms Čaušević, argued that she was discriminated against on the basis of sex when she was not selected for a management position despite being clearly the best-qualified candidate. In order to assess candidates for the position in question, the employer ran two rounds of selection. In the first round, Ms Čaušević was evaluated to be the best candidate but was not offered the job. In the second round, to which Ms Čaušević was not invited, a younger male candidate was deemed to be the best candidate and hired. The court of first instance, not wanting to have to assess the qualities of the candidates substantively,209 formalistically distinguished the two rounds as incomparable, and therefore found no discrimination.210 The appellate court confirmed this decision.211 The Supreme Court overturned it and returned the case to the lower courts, arguing that the two rounds had to be considered together.212

205 

See p 231 above. Directive 2002/73/EC (Amending Directive), art 2(7). 207  For a discussion on this case, see K Koldinská, ‘Czech Republic (News from the Member States)’ [2013] European Gender Equality Law Review 60, 60–61. 208 DC Prague 7, 26 C 25/2006; MC Prague, 54 Co 127/2007; SC, 21 Cdo 246/2008; DC Prague 7, 26 C 25/2006-372. 209  In terms of their expertise or experiences, for example. 210  DC Prague 7, 26 C 25/2006; MC Prague, 54 Co 127/2007. 211  MC Prague, 54 Co 127/2007. 212  SC, 21 Cdo 246/2008. 206 

248  Equality and Anti-Discrimination after 1989 The case contained another type of formalism, however. In obiter dicta, the District Court, deciding at first instance, made some worrying statements about its role in reviewing the actions of the employer: [T]he court found substantial differences in the appraisal of the candidates by the members of the board, however, since this evaluation was not based on objective measurement of knowledge but on subjective perception of the personalities of the candidates, these differences are natural. Moreover, … the court did not consider the ‘quality’ of the candidates, ie their expertise, experience, etc, as a decisive element in the legal evaluation, as the law addresses only the difference in treatment of candidates and distinctions made on the basis of sex, as regards the opportunity to obtain the position to be filled.213

In other words, the court interpreted the right to equal treatment as applying only in respect of the conditions of the examination part of the selection process, but not with respect to the overall quality of the candidates. Instead of reviewing whether the evaluation and the ultimate selection of candidates was based on sex or other grounds, the court simply examined whether the same set of questions was put to all of the candidates, and whether Ms Čaušević had received less time to answer them. The court clearly did not understand that the ‘different treatment’ here was the fact that a man was hired and a woman was not. As a consequence, the court did not consider it necessary to engage in any substantive review of the decision, stating that ‘every person is an unrepeatable individual … and it is therefore impossible to find that someone is better for a position than the other’.214 One can understand that the court may have found it difficult and been unwilling to reassess who the best candidate was; nevertheless, if the burden of proof been applied correctly, at trial it should have been for the employer to prove that there were objective reasons for the selection of the man over the woman. I mentioned the fact that the Supreme Court overturned the lower courts’ decisions.215 However, it only overturned the formal separation of the assessment of the two rounds of the selection process and pointed out the need to apply the burden of proof correctly. It declined to comment on what understanding of ‘different treatment’ courts should use. As a result, the District Court, in re-deciding the case, once again found that no discrimination had taken place.216 Another good example of this kind of exclusion can be found in the case of KG v Charles University.217 In Czech universities it is common practice to employ faculty on temporary contracts, which are typically renewed 213 

DC Prague 7, 26 C 25/2006, 17 (emphasis added).

214 ibid. 215 

SC, 21 Cdo 246/2008. DC Prague 7, 26 C 25/2006-372. 217  SC, 21 Cdo 1165/2013. 216 

Anti-Discrimination Law before the Courts 249 automatically. In this case, however, the employer decided to institute selection proceedings only for Ms KG and not for any of her male colleagues, thus making her go through a selection process rather than automatically renewing her contract. She considered this to be discriminatory on the basis of her sex. The courts, including the Supreme Court, all disagreed. The Supreme Court ruled: The statute218 is based on the principle that academic positions at institutions of higher education are filled on the basis of selection proceedings (výběrové řízení). The institutions can refrain from selection proceedings in cases of repeated contracting of an employee in the same position. It is clear that the instituting of selection proceedings is entirely at the discretion and sole competence of the institution of higher education. The subjective opinion of an employee about the bias in the decision to institute selection proceedings is not considered legally relevant by the statute [regulating higher education] … The decision [to institute selection proceedings] is not a legal act, as it does not create, alter or end a legal relationship, and as a so-called ‘factual act’ cannot be in and of itself subject to review.219

The Supreme Court here misunderstood two fundamental aspects of antidiscrimination law, partly for reasons of applying doctrines from other areas of law, which are however not suited to anti-discrimination law. First, the Court considered of crucial import the fact that the statute regulating institutions of higher education gave them discretion with regard to whether or not to institute selection proceedings. But in anti-discrimination law, it does not matter whether an institution has such discretion or not. Indeed, had there been no such discretion, the university would not have had any scope for discrimination at all. In other words, it is precisely in those areas where institutions have discretion that discrimination is most likely to take place. Secondly, it is hard to see why the Supreme Court chose to stress the difference between ‘legal’ and ‘factual’ acts. It may be understandable from a labour law perspective, where this distinction has a role to play, but antidiscrimination law is different. It does not matter whether one can prove that a discriminatory act affected the existence or characteristics of a certain legal relationship. To give a more obvious example, all harassment, other than perhaps certain types of quid pro quo harassment,220 is ‘factual’. Harassment most of the time is not a ‘legal’ act, in that it does not lead to the creation, alteration or cessation of the employment contract or its parts, and yet anti-discrimination law prohibits it. Thus, when courts exclude ‘factual’ behaviours from their analysis, the scope of what can be captured by antidiscrimination law becomes strikingly narrow.

218 

Act No 111/1998 Coll, s 77. SC, 21 Cdo 1165/2013, p 6. 220  For definition, see Ch6 fn 308. 219 

250  Equality and Anti-Discrimination after 1989 iii.  Redirecting Applicants to Other Claims While the courts are clearly uncomfortable with applying anti-discrimination law, they are more willing to engage other rules instead, most often traditional labour law protections. This tendency has been observed more widely throughout the CEE region by Goran Selanec in relation to pregnancy: CEE post-socialist courts are very protective of women who are pregnant or on maternity leave when it comes to explicitly regulated situations such as the prohibition of dismissal, the right to return to the same position, the right to be transferred to a less demanding job without pay implications, or the right to take time off for prenatal medical examinations etc. However, outside the scope of these conventional situations, we are likely to see judicial decisions that are not particularly favourable to pregnant workers.221

Selanec provides several examples of cases of pregnancy discrimination that were lost by claimants throughout the region. The Czech sample provided here supports this observation.222 However, in the Czech example, it goes beyond pregnancy and extends to all sex/gender discrimination. For example, in the previously cited case, KG v Charles University,223 the Supreme Court explicitly advised the claimant that her challenge to the invalidity of the termination of her contract should have been brought as a claim in labour law rather than as a discrimination claim. A particularly clear example of this are a number of cases that relate to the right of parents, contained in the Labour Code, to adjust their working hours, including converting to part-time,224 unless the employer can show that there are serious operational reasons for not doing so (vážné provozní důvody).225 A breach of this right was pleaded as a discriminatory act in BV v the Ministry of Justice.226 The case was brought by a female judge and mother of two, who requested, and was denied, an adjustment of her working hours by her employer, the District Court for Prague 2. The employer argued that serious operational reasons justified this decision, despite the fact that during the same period, two male judges were relieved of their duties and seconded to a higher court. The trial and appeal courts found in favour of the claimant, but the Supreme Court reversed the decision, accepting the employer’s argument that serious operational reasons prevented the adjustment to part-time. When a similar case was brought seven years later, without the discrimination element, the Supreme Court defined serious operational reasons

221 

Selanec, ‘A Betrayed Ideal’ (2012), 316. SC, 30 Cdo 2470/2012-73. 223  SC, 21 Cdo 1165/2013. 224  Act No 262/2006 Coll, Labour Code, s 241(2). 225  Discussed on p 171. 226  SC, 21 Cdo 612/2006. 222 

Anti-Discrimination Law before the Courts 251 more strictly and found against the employer. The case, MK v Liberec,227 was brought by a female administrative employee, a mother, against her public employer, the City of Liberec. The employer’s refusal to adjust her working time led to some absenteeism and eventually her dismissal. Her suit challenged the validity of the dismissal, rather than claiming sex discrimination. While the trial and appeal courts found for the employer, the Supreme Court stated that they erred in their interpretation and application of the concept of ‘serious operational reasons’: They were satisfied with a general statement of the defendant employer regarding the difficulties of filling positions at customer counters, without examining more closely the employer’s real ability to find cover. The appeals court, for its part, concentrated on the question whether another specific employee could replace the claimant if she worked part-time. Only if it is properly clarified what options (both personal and system-organisational) in relation to the fulfilment of the [customer interface] duties the employer had, will it be possible to conclude if the employer had serious operational reasons for not adjusting the claimant’s working time.228

This more stringent interpretation of serious operational reasons is to be welcomed as it should benefit not only parents who bring unfair dismissal claims, but also future discrimination cases to which it could also apply. It is doubtful, however, that such claimant-friendly doctrine would ever have been developed in a discrimination case instead of in the context of a traditional labour law dispute. B.  Greater Protection for Enumerated Grounds? One fundamental tenet of substantive equality is the understanding that measures that target an already disadvantaged group are more invidious than others.229 Some groups, defined by race, ethnicity, sex, gender, disability, nationality, immigration status, etc, have been traditionally disadvantaged and marginalised by both law and society. Therefore, practices that make use of these characteristics as criteria for decision-making, whether in public or private contexts, are of particular concern for substantive equality. From a constitutional perspective, it is important that many states have historically used membership of these groups to discriminate, such as by upholding racial segregation or denying property rights to women. When private employers or providers of goods and services make similar use of these grounds, they effectively exclude members of these groups from full 227  Judgment of the Supreme Court, MH proti Liberci, from 9 July 2014, Ref No 21 Cdo 1821/2013. 228  ibid, p 6. 229  See, eg, the ECtHR decision in Kiyutin v Russia, App no 2700/10 (ECtHR, 10 March 2011); and the Supreme Court of Canada in Andrews v Law Society of British Columbia [1989] 1 SCR 143.

252  Equality and Anti-Discrimination after 1989 participation in the economy. These are often referred to as ‘suspect grounds’ because their use automatically triggers suspicion.230 Many Western legal systems recognise this and award special protection to certain grounds, such as race or sex, both in their constitutions and in statutory instruments,231 ensuring that such distinctions are usually subjected to stricter judicial scrutiny.232 Both the Czech Charter and most Czech statutes that contain a prohibition of discrimination have an open list of grounds. The Czech Charter does not explicitly distinguish between characteristics, whether suspect or otherwise. Article 3(1) contains a non-exhaustive list of grounds.233 Such a list is relatively common in comparison to other legal systems’ constitutional provisions.234 Perhaps more striking, however, is the statutory level. In Czechia, the closed list of grounds in the ADA largely corresponds to the EU list; however, in other post-communist CEE countries similar lists, although closed, are much more extensive. Croatia offers protection from discrimination on 18 grounds, Hungary on 20.235 While the ADA’s list is closed, other Czech statutes dilute the grounds: the Schools Act236 contains a non-exhaustive list of grounds, while the Labour Code237 and the Act on Consumer Protection238 provide only a general prescription of equal treatment and/or a prohibition against discrimination, without specifying any grounds at all. A look at the activities of the public authorities tasked with the monitoring of these prohibitions shows that most of the cases that come before them do not deal with any specifically protected grounds.239 The same has been the case with constitutional adjudication.240 Similarly, before the ordinary

230 

This terminology is found in ECtHR case law. I discussed the issue of grounds, in relation to class, in Ch 4 Section III above. 232  Eg, in the US the level of scrutiny varies from strict for race (Korematsu v United States 323 US 214 (1944) (SC)), to intermediate for sex (United States v Virginia 518 US 616 (1996) (SC)) to rational scrutiny for other grounds. 233  See p 214 above. 234  The method of identifying ‘suspect grounds’ varies. For instance, a closed list is contained in the Charter of Fundamental Rights of the European Union, [2000] OJ C364/1, art 21, or in the German Basic Law, Grundgesetz für die Bundesrepublik Deutschland Vom 23.05.1949 (BGBl I S. 1), art 3(3). In contrast, a non-exhaustive list can be found in the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11, art 15(1). In other countries, the list is judge-made. This is the case, eg, in the US in relation to the XIVth Amendment. For a similar typology, see S Fredman, Discrimination Law (Oxford University Press, 2011); and S Fredman, Comparative Study of Anti-Discrimination and Equality Laws of the US, Canada, South Africa and India, (European Commission Report, 2012) 32–35. 235  Selanec, ‘A Betrayed Ideal’ (2012), 272. 236  Act No 561/2004 Coll, s 2(1)(a). 237  Act No 262/2006 Coll, Labour Code, s 16(1) and (2). 238  Act No 634/1992 Coll, s 6. 239  I thank Petr Polák for this information. 240  For the wording of the relevant provisions, see p 214 above. 231 

Anti-Discrimination Law before the Courts 253 courts, grounds other than specifically protected grounds are often pleaded as well. This raises the important question of whether the protection from discrimination is understood to be a mere prohibition of arbitrariness on the part of the authorities241 in constitutional and administrative adjudication, and as a general requirement for consistency in private relations. Or is there also an understanding that suspicion and scrutiny should be elevated with regard to distinctions made on grounds typically associated with real-life disadvantage, such as race or sex/gender? As regards constitutional adjudication, the overwhelming majority of applicants who have pleaded discrimination did so on a ground other than those explicitly specified in the Czech Charter’s article 3(1).242 The Court has, for example, reviewed the difference between the cooperative or personal ownership of a flat for tax purposes;243 between small and larger municipalities for budget distribution purposes;244 or, more recently, between high- and low-earning pensioners and the different taxation rules on their respective incomes.245 Of the 146 cases that have engaged the equality and non-discrimination provision of article 3(1) of the Czech Charter since its entry into force in 1993, only a few were brought under the listed protected grounds, such as age, race and sex, and in even fewer did the CCC actually look into their merits.246 The relative absence of cases brought on enumerated grounds is not itself a problem, not least because the CCC has no control over what cases are brought to it. What is problematic and noteworthy, however, is the fact that for many years, the CCC was not recognisably differentiating between its judicial review of the suspect grounds and other distinctions.247

241 For a discussion of ‘equality as rationality’, see C McCrudden, ‘Equality and NonDiscrimination’ in D Feldman (ed), English Public Law (Oxford University Press, 2009) 520–24. 242  Eg, between January 2014 and 2016, out of the 28 cases before the CCC in which applicants claimed a violation of art 3(1) of the Czech Charter, 16 were claims relating to ‘other status’, and only 12 to a specifically protected ground. The latter number is somewhat inflated since, over the last few years, ‘discrimination on the basis of sex’ has been raised in a series of cases involving child custody, often by fathers. The CCC dismisses the overwhelming majority of these cases. See p 222 above. 243  CCC Decision from 21 April 2009, Ref No Pl.ÚS 29/08, published as No 181/2009 Coll. 244  CCC Decision from 20 November 2007, Ref No Pl.ÚS 50/06, published as No 18/2008 Coll. For more examples and a similar conclusion, see Wagnerová et al, Listina (2012), 105– 06; and Ščotková, ‘Rovnost’ (2007), 194. 245  CCC Pl.ÚS 18/15. 246  See fn 60 above. 247  In the 2000s, some cases seemed to suggest that a weaker test, the mere prohibition of arbitrariness, should be applied to alleged breaches of art 1. See Ščotková, ‘Rovnost’ (2007), 184–85. However, since breaches of arts 1 and 3(1) were mostly alleged and discussed together, the role this played was usually minimal. The Court during this time applied a stricter proportionality test to breaches of civil and political rights than social and economic rights. CCC Decision of 12 March 2008, Ref No Pl.ÚS 83/06, published as No 116/2008 Coll. Wagnerová et al, Listina (2012), 109.

254  Equality and Anti-Discrimination after 1989 Czech ordinary courts also appear to take ‘other ground’ discrimination at least as seriously as discrimination on specific grounds, if not more so. In one case, a male bus driver brought a claim against the City of Jihlava for discrimination, without specifying a ground.248 The trial court249 found in his favour on the basis that the applicant was not given the job, ‘not for reasons of personal abilities and qualifications’ but ‘for negative previous experience of the management with him’.250 This decision reflects far more consideration, and ultimate success, than most sex discrimination cases ever enjoy before the trial courts. The claimant eventually lost on appeal and extraordinary appeal,251 but the case does illustrate that the reluctance of courts to engage in discrimination adjudication is not universal or constant but does appear to be particularly pronounced when it comes to explicitly regulated grounds. A survey of several CEE jurisdictions led Selanec to conclude similarly that post-socialist courts ‘perceive the notion of equality in treatment in a rather egalitarian sense that prohibits any difference in treatment that cannot be justified by some socially legitimate reason’.252 The courts ‘ignore group-based discrimination claims while hiding behind the abstract notion of equal treatment’.253 They are ready to find something wrong, just not discrimination on the basis of a specifically protected ground. He notes that in one Croatian case, the court was more willing to subject the entire pay structure of an employer to scrutiny and look for unjustified distinctions than simply to assess whether it was sex discriminatory.254 Why would courts be more willing to find a general breach of equality rather than discrimination on a specifically protected ground? S­ elanec observes that the courts find it particularly damaging to find that an employer discriminated on the basis of sex (or race): This dichotomy [between a general prohibition of discrimination and specific grounds] allows CEE post-socialist courts to escape responsibility for finding that a person committed an offence that is as serious and vulgar as sex or race discrimination. Thus, after they had declared that there was no sex or race discrimination, many courts still found that the defendant’s actions nevertheless constituted the difference in treatment that cannot be justified by some objective reason (general discrimination) or that they harmed the plaintiffs’ honour and/or dignity, which

248  Judgment of District Court in Jihlava from 26 September 2006, Ref No 4 C 1129/2001220 as corrected on 24 January 2007, Ref No 4 C 1129/2001-236. 249 This was the trial court’s second ruling in the case after its previous judgment was returned to it on appeal. 250  DC Jihlava, 4 C 1129/2001-220, as cited in SC 21 Cdo 4429/2013. 251  See SC 21 Cdo 4429/2013. The refusal had more to do with a formalistic attitude to remedies than the substantive questions, however. See discussion on p 237 above. 252  Selanec, ‘A Betrayed Ideal’ (2012), 272. 253  ibid, 302. 254  ibid, 297.

