Gender Perspectives in Private Law 3031140915, 9783031140914

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Gender Perspectives in Law 4

Gabriele Carapezza Figlia Ljubinka Kovačević Eleonor Kristoffersson Editors

Gender Perspectives in Private Law

Gender Perspectives in Law Volume 4

Series Editors Dragica Vujadinović, Faculty of Law, University of Belgrade, Belgrade, Serbia Ivana Krstić, Faculty of Law, University of Belgrade, Belgrade, Serbia

The series ‘Gender Perspectives in Law’ discusses all-encompassing gendercompetent legal questions. Having a gender-competent approach is required when considering the highest values and normative standards of modern international, European, and national law. Raising awareness about gender equality issues means investing in the creation, interpretation, and implementation of legislation that is more fair, just, and equitable and will also contribute to a comprehensive understanding of social reality, as well as to gender-competent political, legal and economic decision-making and public policies. The series accepts monographs focusing on a specific topic, as well as edited collections of articles covering a specific theme or collections of articles.

Gabriele Carapezza Figlia • Ljubinka Kovačević • Eleonor Kristoffersson Editors

Gender Perspectives in Private Law

Editors Gabriele Carapezza Figlia LUMSA University Palermo, Italy

Ljubinka Kovačević University of Belgrade Belgrade, Serbia

Eleonor Kristoffersson Örebro University Örebro, Sweden

This project has been funded with support from the European Commission. This publication [communication] reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein. ISSN 2731-8346 ISSN 2731-8354 (electronic) Gender Perspectives in Law ISBN 978-3-031-14091-4 ISBN 978-3-031-14092-1 (eBook) https://doi.org/10.1007/978-3-031-14092-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The book series Gender Perspectives in Law is a systemic attempt to provide all-encompassing gender-competent legal knowledge. The term gender-competent legal knowledge is used to accentuate the reconsideration of different fields of legal knowledge from the point of gender equality approach and with offering relevant and convincing arguments in that regard. This term is sometimes replaced with the term “gender-sensitive,” which also refers to awareness about the importance of gender equality approach and to its implementing in theoretical and scientific knowledge production. Having a gender-competent approach in legal education is required when considering the highest values and normative standards of modern international, European, and national law. Raising awareness about gender equality issues among researchers and academic scholars in the field of law and other multidisciplinary fields relevant for legal theory and practice, educating in a gender-sensitive manner law students (future lawyers, judges, prosecutors, public officials, members of parliament, and governmental bodies), as well as students of humanities-social sciences, means investing in the creation, interpretation, and implementation of legislation that is more fair, just, and equitable. Prosecutors and judges in particular, but also other legal professionals in all fields of legal practice, public administration, and policy decision-making need to be trained and sensitized in order to encourage a gender-sensitive approach. This will contribute to a more rich and comprehensive understanding of social reality, as well as to gender-competent political, legal, and economic decision-making and public policies. In other words, it means investing into the future based on more gender justice and more social justice and human rights protection in general. In the end, it will help fulfill the essence of contemporary law—equal respect and protection for all individuals, which leads to their equal opportunities and diminishes the possibility of gender discrimination. This book series, Gender Perspectives in Law, attempts to cover all relevant subjects of legal knowledge from a gender equality perspective. The plural designation is entitled because there is a plurality of feminist understanding of gender equality issues generally speaking and insofar also within the law. The call for papers was open for professionals in legal, political, sociological, and historical v

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fields of interest with an attempt to cover, as much as possible, specific relevant topics, in order to provide an overview of the gender competent deconstructing and reconsidering the way they are articulated in the dominant thought, i.e. the mainstream within the law. The authors in the series’ volumes try to establish a gender equality approach to different fields of law while taking into consideration specific issues of their interest and attempting to consider chosen different aspects of legal knowledge and practice in a paradigmatic gender-competent manner. They attempt to critically reconsider the dominant molds of legal knowledge and present innovative gender-sensitive and gender-competent insights relating to different issues within all fields of law, in order to introduce new research topics relevant for gender equality in law, as well as to stimulate the development of a legal and institutional framework for achieving gender equality in real life. The degree to which mainstream knowledge has been reconsidered from a gender equality perspective differs between contributors. Moreover, a variety of relevant legal subjects and other closely related subject matters are covered in varying degrees by the selected texts. This book series Gender Perspectives in Law encouraged scholars and experts from different fields of law and humanities-social sciences to reconstruct their legal and multidisciplinary knowledge from the standpoint of gender equality. This book series should inspire further attempts of this kind, as a reconsideration of legal and multidisciplinary knowledge from a gender perspective has become an axiomatic task. If contemporary law is defined primarily from the human rights point of view, then it is necessary to take a gender equality perspective; the human rights foundation of law cannot be regarded as the civilizational standard without also incorporating women’s rights and gender equality approach in general, articulating them in the mainstream legal and political thought, and eliminating gender-based biases and discrimination within the dominant legal systems. The book series Gender Perspectives in Law represents the added value to the project Erasmus+ Strategic Partnership in Higher Education, called “New Quality in Education for Gender Equality Strategic Partnership for the Development of Master’s study Program Law and Gender (LAWGEM).” The fourth book in the series Gender Perspectives in Law, which is titled Gender Perspectives in Private Law, discusses prominent and controversial gendercompetent issues across family law, tort law, labor law, civil procedure law, ADR, and private international law. An important critical assumption of authors is that the gender equality perspective has been quite neglected in many of branches of private law, since scholars researching the intersection of gender and legal studies are mostly focused on public law and human rights law. In that sense, the authors of papers in this edited volume contribute not only to the deconstruction of the genderblind private law, but also to providing a gender-competent analysis within key branches of private law, starting with private international law (Župan & Derventić). Gender perspective in family law is analyzed through: gendered and heteronormative operations of family law by reference to the formation of legally recognized relationships, the attribution of legal parenthood, the division of marital property on divorce, and arrangements for post-separation parenting (Hunter); regulation of family matters in Indian society (Banerjee-Dube), and gender equality

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perspective from the principle of the best child’s interest (Rabadan). When it comes to tort law, Blandino considers the issue of compensation for damages suffered by women performing unpaid household work. Also, the book contains four contributions dedicated to labor law issues: Kovačević presents the genesis of labor law and its capacity to contribute either to enhancing gender inequality in the world of work or to triggering the promotion of gender equality; Vinković considers the issue of gender segregation in the labor market and its connection to family-friendly policies in the European Union; Kalamatiev and Ristovski address the issue of sexual harassment at work, while Špadina focuses on gender perspective in digitization of work. Finally, Di Salvo deals with gender equality in civil procedural law, while Arsić and Petrušić take into consideration the gender equality perspective in mediation as an instrument for peaceful disputes settlement. The book offers theoretical sophistication that enhances the visibility of range of private law topics of importance for understanding of the ways in which gender inequality shapes everyday experiences, as well as critical consideration of key private law instruments for achieving gender equality. The book Gender Perspectives in Private Law explores gender-competent legal questions across family, tort, civil procedure law, and labor law in international, European, and national perspective. This book raises awareness about gender perspective in different private law disciplines, including the importance of combating gender stereotypes within legal profession. The book includes papers written by Mirela Župan and Martina Derventić, Rosemary Hunter, Ishita Banerjee-Dube, Amalia Blandino Garrido, Fuensanta Rabadán Sánchez-Lafuente, Ljubinka Kovačević, Mario Vinković, Todor Kalamatiev and Aleksandar Ristovski, Helga Špadina, Cettina di Salvo, Jelena Arsić and Nevena Petrušić. Mirela Župan and Martina Derventić deal with the gender equality perspective in private international law (PIL). They explain how feminist theories affect modern PIL legislation and interpretation, and how gender mainstreaming clearly affects the methodology, understanding, and interpretation of this branch of law. The authors explain how “blind” choice-of-law rules stem not from substantive but from conflict justice, and how including feminist theories and gender-based approaches contributes to potentially exposing the imbalance of power, wealth, and oppressive relationships, especially in relation to women, in the rules of PIL. Gender-affected PIL topics addressed in the paper are related to the Council of Europe and European Union (EU) countries, and range from personal effects of matrimony, specifically personal name, celebration, dissolution of a marriage, to child marriage. Among the considered international family law gender aspects are matters of parenthood in transnational surrogacy, child abduction, and domestic violence. Gender issues can be found not only in a wide range of cross-border “private” law areas referring to personal status and family but also in domestic violence torts and contracts where individual employment is at stake. An important critical assumption of Župan and Derventić is that the gender equality perspective has been quite neglected in PIL, the PIL often being characterized as neutral, apolitical, and technical, and not engaged in issues such as gender equality. Generally speaking, feminist scholars have left the