Anti-Discrimination Law before the Courts 255 are not as normatively charged and socially condemnable violations as sex or race discrimination.255

This attitude appears to be connected to what I describe below as a ‘few bad apples’ understanding of discrimination, where only very severe acts are considered to be discriminatory. This in turn means that courts tend to be reluctant to find discrimination. This is why Czech courts insist on the need to find ‘fault’ with the defendant, an issue to which I return in the next section. This attitude is also related to a lack of a solid concept of structural disadvantage and a relatively formal understanding of equality in Czech doctrine. The courts’ interpretation and application of equality and anti-discrimination law does not appear to come from a deep understanding of what belonging to a particular group can mean for one’s position in society.256 As such, the courts are not appropriately suspicious of acts that single out or disproportionately impact members of disadvantaged groups. What is happening could perhaps be described as ‘divide and rule-out’. There is a spectrum with a general prohibition of disparate treatment on one side, which the Czech courts are willing to investigate and rule on. On the other side of the spectrum is discrimination on the basis of specific grounds, interpreted and applied exceptionally narrowly, which the courts in principle would also rule on, except that almost no behaviour passes the very high threshold. This then leaves the middle ground, where the majority of direct and indirect discrimination falls—instances of unconscious prejudice or bias, left completely unprotected. At the constitutional level, it was only very recently that the absence of any distinction between a general guarantee of equal treatment and the prohibition of discrimination on specifically protected grounds was remedied. In 2014, the CCC distinguished between three situations. First, discrimination that falls under one of the explicitly protected grounds, such as sex. Secondly, discrimination that falls under ‘other status’ in article 3(1) of the ADA: This discrimination has to be analogous to the demonstratively listed categories. It has to relate to a personal characteristic, which one cannot influence (eg sex, race), or it must be based on a personal choice reflecting personal traits of each one of us, such as religion or political opinions.257

Thirdly, all other grounds of differentiation that are not analogous to the listed grounds are not protected by article 3(1) but rather by the more general article 1. A breach of this general prohibition will be found only in

255 

Selanec, ‘A Betrayed Ideal’ (2012), 297–98. 302. Selanec speaks of ‘their reluctance to confront the existing patterns of ­inequality in society’. 257  CCC Decision from 6 February 2014, Ref No I.ÚS 3271/13 [50]. 256 ibid,

256  Equality and Anti-Discrimination after 1989 ‘extreme cases, where [the distinction] is lacking any purpose or sense, and is thus arbitrary’.258 The Court thus seems to make a distinction between grounds and the corresponding intensity of review its position, however, has been clearer on the ‘rationality’ review in the third types of case, and less explicit about how strict the standard is for cases in the first two categories. For example, in the recent case on individual adoption by a person living in a registered partnership, the Court did not explicitly elaborate on the standard of review it applied, and it was not clear that it subscribed to the above typology and the corresponding levels of scrutiny.259 It remains to be seen whether and how this will impact CCC’s own adjudication as well as that of ordinary courts, and whether it thus represents an actual shift in courts’ understanding of there being a need to pay more serious attention to discrimination on specifically protected grounds in Czechia. One ought not to expect too much, however, as the aforementioned typology can easily be understood by ordinary courts as a technical distinction between article 1 and article 3(1) of the Czech Charter, rather a statement about how to properly elevate the scrutiny of discrimination on specifically protected grounds. C.  How Do We Know the Ground Was Sex? Motive and Proof Academic literature has been divided on the question of what role ‘motivation’ plays in anti-discrimination law, in particular with regard to direct discrimination.260 Courts in various countries have approached this question in quite different ways. In the US, ‘to establish disparate treatment, a plaintiff must prove that the defendant had a discriminatory intent or motive’.261 Both the Canadian Supreme Court262 and the South African Constitutional Court,263 on the other hand, have paid much less attention to ‘motivation’

258  Ibid, [52]. This approach has since been confirmed by the Plenary (full court) in CCC Pl.ÚS 18/15. This decision exemplifies a doctrinally sound approach to the right to nondiscrimination in the abstract. The case concerned ‘other status’, however, and reveals little about the Court’s ability to deal with more difficult issues in race and sex discrimination cases where different treatment copies real-life disadvantage. 259  CCC decision of 14 June 2016, Ref No Pl.ÚS 7/15. 260  For an assessment of the perceptible shift from fault to effects, see eg D Réaume, ‘Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination’ (2001) 2 Theoretical Inquiries in Law 349. For a normative proposal to move beyond motive to an effects-based understanding in direct discrimination cases, see, eg, T Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015). 261  S Fredman, ‘Direct and Indirect Discrimination’ in T Khaitan and H Collins (eds), Foundations of Indirect Discrimination Law (Hart Publishing, forthcoming). 262  See especially British Columbia (Public Service Employee Relations Commission) v ­British Columbia Government Service Employees’ Union (‘Meiorin’) [1999] 3 SCR 3. 263  Eg Judgment of the Constitutional Court of South Africa, Pretoria City Council v Walker 1998 (2) SA 363.

Anti-Discrimination Law before the Courts 257 and have instead concentrated on effects.264 It is not my intention to weigh in on this debate. For the purposes of my analysis, an examination of two aspects of EU anti-discrimination law will suffice. First, in EU antidiscrimination law liability is considered to be objective, in the sense that it does not require any subjective element of fault. As Evelyn Ellis summarises: No intention or subjective motivation is required; it is enough simply that the adverse treatment received by the victim is grounded upon, or caused by, a prohibited classification. … It is in principle irrelevant … to examine an employer’s intention or motives where the effect of what has been done is in reality to the disadvantage of one sex.265

Secondly, EU anti-discrimination law recognises that motive is very difficult for claimants to prove, a realisation that led to the procedural requirement of the shifting of the burden of proof. This was originally formulated in 1997 in the Burden of Proof Directive: [When] persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.266

In other words, the law expects that certain sets of facts ought to trigger suspicion, and in principle the defendant should then have to explain what other motivation led them to make whatever decision they did that is now being challenged as discriminatory. In the following section, I show that Czech courts wrongly interpret and apply both of these doctrines. i.  Looking for Fault There are two aspects of motive that are problematic in the way Czech courts understand anti-discrimination law. First, the courts tend to look for motive, and they understand motive to be something akin to intent. Secondly, they look for an explicit expression of the ground of discrimination by the employer, and if such an admission is not forthcoming, they have difficulty assessing whether the impugned decision was based on sex or not. First, Czech courts look for the motive (pohnutka)267 or motivation (motivace)268 for discriminatory behaviour. They often understand it as something

264 

For a discussion, see eg Khaitan, A Theory of Discrimination Law (2015), 161. E Ellis and P Watson, EU Anti-Discrimination Law (Oxford University Press, 2012) 163. 266  Council Directive 97/80/EC on the Burden of Proof in Cases of Discrimination Based on Sex, [1998] OJ L14/6, art 4(1). Today, the provision is contained in Directive 2006/54/EC (Recast Directive), art 19. 267  SC 21 Cdo 4586/2010. 268  DC Prague 7, 26 C 25/2006. 265 

258  Equality and Anti-Discrimination after 1989 tantamount to intent.269 For example, in the Čaušević case, the District Court stated that ‘it cannot be concluded from the established facts that the difference in time available for solving the case-study was intentional, let alone that it was led by the motivation to disadvantage one group, on the ground that there were women in it’.270 Here, the court seems to have given motivation an even higher threshold than intent.271 The Supreme Court, deciding on extraordinary appeal in the case, overturned the decisions of the lower courts, correctly stating that the ‘motive is to be presumed proven’, unless proven otherwise by the defendant. When the case was returned to trial, the District Court repeated the burden of proof formula set by the Supreme Court, but without truly applying it, reiterating that the disparate treatment in question was not motivated by sex.272 Another example is the previously mentioned case of KG v Charles ­University.273 The trial court concluded that the employer’s decision to institute selection proceedings for the female claimant but not any of her male colleagues was not discriminatory, based on the assessment that ‘it was not proven that the selection proceedings were instituted deliberately with the intention to harm the claimant’. This is clearly a very different, much higher standard of connecting the behaviour in question to the ground than is required by EU law.274 Secondly, the courts look for an express communication of the ground of sex. In the EK case,275 a female police officer claimed that it was discriminatory for her to be demoted during and because of her pregnancy.

269  Similar observations have been made by others. The sociologist Hana Havelková wrote in the late 1990s that the understanding of discrimination is ‘narrower [in the Czech Republic] than the meaning current in western countries. In Czech society only direct, explicit and deliberate discrimination is recognized as such.’ H Havelková, ‘The Political Representations of Women in Mass Media Discourse in the Czech Republic 1990–1998’ (1999) 7 Czech Sociological Review 145, 158. A similar observation has been made about Russia by the American Bar Association, cited in V Turbine, ‘Russian Women’s Perceptions of Human Rights and Rights-Based Approaches in Everyday Life’ in R Kay (ed), Gender, Equality and Difference During and After State Socialism (Palgrave Macmillan, 2007) 172. Selanec concludes that post-socialist judges ‘perceive sex and race discrimination in very limited terms as requiring prejudicial motivation’: Selanec, ‘A Betrayed Ideal’ (2012), 272. 270  DC Prague 7, 26 C 25/2006-372. 271  The European Court of Justice admittedly required a finding of ‘responsibility’ in the employer in Case C-320/00 Lawrence, 17 September 2002, [2002] ECR I-07325. I would argue, however, that the question there was where the behaviour was attributable to one subject and whether a comparison of the work performed for different employers could be made. ‘Fault’ was not required in Lawrence. 272  DC Prague 7, 26 C 25/2006-372. 273  SC, 21 Cdo 1165/2013; see p 248–249. 274  The Supreme Court did not address this aspect, as it concluded that the question of selection proceedings was not reviewable under discrimination law. See p 249. 275  Judgment of the Regional Court in Pilsen, EK proti Řediteli Policie from 28 May 2009, Ref No 30Ca 44/2007-49.

Anti-Discrimination Law before the Courts 259 The record clearly stated that her superior officer referenced scheduling and replacement problems connected to her expected absences as the reasons for her demotion. However, he denied it when asked directly whether the reason behind the demotion was the claimant’s pregnancy. Both the police president handling the internal appeal and the reviewing court accepted this denial as fact. Were they actually expecting the superior expressly to admit that he acted because of the claimant’s pregnancy and therefore her sex? It seems so. Such an approach makes the chances of success for any antidiscrimination claim practically zero. No employer would be foolish enough to openly and expressly admit to discrimination because of sex.276 The picture that arises from these cases is that Czech courts do not seem to have an understanding that discrimination is often neither evil nor intentional, but that it is habitually just a result of unmindful processes and decisions that replicate existing societal biases.277 By insisting on concrete, explicit proof of conscious efforts to discriminate on the ground of sex, Czech courts are limiting the availability of anti-discrimination protections to rare cases. Conceived of this way, only cases of outright, clear and express misogyny would be captured, while cases of everyday sexism or bias would not. ii.  Burden of Proof As mentioned above, a central procedural tool that facilitates the effectiveness of anti-discrimination claims is the shifting of the burden of proof. Once a prima facie case has been made, it requires courts to look not to the claimant for proof that discrimination happened on the basis of sex, but rather to the defendant for proof that it did not. In direct discrimination cases, the defendant can meet the burden mainly by showing that the decision was made on another, objective basis.278 Justifications of prima facie discriminatory behaviour are available to defendants in cases of indirect discrimination only. The Czech courts mention the shifting of the burden of proof in their decisions, but for the most part their use of it has been limited to merely mechanistically repeating the formula. They have not really applied it to the cases that have come before them, and they have not required defendants to explain their actions. Two particular problems can be identified with regard to finding proof of discrimination on the ground of sex: first, the courts

276  When the case went to the Supreme Court, it was dismissed for lack of jurisdiction: SC, 30 Cdo 2470/2012-73; see p 246–247. 277  Selanec makes a similar argument using examples from a range of CEE jurisdictions. See Selanec, ‘A Betrayed Ideal’ (2012), 273 ff. 278  Obviously, the defendant can also claim that there was no ‘different treatment’ or detriment. Justification is not permissible in direct discrimination cases.

260  Equality and Anti-Discrimination after 1989 are not sufficiently suspicious of irregularities in employers’ behaviour; secondly, they often uncritically adopt gender stereotypical representations as submitted by employers, thereby obscuring sex as a ground. First, the courts often find employers’ behaviour ‘irregular’ or ‘nonstandard’, but tolerate and excuse it. For example, in HP v Ministry of Culture, Ms HP claimed discrimination in the hiring practices of a potential employer, the Ministry of Culture. The Ministry sent invitations for an interview less than 24 hours in advance, and the one sent to the claimant, a mother of young children, did not reach her in time. The Supreme Court came to the conclusion that ‘not every lapse of the defendant, or his “nonstandard” practice, has discrimination as a result’.279 It is certainly true that not every irregularity amounts to discrimination, but the courts should at least press defendants to justify such non-standard processes. The courts are also ready to accept an employer’s defence that it is hard to know exactly what happened, a defence that is typically raised in particular in harassment cases. In neither PS v Fire Department280 nor AB v Ministry of Foreign Affairs281 did the trial courts comment on the fact that the claimants’ complaints had been dismissed by the management and that absolutely no structures were in place to prevent, investigate, put an end to and punish harassing behaviour. Rather than weighing the lack of evidence resulting from the absence of internal procedures against the employer, the courts in both cases accepted the employers’ version of facts rather than the claimants’. Secondly, even when the courts duly shift the burden of proof, as they are supposed to, once done, they tend to then be very quick to accept almost any explanation put forward by employers in their defence. Czech courts have proved that they are unable to identify bias, and instead they often uncritically adopt stereotypical assumptions, or stereotypical understandings of merit, presented by the defendants. This has been particularly stark in wage discrimination cases. In the VS v SPGroup case,282 a female economist claimed that her salary was discriminatory on the grounds that her male predecessor in the same position had earned around €6,700 more than she did annually.283 She argued that she was better qualified for the job and that she performed a wider range of tasks. The employer responded by claiming that as a consequence of the sale of some funds, the plaintiff was actually performing fewer transactions and had taken over only some of the

279 

SC 21 Cdo 4586/2010. DC Pardubice, 8C 373/2006-107. 281  DC Prague 1, 27C 90/2004-123. 282  DC Prague 1, 23 C 11/2003-70. 283  It is established CJEU case law that subsequent employment is comparable to previous one. Case 129/79 Macarthys v Smith [1980] ECR 1275. 280 

Anti-Discrimination Law before the Courts 261 tasks of her predecessor. Without hearing evidence on their respective qualifications or on the number and content of tasks performed, which would fully support that assertion, the court nevertheless reached the conclusion that ‘the workload of both workers was quantitatively and qualitatively different’.284 With little evidence to support this finding, the court readily accepted the employer’s claim that ‘[the plaintiff] carried out operative tasks whereas … [her predecessor] executed strategic operations’.285 It is hard not to see this as the court negligently adopting a gender stereotype about women working in more mundane and less complicated ways (‘operative’ compared to ‘strategic’), especially since the facts of the case did not support that conclusion. Moreover, the claimant’s salary was set before the quality of her performance was ever assessed, which conflicts with the established CJEU case law that ‘the differences in pay for equal work cannot be justified on the basis of “the future assessment of the work of each employee”’.286 In other words, the employer could not have predicted what her work would be like when she was hired, and any such abstract prediction should not justify any difference in wages, especially a difference that is considerable. In a more recent case that has received much media attention, the female head of a Paediatric Unit in the Boskovice Hospital was earning only half the amount earned by a male head of Surgery, and only two-thirds of what her immediate male successor had received.287 The trial court decided against the claimant. Amongst other arguments, it accepted the employer’s justification that the wage was a ‘contractual’ matter, ie that salary rates were dependent on what the employees asked for. When the case was appealed, the Regional Court in Brno quashed and returned the decision for retrial. It declared that the fact that the wage was negotiated was insufficient justification for the discriminatory practice: Such considerations cannot be recognised, since they would lead to the unacceptable conclusion that the amount of wage to be paid does not depend on the work done, but first and foremost on the ability of employee to assert his/her interests during the negotiations of the employment contract. It would be a mistake to conclude from the fact that in the private sphere wage negotiations are left to the contractual autonomy of the parties, that employers are no longer bound by the obligation of equal treatment of employees with regard to remuneration.288

The Regional Court in Brno should be praised for understanding that if the argument of contractual freedom were to be widely accepted, it would make

284  ibid (emphasis added). The only witness heard on that point indicated that he was unaware of the scope of the tasks the plaintiff took over from her predecessor. 285  ibid (emphasis added). 286  Selanec, ‘A Betrayed Ideal’ (2012), 310, citing Case C-381/99 Brunnhofer [2001] ECR I–4961, [79]. 287  RC Brno, 49 Co 319/2013-217; DC Blansko, 78EC 1342/2011-279. 288  RC Brno, 49 Co 319/2013-217, p 7.

262  Equality and Anti-Discrimination after 1989 any prohibition of wage discrimination completely irrelevant. The court also clearly used a teleological interpretation to understand the guarantee of equal pay within the unequal context in which women negotiate. The District Court in Blansko, however, in its second decision in the case in June 2015, repeated its earlier finding that no discrimination took place.289 Aside from the fact that it continued to find the ‘contractual nature’ of wages to be relevant and material, it also emphasised the more difficult nature of surgical work vis-à-vis paediatrics. This is another good example of a court uncritically taking employers’ arguments at face value, opting not to question either their assertions or any wider societal context. The medical profession is notoriously segregated internally, with surgeons being typically male and paediatricians female. As a typically ‘male’ job, it is not surprising that surgery is valued more, both within the profession and possibly more widely too. Nor is it surprising that the difficulties of dealing with child patients, especially when performed by women, are not seen to be as challenging or worthy of remuneration. Nevertheless, one would hope that the courts would be able to see through such professional and societal biases, and weed out instances of gender bias in the way that merit is defined. iii.  Interventions by the Constitutional Court Lastly, it should be mentioned that the consistently flawed application of the shifting of the burden of proof by Czech ordinary courts has required repeated interventions by the CCC, mostly in cases involving racial discrimination. The hostility of the Czech courts to the doctrine is perhaps best illustrated by the fact that soon after the provision was inserted in the Code of Civil Procedure, a Regional Court in Ústí nad Labem, deciding a case of race discrimination in access to services, suggested to the CCC that it be struck down as unconstitutional.290 The CCC resisted the motion and declared the provision to be compatible with the equality provisions of the Czech Charter. In subsequent years, and as recently as 2015, several complaints were brought by individual applicants, claiming the misapplication of the provision by ordinary courts. These suits have been overwhelmingly successful.291 Indeed, the CCC has been employing ever-stronger language in its instructions to lower courts, with the Court recently stating that ‘it is illusory to imagine that the discriminatory motive will be explicitly communicated

289 

DC Blansko, 78EC 1342/2011-279. CCC Pl.ÚS 37/04. 291  CCC Decision of 12 August 2015, Ref No III.ÚS 1136/13; CCC Decision of 22 ­September 2015, Ref No III.ÚS 1213/13; CCC III.ÚS 880/15. See discussion on p 222–233. 290 

Anti-Discrimination Law before the Courts 263 to the individual … On the contrary, discriminatory behaviour is typically conducted under the guise of a pretextual reason, which could of itself be a legitimate reason for different treatment’.292 On the one hand, this indicates that at least at the top of the judicial hierarchy there is pressure to apply anti-discrimination law correctly and ensure its effectiveness. On the other hand, its continued misapplication by ordinary courts is troubling. The CCC judgments are binding, so its rulings are the law. However, so would have been the EU anti-discrimination doctrine itself, without CCC intervention or further clarification. The state of the law is therefore clear. What is unclear to Czech courts is how to apply the doctrine practically to the facts before them. I believe that it would thus be a mistake to view this misapplication as disregard of the law. Rather, I believe that there is a genuine lack of comprehension on the part of Czech courts of how individual and institutional bias works. Unless employers or service providers are caught explicitly plotting against women or Roma plaintiffs, it is not clear to ordinary courts how discrimination could have happened on the basis of sex or race, and how they can go about finding out. D.  Indirect Discrimination—Blindness to Structural Biases Indirect discrimination is defined in EU law as a situation where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.293

Indirect discrimination has fared very poorly before the CCC and ordinary courts in Czechia,294 as well as in the CEE region more generally.295 Most cases have involved indirect racial, rather than sex, discrimination, so I shall discuss them only briefly, highlighting issues that are applicable to sex discrimination. The CCC first encountered indirect discrimination in the now famous case concerning the segregation of Roma children into ‘special’ schools, made high-profile when it was brought to the ECtHR as DH v Czech Republic.296

292 

CCC III.ÚS 1213/13, [33] (emphasis added). Directive 2006/54/EC (Recast Directive), art 2(1)(b). 294 See also Markéta Whelanová’s analysis in Boučková et al, Antidiskriminační zákon (2016). 295  Selanec, ‘A Betrayed Ideal’ (2012), 321–88. 296  DH and others v Czech Republic, App no 57325/00 (ECtHR Chamber, 7 February 2006); DH and others v Czech Republic, App no 57325/00 (ECtHR Grand Chamber, 13 November 2007). 293 

264  Equality and Anti-Discrimination after 1989 The case was dismissed by the CCC in 1999 as manifestly unfounded,297 which means that we do not have any indication of the CCC’s understanding of the concept of indirect discrimination at that point. To be fair, at that time, Czechia was not a member of the EU,298 and the ECtHR itself did not yet have a well-developed concept of indirect discrimination.299 That is not to say that the CCC could not have looked elsewhere for solutions. It could have, for instance, used the CERD notion of ‘discrimination in effect’ to interpret the provision as prohibiting indirect discrimination.300 When the case was first brought before the ECtHR (Chamber), no violation was found.301 On appeal, however, the Grand Chamber ruled that the systematic segregation of Roma children was indirectly discriminatory and therefore in breach of the ECHR.302 Most of the judges, coming from postcommunist countries, were obviously puzzled by the concept of indirect discrimination during the proceedings. Most of the judges behind the majority Chamber judgment, which found no violation, came from post-communist countries,303 as did most of the dissenters from the Grand Chamber decision, all of whom insisted that there had been no violation.304 I have observed elsewhere305 that CEE judges, as well as the Czech Government and other defendant governments in similar cases that came later, raised several objections to the development of the indirect discrimination doctrine and its application to the segregation of Roma in education. They expressed disbelief that structures, such as psychological tests, might not be ‘objective’ but could contain built-in biases, and were puzzled how seemingly neutral

297  CCC Decision from 20 October 1999, Ref No I. ÚS 297/99. The CCC dismissed the application in part, and found it lacked competence to review the remainder. 298  The EU at that stage had a case-law-based prohibition of indirect discrimination on the basis of sex. See Case 96/80 Jenkins v Kinsgate [1981] ECR 911. A new legislative definition was later adopted in Directive 97/80/EC (Burden of Proof), art 2(2). Race only became covered when Council Directive 2000/43/EC (Race Directive) came into force. 299  Christa Tobler points out that ‘for a long time, the attitude of the ECtHR to indirect discrimination was rather hesitant even though the reference to an effect-based approach to discrimination could be found early on in its case law’. In fact, it was only in 2005, in Hoogendijk v The Netherlands, App no 58461/00 (ECtHR, 6 January 2005) and in DH itself that the Court explicitly referred to it. C Tobler, Limits and potential of the concept of indirect discrimination (European Commission Report, 2008) 14. 300 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195, art 1(1). 301  DH (Chamber). 302  DH (Grand Chamber). 303  The Czech, Hungarian, Lithuanian and Ukrainian judges were joined in the majority by a San Marino judge. The French President of the Chamber concurred, the Portuguese judge dissented. 304  The authors of the dissent were Jungwiert (Czech), Župančič (Slovenia), Šikuta (Slovak) and Borrego Borrega (Spain). 305  B Havelková, ‘Judicial Scepticism of Indirect Discrimination at the ECtHR’ in T Khaitan and H Collins (eds), Foundations of Indirect Discrimination Law (Hart Publishing, forthcoming).

Anti-Discrimination Law before the Courts 265 practices could nevertheless be deemed discriminatory if they harmed an already disadvantaged group.306 Such judges commonly expressed that it was the responsibility of the individual to overcome any such disadvantage.307 Almost a decade after DH, in 2015 the CCC got another chance to adjudicate a case of racial segregation in education. The claimant, JS, brought a case in 2008 seeking compensation for being sent to the special school system, using the doctrine developed in DH. In their rulings, the ordinary courts adopted a very stringent interpretation of indirect discrimination, especially with regard to statistical proof and the shifting of the burden of proof, and found against the applicant. The CCC was critical of these aspects of the ordinary courts’ judgments, and acknowledged that there were patterns of discrimination in the general process of placement in special schools. The CCC felt, however, that they did not apply to the applicant, in whose individual case there had been no discrimination.308 There has been only one case of indirect discrimination on the basis of sex that has come before the CCC, which has been mentioned previously. The case was brought by a man as a challenge to the gendered patterns of parental-custody decisions typically made by family courts.309 Unfortunately, the case ultimately did nothing to further the doctrine on indirect discrimination, because the CCC found for the claimant on other grounds and did not examine indirect discrimination in its judgment. Before the ordinary courts, there has been only one case that was pleaded and decided as an instance of indirect discrimination.310 Unlike most direct discrimination cases on the basis of sex, this case did not concern labour relations or discrimination by an employer but instead was a challenge to statutory tax rules. It based itself on an argument regarding the direct effect of EU law.311 The plaintiffs, Mr Whelan and Mrs Whelanová, challenged a rule that made the common taxation of spouses unavailable in cases where 306  See, eg, the dissenting opinion of the Slovak Judge Šikuta in DH (Grand Chamber). For a closer discussion of the objections by certain judges of the ECtHR to treating cases of Roma segregation as indirect discrimination, see Havelková, ‘Judicial Scepticism’ (forthcoming). 307 See, eg, Andrejeva v Latvia (2010) 51 EHRR 28, [72] or Muñoz Díaz v Spain, App no 49151/07 (ECtHR, 8 December 2009) [70]. Havelková, ‘Judicial Scepticism’ (forthcoming). 308  CCC III.ÚS 1136/13. This particular point deserves further analysis and elaboration, but goes beyond the scope of this book’s enquiry. 309  See p 222 above. 310 Indirect discrimination was also mentioned as a supporting argument in a 2014 case before the SAC, in which a parent challenged the exclusion of children from a restaurant. This could be considered indirect discrimination on the basis of motherhood and fatherhood, which is covered by the Czech ADA. In its decision, the SAC mentioned this argument, but ultimately focused on the discrimination against the children rather than against the parents. Judgment of the Supreme Administrative Court, MJ proti České obchodní inspekci from 30 October 2014, Ref No 4 As 1/2014-28. 311 The case was brought by a couple. The wife is a prominent anti-discrimination law expert and co-author of the books P Boučková et al, Antidiskriminační zákon. Komentář [AntiDiscrimination Act—Commentary] (CH Beck, 2010); and Boučková et al, Antidiskriminační zákon (forthcoming).

266  Equality and Anti-Discrimination after 1989 one of the spouses was self-employed and cared for children, but was not officially a recipient of parental benefits. The tax code required such selfemployed persons to pay an obligatory minimal rate of tax, thus precluding the couple from using the more favourable common taxation regime. The claimants considered the rule in the tax code to be indirectly discriminatory on the basis of sex. Although in this particular case the self-employed caring parent was the father,312 such a rule would typically negatively affect women, as it is women who are the majority of carers in Czech society. The Municipal Court reviewed the decision of the tax authorities formalistically and concluded that the law did not recognise the fact of caring as a reason for exemption from the minimal tax, but only the fact of being the recipient of the parental benefit.313 The Supreme Administrative Court,314 in a well-argued, substantive and teleologically sound judgment, later overturned the decision and returned the case to the lower court. It might be worth noting that the Supreme Administrative Court is a relatively new court, only founded in 2003, which is known for recruiting on the basis of merit and from among younger, Western-educated lawyers. Its teleological approach thus fits with the institution’s adjudication in general, although it is exceptional in the context of the Czech judiciary. Although the result of the case should be welcomed, in the end the Supreme Administrative Court decided it on a technicality. It made a different technical distinction than the Municipal Court—it pointed out that it was sufficient that father was entitled to the parental benefit as the primary carer, so the fact that he was formally not its recipient did not matter. Consequently, he should have been made exempt from the minimal rate of tax. Unfortunately for the claimants, the Court did not elaborate on the indirect discrimination aspects of the case. This enabled the Municipal Court, in a subsequent decision concerning a new tax year, to again deny the couple the benefit of the common taxation regime.315 As far as the Municipal Court’s understanding of indirect discrimination is concerned, it observed that women are indeed overwhelmingly the carers, and that this might lead to lowered incomes, but that The fact that the child-carer—the claimant—reached such low level of income that he was subject to obligatory minimal tax was not a systemic but rather a random

312  The court considered this to be a separate reason for the claim to fail, without understanding that when a provision of national law is indirectly discriminatory, in has to be disapplied under the EU ‘direct effect’ doctrine, regardless of who the claimant is. 313  MC Prague, 11Ca 161/2007-39. 314  SAC, 7 Afs 103/2008-71. 315 MC Prague, 5Ca 336/2008-29. In this case the issue was arguably slightly different. Here the children were over 4 years of age, and therefore parental benefits were unavailable. The question instead was whether or not it was acceptable to tie the beneficial tax regime to parental leave.

Anti-Discrimination Law before the Courts 267 matter. Undoubtedly even parents who care for children over four years of age can reach higher incomes and therefore evade the minimum tax obligation.316

This quotation shows the Court’s lack of appreciation of systemic disadvantage, the very thing that the concept of indirect discrimination tries to challenge. The Court did not seem to understand that pointing out that indirect discrimination can be overcome on an individual basis cannot be relied upon as an exonerating argument. Indirect discrimination challenges systemic rules or mechanisms that have statistically significant disparate impact, whether or not an exceptional individual can strive and succeed in overcoming that impact. This survey of Czech cases reveals serious flaws in the interpretation and application of the indirect discrimination doctrine as expressed in both EU law and the ECHR. Indeed, as mentioned above, Czechia currently faces EU infringement proceedings for indirect discrimination in the form of segregation of Roma children in education.317 The reasons for these difficulties, I believe, are to be found in the conceptual grounding of equality and anti-discrimination law. I have previously described the relevant features of European indirect discrimination doctrine thus: Indirect discrimination is an effects-oriented and substantive doctrine, which prohibits apparently neutral measures which have a disproportionately negative effect on members of disadvantaged groups, unless they can be justified … There are several recognitions about society and inequality which are at the basis of the doctrine of indirect discrimination. There is an acknowledgment that discrimination is enabled by socio-cultural and socio-economic realities, which hierarchically organise society to the disadvantage of certain groups and their members. Because of the hierarchy, seemingly ‘same’ things will play out differently for members of the advantaged and disadvantaged groups. And although the origin of the discrimination might be diffuse, it is legitimate that certain institutions be prohibited from replicating and thus exacerbating these structures. The focus is on the effect of decisions and measures, because it is recognised that what was in the head of the discriminator matters less than how the disadvantaged group and/or its members are impacted. There is thus an understanding that discrimination does often involve neither the will to discriminate nor the consciousness of prejudice or bias.318

These characteristics make indirect discrimination particularly vulnerable to a number of weaknesses that mar the post-communist intellectual landscape with regard to gender equality, most notably a prevailing blindness to structural inequalities and a limited understanding of discrimination as action based on unwitting prejudice. 316 

MC Prague, 5Ca 336/2008-29, p 7. See fn 107 above. 318  Havelková, ‘Judicial Scepticism’ (forthcoming), original quotations omitted. 317 

268  Equality and Anti-Discrimination after 1989 IV.  UNDERSTANDING EQUALITY AND ANTI-DISCRIMINATION AFTER 1989

What appears to prevail in Czechia today is what I call a ‘few bad apples’ theory of discrimination. ‘Bad’ because only express, intentional, hateful acts are seen to be discriminatory and thus legitimate targets of a legal prohibition. Such a perspective is apparent in the consistent search by Czech judges for motive, and even intent, in discrimination cases.319 ‘Few’, because discriminatory acts are typically seen as unconnected excesses that are rare and individualised, a point to which I return below. Both of these aspects are descriptive as well as prescriptive. There is a belief that discrimination only consists of such types of acts, and there is a related normative position that it is only these acts that should be considered discriminatory and captured by the law. Such a conceptualisation of discrimination has an immediate impact on decision-making by encouraging a limited interpretation of what it means for an act to be ‘based on sex’, or a limited understanding of what indirect discrimination is. Less immediately, the fact that discrimination is seen as very rare and serious leads courts to be less willing to find defendants ‘culpable’ of such invidious acts.320 In the previous section, I assessed the inhibitions in the interpretation and application of anti-discrimination law, and its doctrinal minimisation. In this section, I draw on those findings to explore the conceptual underpinnings of these inhibitions and minimisations. I argue that Czech judges are more comfortable with a formal rather than substantive understanding of equality (section IV.A). I observe that the perception of difference between the sexes has survived the Velvet Revolution, and that the inability to view men and women as truly comparable constrains judges’ ability to perform substantive comparisons and find discrimination (section IV.B). Lastly, blindness to gender order/patriarchy and the structural nature of inequality fails to raise courts’ suspicions of practices that reveal bias, or which show disparity of treatment or impact (section IV.C). A.  At Most Formal, Certainly Not Substantive Equality In approaching the post-1989 materials analysed in this book, my working hypothesis was that I would find a formal understanding of equality, perhaps as a reaction to the substantive and transformative approach of the previous period. That is certainly part of the problem. Rhetorically, the

319  320 

Discussed in section III.C.i. See p 254.

Understanding Equality and Anti-Discrimination after 1989 269 concept and project of equality has been disparaged and disarmed by being linked to the past, especially when it is raised in parliamentary debates. For example, during the debates over the first ADA bill, Deputy Marek Benda, from the right-wing Civic Democratic Party (ODS),321 ridiculed what he perceived as class-based protective legislation: ‘[There are] the radical movements which, in Marxist spirit, divide society into groups and classes. This time it is the classes of men and women, then of different colour of skin, then different religion, sometimes of something else’.322 During the same debate, the Christian Democratic Deputy Josef Janeček (KDU-ČSL)323 commented that ‘The idea to force everyone under current conditions to have the same career, to have the same work is a nice idea. We heard these ideas before 1989 and they were also put to practice.’324 From my analysis of state-socialist law and policy in relation to women and equality, is clear that these statements are actually factually incorrect. After a brief push for equality in the 1950s, most of the period’s laws and policies in reality emphasised the differences between the sexes. The promaternity and pro-family policies that were inherited from the Normalisation period were policies of difference rather than equality. Women were not forced to be ‘the same’. If anything, the regime cemented gender differences. Moreover, both MPs were mistaken in suggesting that anti-discrimination rights are familiar in Czechia. As I have shown, an actual right to equality and non-discrimination had never previously existed, let alone on the basis of characteristics like sex or race. However, the picture is more complicated than just the dismissal of substantive equality. Very often, even basic requirements of formal equality have been rejected on the basis that the principle compromises liberty and freedom of choice. Senator Škaloud, the voice of the right-wing opponents of the ADA, stated: It cannot be doubted that it is correct to forbid, not only in the public but also the private sphere, any demonstrations of hatred or instigations of attacks against others, which can be seen as discrimination. This problem however should be resolved and is resolved in criminal law. All other discriminations in private relations are part of human freedom—the freedom to distinguish. … It is the fundament of the private sphere, the decision-making—with whom will I associate and with whom not, with whom do I socialize and with whom not, with whom do I close a contract and with whom not.325

321 

For a discussion of political parties’ programmes, see Ch 9 section I.B. Chamber of Deputies Debate, 10/2/2005; Print No 866 (2005) (emphasis added). 323  For a discussion of political parties’ programmes, see Ch 9 section I.B. 324  Chamber of Deputies Debate, 10/2/2005; Print No 866 (2005) (emphasis added). 325 M Škaloud, ‘Antidiskriminační zákon—více škody nežli užitku [Anti-Discrimination Law—More Harm Than Good]’, previously available at www.skaloud.net (on file with the author). The senator made similar statements in the Senate: Miroslav Škaloud (ODS), 26/1/ 2006, 201 (2006) (emphasis added). 322 

270  Equality and Anti-Discrimination after 1989 And as recently as 2015, such a sentiment was reiterated by Vojtěch Šimíček, a CCC judge: It is undoubtedly the law’s task to eliminate unjustified differences. It ought not, however, have the ambition to interfere with private relations: to decide whom I should employ and in what position, … with whom I can contract a rental agreement, how a candidate list [of a political party] should be constituted …326

Both excerpts seem to come from a position that rejects any interference with acts that distinguish and is against any prohibition of discrimination, perhaps with the exception of actions such as ‘demonstrations of hatred or instigations of attacks’, which would typically be covered by criminal law. This is a rather extreme view, one which is partly, but not universally, shared by the judiciary. The CCC has mostly accepted its role in weeding out unjustified distinctions and arbitrariness. The ordinary courts have been more reluctant to accept their role as reviewers of prejudicial decisions made by employers, land-lords, and providers of goods and services. Therefore, one can say that Czech courts at most have partially accepted a formal understanding of equality. With regard to substantive equality, as I have shown,327 the CCC demonstrated that it could be comfortable and thorough in conducting a formal assessment of an explicit distinction on the basis of sex that excluded fathers from receiving pension benefits for the period of childcare if they had not notified the authorities of this on time.328 What has been more challenging for the CCC, however, is the acknowledgement of pre-existing inequality as crucial, or any appreciation of context, as well as any adoption of aims that go beyond the mere abolition of distinctions, such as eliminating hierarchy or dominance, disadvantage or social exclusion. The courts have struggled with measures and provisions that are associated with substantive equality. Since 1989, the more substantive a measure or provision, the less acceptable it has been for post-communist legislators and judges to adopt or enforce it. The shifting of the burden of proof was originally attacked by the courts as being unconstitutional, and its flawed subsequent application by ordinary courts has required repeated corrective intervention by the CCC.329 Indirect discrimination cases have been adjudicated considerably more narrowly in Czechia than EU and ECHR standards require,330 and the CCC has indicated that were it faced with positive

326  V Šimíček, ‘Lidská práva na rozcestí [Human Rights at Crossroads]’ in J Přibáň et al (eds), Lidská práva. (Ne)smysl české politiky? [Human Rights. The (Non)Sense of Czech Politics?] (SLON, 2015) 149–50 (emphasis added). 327  See section I.A.i. 328  See p 218–219. 329  See section III.C.iii above. 330  See section III.D above.

Understanding Equality and Anti-Discrimination after 1989 271 action331 to the benefit of a disadvantaged group, it would not evaluate the case differently than any other legislative distinction.332 In other words, the CCC promised to adopt a symmetrical approach to equality that recognises no difference between measures and provisions that exacerbate inequality from those that seek to ameliorate it. Substantive equality is well equipped to answer two types of questions: how to treat two people who are not completely identical but are similar; and how to know which characteristics are relevant when comparing them. Czech courts have had trouble answering questions like these, especially when the worse-treated person in question is a woman. It is to the concepts of sameness, difference and comparison that I now turn. B.  Women Too Different to be Discriminated Against? Deputy Janeček’s rejection of anti-discrimination law mentioned above included two common themes: the collapsing of equality and sameness into one, and the rejection of sameness (and thus equality) as a bad idea. In short, his is a defence of difference. I argued in Part I of this book that the policy emphasis on women being ‘naturally’ different led to a ready acceptance of inequality and discrimination during state socialism, something that has persisted since 1989. The biological determinism lying behind the understanding that women’s characters, abilities and roles are naturally different, which essentialises and undervalues the feminine, continues to today. In the post-socialist period, it has been joined by a new narrative of freedom of choice, and the two coexist and complement each other in legitimising and justifying discrimination. First, as was apparent in the wage discrimination cases, work that is typically done by women (pediatrics vs surgery)333 or generic work tasks when performed by a woman (­predecessor vs ­successor)334 are valued less. The gender bias that underlies such differentiated assessments of value and quality that have been submitted by employers in their defence, either has not been questioned, or has been questioned insufficiently by the courts. Secondly, when women make the choice to become mothers, the courts understand them as having taken themselves

331 

In the sense of Directive 2006/54/EC (Recast Directive), art 3. Decision of 23 March 2010, Ref No Pl.ÚS 8/07, published as No 135/2010 Coll, para 83, obiter. For a more strongly expressed position, see Decision of the Constitutional Court of the Slovak Republic Pl ÚS 8/04-202, 18 October 2005, published as No 539/2005 Coll, where the Slovak Constitutional Court found a statutory provision that allowed positive action to be a violation of the equality provisions of the Slovak Constitution. For commentary, see Havelková, ‘Burden’ (2007). 333  See p 261–262. 334  See p 260–261. 332  CCC

272  Equality and Anti-Discrimination after 1989 voluntarily into a situation of ‘difference’, thereby precluding any interrogation of discrimination on that basis.335 In fact, Czech courts have been notably unwilling to undertake substantive comparisons in their reasoning. It appears inconceivable to them that men and women, who are assumed inevitably to have different characteristics, or to have made different choices, could none the less be comparable, or that their different treatment might be wrong, illegitimate and illegal. The Čaušević case is a good illustration of this. When the trial court stated that it ‘did not consider the “quality” of the candidates, ie their expertise, experience, etc, as a decisive element in the legal evaluation … [because] it is impossible to find that someone is better for a position than the other’,336 it was admitting to being perplexed that such an analytical exercise could be possible. The wage discrimination cases offer similar insights.337 These cases also show that the question of difference is treated as an either/or issue. If more facts were available in the cases, one might concede that there could have been some differences between the male and female comparators that could justify some difference in wages. Nevertheless, it is certain that whatever differences may have existed were not big enough to justify the scale of the differential treatment received by the claimants. C.  The Individualisation of Discrimination In Chapter 5, I noted the ideological and epistemological blindness of the state-socialist period to the gender order/patriarchy. This blindness facilitated a belief in a just world, which in turn encouraged a priori scepticism that people might be discriminated against. This perspective has survived the Velvet Revolution, and has been amply illustrated in the adjudication of discrimination cases, for example in the courts’ reluctance to shift the burden of proof. For Czech judges, claimants’ perceptions are ‘subjective’ and improbable. Actions that in the UK or EU context would trigger suspicion and an automatic shifting of the burden of proof, do not have the same effect in the Czech context. An example of this is how bemused post-socialist judges have been, in indirect race discrimination cases, with the notion that norms of majority populations might not be neutral for everybody.338 Selanec has similarly pointed out how indirect discrimination threatens the egalitarian self-perception of CEE societies, inherited from state socialism: By exposing the inherent bias of supposedly objective norms, indirect discrimination suggests that sexism or racism do not merely occur at the individual level. 335 