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field of private international law unexplored; scholars researching the intersection of gender studies and legal studies are mostly focused on public law and human rights law. Conversely, PIL scholars have little interest in incorporating a gender perspective into their research. The authors of this paper contribute significantly not only to the deconstruction of the gender-blind PIL, but also to providing a gender-competent analysis within PIL. Rosemary Hunter presents the current state of affairs within family law and points out that despite some steps forward, the model of the heteronormative conception of family is still given a preference. Heteronormativity serves to keep the model of traditional marriages as the standard, leaving aside many changes within society, which require the opening of legal regulation for recognizing right to partnership and to alternative modalities of the family. The author interrogates the gendered and heteronormative operations of family law by reference to four areas of regulation: the formation of legally recognized relationships; the attribution of legal parenthood; the division of marital property on divorce; and arrangements for post-separation parenting. The particular legal rules relating to each of these areas vary between jurisdictions, but family law still has been contributing to the construction of gendered family structuring and gendered sexual roles. The author confirms that family law is confronted in all four areas of regulation with changing social practices and has been challenged to adapt to social, medical, and economic developments. However, she also argues that there is no inevitable process of enlightenment as law becomes more open to gender equality and new family forms in tracing legal responses to these developments. Gender differences and heteronormativity are reproduced and reconfigured in changing family law as well. This critical warning and the author’s pointing that the traditional gender binary is deeply embedded in family law are of great methodological and practical importance. The author also warns that the interpretations of law can reproduce heteronormativity even when legal regulations have been articulated in favor of gender equality: “In many instances, state family law now reflects the notion of marriage as ‘a partnership of equals,’ although this may still be interpreted and applied by courts in accordance with social norms of gender difference and hierarchy. The concept of equality, too, may operate against a social background of gender difference which results in unequal outcomes in the division of property and child care arrangements on divorce.” The author also analyzes different forms of marriage, for example, its extension to same-sex marriage, and points to the fact that alternative relationships forms continue to be marginalized. The gendered complication related to parenthood is analyzed in different modalities. Concerning the division of assets after divorce, Hunter affirms the approach which would have enabled substantive rather than merely formal equality, one which would have been capable of adjusting the division of assets to reflect differential future needs and capacities to meet them. However, as the author assumes, the general direction of law reform in the late twentieth and early twenty-first centuries has gone in the opposite direction—there has been a tendency to favor formal equality in the interests of simplicity, clarity, minimizing litigation, and perceived congruence with the “modern” notion of marriage as a partnership of equals.

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Ishita Banerjee-Dube describes in her paper an extremely complex regulation of family matters in Indian society. More specifically, the author first traces the genesis and evolution of Religious Personal Laws, and their manifold and diverse deployment and ramifications in contemporary India, which is not limited only to the perennial “trouble with marriage.” The author’s focus are Muslim women, who are normally homogenized, categorized, and perceived as “victims” of practices such as triple talaq, polygamy, purdah (veiling), and personal law. This perception holds true not just for South Asia but also for Muslim women in general, a view that turns them into objects/victims who need to be “saved” from the clutches of their own religion, customs, and practices. The focus on India with its “legal pluralism,” which entails a dual commitment to constitutional provisions and ideals, as well as respect for “personal” matters of citizens of particular “religious” communities, opens a richly textured panorama to view the innumerable problems and intractable difficulties that abound in matters related to family and marriage, the rights and responsibilities of the spouses in relation to their children, property, and exit from marriage and family. Such a vista allows serious reflection on the very concepts of rights (legal and otherwise), citizenship, equality, equity, and justice, prompting further probing of the Nation-State and the Law in relation to their capacity to provide “gender justice.” It also induces critical exploration of why women’s struggles and feminist (legal) activism have turned again and again to law and legal intervention (of the State) for achieving gender equity even when the law has been shown to provide solutions that are “neither stable nor predictable,” often failing to offer women viable options of job and housing to make egress from matrimony feasible. Banerjee-Dube presents the scenario of ambiguities and contradictions, contending understandings, and conflicting claims, which serve to highlight how new laws created on account of struggles, activism, and political imperatives of the State are deployed by individuals and groups in anticipated and ingenious ways to lead to unexpected consequences. Such varied consequences of bargaining in the shadow of the law have taught feminist lawyers, scholars, activists, women’s groups, and individual women to displace the overarching and gender insensitive debates of secularism, religion, tradition, culture, and modernization, in their quest for negotiation to gain greater dignity and equity, and to speak of a Uniform Code that includes the most gendersensitive aspects of the personal laws of the different religious communities instead of a forcible application of the existing one. Amalia Blandino considers the issue of unpaid housework, while assuming the gendered character of the housework, as these invisible, unvalued, and unpaid obligations have traditionally and unfairly been reserved for women. The author analyzes the procedural aspects of legal improvements in regard to compensating unpaid homework in different segments and circumstances. This compensation is justified, as the author remarks, whenever injuries sustained during an accident prevent her from temporarily or definitively engaging in her usual occupation, or due to the death of the person who carried out the housework, or even if the victim has not incurred the cost of a replacement housekeeper. A large segment is dedicated to the calculation of compensation, where the author discusses the following issues: the actual replacement cost incurred after an accident happened; the assessment of