See the EK case on p 246–247. DC Prague 1, 23 C 11/2003-70 (emphasis added). 337  See p 260–261. 338  This has its mirror at the ECtHR level. See Havelková, ‘Judicial Scepticism’ (forthcoming). 336 

Conclusions 273 On the contrary, they are built deeply into the structure of daily social relations. Consequently, instead of being egalitarian, the structure of society is exposed as highly hierarchical.339

Ideologically, the socialist state assumed that it created a just and equal society, which meant there was no perceived need for an instrument like antidiscrimination law. In the post-socialist period, the predominant ideological narrative has been that everyone is free to pursue their own life choices from an equal starting point. As Selanec has observed, post-socialist societies are particularly sensitive to the claim that they systematically keep certain social groups, especially women, in a disadvantaged social position. In their view, if there was anything valuable about their socialist past, it was the fact that socialism left all social groups in a more or less equal social position. … These legal systems have difficulties accepting that sexism or racism may be built into the structure of their everyday life. Accordingly, they still consider that this type of discrimination occurs sporadically and is not systemic.340

The parliamentary speech by MP Benda quoted above341 is rooted in this sort of perception. When he warns of anti-discrimination law creating divisions in society, he clearly assumes that there are no pre-existing divisions or inequalities. Similarly to what I earlier observed in relation to state socialism,342 part of the problem is that when discrimination is adjudicated it is individualised. Often, it is the woman claimant who is perceived as being trouble, exemplified by the extensive examinations of claimants’ personalities in harassment cases.343 Or she is at least perceived to be ‘subjective’ and mistaken in her perception of discrimination. I mentioned that state-socialist theorists also individualised the problem on the side of the perpetrator. They pointed to outdated mores on the part of employers as an explanation of unequal treatment. Even in the postsocialist period, theoretically, it is imaginable that discrimination would be individualised on the side of the employer. But this option is construed so narrowly—as direct, explicit and intentional misogyny—that the courts in none of their decisions found it to be the case. V. CONCLUSIONS

Notwithstanding the adoption of new legal provisions, equality and anti-discrimination rights continue to be a mirage in Czechia today. In 339 

Selanec, ‘A Betrayed Ideal’ (2012), 362. ibid, 280, 282. 341  See p 269. 342  See p 119. 343  See p 187. 340 

274  Equality and Anti-Discrimination after 1989 constitutional adjudication, the constitutional right to equality, rarely applied to specifically protected grounds such as sex, has mostly been understood as preventing the use of arbitrary or unjustified distinctions in legislation. Ordinary courts have largely refused to review discriminatory behaviour and provide remedies for it, even in cases of direct discrimination. Equality law has not been understood as a legitimate tool aiming at the elimination of the existing social disadvantage of women. In continuity with state socialism, legislative different-better treatment has been accepted in relation to protection of the traditional gender role of motherhood, as I showed earlier in Chapter 6. This chapter revealed, however, that protective legislation has become a target for challenges brought by men. Different-worse treatment of women has often been accepted as well, either as a natural consequence of their biological difference or as a justified consequence of their individual choices to be mothers. The adoption of preferential treatment in the form of positive action that would enable or empower women beyond the family is anathema. So are measures that enable pro-active countering of structural bias, such as indirect discrimination and the shifting of the burden of proof. There is thus a rather formal understanding of equality, combined with tolerance of different treatment. Paradoxically, detrimental treatment, as assessed in horizontal cases by ordinary courts, appears almost more acceptable than legislative preferential treatment of women, which has been assessed and on occasion struck down by the Constitutional Court. There is also noticeable intolerance of positive measures that would seek to redress systemic disadvantage. Disadvantage is either not seen, or is seen but not considered unjust, or is considered to be an individual problem in which the law and courts should not interfere. I return to these mechanisms of denial in greater detail in the following chapter. In Chapter 4, I observed that post-socialist Czechia is out of sync with Western Europe as regards the phase of development of equality and anti-discrimination law in which it finds itself. While Western Europe has arguably moved away from a formal ‘equal treatment’ phase, which emphasised anti-discrimination rights, towards a more substantive and transformative understanding, which increasingly ties equality law to social policy, Czechia took the inverse course. The state-socialist period had a substantive understanding of equality and was socio-economically transformative, while the anti-discrimination right only came afterwards, in the post-socialist period. This created a sort of myth, which is very challenging for a proper understanding and effective implementation of anti-discrimination law; namely, that equality had already been achieved under state socialism and that Czech society was and continues to be equal. In Chapter 4, I also asked the question whether the socialist state could ‘compensate’ for its lack of anti-discrimination provisions in its laws through other measures, such as a general levelling of wealth and income, or the

Conclusions 275 generous support of mothers through social security. Are anti-discrimination rights necessary? Were they ever? Should my conclusions in this chapter about how poorly they are faring in Czech courts be accepted as a defeat? Should the project be abandoned entirely? These questions, of course, veer into normative territory, which is not the primary focus of this book. Nevertheless, they merit at least two short observations. First, anti-discrimination law gives wronged individuals a claim and a remedy. This ‘individualised’ character of anti-discrimination rights and their enforcement in the adversarial process before the courts has been criticised in the West for not effecting wider change.344 To my mind, this is a valid critique of formal equality, but not of substantive equality.345 Indeed, the use of doctrines such as indirect discrimination, or procedural mechanisms like shifting the burden of proof, or the adoption of positive measures to redress systemic disadvantage, can lead to wider changes in the decision-making processes of employers and others who are obliged to treat people equally. Secondly, and perhaps more importantly, anti-discrimination law has an important expressive and educational role to play. It gives claimants the satisfaction of having the wrong perpetrated against them identified and condemned. The process of litigation is also capable of uncovering how discrimination comes about and what its roots are, such as unconscious gender bias in the case of direct discrimination, or general androcentrism, which often finds expression in indirect discrimination. Furthermore, litigation can provide a forum for the dissection of harms caused by discrimination, whether the material harms of limited options or the immaterial harms of disrespect and insult. Anti-discrimination law therefore has much important epistemological and moral work to do in the post-communist CEE region. It is the questions regarding the reflection on gender, gender order and gender inequality among lawmakers and political parties, judges and legal scholars, and in academia more widely, to which I turn in the following chapter.

344 

S Fredman, Women and the Law (Oxford University Press, 1997) 368–79. even publications that promise to challenge the usefulness of equality for the feminist project can show at most the difficulties caused by a formal understanding of equality, but not of the substantive conceptualisation. See, eg, R Hunter (ed), Rethinking Equality Projects in Law (Hart Publishing, 2008). 345  Indeed,

9 Wanted: Gender and Feminism

I

N CHAPTER 5, I observed that although the socialist-state aspirations with regard to gender equality were limited, they were there: the concern with the ‘woman question’ and the project of ‘equality of men and women’ was genuine. And even when the agenda was handed over to experts and the actual policy became more pragmatic, often in gender-conservative ways that compromised equality, the ideal of sex/gender equality continued to be at least postulated, even if not realised. In the post-socialist period, these policy aspirations and the espousal of ideals disappeared. It could be argued that this was an inevitable consequence of democratisation and pluralism: in free societies, different ideas about what to do with social issues coexist and compete in the public sphere. However, what took place after 1989 was not merely a shift from a ‘single idea’—a homogeneous and hegemonic project of equality between men and women of the socialist state—to a pluralistic range of ideas. Rather, as I argue, an intellectual and legal conceptual vacuum developed with regard to what gender (in)equality is and what gender equality policy should be, a result of a lack of interest on the part of lawmakers and legal scholars in exploring and debating it. Even an outright rejection of the concept of equality and gender has not been uncommon. In section I of this chapter, three frameworks influencing the policy reality and ideas in the post-­socialist period are discussed—the socialist residue, the conservative resurgence and the neoliberal rise. I also assess political parties’ programmes and their (lack of) aspirations regarding gender equality. The post-socialist era’s absence of conceptual thinking about equality in a substantive way, discussed in the previous chapter, and the refusal to consider gender as a significant social organising principle and as an axis of disadvantage, reflect the continued blindness and a lack of engagement with basic elements of gender studies and feminist theory and practice, which increasingly appear wilful. I examine the continued blindness to gender, especially its structural aspects, in section II, while in section III I look at the causes and consequences of this marked absence of feminism.

Aspirations Lost 277 I.  ASPIRATIONS LOST

A.  Socialist Residue, Conservative Resurgence and the Neoliberal Rise In previous chapters, I showed that a relatively generous social provision survived 1989, both in terms of constitutional rights guarantees1 and in the form of actual social security benefits.2 Indeed, the reality was described as social-democratic well into the 2000s.3 But the inherited model, especially of family policy, was also gender-conservative, supporting only women as mothers and, towards the end of the socialist period, preferring individual over collective care.4 Despite the perception of many in Czechia that the state-socialist period was radically egalitarian5 with regard to sex/gender equality, this was not the case. Aside from the socialist residue, gender conservatism is thus another frame­ work in the post-socialist period that needs to be borne in mind.6 It has many sources: there is continuity not only with state socialism, where officialdom as well as many of its experts and much of the dissent were genderconservative,7 but also with the pre-communist period. Social conservatism is also arguably prevalent in neighbouring countries, Austria and Germany,8 to which both lawmakers9 and judges10 frequently look for inspiration. The third side of the framing triangle is neoliberalism.11 As I observed in Chapter 7, Czech liberalism has been centred on a very fundamentalist understanding of individual liberty and the free market. Even if, in light of the constitutional guarantees of rights, one could conclude that the

1 

See p 196. See Ch 6 section I. 3  See Ch 6 fn 35. 4  See Ch 2 section III and Ch 6 section II and III. 5  See p 269. 6  Isabel Marcus, writing about post-socialist CEE more generally, has noted a ‘backlash trinity’ of ‘conservatism, religion and populist nationalism’. The last two are less prominent in the Czech context. I Marcus, ‘The “Woman Question” in Post-Socialist Legal Education’ (2014) 36 Human Rights Quarterly 507, 527. 7  See Ch 5 section IV.A. 8  For a discussion of gender conservatism of the German Federal Constitutional Court, see, eg, S Baer, ‘The Basic Law at 60—Equality and Difference: A Proposal for the Guest List to the Birthday Party’ (2010) 11 German Law Journal 67, 84. 9 Eg, Czech domestic violence legislation in criminal, civil and police law was based on the Austrian model. In fact only the Austrian and German models were looked at in a ­Parliamentary conference on the subject. Gender Studies, ‘Program semináře: Domácí násilí— staré problémy, nová řešení? [Conference Programme: Domestic Violence—Old Problems, New Solutions?]’ (Gender Studies Praha, 2011), available at www.feminismus.cz/cz/clanky/ domaci-nasili-stare-problemy-nova-reseni. 10  Austria was, eg, the only comparative point of reference in the recent CCC decision on individual adoption by those living in registered partnerships: CCC decision of 14 June 2016, Ref No Pl.ÚS 7/15. 11  See also Marcus, ‘The “Woman Question”’ (2014), 231. 2 

278  Wanted: Gender and Feminism l­iberalism is modified or perfectionist, this has not been the case. The ideal model has not been ‘capitalism … in its socially and morally impeccable form’,12 but rather capitalism pure, unmodified. It has been described as ‘anarcho-capitalism’,13 ‘a very tough and Darwinistic 19th-century capitalism in which greed for money and wealth, not social consideration, are the preferred attitudes of the economic actors’.14 In the post-1989 Czechia, we thus have a social-democratic ­ reality, combined with a—often unadmitted and largely unreflected—­ genderconservative outlook, combined with a very fundamentalist rhetoric of freedom and choice. The last two positions are often united in ‘liberalconservatism­’.15 This combination has created problems for the gender equality project. The gender-conservative nature of the inherited law and policy has not been understood, let alone critiqued. On the contrary, the resurgence of conservatism in the post-socialist period was justified by the perceived progressive social engineering of the previous period. In reality, the inherited law and policy were already conservative. The relative generosity of these inherited provisions was thus not a problem either, as they supported the accepted gender-conservative vision of gender relations. Although the inherited pro-family and pro-maternity provisions have been allowed to continue by and large, any new gender-progressive measures are seen to conflict with the new market-liberal understandings. Consequently, they have faced fierce opposition as attempts at ‘social engineering’ and introductions of entitlements irreconcilable with freedom, the market and a small state. B.  Political Aspirations? I have shown in Chapter 6 that much of the gender-progressive legislation adopted after 1989 has either been driven by the EU, or has come from NGOs. Political parties have so far been largely failing the project, with two exceptions: the Green Party (currently not in the Parliament) and certain members of the Social Democratic Party, who have very recently started to propose more gender-progressive legislation, especially pro-equality family and labour-market measures.16

12 A Blankenagel, ‘New Rights and Old Rights, New Symbols and Old Meanings: Re-Designing Liberties and Freedoms in Post-Socialist and Post-Soviet Constitutions’ in A Sajó (ed), Western Rights? Post-Communist Application (Kluwer Law International, 1996) 67. 13  A term used to describe post-socialist Russia in J Gray, False Dawn: The Delusions of Global Capitalism (The New Press, 2000). 14  Blankenagel, ‘New Rights and Old Rights?’ (1996), 67. 15  See p 200. 16  See Ch 6 section I.E.

Aspirations Lost 279 The fact that many gender-progressive legislative proposals did not come from the successive governments is illustrative. The proposals to legally recognise same-sex partnerships, to involve the state in cases of non-­ ­ payment of child support, or specifically to criminalise domestic violence17 and stalking18 were all private members’ bills, brought by small groups of ­Deputies or Senators. And, as mentioned above, many of the positive19 changes actually proposed by the Government were externally driven—EU law obligations were crucial in the adoption of the proposals of the ADA,20 but also, for example, for the redefinition of trafficking.21 The post-1989 democracy brought multiparty politics22 and a diversified field of political programmes. In reaction and in opposition to state socialism, right-wing23 parties dominated politics in the 1990s. The consistently strongest party in the 1990s and 2000s was the Civic Democratic Party (ODS),24 previously led and still influenced by Václav Klaus. The party has been a beacon of market liberalism, and most of its members have been very hostile to equality and anti-discrimination law, as I demonstrated in Chapter 8. As President, Václav Klaus himself vetoed the second Anti-­ Discrimination Bill, as well as the Act on Registered Partnership.25 Since the late 1990s, the right and centre-right side of the political spectrum has seen much fluctuation, with the emergence and fall of many smaller parties.26 The only fixture in both the parliament and the executive government has been the socially conservative.27 The party is a coalition partner of the Social Democrats in government at the time of writing (from 2014 onward). Another socially conservative party, a splinter from the C ­ hristian Democrats, founded in 2009, is TOP 09, a member of the ­previous ­Coalition Government (­ 2010–13). The ‘conservative-liberal’ party

17 

The 2004 proposal was brought forward by a group of Senators. provision was originally not part of the Criminal Code as proposed by the Government, but was inserted by the Constitutional Committee of the Chamber of Deputies. 19  See, eg, Ch 6 section III. 20  See esp Ch 8 section II. 21  See p 181 and 228. 22 In the following, I discuss only parties that have been elected to the Parliament (the threshold is 5% of votes in the proportional electoral system) and, among them, especially those that have been elected for two consecutive terms or have joined the Government. 23 Extreme-right parties have come and gone too, rarely making it to the Parliament. In the 1990s, the ‘Republican Party’ was prominent but is now marginal. For an analysis of women’s participation in the Party, see H Havelková, ‘Tschechien: Die Republikanische Partei der Tschechoslowakei’ in H Amesberger and B Halbmayr (eds), Rechtsextreme Parteien—eine mögliche Heimat für Frauen? (Leske+Budrich, 2002). 24  The ODS was in the Government—either alone or in coalition—from 1992 till 2002, and then again in 2006–09 and 2010–13. 25  Act No 115/2006 Coll. 26  Eg, the Civic Democratic Alliance (ODA) or the Freedom Union (Unie Svobody). 27  The Christian Democrats have been part of a coalition government prior to, as well as during, state socialism, and for large part of the post-socialist period. 18  The

280  Wanted: Gender and Feminism Public Affairs (Věci veřejné) rode a wave of public discontent with politics and corruption in 2010. It entered the Chamber of Deputies, and for a while participated in the right-wing Coalition Government (2010–12), but has since fallen into obscurity. A powerful newcomer is the centrist and populist ANO party—its name meaning ‘yes’ in Czech but standing for Akce nespokojených občanů (Action of Dissatisfied Citizens). It was founded in 2012 by a Czech oligarch, Andrej Babiš. It is a coalition partner in the current Government (from 2014 onward) and was polling as the strongest party in Czechia at the time of writing in August 2016. All these parties are socially conservative, albeit to varying degrees and from slightly different angles. Both the centre-right current members of the governing coalition— ANO and the Christian Democrats—have voted to defeat gender-progressive proposals coming from Social Democratic ministers.28 The Christian Democrats oppose gender-progressive legislation on ideological grounds; for example, they saw the Istanbul Convention as driven by ‘gender ideology’ and voted against it in the Cabinet.29 The opposition by ANO ministers, on the other hand, is less ideological or coherent. Left-wing politics has had two mainstays: the Social Democrats (ČSSD) and the Communists (KSČM). Surprisingly, neither can be said to be a consistent proponent and defender of gender equality. The Social Democrats, as far as participation of women is concerned, adopted soft quotas but have been repeatedly in breach of them.30 In terms of their political programme, the Social Democrats have been concerned with a high standard of social welfare and labour rights, but have not been raising issues of social inclusion or pursuing equality politics for minorities and marginalised groups in any meaningful way. The party has thus arguably not joined the ranks of the New Left, understood by Tony Judt as ‘the initiative for radical innovation and action’, which lay no longer with the male proletariat but with ‘a new set of revolutionary constituents’, including ethnic minorities, women, LGBT, etc.31 Some individual members of the party, however, have defied this outdated outlook, both during the first 25 years of post-socialism32 and increasingly more recently.33

28 

See Ch 6 section I.E. See p 155. 30  J Mildorfová, ‘Politické strany jako bariéra vstupu žen do vysoké politiky [Political Parties as a Barrier for Women Entering High-Level Politics]’ (Master thesis, Faculty of Humanities of Charles University in Prague, 2010). 31  T Judt, Ill Fares the Land (Penguin Press, 2010) 56. Judt himself is critical of the move from collective to individual understanding of politics that this shift has brought about. 32  There are several notable individual exceptions to this trend, eg Senator Alena Gajdůšková, or former Deputy Anna Čurdová, who was expelled from the ČSSD in 2011. 33  Eg Ministers Dienstbier and Marksová. See p 153. 29 

Aspirations Lost 281 The Communists, although they put forward high percentages of women in elections,34 do not identify gender equality as a policy aim.35 Their understanding of it has arguably not advanced beyond the ‘woman question’ and pragmatism. For example, with regard to the proposals of the ADA, they made their support conditional on the repeal of ‘lustration laws’,36 which sought to prevent people who had been in positions of power before 198937 from holding positions of power in the newly democratic state, especially in the administration and the police. As the lustration laws remained in place, the Communists ended up voting against the proposals of the ADA. The only party that is also programmatically and consistently socially ­liberal and gender progressive has been the Green Party. It entered the ­Chamber of Deputies in 2006 and was in the Coalition Government between 2007 and 2009, but has since not surpassed the 5 per cent threshold necessary to enter the lower chamber. It does have representatives in the Senate and in local and regional administrations, however. It has been repeatedly evaluated as the ‘Party most open to women’.38 The larger parties that have repeatedly held power have often been led more by pragmatism and even populism, despite ideological rhetoric. ‘­Freedom’, ‘liberalism’ and the ‘free market’ were used by the ODS in early 1990s as rhetorical devices and incantations, while relatively generous social welfare policies continued. Similarly, the ČSSD, once in power, while rhetorically ‘protectionist’,39 enacted some liberal economic reforms, such as the privatisation of banks. The main problem for gender equality, I believe, is that none of the parties, with the possible exception of the Greens, has truly adopted gender equality either as a value or as a policy programme. And there is no considerable pressure on them to do so: the EU membership obligations of transposition, an important earlier driver of change, are now largely fulfilled; and while women and human rights NGOs continue and strengthen advocacy, they do not seem to have strong support among the population. Gender equality continues not to be viewed as a problem, let alone as a problem of injustice and one that is not merely women’s responsibility. I turn to the analysis of these denials below. 34  Fórum 50%, ‘5. ročník soutěže Strana otevřená ženám zná vítěze: levice je letos ženám nejotevřenější [Party Open to Women]’ (Fórum 50%, 2011), available at www.padesatprocent. cz/cz/nase-aktivity/strana-otevrena-zenam/5-rocnik-souteze-strana-otevrena-zenam-zna-viteze. 35  Mildorfová, ‘Politické strany’ (2010), 48. 36  See Ch 6 fn 26. 37  Eg, high-ranking members of the Communist Party, members of the ‘Peoples’ Militia’, or officers and informers of the State Security Police. 38  The NGO Fórum 50% annually awards the ‘Party most open to women’ prize, based on the content of their programme and the push for equal participation of women in the party. The Greens have been the winners over the past 10 years, with the exception of 2011, when they were overtaken by the Communists, but then only because only parliamentary parties were evaluated that year. 39  Both in terms of economic nationalism and in social terms.

282  Wanted: Gender and Feminism II.  DENIALS OF GENDER INEQUALITY

I have shown that under state socialism, gender equality suffered from what Deborah Rhode has described as the ‘“no problem” problem’.40 In the following, I show that the three denials articulated by Rhode—of gender inequality, of injustice and of responsibility—have survived the fall of state socialism in 1989. A.  Denials of the Existence of Inequality The first mechanism that Rhode identifies is the rejection of the very existence or extent of the problem. The denial of the existence of the problem is very widespread in the Czech public discourse. For example, the former Ombudsman,41 Pavel Varvařovský, considered the ADA a ‘useless norm’ and expressed doubts that discrimination exists in Czechia: ‘The fact that something gets talked about—in this case the allegedly omnipresent discrimination—does not mean it is actually widespread’.42 A disbelief that any discrimination exists was also one of the reasons for President Klaus’s veto of the ADA: ‘The Czech Republic does not discriminate against anyone.’43 The denials of the existence of inequality and discrimination are not limited to sex/gender but extend to other discrimination grounds too. In the process of adoption of the Registered Partnership Bill, an MP denied any LGBT disadvantage (after ridiculing the femininity and occupation of the MP speaking before him): Táňa Fischerová, as an actress, speaks very emotively and has a beautiful deep-felt presentation, but I hope she did not think that a certain sexual minority is somehow discriminated against or that it does not have equal rights. If that is what she meant, I would ask her to recant, because it is not true.44

Denying the existence of the problem is of course connected to how narrowly the problem of inequality and especially of discrimination is defined. As I noted in the previous chapter, either very explicit sex-based distinctions (in the constitutional law context)45 or acts with discriminatory intent (before ordinary courts)46 would be considered incompatible with the right

40 

D Rhode, Speaking of Sex: Denial of Gender Inequality (Harvard University Press, 1997). For more on the role of the ombuds-person, see p 233. 42 P Varvařovský, Letter in response to a Czech Helsinki Committee communication (22/2/2011) (on file with the author). 43  V Klaus, Letter Explaining the Veto of ADA (16/5/2008) (on file with the author). 44  Petr Pleva (ODS), Chamber of Deputies Debate, 24/6/2005, Print No 969 (2005) (emphasis added). 45  See Ch 8 section I. 46  See Ch 8 section III. 41 

Denials of Gender Inequality 283 to equality and non-discrimination. This ‘few bad apples’ understanding of discrimination47 excludes most acts that would without a doubt be covered by EU anti-discrimination law. Rhode points out that one of the dynamics of the denial of the existence of gender inequality is to paint it as a problem of a distant past. In Czechia, this has been true of anti-discrimination law, as well as of gender equality more generally. ‘Equal rights of men and women’, perceived as a cornerstone of the state-socialist regime, are considered either to be sufficiently achieved, or as a suspicious ‘communist’ project that must not be repeated. Another dynamic of denial has been the externalisation of the problem. Gender inequality is considered a foreign problem, and the external EU origin of anti-discrimination provisions has further nurtured this perception. B.  Denials of Injustice Second in Rhode’s analysis is the denial ‘that gender disparities reflect social injustice’.48 She points out that most people want to ‘believe in a just world’, and so they often blame women’s individualised conduct, their capabilities or choices for gender inequality.49 Among many, there is an assumption that ‘sex-based disparities reflect sex-based differences that we cannot or should not alter’.50 The injustice of inequality has been denied in two ways in Czechia: by pointing out its naturalness and/or by excusing it as a consequence of choice. These two conceptualisations are also familiar from the West. For example, Robin West has distinguished between the ‘traditionalist view’ of motherhood, seeing it as in women’s nature, and the ‘liberal view’, which sees it as a free choice for which one has to bear the consequences: ‘choices that impoverish us—so long as they are free—do not make us unequal’.51 In the Czech context, while the concept of a natural biological difference between the sexes has strong antecedents in state socialism,52 the narrative of free choice is new. As for the ‘naturalness’ of inequality, it was underlined, for example, by President Klaus is his explanation of his veto of the ADA: The philosophy of the Act denies the fact that every person is a completely unique set of inborn and taught abilities, characteristics and qualifications. It denies that

47 

See Ch 8 section IV. Speaking of Sex (1997), 9. 49  ibid, 9–10. 50  ibid, 18. 51  R West, ‘The Right to Care’ in EF Kittay and E Feder (eds), The Subject of Care: Feminist Perspectives on Dependency (Lanham, 2002). 52  See Ch 5 section III.B. 48 Rhode,

284  Wanted: Gender and Feminism we have to expect different successes, work ethic, effectiveness, as well as behaviour from everyone. The Act tries to eliminate inequality, which is, however, a natural phenomenon.53

As for choice, women are often told that they chose their situation or contributed to it. As I explored in Chapter 6, women are seen as ‘contributing’ to sexual assault in academic literature on rape, courts look for ‘problems’ in the behaviour of the victims of sexual harassment, and divorced mothers are blamed for leaving their socially acceptable dependence on the man and becoming unacceptably dependent on the state in the parliamentary debates on state advances of child support.54 When confronted with data showing the disparity and inequality between men and women, lawmakers and judges often argue that it is because women choose not to pursue certain careers, not ask for higher wages, etc.55 The freedom of this choice is not problematised. There is an assumption that everyone knows what they want and makes their choice freely; and once they decide, they are able to get what they desire. Western feminist scholarship has shown how neither of these is the case, but these insights have not been accepted. There is no awareness that people will not necessarily know what they want because they already have adapted their preferences to the limited options available to them.56 There is no understanding that people will not always formulate what they want if their choice is outside the norm. For example, for Czech women, the choices of not having children or choosing to have a child without a partner are not socially acceptable.57 There is little acknowledgement that many will not ask for what they want because they realise the futility of asking in the face of pervasive societal discrimination. This is particularly pertinent with regard to wage discrimination. There is also no regard paid to the fact that people might have different wishes at the same time, and that society and the law can either enable them or render them irreconcilable. This is especially true of the fact that women’s lives tend to have elements of independence as well as interdependence, and that the reconciliation of professional and family lives might need active facilitation by the state. The choice of women to be mothers and primary carers is thus seen both as ‘natural’ and ‘free’, and the fact that it carries considerable penalties is considered an inevitable and legitimate consequence. The perception that inequality is either naturally women’s destiny or their self-inflicted problem results in the third denial— the denial of responsibility. 53 Klaus,

Letter ADA (2008) (emphasis added). See discussion on p 163–165, 204 and 208. 55  See Ch 8 section IV.B. 56 See Nussbaum’s theory of ‘adaptive preferences’: M Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge University Press, 2000) 111–61. 57  Research into this topic is only starting; these observations are based on personal experience and on private accounts by Czech women. 54 

Denials of Gender Inequality 285 C.  Denials of Responsibility Rhode writes that confronting inequality is also avoided by ‘relocating responsibility for finding solutions’ from the public sphere by individualising the issues and by making individual women responsible for the ­remedy.58 This mechanism has been apparent, for example, in the emphasis on private individual care in the family.59 Comparatively, the Czech state arguably still does a lot for families: for example, maternity benefits are paid out from the sickness insurance scheme rather than left to employers,60 and the periods of maternity and parental leave are counted toward pension benefits.61 But this shows that the Czech law and policy continues to be pro-family, and lawmakers do not refuse to be involved in supporting the family and women as mothers. There is, however, great reluctance to support women’s autonomy and equality in ways that do not relate to the family. Measures targeting structural disadvantage, such as indirect discrimination, or proactively counteracting institutional bias, such as positive action, are particularly unpopular.62 As was the case under state socialism63 and as is apparent today from the ‘few bad apples’ conceptualisation of anti-discrimination law,64 the problem is individualised not only with regard to women, but also with regard to the discriminator. Discrimination is seen as a problem involving the individual manners or morals of the perpetrator, not as a problem for the law and the state.65 Crucially, it is not seen as a wider, systematic problem. It is the continuing blindness to the structural nature of gender inequality to which I now turn. D.  Blindness to the Gendered Structure of Society In previous chapters, I have given examples of acts of sexism, or even misogyny, by employers, lawmakers and even judges. But a more fundamental problem for gender equality, I believe, is the complete lack of reflection that

58 Rhode,

Speaking of Sex (1997), 13. See Ch 6 section III. 60  Eg, in the US, not only are no benefits provided by the state, but the state does not even require the employer to pay. See p 51. 61  This is not the case in all European countries. European Network of Legal Experts in the Field of Gender Equality, ‘Legal Approaches to Some Aspects of the Reconciliation of Work, Private and Family Life in Thirty European Countries’ (European Commission, 2008), available at http://ec.europa.eu/justice/gender-equality/files/reconciliationfinal28aug2008_en.pdf. 62  See, eg, Ch 7 fn 34. 63  See Ch 5 section II.B. 64  See Ch 8 section IV. 65  See Ch 7 section IV.C. 59 

286  Wanted: Gender and Feminism life and law cannot be and are not neutral and objective under patriarchy, but are androcentric. Consequently, actions in the system suffer from a gender bias. The androcentrism and bias could be minimised, or even eliminated, were their existence recognised. This has yet to happen in Czechia, especially among lawmakers, judges and many legal scholars. As just mentioned, many aspects of inequality have been mostly understood as women’s problem and responsibility—beginning with the symptomatic state-socialist term ‘woman question’, and continuing with the way in which women are still identified with parenting66 and held responsible for preventing violence against themselves.67 More rarely, they are seen as a problem concerning an individual perpetrator’s excessive and isolated acts, whether of discrimination or violence.68 What is not seen is the structural nature of the underlying causes. By contrast, Western feminism has from the 1970s onwards brought about a paradigmatic shift, largely intellectually internalised, at least by the elites, including large parts of the legal communities in the West, that inequality is not the problem of women but the problem of patriarchy. To some extent, shifting attention from members of disadvantaged groups to the majority constitutes a challenge for all protected discrimination grounds. It is, however, particularly thorny for sex/gender, because of the stronger claim to ‘naturalness’ of the system. For example, when it comes to disability, it might be easier to explain to both experts and the public how the inaccessibility of a building is not a problem caused by a wheelchair but a problem caused by stairs, in that stairs are not the inevitable and natural solution to problems of difference in elevation but rather one based on the perspective of the able-bodied. Put differently, it is potentially easier to explain how an impairment becomes a disability only if society creates an environment with barriers.69 The perceptions of the gender order as natural—and consequently neutral and objective—are harder to dispel. This blindness could be viewed as surprising, for example considering the fact that many legal scholars and lawmakers after 1989 have been capable of seeing how inherited ‘socialist’ laws were biased by the ideological environment at the time of their creation, and were moulding economic and social relations in a particular direction. Why have they been overwhelmingly blind to the fact that the same happens within ‘patriarchal’ society and law? One could argue that there has been a prevalence of other narratives about society. Some narratives have attributed inequality to different

66 

See Ch 6 section III. See Ch 6 section IV. 68  See, eg, Ch 8 section IV. 69  For a summary of the scholarship, see, eg, M Davidson, ‘Universal Design. The Work of Disability in an Age of Globalization’ in LJ Davis (ed), The Disability Studies Reader (Taylor and Francis, 2006) 119. 67 

Denials of Gender Inequality 287 causes, such as the state-socialist ideology that attributed inequality to the class system, or the population’s identification of injustice with the unfree and corrupt political regime.70 Some narratives have denied inequality as a structural phenomenon, notably the post-1989 neoliberal view of the world as consisting of free choices made by independent individuals.71 The belief that the norm is gender-neutral has thus not been challenged or shifted intellectually. This is underscored by a limited experiential exposure to difference and diversity, both of which are arguably essential to realise the biases of the norm. Czechia is a highly homogeneous72 society, which has been both a blessing and a curse. It has been a blessing since Czechia in transition did not have to deal with ethnic tensions, violent nationalisms and civil wars, unlike the more heterogeneous former Yugoslav states and ­societies.73 At the same time, it has been a curse in the sense that there has been no pressing need to self-interrogate on questions of ethnicity, nationalism and identity. Despite being primarily relevant for other protected grounds, such as race and ethnicity, this has repercussions for gender equality. Arguably, guaranteeing equality on one ground (such as race and ethnic origin), and establishing a consciousness of inequality and disadvantage, is often helpful to support a fight against discrimination on another ground (such as sex and gender). For example, in the US, the concepts, arguments and strategies of the civil rights movement and the feminist movement reinforced each other, and help the LGBT movement today.74 Such a situation does not exist in Czechia. Gender equality gets no conceptual support from a fight against inequality on other grounds. Indeed, the unpopularity of other groups and identities has been mentioned as one of the reasons why women do not engage in collective political action. Ann Snitow has argued that the lack of identity politics in CEE has to do with the fact that women do not want to be constituted as a special group, a ‘minority’, as it is perceived that ‘[t]o mention the group “women” is to demote individual

70 

See Ch 5 section IV.E. 1989, the market-liberal narrative of choice and individualism became internalised, and it obscured any systemic forces that could have impeded and limited it. Arguably, ­post-socialist Czechs have difficulty seeing market coercion as well as patriarchy. For CEE more generally, see also S Gal and G Kligman, The Politics of Gender after Socialism: A ­Comparative-Historical Essay (Princeton University Press, 2000) 76. 72 G Pridham, ‘Democratic Consolidation in the Czech Republic: Comparative Perspectives after Twenty Years of Political Change’ (Paper for conference 20 years of Czech Democracy), available at http://ispo.fss.muni.cz/uploads/2download/Working_papers_2009/ ISPO_WP_2009_1.pdf. 73  The role of nationalism has been prominent in the gender analysis of other post-socialist CEE countries; cf Gal and Kligman, The Politics (2000), passim. 74 Currently, the US LGBT movement is using the Supreme Court ruling in Loving v Virginia 388 US 1 (1967), which struck down a law prohibiting interracial marriage, to argue for the legality of gay marriage. See, eg, A Koppelman, ‘Same-Sex Marriage and Public Policy: The Miscegenation Precedents’ (1996-1997) 16 Quinnipiac Law Review 105. 71 After

288  Wanted: Gender and Feminism women to a subset of society, with a stigmatized status like Slovaks or gypsies or Jews’.75 Unity is highly regarded, but it is ‘not a unity of diversity, difference, and heterogeneity, but rather one of homogeneity, of an undifferentiated mass’.76 Unlike in the West, the challenging and interrogation of the norm as biased has neither experiential support in necessary reflections on life in a diverse society, nor the intellectual allies in post-colonial, critical race or other perspectives that investigate hegemonies.77 III.  MISSING FEMINISM

There is a strong dislike of feminism in Czech society, to the point that when legislation on domestic violence was being debated in Parliament, it was felt that a distancing from the feminist movement was necessary to gain support for it: There was an objection that this proposal is an exudation of some feminist amateur activists. I would like to say that on the preparation of this bill, a broad spectrum of experts from the judiciary, prosecution, law and other things participated …78

This is ironic, because the origins of the battle against interpersonal violence in the home can be firmly located within the feminist second wave.79 But it would not be strategic to point this out in the Czech context. Even when NGOs are involved, their rhetoric has rarely been explicitly feminist and gender-based. For example, in the process of adopting domestic violence legislation, the most influential NGO working in this area, Bílý kruh bezpečí, presented the phenomenon as gender neutral. Similarly, when legislating on sexual harassment, several MPs voiced fears about the disruption of gender relations, and a female Senator felt it necessary to point out that Czech women needed neither provisions banning sexual harassment, nor the feminist movement: You might have noticed that Czech society never was a feminist society. … The reasons are various. My interpretation is that in the Czech lands, smart, intelligent women always existed who knew for certain that they will get to their ‘place in the sun’ with methods much more subtle and effective than the feminist movement.80

75 A Snitow, ‘Feminist Futures in the Former East Bloc’ (1993) 7 Peace & Democracy News 1, 42. 76  Z Kiczková and E Farkašová, ‘The Emancipation of Women: A Concept That Failed’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993) 86. 77  I return to the lack of intellectual allies in my discussion of legal scholarship on p 295 below. 78  Jan Kasal (KDU-ČSL), Chamber of Deputies Debate, 16/6/2005, Print No 828 (2004). 79  The beginnings of the movement against domestic violence are often located within US women’s awareness-raising groups in the 1970s. ML McCue, Domestic Violence: A Reference Handbook (ABC-CLIO, 2008) 5. 80 Soňa Paukrtová (unaffiliated), Senate, 10/12/2003; 119 (2003).

Missing Feminism 289 Both statements illustrate a common position: that feminism is at best useless and at worst harmful. And yet the understanding of the real material and symbolic disadvantage women face would be greatly helped by a gender/feminist analysis. The absence of gender analysis and the distrust of feminism are obviously related, and the problem is circular: a dislike of feminism makes the introduction of the concept of gender more difficult; and, at the same time, a dislike of the concept of gender leads to a distrust of feminism. In the following, I first look at the different reasons for the strong dislike of feminism in Czech society, mostly as identified in the social science literature, and the ways in which this is a legacy of state socialism (section III.A). I observe that other perspectives or movements, especially Marxism, which in the West have synergies with feminism, are missing or discredited in Czechia, which makes the presentation and mainstreaming of feminism even harder (section III.B). I then look at different waves and strands of feminism, arguing that second-wave radical feminist insights would be particularly pertinent in the Czech context (section III.C). Lastly, I discuss specifically the contours and consequences of the absence of feminism in legal scholarship (section III.D). A.  Why the Rejection of Feminism? The strong antipathy to feminism in the post-socialist Czechia has been observed by many commentators, both Czech81 and Western.82 Rebecca Nash noted ‘an almost physical repulsion and disinterest in f­eminism’.83 Nanette Funk spoke about ‘an antifeminism preceding feminism’84 Many identify as the reason the state-socialist past,85 or the impression that feminism is an unnecessary ‘foreign import’.86 Several reasons for the difficulties Czechs have with feminism have been suggested in the literature. First, the Czechs ‘associate concepts such as “women’s emancipation” and “women’s movement” with the policies of the discredited communist

81  A Heitlinger, ‘Framing Feminism in Post-Communist Czech Republic’ (1996) 29 Communist and Post-Communist Studies 77, 78. 82  Eg, FE Olsen, ‘Feminism in Central and Eastern Europe: Risks and Possibilities of American Engagement’ (1997) 106 The Yale Law Journal 2215, 2247; or B Einhorn, Cinderella Goes to Market: Citizenship, Gender and Women’s Movements in East Central Europe (Verso, 1993) 11 and 182–216. 83 R Nash, ‘Exhaustion from Explanation: Reading Czech Gender Studies in the 1990s’ (2002) 9 European Journal of Women’s Studies 291, 294. 84  N Funk, ‘Introduction: Women and Post-Communism’ in N Funk and M Mueller (eds), Gender Politics and Post-Communism (Routledge, 1993) 2. 85  Olsen, ‘Feminism’ (1997), 2248; Heitlinger, ‘Framing’ (1996), 78, and the Czech sources cited therein. 86  Gal and Kligman, The Politics (2000), 107.