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compensation for loss of ability to maintain the household; the situation when the housewife had hired external domestic help before the accident; performance of domestic and paid work before the accident; the assessment of compensation in the case of a one-person household; and economic assessment of the injured housewife’s professional reintegration. However, the author points out that, in order to make progress in gender equality, the recognition of the compensable nature of domestic work must be accompanied by policies to reconcile family and professional life. The main conclusive remark is that policies must enable women to abandon the private role of the domestic worker through an equal sharing of domestic responsibilities between men and women. Fuensanta Rabadan considers the gender equality perspective from the principle of the best child’s interest. The notion of the best interest of the child is a constitutive part of the new type of family relations, which instead of hierarchy and obedience of children within a patriarchal family presumes the autonomy, respect, and personality of children in an egalitarian, democratic family. Gender equality requires incorporating women into the labor market and the public sphere, and men into the private sphere. The author argues that parental responsibility must be equal for both parents and exercised in the child’s best interests, with respect of their personality and complete development. The author argues that co-responsibility is in the child’s best interests, and that this requires work–life balance measures, such as the recognition of individual and non-transferable parental leave. On the other hand, co-responsibility should presuppose models that allow the child to continue living with both parents and the joint exercise of their responsibility for the children, including shared custody if it is in the best interest of the child. Furthermore, equal parental responsibility during the cohabitation or after the break-up must also be accompanied by measures. An important point is that the principle of child’s interests is not a positive measure, but a way of guaranteeing children their status as persons and the fundamental rights to which they are entitled. Since children cannot exercise their rights in the same way as adults, this protection must be adapted to minor’s age and therefore preference must be given to them in the event of a conflict with other interests, including the interests of the parents. However, interpreting the child’s best interest in conditions of divorce and custody, for example, can be overburdened with stereotypes, i.e. the child’s best interests may be interpreted as gender-stereotyped or used to perpetuate gender inequalities (often to harm the mother’s position in the custody issue). The author considers the child’s interests concerning three aspects: parental responsibility, work–life balance, and custody, always taking cautious care to counter-pose analysis to any genderstereotyped manner of thinking and acting. Ljubinka Kovačević presents the genesis of labor law from classical labor legislation up to the actual contemporary labor law state of affairs, with the main assumption that it has been among the crucial fields of regulations affecting gender (in)equality. In other words, the author points to a contradictory capacity of labor law to contribute either to enhancing gender inequality in the public realm of labor or to triggering the promotion of gender equality. The author states that classical labor legislation sought to protect the role of women in society primarily by limiting their