290  Wanted: Gender and Feminism regime’.87 This is in part due to the fact that various demands of Western feminism have been achieved early and taken for granted since,88 so there is a feeling that feminism has nothing more to offer. But at the same time, in the minds of Czech women, these measures were disproved as a way to achieve true gender equality,89 which also weakens feminism’s appeal: ‘[O]wing to a significant gap between what was offered to women by the paternalistic communist party-state and how the official commitment to women’s emancipation and equality was experienced’,90 concepts such as emancipation and equality have acquired a pejorative meaning. Gal and Kligman argue that ‘the assertion of women’s advantageous position in communism continues as an aspect of public discourse, one that … serves to delegitimate women’s political activity in post-communism’.91 Secondly, the negative reaction to feminism is linked either to a misrepresentation of Western feminism, or to a selection of its elements that are mostly incompatible with the post-socialist condition and therefore easiest to dismiss. For example, many Czechs perceive feminism to be anti-male.92 Feminism is also perceived as emphasising women’s victimhood. This suggestion is resented, as Czech women ‘regard themselves as strong women rather than as victims’.93 Feminism, like state socialism, is seen as wanting to eliminate ‘natural’ differences between the sexes, which clashes with the prevailing essentialist understanding of genders. Thirdly, there is a mistrust of utopian and emancipatory ideologies in the post-socialist Czechia. Nanette Funk summarised this as follows: ‘[B]ecause philosophy and ideology played such central roles in state socialism and were used to deny social realities, there exists a deep suspicion of any organized body of belief, including feminism.’94 Although Czech women are arguably relatively emancipated and ‘strong’,95 and can be seen to engage in some aspects of the social practice of feminism, they have generally been lacking feminist consciousness, terminology and concepts, and there has been little awareness of a shared experience that has structural causes under patriarchy. Fourthly, it has been argued that Czech women have been ‘disinclined to engage in collective action’.96 Under state socialism, any public

87 

Heitlinger, ‘Framing’ (1996), 81. ibid, 81. 89  ibid, 83. 90  ibid, 82. 91  Gal and Kligman, The Politics (2000), 8. 92  Heitlinger, ‘Framing’ (1996), 77. 93  ibid, 77. 94  Funk, ‘Introduction’ (1993), 6. See also Einhorn, Cinderella (1993), 188–89. 95  Heitlinger, ‘Framing’ (1996), 77. 96  ibid, 81. 88 

Missing Feminism 291 ­ articipation was seen as ‘motivated by the desire to curry favour with the p communist regime’.97 After the fall of state socialism, women have thus felt ‘“­liberated” from the obligation to participate in elections, demonstrations, and meetings’.98 Lastly, during the difficult post-socialist period, there has been an ethos of a ‘community of suffering’, and hence, ‘in countries where everyone is suffering a lot, it feels churlish, selfish, even vulgar to mention that women’s suffering has its own particular qualities and forms’.99 Thus, ‘gender issues [have been] designated as a political luxury which the new democracies can ill-afford to address’100 and ‘women’s interests [have been] sacrificed to the transformation’.101 The last three observations, made by authors in the 1990s and 2000s, might be losing their pertinence in 2016. A rise in women’s NGOs and their activities102 since the early 2000s indicates an increasing reluctance of women to sacrifice, and an acceptance that emancipatory projects might be necessary and that collective action might be the way to achieve them.103 B.  The Presence of Undermining and Absence of Supporting Perspectives The inability to conceptualise gender and patriarchy, as well as the difficulties Western feminists have had in communicating with Eastern men and women, are, according to Jiřina Šmejkalová, ‘conceptual troubles’104 that ‘are not exclusively connected to the absence of feminist theoretical and political debates’.105 I noted the import of Western perspectives and approaches in the 1960s, such as structural functionalism and deprivation psychology, which have been extremely detrimental to the possibility of introducing critical perspectives on gender and the gender order.106 These have persisted since 1989. Aside from the presence of harmful perspectives,

97 

ibid, 83. ibid, 84. 99  Snitow, ‘Feminist’ (1993), 41. 100 Einhorn, Cinderella (1993), 9. 101  Funk, ‘Introduction’ (1993), 2. 102  See Ch 6 section I. 103  For an analysis of the spaces in which Czech feminism has existed and developed, see I Jusová and J Šiklová (eds), Czech Feminisms. Perspectives on Gender in East Central Europe (Indiana University Press, 2016). 104 J Šmejkalová-Strickland, ‘Do Czech women need feminism? Perspectives of feminist theories and practices in Czechoslovakia’ (1994) 17 Women’s Studies International Forum 277, 277. 105  ibid, 277. 106  See p 128 above. 98 

292  Wanted: Gender and Feminism Šmejkalová has noted a lack of supporting ones. She notes, in particular,107 a ‘lack of poststructuralist approaches in the local intellectual context’ and a ‘deformed Marxist tradition’.108 The post-1989 rejection of Marxism is of particular salience here. It means that its tools for social critique are not truly available to support a gender equality discourse in the post-socialist period. So while in the West some analytical concepts of Marxism are understood as aids to radical social change, to post-socialist Czechs, Marxist ideals are ‘tools of conserving a frozen social order’.109 The rejection of Marxism also disarms any arguments about socio-economic (or ‘class’) inequality. This has been particularly detrimental in the post-socialist period, when this axis of disadvantage has become prominent and with increasingly negative consequences for women, through their higher representation among the poor.110 The rejection of Marxism then reflects back on feminism. The ‘left-wing orientation of much of western feminism’,111 as well as its use of Marxist theory112 and its concepts, such as ‘false consciousness’,113 has contributed to suspicion of feminism among Czechs.114 C.  The Need for Second-Wave Radical Feminism I showed in Chapter 2 that state socialism brought about an early and relatively far-reaching equalisation and advances in women’s legal position, from access to education, work and politics, to the liberalisation of divorce and the legalisation of abortion. With respect to socio-economic equality and elimination of poverty, the East arguably overtook development in the West. Some demands of Western feminists have thus been fulfilled in Czechia. 107  She has also noted ‘a broken psychoanalytic tradition’, observing that psychoanalysis ‘helped Western feminists to ask how deeply patriarchal identities go [and] how female and male identity can be represented in language and cultural stereotypes’. Its absence in the East meant that there is no ‘space within the public consciousness for the articulation of the notion of gender or for confronting the problems of identity, self-knowledge, and self-expression’: Šmejkalová-Strickland, ‘Do Czech women?’ (1994), 278. Arguably, this observation is neither completely correct—psychoanalysis was popular among the dissident groups under state socialism and was also prominent after 1989 (eg Helena Klímová)—nor would its presence necessarily help feminism, since the particular Czech brand of psychoanalysis has been supportive of essentialist and differentialist understandings of the sexes. I thank Hana Havelková for these observations. 108  ibid, 277. 109  ibid, 279. 110  See p 156 above. 111  Heitlinger, ‘Framing’ (1996), 81. 112  See also Šmejkalová-Strickland, ‘Do Czech women?’ (1994), 278. 113 Describes the way in which the material, ideological, and institutional processes of a (capitalist, patriarchal) society dominate the consciousness of a subordinate group (the proletariat, women), obscuring the truth of their unequal situation. 114  Heitlinger, ‘Framing’ (1996), 81.

Missing Feminism 293 There are also parts of the Western feminist project that arguably are unsuited to the specifics of the Czech context, or mottos which might not be strategic. For example, the slogan ‘personal is political’ is probably unfitting, as the public and private spheres have been configured very differently in Czechoslovakia and Czechia than they have been in the West.115 As I observed, the public sphere—of both politics and work—was corrupt and perceived as dangerous under state socialism. The private sphere was perceived as a protected space, free from the intrusions and stresses of public life. Women’s position in the family, as child-carers and home-carers, allowed them an escape, and created a strong and particular attachment to motherhood and family, which has persisted in the post-socialist period and which does not quite have a parallel in the West.116 Nonetheless, Western feminist insights have much to offer, especially ­‘second-wave’ feminism,117 understood here as the schools of feminism that emerged in the West in the 1960s and 1970s, and which concentrated on identifying and understanding patriarchy and the way it impacts on women as a group. As I mentioned, Czechia, due to its intellectual isolation under state socialism, missed the second wave of feminism and never caught up with its project during the post-socialist period. I believe that the insights of the second wave of feminism are very much needed. Some distinction between the different schools is necessary, though, as the positions were not unified; but more importantly, some strands of second-wave feminism are further from the Czech understanding and needs than others. The Czech understanding of women’s nature and the relationship between the sexes is arguably closest to ‘difference feminism’,118 with its emphasis on cherishing and supporting motherhood and childcare. In the Czech case, however, this emphasis has rarely been feminist, in the sense of arguing for re-evaluation of caring and a full recognition of the ‘ethic of care’. Only some women’s NGOs, such as Motherhood Centres (Mateřská centra), adopt a difference feminist perspective. Lawmakers, as well as judges, on the other hand, merely emphasise difference without the need to contest the subordination of the feminine. Importantly, this emphasis on difference is overwhelmingly essentialist, seeing motherhood and care as the natural preserve of women.

115 

See also Gal and Kligman, The Politics (2000), 101. See also Heitlinger, ‘Framing’ (1996), 85. 117  The notion of ‘waves’ has often been criticised for ignoring important progress within ‘waves’, and also for being West-centric. I agree with these points. But the periodisation is useful to highlight the specific development in the East, so I use it as a short-hand, acknowledging its somewhat reductive character. S Tarrant, When Sex Became Gender (Routledge, 2006) 222. 118  Often identified with C Gilligan, In a Different Voice: Psychological Theory and ­Women’s Development (Harvard University Press, 1982). 116 

294  Wanted: Gender and Feminism As far as liberal feminism119 is concerned, although the liberal emphasis on freedom and autonomy has been prominent in the general discourse in the post-socialist period, it has not been connected to gender equality. On the contrary, the calls for equality and anti-discrimination rights are seen as an antithesis of liberalism. As for Marxist/socialist feminism,120 I would argue that it has never truly been present. As I have argued in Chapter 5, the state-socialist project cannot be viewed as feminist because, unlike Marxist and socialist feminism, it never recognised gender as a specific axis of social disadvantage.121 After 1989, Marxist and socialist feminist insights and arguments are the most discredited because of their roots in Marxism. At least some of Marxism’s analysis of redistributive inequality is known, even if largely rejected; this has not been the case with radical feminism’s insights. Indeed, radical feminism, which identifies gender as the main axis of ordering of society and calls for its overthrow, is the strand by which the Czech discourse remains the most untouched. Most of the radical feminist critique of the cultural aspects of patriarchy, the centrality of gender or the insights into sexuality and violence, have not been introduced and grasped at all. In the West, the debate has moved on; a ‘third wave’ of feminism is often identified.122 African-American, Third World and queer scholars and activists have since the 1990s challenged the universalism, generality and homogenisation of women allegedly present in the analyses of second-wave feminists. Third-wave feminists have emphasised women’s heterogeneity, inter-sectionality, the importance of individual narratives and relativism, amongst other things.123 I believe there is much that third-wave feminism can contribute in the Czech context as well—the expansion of gender analysis to queer issues, the critique of ideas of ‘objectivity’ and ‘universality’, which enables the appreciation of individual narratives and personal experience. But I believe that Czechia also needs to catch up with the relevant aspects of the second wave. Both in terms of intellectual development and in terms of activist strategies, it is a foundational step that cannot be skipped. One cannot deconstruct before one has constructed. The concepts of gender neutrality or blindness illustrate the problem well. After years of specific battles for equality and revaluation of difference, calls for gender neutrality or blindness have been increasing in the West. In the post-second-wave countries, such as the US or the UK, this means that the

119 

R Tong, Feminist Thought (Westview, 2009) 11–45. AM Jaggar, Feminist Politics and Human Nature (Rowman & Allanheld, 1983) passim. 121  See Ch 5 section III.A. 122 Tong, Feminist Thought (2009), 270–90. 123 ibid. 120 

Missing Feminism 295 relevant experts and decision-makers are aware of gender and the inequities of the gender order. They acknowledge it and they consciously decide to limit its influence. For example, in job appointments, they consciously look at candidates as gender-less, making sure they do not resort to gender stereotypical assumptions about men’s and women’s abilities. In law and policy on parenting, they treat both men and women as equally capable parents. When Czech experts and decision-makers speak about gender neutrality or blindness,124 it is different. Ignoring gender has not been preceded by their acknowledgement and understanding. It is just ignorance. The concepts of blindness and neutrality are taken as a licence to discount gender completely. D.  The Need for Feminist Legal Scholarship Blindness to gender, illustrated in previous chapters in relation to lawmakers and judges, extends to experts. In this section, I discuss legal scholarship in particular, but it is worth mentioning that other social science and humanities disciplines have also almost completely resisted any gender studies or feminist insights, with philosophy and psychology being particularly ­impervious.125 During state socialism, some experts could at least to some extent be identified as drivers of gender progress, even if they did so without reference to either gender or feminism. In the post-socialist period, the picture is one of considerable aversion in most disciplines not just to the concept of gender and the term ‘feminism’, but to related issues and perspectives too. Sociology could possibly be named as the one exception.126 As for legal scholarship, it missed decades of theoretical development in the West. From the 1970s onwards this included much critical legal scholarship, from legal realism, socio-legal studies, critical legal studies and critical race theory, aside from gender legal studies and feminist jurisprudence. In the Anglo-American legal space these bodies of scholarship might not have been central, but they have had a significant presence in academic critique and engagement with law and rights. This has not been the case in Czechia, either under state socialism or in the post-socialist period.127 The negative synergy between missing critical theories of law and feminism has made any debate about the non-neutral nature of the law, its application and legal scholarship difficult. 124  Based on the personal experience and private accounts of gender experts working with Czech Ministries. 125  With notable exceptions, such as Kateřina Zábrodská. See Ch 5 fn 13. 126  Eg, the Sociology Department of the Czech Academy of Science has an entire division, and a range of projects, dedicated to the topic. 127 There are exceptions; critical voices have recently arisen from a generation of young academics, among them Zdeněk Kühn, Michal Bobek, David Kosař and Jan Komárek.

296  Wanted: Gender and Feminism A distinction perhaps needs to be made between equality and antidiscrimination­scholarship on one hand, and gender studies and feminist scholarship on the other. In recent years, some legal academics, overwhelmingly young and Western-educated,128 have attempted to present and defend equality and anti-discrimination law to Czech audiences. Often using W ­ estern theories and comparative law,129 we try to justify its importance and usefulness to law-makers, judges and lawyers. This effort has thus far not been seriously reflected either in the process of law-making, as exemplified in the parliamentary debates, or in the everyday realities of interpretation and application by the courts. However, individual or institutional exceptions can increasingly be identified that defy this trend, such as some judges at the CCC130 and the Supreme Administrative Court, and the Office of the Public Defender of Rights under Anna Šabatová. Overall, while equality and anti-discrimination continue to be unpopular, gender and feminism are even more so. In the following, I discuss three important functions that gender/feminist legal studies have performed in critiquing law, legal scholarship and legal education in the West, and which are missing in Czechia. First, at the level of specific laws or provisions, feminist legal scholarship identifies existing laws or provisions that are gender-conservative and should be eliminated, as well as the missing gender-progressive ones that should be adopted. Examples of existing provisions in conflict with the requirement of gender equality include the criminalisation of abortion or the prohibition of divorce, or a particular construction of the law on rape that is suspicious of the victim’s behaviour. Examples of provisions that should exist to address a real-life gender equality issue, but which are often missing, include the specific criminalisation of stalking or domestic violence, the prohibition of harassment, etc.131 128  Notably Zdeněk Kühn, Michal Bobek, Pavla Boučková, Markéta Whelanová, Kristina Koldinská and Martin Štefko, amongst others. I count myself among them; see eg B Havelková, ‘Diskriminace na základě pohlaví [Discrimination on the Basis of Sex]’ in M Bobek, P Boučková and Z Kühn (eds), Rovnost a diskriminace [Equality and Discrimination] (CH Beck, 2007); B Havelková, Rovnost v odměňování žen a mužů [Equal Pay for Men and Women] (Auditorium, 2007); or my co-authorship of P Boučková et al, Antidiskriminační zákon. Komentář [Anti-Discrimination Act—Commentary] (CH Beck, 2010 and 2016). 129  Eg, Bobek, Boučková and Kühn (eds), Rovnost a diskriminace (2007); Boučková et al, Antidiskriminační zákon (2010 and 2016). 130  Notably Judge Kateřina Šimáčková at the CCC, who in her recent essays raised the need for teleological interpretation of rights, the reflection on the connection between the legal and the extra-legal, the importance of socio-economic rights, solidarity and social justice, a positive liberty understanding of rights, and who defended anti-discrimination law. K Šimáčková, ‘Nikdo není svobodný, pokud nejsou svobodní všichni [Nobody is Free unless Everybody is Free]’ in J Přibáň et al (eds), Lidská práva. (Ne)smysl české politiky? [Human Rights. The (Non)Sense of Czech Politics?] (SLON, 2015) 187–98. 131  Eg, Nicola Lacey refers to this project as ‘feminist criticism of particular laws’ and distinguishes it from ‘feminist legal theory’. N Lacey, Unspeakable Subjects (Hart Publishing, 1998) 2.

Missing Feminism 297 This analysis often starts with the identification of provisions specifically about women, such as pointing out that the exclusion of men from parenthood cements women’s gender role as mothers. It then proceeds to look for more hidden obstacles that might affect women indirectly, such as the length of parental leave without corresponding collective care facilities, which keeps the caring parents, overwhelmingly women, out of the labour market. Perhaps the most difficult to identify are provisions and doctrines that are androcentric, based on a male norm and not fully taking into account women’s experience, in general areas of law. The understanding of self-defence in criminal law might be an example here.132 In the Czech ­context, many of the most flagrant gender-conservative or discriminatory laws were already weeded out during state socialism, but it has been difficult in the post-socialist period to capture the remainder, as well as the indirectly affecting or androcentric laws and provisions. The changes that came, as I have documented above, have either been EU-driven or resulted from NGO lobbying. Little has been done by legal academics, and even those who ­analyse gender-relevant laws often distance themselves from feminism.133 A second project, carried out in the West mostly by socio-legal feminist scholars, has been to uncover the reasons why even gender-progressive legal provisions do not lead to the desired effects. For example, gender bias within the criminal justice system has been the object of much study and criticism in the West.134 Here, the lack of supporting perspectives is crucial. Much of critical legal scholarship has not only brought new perspectives, but it has also broadened disciplinary approaches to the law. Legal realism or socio-legal studies have broadened the study of law beyond the internal approach,135 beyond merely looking at the law, decontextualised, from an insider’s p ­ erspective. In Czechia, law continues to be seen as an isolated discipline, and legal education and scholarship is doctrinal, concentrating almost exclusively on positive law.136 Thirdly, feminist legal scholars have critiqued the law as such. This, according to Nicola Lacey, is the true ‘feminist legal theory’,137 which ­‘suggests

132  The legal norm on self-defence is in many legal systems constructed to reflect the skirmishes and fights in which men engage, but not the situation of a battered wife who—after years of domestic abuse—kills her husband. See, eg, H Maguigan, ‘Battered women and self defense: Myths and misconceptions in current reform proposals’ (1991) 140 University of Pennsylvania Law Review 379, 397. 133  Eg, Kristina Koldinská, the author of a monograph on gender and social law, has refused the label ‘feminist’ in private conversations with the author. K Koldinská, Gender a sociální právo [Gender and Social Law] (CH Beck, 2010). 134 Eg R Römkens, ‘Law as a Trojan Horse: Unintended Consequences of Rights-Based Interventions to Support Battered Women’ (2001) 13 Yale Journal of Law and Feminism 265. 135  See p 21. 136  See also a discussion on positivism in Marcus, ‘The “Woman Question”’ (2014), 546–50. 137 Lacey, Unspeakable (1998), 2; others speak of ‘feminist jurisprudence’, see, eg, R West, ‘Jurisprudence and Gender’ (1988) 55 The University of Chicago Law Review 1.

298  Wanted: Gender and Feminism that there is something not merely about particular laws or legal provisions, but rather, and more generally, about the structure of the method of modern law, which is hierarchically gendered’.138 The critique of legal theory is often connected to a related critique of legal scholarship and education.139 Here, too, feminism has joined together with other ‘critical’ movements, such as critical legal studies140 or critical race studies.141 The androcentric societal bias, which—as mentioned above—finds many expressions in law, understandably exists in legal scholarship and education too. Legal feminist scholars have shown that there is no neutrality or objectivity, starting from the choice of the topic and questions to methods used and conclusions reached. But again, the Czech legal scholarship has for the most part not moved beyond seeing positive law as a complete and autonomous system of neutral norms, and seeing itself as an objective. Accepting the feminist critique’s challenges to these postulates would be very destabilising. They are therefore rejected. IV. CONCLUSIONS

The chapters in Part II of this book have shown that although women, like everyone else, have benefited from the fall of an un-free political regime, it is doubtful that they are ‘better-off’ in the post-socialist Czechia than they were under state socialism in all ways. As citizens, they have gained political freedom, but their participation in politics has dropped dramatically. As consumers, they have access to a larger supply of goods and services, but due to their overrepresentation among the poor, they might not be able to afford them. As workers, they continue to be discriminated against and are not seen as fully equal. As wives and mothers, they continue to be materially supported, but in certain family and care constellations more than in others; and culturally, while valued, their contribution is not as valued as, or seen as equal to, ‘men’s’ work in the public sphere. And relatively little is done to reconcile their unpaid work at home and their paid work outside of it. As survivors of violence, women are not believed. Men, on the other hand, continue to have the privilege that gender inequality is not their problem: as employers and colleagues they do not have to think about discrimination 138 Lacey,

Unspeakable (1998), 2. recent analyses of the lack of feminism in post-socialist legal education, see I Radačić, ‘Feminist Legal Education in Croatia: A Question of Fundamentalism or a ­Fundamental Q ­ uestion?’ in R Mańko, C Cercel and A Sulikowski (eds), Law and Critique in Central Europe. Questioning the Past, Resisting the Present (Counterpress, 2016); Marcus, ‘The “Woman Question”’ (2014). 140  Eg, D Kennedy, ‘How the Law School Fails: A Polemic’ (1970) 1 Yale Review of Law & Social Action 71. 141 Notably Kimberle Crenshaw, who has written on the intersection of race and sex. See Ch 1 fn 42. 139 For

Conclusions 299 and harassment; as fathers they still largely do not have the burden of care; as aggressors, the fact that any prosecution might negatively impact on their lives is often considered more important than the harms caused to the victims of their violence. Patriarchy is doing well in Czechia, but it is not seen. These deficiencies are thus underpinned by a blindness to gender, the gender order and gender inequality. In Czechia, gender as a social construct that hierarchically organises society continues to be ignored by lawmakers, judges and legal scholars, male and female alike. The existence of gender inequality is widely doubted, the injustice it constitutes is denied, and it is at any rate considered an individual problem and not worthy of a legislative response. In the West, these attitudes have been challenged by feminists; in Czechia, feminism has been absent, and its absence has been felt.

10 Conclusions

F

EMINIST ANALYSES OF the law have generally focused on Western legal systems. Czech legal scholarship has at most described the law as it related to women. Critical gender analysis of gender equality law from a feminism perspective has not been performed. This book has offered such a comprehensive analysis of the legal regulation and the understanding of gender equality among lawmakers, judges and legal scholars for the first time, not only for Czechia, but for any jurisdiction in the CEE region. It has observed that while legal guarantees for women have largely been satisfactory in Czechia, for example as assessed with reference to the requirements of CEDAW or the Beijing Platform, especially with regard to socio-economic guarantees and in particular those connected to motherhood and parenthood, the way these legal guarantees have been understood, interpreted and applied has been restrictive and rarely gender-progressive. This book has showed that the roots of this can be found in the entrenched patriarchal ideas about women’s appropriate role in both private and public life; a failure to see and understand gender as a social construct, and to recognise gender order as a pervasive social structure that is neither natural, nor neutral or just; a largely formal understanding of equality and a restrictive conceptualisation of what constitutes discrimination; and a limited understanding of the role of law and of rights in the shaping of social relations. In this chapter, I summarise these matters in detail: women and gender in section I, equality and anti-discrimination in section II, and law and rights in section III. The book has further observed that the hostility to gender equality among lawmakers, judges and legal scholars is post-socialist, that is, that the legal approach to women and gender equality after 1989 has been considerably path-dependent on the state-socialist past. In section IV, I tease out the continuities and discontinuities between the two periods. I.  WOMEN AND GENDER

State socialism in Czechoslovakia did a lot for women: it equalised their legal status with men, facilitated their access to the public sphere of education, paid work and politics, and eliminated various legal limitations,

Women and Gender 301 for example in access to abortion or divorce. The socialist state’s general emphasis on socio-economic well-being for all benefited women. Women were, moreover, specifically supported and protected as mothers, through provisions of labour and social security law in particular. The legal gains of state socialism have been largely retained after 1989, notwithstanding some decrease in the generosity of social protection and social welfare, for example in the financing of childcare facilities. The problem was that the ‘woman question’ under state socialism was about women fulfilling certain set roles (workers, mothers) and, as the term suggests, it was exclusively about women and not men. The socialist state’s policy considered neither that the male-based norm in the public spheres of politics and paid work might need redefining to accommodate the different experiences of women and carers, nor a redefinition of men’s role in the home. Men and androcentrism were not part of the picture. The fact that the division of labour and ideas about the roles of men and women were socially constructed was neither seen nor challenged. There was no awareness of gender as a specific axis of disadvantage. The material disadvantage women face under patriarchy was partly addressed through the elimination of private property, which levelled men down, and by a generous social security system, which was seen by some as compensation for women’s motherhood penalty on the labour market, which somewhat levelled women up. But while the political and legal systems were partially capable of addressing socio-economic gender-related injustices, they completely lacked a conceptual apparatus to address the cultural roots of gender inequality and the symbolic harms of patriarchy. This intellectual gap has been largely retained in the post-socialist period. Why was gender not ‘seen’? The socialist state’s ideological preoccupation with the abolition of private property and class led to an underestimation of the role of other axes of disadvantage, including gender. This blindness of officialdom was not remedied in other segments of the statesocialist ­society, neither by experts and legal scholars, nor by the dissent that otherwise fought for human rights. When women themselves identified oppression in state-socialist Czechoslovakia, it would have been ascribed to the ‘regime’ rather than to patriarchy, or at most to the state’s patriarchy rather than a private or societal one. A bottom-up women’s, let alone feminist, movement, which would have raised consciousness about gender and the gender order, never materialised. Since 1989, the blindness to gender and the gender order has persisted. The existence and extent of gender inequality has been denied. When it has been acknowledged, it has been considered not as an injustice, but either as a consequence of women’s natural biological difference, an explanation largely inherited from state socialism, or as a consequence of women’s choices, an explanation connected to the rise of economic neoliberal

302  Conclusions narratives. Even when the injustice of gender inequality was acknowledged, lawmakers and judges would deny responsibility for it. Instead of sharing the responsibility with men, employers, the state or the law, the burden has been placed firmly on women. Gender continues to be ignored as a meaningful category for an analysis of society and the law. Furthermore, an uncompromising market-liberal narrative of choice and individualism has joined the inherited social conservatism; together they continue to obscure the systemic set-up and forces that prevent gender equality in law and reality. Although awareness of gender, the gender order and gender inequality has been slowly rising since 1989 among social justice activists and in some disciplines, such as sociology, it is still missing among lawmakers, judges and in legal academia. Ideas of emancipation and equality are still largely connected with the ‘defeminising’ period of the 1950s and the iconic image of a female tractor driver. State socialism is not only perceived as having shown that emancipation and equality do not truly work for women in practice, but has also created a toxic conceptual legacy that has ex ante discredited attempts to open the debate about gender equality after 1989. II.  EQUALITY AND ANTI-DISCRIMINATION

Equality was a central concern of the socialist state. Its equality project was transformative in its aims and results, in terms of the eradication of poverty and socio-economic levelling. It subscribed to a substantive understanding of equality, as it was understood that different real-life situations might require different treatment. Since women were considered different because of their ‘role’ as mothers, this often led to their special preferential treatment. Most of these provisions, however, were about protection rather than facilitation and empowerment. For example, the individual care of children in the home was increasingly supported towards the end of the state socialist period, but there was no support for a true reconciliation of private and professional life for both men and women. Most measures were badly tailored, for example excluding men from care and banning women from more types of work than necessary. Furthermore, the apparent generosity of the measures was often counterproductive, such as the very long periods of maternity leave that made women less viable workers. Moreover, the perceived difference between the sexes also led to a ready acceptance of worse treatment for women in comparison to men. Neither structural inequalities, such as widespread segregation of men and women into different sectors of the economy and the related gender wage gap, nor individual acts of discrimination were actually identified and labelled as discriminatory. The state-socialist understanding of equality between the sexes was based on an assumption of a natural difference between men and women.

Law and Rights 303 The lack of legally enshrined anti-discrimination rights under state socialism was symptomatic of this: the conceptual step that the law should interfere with discriminatory acts, the cornerstone of the understanding of anti-discrimination law in the West, was not made. The absence of a legal guarantee was remedied after 1989, in statutory law in order to comply with EU membership requirements. However, gender equality and antidiscrimination laws continue to be rejected by lawmakers and judges. My analysis of the decisions of ordinary courts in particular shows widespread misunderstanding of and/or refusal to apply basic anti-discrimination doctrines. Judges, for example, require intent before finding liability, and are reluctant to shift the burden of proof to defendants and award remedies. There appears to be a ‘few bad apples’ understanding of discrimination law, where only intentional acts explicitly based on sex/gender are seen as ­discriminatory. The fact that much discrimination is merely an expression of an unconscious gender bias is not realised in the Czech context. It is therefore no surprise that a woman has yet to fully win a sex discrimination case in Czechia. III.  LAW AND RIGHTS

The socialist state saw law as a tool for social change. This had a range of positive effects, such as the elimination of privileges of class and birth, or early advances in gender equality. The socialist state was, for example, unafraid to interfere in and formally equalise the family. But this also had negative consequences. For example, criminal law was used for political repression and for the suppression of phenomena such as prostitution. Since 1989, this perceived ‘social engineering’ of the previous period has been rejected. Lawmakers have repeatedly expressed the view that law is not the proper means for social change, and especially not to address gender inequality. It is believed that the law should not interfere with the ‘natural’ order of things. This obviously hurts gender equality law, and especially anti-discrimination law, as the notion that law might need to be used to counter gender-based bias, prejudice and discrimination is at the core of these legal doctrines. Law is seen as neutral, while calls for gender-progressive legislation are seen as biased. Law-makers and judges are overwhelmingly unaware of the existence of patriarchal bias in society, or of the fact that it consequently leads to a patriarchal bias in law. Legislators during parliamentary debates have, amongst other things, expressed the fear that new gender-progressive legal provisions, for example on sexual harassment or domestic violence, would be abused by women. This fear of losing privileges and of being called to account is not recognised for the one-sided, gender-biased, ‘male’ perspective that it is.

304  Conclusions On a more technical point, post-socialism also inherited a particular type of self-understanding of the judicial function: a legal formalism, characterised by textual interpretation and the mechanical application of the law. This translates into general scepticism towards purposive interpretation, which has been particularly harmful to anti-discrimination law, an area of law where aim and purpose matter and where, in order to understand what it is, one needs to comprehend at least the basic elements of how equality and discrimination come about in reality. With regard to rights, under state socialism these were not conceptualised as enforceable individual entitlements in the Western sense but were mere policy pronouncements or guidelines to the legislature. Rights were defined by a collective interest, were connected to duties and a sense of desert. The period of post-socialism has, on the one hand, seen considerable continuity with this past, especially concerning the idea that rights are connected to obligations on the part of the rights-bearer and the idea that individual rights require the approval of the majority. Both have been a considerable obstacle to guaranteeing rights to women and anti-discrimination rights. On the other hand, there has been a new understanding of rights as negative freedoms, connected to neoliberalism: the freedom to do what one wants, if one can, without interference. The notion that the rights of the weak and vulnerable need to be protected and enabled by the legal framework has had little traction. Proponents of this almost Darwinian understanding of freedom for ‘the fittest’ have opposed any request for rights from disadvantaged groups, because they see them as ‘requests for protection’ and ‘socialism’. IV.  CONTINUITY AND DISCONTINUITY

Considering the important political, economic and ideological shifts brought about by the Velvet Revolution, the question arises whether the statesocialist approach to gender equality law has remained unchanged since 1989, or whether it has been swept away. I have argued throughout the book that the post-socialist period has been very much path-dependent on the state-socialist past, not only on the surface, ie with regard to legal regulation, but even more importantly underneath the surface, ie with regard to the ideas and concepts underpinning legal regulation, its interpretation and application. At the surface level of legal regulation, the post-socialist period has seen both continuity and change. Both dynamics have had positive as well as negative consequences for gender equality. The continuity has been obvious, as the state-socialist legal order was carried forward after the Velvet Revolution. Much of the state-socialist regulation regarding women was kept in 1989 and well into the post-socialist period. For instance, the generous

Continuity and Discontinuity 305 labour protection and social security benefits for mothers largely continued, and long-standing provisions such as the legality of abortion were retained. But this continuity had negative elements as well, especially in the form of retention of provisions limiting women’s choice, such as the bans on certain types of work, most of which were abolished only recently and some of which are still in force. In terms of change, many gender-related issues that received little attention under state socialism have been legally addressed since 1989. For example, same-sex partnerships were legally recognised, and domestic violence and stalking were specifically criminalised. However, much of this change has been externally driven by EU membership obligations, from anti-discrimination rights to opening parenthood and childcare to fathers. These new provisions are examples of positive change, but they do not necessarily denote a genuine and general shift in attitudes. Moreover, there have been negative changes too. Notably, social welfare provision has decreased somewhat. This decrease has in some instances been indirectly gendered, for example in the scrapping of a social supplement for low-income families, in reality overwhelmingly headed by single women, or the decrease of funding for collective childcare, which again negatively impacts mainly women’s labour participation. But even general policies, such as an increase in the basic rate of VAT from 5 to 10 per cent, have had a gendered impact due to the gendered nature of poverty. New genderconservative or repressive provisions were also enacted, such the common taxation of spouses and the ‘wife discount’, and the criminalisation and administrative repression of persons engaging in prostitution, respectively. I argue, however, that looking at the legal developments only scratches the surface. It is the examination of the intellectual path dependencies that sheds light on the roots of the hostility to gender equality law in post-socialist Czechia. When one looks at the understandings and conceptualisations underlying legal development, one realises that some positive provisions, such as anti-discrimination rights, have been adopted despite a particular understanding of gender equality, rather than thanks to it. The wilful blindness to gender and the refusal to acknowledge that gender inequality exists and is unjust have further prevented the adoption of full guarantees, for example effective remedies for immaterial harm arising out of discrimination. This refusal has frustrated the proper interpretation and application of the enacted provisions, notably when victims of direct and indirect discrimination have brought their claims to the courts. These understandings come most clearly to the surface in the aforementioned negative legal developments that took place in the post-socialist period: for example, the traditional ideas about families shine through the tax provision known as the ‘wife discount’. I suggest that the intellectual path dependence outlined above has taken two forms: an unreflective and mostly unconscious retention of ideas

306  Conclusions ­ eveloped during the state-socialist period, as well as a reactive conscious d rejection to anything perceived as state-socialist. Both have been detrimental to gender equality. The conceptual continuities include blindness to gender and the gender order, in social reality and in law, especially its cultural aspects, such as prejudice and bias. They also include the belief in the objectivity and neutrality of social structures and the law, as well as the unreflective taking of the ‘male’ norm as the basis for legal regulation (eg in labour law), the taking of the ‘male’ perspective (eg in the regulation of prostitution and enforcement of rape law) or the ignoring of possible male participation (eg in the family and in relation to childcare). In terms of equality and anti-discrimination law, there has been continuity in the limited understanding of discrimination merely as overt and intentional misogyny or sexism, and the ready acceptance of the ‘difference’ of women as an explanation and justification for widespread inequality. Anti-discrimination law’s role in combating real-life disadvantage along specific axes such as sex/gender continues to be rejected. Moreover, old categories have been filled with new meanings. For example, although coming from opposite ideological directions, Marxism and neoliberalism both offer economic solutions to social problems. The abolition of private property in Marxism and the ‘invisible hand’ of the market forces in neoliberalism are seen as sufficient for an automatic and correct resolution of most problems pertaining to socio-economic well-being (in the language of Marxism) or wealth (in the language of market liberalism). Neither paradigm thus sees the need to address gender inequalities specifically. The most obvious dynamic, especially in the 1990s and 2000s, however, has been the rejection of the previous ideology and concepts of the statesocialist period. This has been apparent with regard to the ideas of equality and women’s emancipation. The rejection of the use of law as an instrument of social change and the involvement of the state in the market and society has been a reaction to the perceived ‘social engineering’ of the past. The new emphasis on the individual, freedom and privacy has been an attempt to distinguish post-socialism from the perceived tyranny of the collective good. These apparent rejections require, however, three qualifications. First, the discontinuity is often merely apparent. For example, feminism is rejected in part because the state-socialist period is often identified as having been feminist. But I have shown that this was not the case—Marxism and most state-socialist experts and legal scholars viewed feminism as a useless bourgeois pastime. The socialist state did expropriate the rhetoric of women’s emancipation and equality, but was completely blind to gender. Statesocialist lawmakers, judges or legal scholars thus did not see gender as an axis of disadvantage, let alone as a crucial or even primary one, and they cannot therefore be considered feminist. The rejection of feminism in the post-socialist period, although apparently an instance of discontinuity and

Continuity and Discontinuity 307 rejection, is thus more in keeping with state-socialist attitudes than many in Czechia realise. Secondly, much of the rejection happens at the level of rhetoric and is very selective. The rhetoric has not been strong enough to annihilate all, or even most, of the inherited socio-economic provisions, but it has been used to prevent new gender-progressive legislation, most notably anti-discrimination law, from being adopted and implemented effectively. Lastly, the objections to and rejections of the previous period’s ideas are not carefully, dispassionately and rationally formulated but are perfunctory, casual and rather thoughtless reactions. The accusation of being ‘communist’ or ‘socialist’ has often been used to disarm ab initio, as I have shown in examples from parliamentary debates. This has made discussions of the actual merits of gender equality law very difficult. To summarise, Czechia has not yet shaken off the legacy of state socialism. Path dependencies exist not only at the very visible level of legal regulation, but also and especially at the underlying level of understanding and conceptualisation. They have been determinative of the existence, quality, interpretation and application of legal provisions on gender equality. Gender equality has in fact had the worst of both worlds of path dependence: there has been continuity with the intellectual limitations of the statesocialist project, as well as discontinuity with some of its achievements.

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330  Bibliography ——, ‘Metodika hodnocení dopadů na rovnost žen a mužů pro materiály předkládané vládě ČR [Guidelines for Gender Impact Assessment of Materials to be Presented to the Czech Cabinet]’ (Úřad vlády ČR, 2015), at www.vlada.cz/assets/ppov/ rovne-prilezitosti-zen-a-muzu/Projekt_Optimalizace/Metodika_GIA.pdf ——, ‘Novela zákona o veřejném ochránci práv—EU’ (‘Proposal of Act Amending the Act on the Public Defender of Rights (Print No 379/2015)’ (PSP ČR 2015) www.psp.cz/sqw/historie.sqw?o=7&t=379 ——, ‘Akční plán pro vyrovnané zastoupení žen a mužů v rozhodovacích pozicích na léta 2016-2018 (Action Plan for Equal Representation of Women and Men in Decision-Making Positions 2016-2018)’ (Úřad vlády ČR 2016) www.vlada.cz/cz/ clenove-vlady/pri-uradu-vlady/jiri-dienstbier/aktualne/vlada-schvalila-akcni-planpro-vyrovnane-zastoupeni-zen-a-muzu-v-rozhodovacich-pozicich-146798/ ——, ‘Novela zákona o nemocenském pojištění’ (‘Governmental Proposal of an Act Amending the Act on Sickness Insurance; Print No. 821 of 2016)’ (PSP ČR 2016) www.psp.cz/sqw/historie.sqw?o=7&t=821 ——, ‘Vládní návrh zákona, kterým se mění zákon č. 117/1995 Sb. o státní sociální podpoře, ve znění pozdějších předpisů’ (‘Governmental Proposal to Amend the Act on State Social Support; Print No. 854/2016)’ (PSP ČR 2016) www.psp.cz/ sqw/historie.sqw?o=7&t=854 ——, Zpráva za rok 2015 o rovnosti žen a mužů a o naplňování Vládní strategie pro rovnost žen a mužů v ČR na léta 2014–2020 [2015 Report on Equality of Women and Men and Fulfilment of the Czech Government's Strategy for Equality of Women and Men 2014–2020] (Ref No 8070/2016-OLP; on file with the author, 2016) Czech Parliament Chamber of Deputies, ‘274. usnesení výboru pro evropské záležitosti z 39. schůze konané dne 6. prosince 2012 (Resolution No. 274 of the Committee for European Affairs from 6 December 2012)’ (IPEX 2012) www. ipex.eu/IPEXL-WEB/scrutiny/COD20120299/czpos.do Czechoslovak Government, ‘Explanatory Memorandum to the Governmental Proposal of an Act Amending the 1950 Criminal Code’ (PSP ČR, 1956) www.psp. cz/eknih/1954ns/tisky/t0094_03.htm European Commission, 23rd Annual Report and its Statistical Annex (EUR-Lex, 2005), at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52006DC0416 ——, ‘Commission Staff Working Document Part I: Policy Areas Accompanying the Document Report from the Commission Monitoring the Application of Union law 2014 Annual Report 9SWD/2015/0134 final)’ (EUR-Lex 2014) http://eur-lex. europa.eu/legal-content/en/TXT/?uri=CELEX%3A52015SC0134 ——, Report Monitoring the Application of European Union Law. 2014 Annual Report (EU, 2014), at ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/ annual-reports/index_en.htm ——, Maternity, Paternity and Parental Leave: Data Related to Duration and Compensation Rates in the European Union (European Parliament, 2015), at www.europarl.europa.eu/RegData/etudes/STUD/2015/509999/IPOL_STU(2015) 509999_EN.pdf European Network of Legal Experts in the Field of Gender Equality, ‘Legal Approaches to Some Aspects of the Reconciliation of Work, Private and Family Life in Thirty European Countries’ (European Commission, 2008) http:// ec.europa.eu/justice/gender-equality/files/reconciliationfinal28aug2008_en.pdf

Bibliography 331 Fourth World Conference on Women, ‘Beijing Declaration and Platform for Action’ A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995) Group of MPs, ‘Proposal to Amend the Act on Registered Partnership (Print No 320/2016)’ (PSP ČR 2014) www.psp.cz/sqw/historie.sqw?o=7&t=854 Ministry of Justice, ‘Case Law Database’ www.nsoud.cz/Judikaturans_new/ judikatura_vks.nsf/uvod ——, ‘Proposal to Amend the Code of Civil Procedure (Print No 537/2011 became Act No 396/2012)’ (PSP ČR, 2011), at www.psp.cz/sqw/historie.sqw?o=6&t=537 ——, ‘Average Length of Proceedings’ (Ministry of Justice 2012), at http://cslav. justice.cz/InfoData/servlet/FileServlet?tabulka=ccav_dokument_ sestavy&sloupec=obsah_dokumentu_html&where=id_dokumentu=453744&typ Sloupce=html&fileName=null ——, Předkládací zpráva pro vládu ČR k Istanbulské úmluvě Supporting Report for the Cabinet on the Istanbul Convention] (Ref No 9641/2015-LO-SP/18—on file with the author, 2015) ——, ‘Average Length of Proceedings’ (Ministry of Justice, 2016), at http:// cslav.justice.cz/InfoData/servlet/FileServlet?tabulka=ccav_dokument_ sestavy&sloupec=obsah_dokumentu_html&where=id_dokumentu=1036918&ty pSloupce=html&fileName=null. Ministry of Labour and Social Affairs, ‘Ministryně představila čtyři opatření, která podpoří rodiny (Press Release: The Minister Introduces Four Measures to Support Families)’ (MPSV, 2015), at www.mpsv.cz/cs/21781 Office of the Public Defender of Rights, ‘Discrimination in the Czech Republic: Victims of Discrimination and Obstacles Hindering their Access to Justice’ (Office of the Public Defender of Rights, 2015), at www.ochrance.cz/fileadmin/user_ upload/DISKRIMINACE/aktuality/diskriminace_EN_titulka_zadnistrana.pdf ——, Závěrečné stanovisko veřejného ochránce práv ve věci sterilizací prováděných v rozporu s právem a návrhy opatření k nápravě (Final Report on Illegal Sterilizations and Proposals for Remedy) (No: 3099/2004/VOP/PM a násl., 2004) Police Presidium, ‘Statistické přehledy kriminality za rok 2015’ (Policie ČR, 2015), at www.policie.cz/clanek/statisticke-prehledy-kriminality-za-rok-2015.aspx Poslanecká sněmovna (Chamber of Deputies), ‘Poslanci [List of Deputies]’ (PSP ČR, 2016), at www.psp.cz/sqw/fsnem.sqw Senate, Resolution No 377 of 2008 (23 April 2008, on file with the author) ——, ‘Senátoři [List of Senators]’ (Senát ČR, 2016), at www.senat.cz/senatori/index. php?par_2=2 UN Women, ‘Progress of the World’s Women 2015. Transforming Economies, Realizing Rights’ (UN Women, 2016), at http://progress.unwomen.org/en/2015/ World Bank, The, Transition. The first ten years (The World Bank, 2002) ——, ‘The Little Data Book on Gender 2016’ (International Bank for Reconstruction and Development/The World Bank, 2016), at https://openknowledge.worldbank. org/bitstream/handle/10986/23436/9781464805561.pdf

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Index NB–unless otherwise stated, all references are to the Czech Republic abortion, 32, 37–38, 59, 60, 62, 300–01, 305 population decline and, 43–44, 48 post-socialism, 144, 149, 296 state socialism, 79, 166, 168–69, 292 accession to the EU, 1–2, 149–50 anti-discrimination law and, 229–35 membership obligations, 88, 143, 149, 229–35 see also European Union Act on Family 1963, 67, 159 Act on Family Law 1949, 33–34, 35, 65–66, 75 Act of Protection against Domestic Violence, 182 Act on Protection of Victims of Crime 2013, 182–83 Act on Registered Partnerships 2006, 151, 159–60, 279, 282 Act on the Artificial Interruption of Pregnancy 1957, 37, 48 affirmative, positive action, 86, 88, 96, 195, 221, 227, 285 alimony see child support androcentrism, 5, 115, 122, 191, 209, 275, 285–88, 301 Anti-Discrimination Act (ADA) 2009, 1, 151, 171, 182, 229–235 anti-discrimination law, 4–5, 6, 85–90, 97–99, 273–75 adjudication before the courts, 238–63 comparator, 17, 94, 272 direct discrimination, 86, 99, 221, 227, 243–263, 275 indirect discrimination, 86, 89, 196, 216, 222, 227, 242–244, 255–75, 285 motivation, 256–62 see also fault and intent protected grounds, 84, 89, 92–93, 182, 226, 232, 238, 251–263 transposition of EU law, 229–35 see also equality, harassment bans on work, 44, 51–52, 62, 101, 121, 173–74, 217–18 hazardous working conditions, 51–52

night work, 51, 97, 101, 216–17, 220–21 work underground, 52, 173–174, 217–18 bias, 5, 10, 13, 86, 88, 94, 127, 163–164, 180, 183, 188, 209, 249, 259–75, 286–88, 297 biological difference, 5, 14, 86, 91, 94–99, 116–24, 135, 161, 174, 220–21, 271, 283 burden of proof, 195–96, 221–23, 240–42, 244, 248, 257–265, 272 triple, double, 41, 46–48, 52–53, 122, 125, 135–36 Charter of Fundamental Rights and Freedoms 1993 see Czech Charter childbirth, 51, 167–69, 171 childcare benefits, 40–41, 50–51, 101, 218, 270, 285 child support, 35, 37, 45, 59, 75, 156, 158, 163–65, 204, 207, 279, 284 Civil Code 2012, 68, 159–60, 161, 192 class, 5–6, 269 origin, 67, 78 state socialism, 84–86, 92–94, 100, 109, 118–23, 131, 134–136 substantive equality and, 92–94, 100 collective interests, 59, 67, 78–80, 191, 197–98 rights and, 6, 7–8, 78–80, 82, 197–98, 304 collective childcare and housework, 40–43, 62, 147–48, 153, 157, 301, 305 Communist Party, 22, 29, 31, 35, 41–42, 53–55, 66–71, 81–82, 96, 99, 112–13, 136, 180–81 communist subjects, 130–34 conservatism, 15–16, 20, 28, 47, 55, 59, 62, 106, 128, 134, 144–48, 151–52, 159–61, 164–66, 199–202, 220, 276–280, 296–97 Constitution 1948, 65–66 equal access to all occupations, 40 equality in the family, 33–35 right to work, 38 Constitution 1960, 67, 74 equality guarantees, 42 Constitution 1993, 214, 217

334  Index Constitutional Court (CCC), 9–10 case law, 216, 223–25 burden of proof, 222–23, 262–63 child custody, 222 night work by women, 217–18 registered partnerships, 160–61 Roma segregation, 263–65 pensions, 18, 40, 50, 101–02, 172, 175–76, 195–96, 216–23, 270 Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) 2016, 3, 155, 280 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 17–18, 118, 166–67, 300 Czech Charter of Fundamental Rights and Freedoms, 78, 91, 161, 196–97, 213–15, 222–25, 252–53

European Court of Justice: Constitutional Court, impact on, 195–96, 222 equal pay, 260–61 indirect discrimination, 89 night work, 52, 174, 217 positive action, 88–89 work underground, 52, 174, 217 European Union: accession to the EU and membership obligations, 1, 149–50, 225–36 direct effect, 235–36, 265–266 equality acquis, 2, 226–27 gender framework, 182, 225, 226–27 indirect effect, 235–36 preliminary reference procedure, 236–37, 237 expropriation, 93, 129–30, 132

denials of inequality, injustice and responsibility, 114–16, 282–85 difference see biological difference disregard for law, 5 post-socialism, 90, 193–94, 263 state socialism, 70, 75–76 dissident(s), 54, 130, 292 division of labour in the family, 9, 43, 141, 158, 162–63, 169, 301 divorce, 35–36, 44–45, 57–59, 301 domestic violence, see gender-based violence

family, family policy, 7, 33–37, 44–47, 53–59, 152–56, 158–169 see also marital normativism fathers, see men fault, 10, 35, 255, 257–79 feminism, 10, 11–16, 129–37, 288–98 ‘difference feminism’, 293 East-West, 2–3, 12–14, 23, 56, 113–15, 119, 127–32, 169, 183, 219–20, 282–95 feminist legal theory, 297–98 ‘first wave’, 10, 30, 87, 106, 128 liberal feminism, 294 Marxist/socialist feminism, 294 radical feminism, 10, 118–19, 129, 183, 292–94 ‘second wave’, 10, 13, 18, 56, 128, 288, 292–294 ‘third wave’, 10, 292–294 see also gender forced sterilisation 56, 59–61, 166, 206–07, 224 freedom, 7, 52–53, 197–207, 304 choice, of, 1, 47, 53, 114, 127, 164, 167, 206, 217, 269–74, 283–84, 287

emancipation, 56–58, 71, 108, 134, 289–90 émigrés, 32, 55, 192 enlargement, see European Union equality formal, 7–8, 35, 85–88, 92, 218, 268–70, 275 spouses, 45, 58 right, as a: 1948 Constitution, 89 1960 Constitution, 89–90 1965 Labour Code, 90 1993 Charter, 213–15 substantive equality, 85–89, 92–94, 270–71 Western European approach compared, 86–89, 92–93 European Convention on Human Rights (ECHR), 78–79, 80, 244, 263–264, 267, 270–71 European Court of Human Rights (ECtHR), 215, 219, 244, 251–252, 263–265, 272 childbirth, 166–69 pensions, 219 segregation of Roma children, 263–264

gay rights, see LGBT rights gender blindness, 4, 8, 10, 100, 103, 285–88, 301–02 exclusion of men, 47, 56, 97, 122, 130–135, 270 legal scholarship, 295–98 patriarchy and, 117–18, 137 order, 14, 96, 116–17, 128, 183, 272, 286, 291 see also patriarchy

Index 335 roles, 13–14, 34–36, 44–58, 96, 103, 116, 120–22, 127–35, 199, 220–221, 271 stereotypes, stereotyping, 93, 96, 99, 116–17, 120–23, 127, 163, 174, 188, 220, 260–61, 292 wage gap see wage gap gender-based violence, 8–9, 18, 118–19, 142, 180–86 rape, 18, 37, 118–19, 142, 181, 185, 187–88, 284, 296, 306 sexual coercion, 181, 191, 206 sexual harassment, 182 see also harassment stalking, 181 trafficking, 181 grounds for discrimination see antidiscrimination law harassment, 18, 118, 120, 142, 180, 182, 185, 202, 206, 208, 284, 288, 303 homosexual, homosexuality see LGBTQ home births, 3, 168, 206 identity, 18, 134–35, 287 indirect discrimination see anti-discrimination law individualisation of inequality, 114–15, 119, 272–73 institutional bias, 5, 263, 285 see also bias intent, 10, 213, 256–59, 268, 282, 303 see also fault International Covenant for Civil and Political Rights (ICCPR), 54, 76–77 International Covenant for Economic, Social and Cultural Rights (ICESCR), 54, 76–77 intersectionality, 12, 152 judicial scepticism, 1–3, 20–21, 95, 104, 267 Labour Code 1965, 40, 49–51, 67, 75, 90, 92 prohibition on night work, 51, 97, 101, 217 prohibition on work underground, 174 sexual harassment, 246 Labour Code 2006, 68, 170–175, 192, 193 grounds for discrimination, 252 parental leave, 175 pregnant women, 170 prohibition on work underground, 174 sexual harassment, 232, 246

labour relations, 30, 73, 81, 102, 214, 230, 231–32, 265 law, 6–7, 64–65, 303–04 disregard for law, 74–76, 193–94 private and public law distinguished, 71–74, 204–05 leave: maternity leave, 46, 96, 148, 175–76, 179 parental leave, 170–71, 175–179, 228, 266, 285 paternity leave, 151 legacies, 20–21, 78, 142, 145–46, 277 continuities, 304–06 discontinuities, 306–07 legal, 75, 193–98 legal formalism, 194–196 interpretation: teleological, 89–90, 194–96, 243, 255, 262, 296 textual, 67, 69–70, 90–91, 194–95, 245, 255 scholarship, 12–13, 23, 209–210, 296–99 ‘legitimate’ and ‘illegitimate’ children, 34–35 LGBTQ rights, 13–14, 152, 158–59, 280, 282, 287 marital normativism, 36, 44–46, 53–59, 151, 158–65 Marxism-Leninism, 66, 306 biological difference of women, 119–23 class and, 119–20, 137 feminism and, 292, 294 materialism, 126 patriarchy as oppression, 117–19 production/reproduction dichotomy, 105, 123–25 property ownership, 38, 132 redistribution of wealth, 126–27 social roles and functions of women, 121–23 ‘woman question’, 7, 87, 107, 109–11 maternity policies, 7 maternity leave and, 40, 46, 96, 148, 170, 171–72, 175–76, 179 maternity allowance, maternity benefits, 40, 50, 61, 96–97, 101, 148, 171, 175–79, 285 men, equality of: case law, 216, 220–25 burden of proof, 222–23 child custody, 222, 253, 265 pensions, 218, 219–20 fathers, as, 34–37, 46–47, 62, 95, 175–76, 218–22, 265–66

336  Index motherhood, 5, 169–80 penalty, 164–65 protection in labour law, 50–51, 170–75 see also childbirth and maternity policies neoliberalism, market liberalism, 19, 199–200, 204, 208, 277–79, 287, 306 non-governmental organisations, 143–44, 148, 150, 152, 155–56, 158–59, 167, 182–83, 233, 278, 281, 288, 291, 293, 297 normalisation period (1969–89), 53–62 economics, 54–55 law and rights, 68–70 Ombudsperson see Public Defender of Rights parental benefits, 151, 153, 177–180, 266 flexible parental leave, 178 reforms of current system, 179–80 see also maternity policies; parental leave; paternity leave parental leave, 75, 157, 162, 170–71, 177–79, 194, 228 fathers, 175–76 length of, 297 pension benefits and, 285 paternity leave, 3, 151 path-dependence, 4 see also legacies patriarchy, 14, 34, 126–27, 137, 184–85, 272, 286–94, 301 familial patriarchy, 34, 135–36 Marxism-Leninism, and, 117–19 state, 135–36 state socialism, 117–19, 135–36 see also gender order ‘personality protection’ under the Civil Code, 234–35, 246 political parties: Civic Democratic Party (ODS), 149, 151, 164, 185, 193, 200, 204, 208, 269, 279, 281–82 Christian Democratic Party (KDU-ČSL), 154, 156, 159, 184, 203, 269, 279 Communist Party, 281 Green Party, 281 Social Democratic Party (ČSSD), 149–51, 155, 161, 184, 202–04, 229, 269, 278–79, 280–81, 288 political pluralism, 28–29, 41–42, 144, 148–49, 279–80 population: abortion and, 43–44, 48 bans on work, 51–52 crisis, 43–44, 48–49

pro-population policies, 61–62 protection of motherhood, 49–51 pornography, 52–53 Prague Spring (1968), 29, 32, 42 pre-communist foundations, 20, 29–31, 81, 106, 108, 128, 277 pregnancy, 17, 49, 177, 250 contraception, 38 guarantees for pregnant women, 50, 170–71, 172–73, 220, 246–47 protection from dismissal, 96, 193, 236 see also abortion; childbirth; motherhood preliminary reference procedure, 222, 235–36, 237 primacy of socio-economic rights, 76–78, 196–97 private law, 68, 71–72, 204–05 regulatory, 71, 154, 204–05 procurator, 37, 82 property rights, 14, 34–35, 65–66, 72–73, 87, 93, 108, 110–11, 123, 159, 192, 197, 204–05, 251, 301, 306 men, 132–33 prostitution, 52–53, 70–74, 142, 185–86 protective labour legislation, 30, 40–41, 51–52, 73, 79, 97, 169, 173–74, 193, 219–20, 250, 269, 274 Public Defender of Rights, Ombudsperson, 154, 173, 198, 203, 233, 242–43, 282, 296 public law, 7, 71–74, 204–05 public/private divide, 36, 39, 56, 59, 62, 111–12, 130–34, 204–05, 290, 293 rape, 18, 37, 118–19, 142, 181, 185, 187–88, 284, 296, 306 see also gender-based violence registered partnership (same-sex couples), 144, 151, 158–61, 181, 202, 204, 207, 256, 279, 282 see also Act on Registered Partnerships rights: post-socialism, 196–210 rights as freedoms, 205–07 state socialism legacies, 196–198 state socialism, 76–82, 304 collective interest, 78–80 primacy of social rights, 76–78 rights enforcement, 80–82 see also law Roma people, 224 discrimination, 80, 143, 152, 193, 197 forced sterilisation, 56, 60–61 segregation in schools, 231, 263–64, 267 rule of law, 77, 143, 191, 192, 199–200

Index 337 segregation gender, 98, 120, 302 horizontal, 112, 116 of Roma, 231, 263–64, 267 vertical, 113, 116, 157 sexual identity see LGBTQ single parents, 163–64 child support, 165 social engineering, 6, 7, 9, 71, 82, 201, 210, 278, 303, 306 socio-economic inequality, levelling, 8, 77–79, 92–94, 100–103, 110, 123, 126, 196, 217, 292, 300 see also class spouses: economic relationships between, 34 formal equality, 58–59, 71 property rights, 34 taxation, 158–60, 162–63, 265–66, 305 wife discount, 158, 162–63 see also divorce Stalinism, 30–32, 36–37, 53, 66–67, 70, 73, 78, 131

sterilisation, see forced sterilisation substantive equality, 85–86, 92–94, 270–71 see also equality transsexual, transsexuality, transgender, 127, 168 see also LGBTQ Velvet Revolution, 9, 22, 55–56, 60, 68, 142–45, 146, 190, 192, 213, 268, 272, 304 wage gap, 40, 99–100, 105–06, 113–27, 157 ‘woman question’, 7, 107, 109–11, 301 women’s organisations, 41–42, 130, 144 see also non-governmental organisations work obligation to work, 39 right to work, 39–40, 131 see also bans work, Labour Codes 1996 and 2006, protective legislation work/care dichotomy, 49–52, 164–65, 173–74, 177–80

338