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working hours and night work, and by protecting maternity; thus, labor law was traditionally conceived according to the model of male worker engaged on the basis of the open-ended full-time employment contract. That resulted in regulating only a few marginalized “women’s” labor law issues and the failure to provide sufficient consideration of the specific needs that women have as participants in the labor market, while some of the protective measures eventually blocked women’s opportunities to work under the same conditions as men. The author elaborates ideas on how the use of the feminist method has opened up a new set of labor law issues, with progress in building a legal and institutional framework for protection against gender-based discrimination in the exercise of labor rights. Kovačević proceeds with a critical standpoint that women often have difficulty finding and retaining employment. She also elaborates on an important standpoint, often neglected, that contemporary legislation is aimed primarily at women’s empowerment in the world of work, which leads to oversimplification and ignorance of the importance of men’s role in the implementation of the principle of gender equality both in the world of work and in the framework of work–life balancing. Kovačević also considers potential and actual worsening of gender equality and female labor rights within current historical and conceptual frameworks for regulating the employment relationship. In this regard, she examines the relevant issues surrounding the establishment of the neoliberal developmental strategy, and also the global crisis, migration processes, and refugee crisis, as well as environmental crisis. Kovačević also highlights the substantial worsening of the working conditions for migrant workers and female workers among them, who are becoming the migratory labor force not by choice but as a result of wars and life-threatening living conditions elsewhere across the globe. Mario Vinković considers the issue of gender segregation in the labor market and its connection to family-friendly policies and the equal distribution of family responsibilities in the European Union. He points to the gender equality evolutionary development in the area of employment over a period of more than four decades. The transition process, which intensified with equality policies and the first directives on equal treatment in the mid-1970s, has continued in terms of maternity protection and later parenthood, as well as the promotion of the equal distribution of family responsibilities. This advancement is happening in both developed Western democracies and relatively new Member States of post-communist provenance. The author examines the specific institution of “mother educator” in some national legislations, like Croatia, in an attempt to determine if this mechanism represents a progressive instrument or, on the contrary, a tool for reproducing patriarchy. He also examines the problems of ineffective national anti-discrimination measures, educational inequality, and participation of women in leadership positions while still having to do household work. Vinković attempts to systematically answer the question of whether certain measures are fundamentally contradictory, since most women today still live on two tracks, family and professional. He points to the fact that gender segregation in a broader context, both in the EU and globally, goes far beyond educational segmentation, labor market opportunities, the glass ceiling breaking, and the fight against the gender pay gap. He also reveals the causes of gender

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segregation, such as discrimination, stereotypes, prejudices, cultural differences, and motherhood. In the given context of balancing family and professional duties within a family-friendly working model, the author identifies different (working) welfare state models such as Social Democratic/Nordic Model, Conservative/Corporatist Model, Anglo-Saxon/Liberal Model, Post-Communist European Model, and Models of the Former USSR. The author concludes his gender equality point by stating that gender segregation in the labor market and the equal distribution of family responsibilities as a result of modern family-friendly policies implementations are two sides of the same coin. Accepting change not just in labor relations but also in traditional gender roles is a long and difficult process; still on the agenda is recognizing the importance and function of implementing the principle of equality of women and men as a fundamental principle of the EU’s legal order. Kalamatiev and Ristovski address the topic of sexual harassment at work, starting from its definition, genesis, and causes. The authors highlight the crucial influences of the feminist movement, the increase in the number of employed women, and the general growing awareness about sexual harassment not being a private matter of individuals or the families. Sexual harassment is seen as a serious public concern, which includes the workplace and entails necessary measures and public policies related to the prevention of sexual harassment at work and sanctioning all forms of gender-based discrimination and all forms of discrimination against women at work. The authors highlight that sexual harassment at work became an issue in the theory of labor law, as well as in labor law as such and its implementation in the workplace. The switch toward considering sexual harassment at work as a matter of highest public concern and state protection, is a significant step forward in labor law and the implementation of principles of universal human rights protection, with special protection and recognition of differences for certain minorities, as well as in the principles of the rule of law and constitutional democracy. The authors review the Macedonian labor law and legislation on harassment and sexual harassment. They also cover legal mechanisms for addressing them, as well as protection measures, such as prevention, protection, legal remedies, and sanctions for perpetrators of harassment. As Kalamatiev and Ristovski discuss some challenges and pitfalls in defining and protecting from harassment, they express their hope that the future legal framework for protection against gender-based violence and harassment at work will be more harmonized and improved, and that the awareness of recognizing and reporting such behavior in the workplace will increase. They demonstrate how combatting sexual harassment at work and in general bears great significance for the gender equality approach. Helga Špadina focuses on digitalization of work, which only accelerated with the COVID-19 crisis, and questions whether it affected the equality of parents within a household. The author argues that digital work can bring more productivity and anonymity, which can be particularly relevant for female workers in preventing gender-specific restrictions to gaining information, spreading knowledge, inserting own content, and expressing own opinions, in addition to access to financial transactions, commercial activities, and distance learning. However, her main argument is

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that quite the contrary, digitalization at work leads to increased discrimination of women, especially women on precarious contracts. Špadina points out that legal gaps in the regulation of working hours resulted in workers becoming “omniavailable” to employers, that women lacked child-care support, and that they were socially isolated and excluded from business-related decision-making and professional advancement. The author pays a special attention to gender inequality in four areas where women are over-represented (poverty, part-time work, work from home, and family care and household duties), as well as to three areas where they are still underrepresented (decision-making and political structures, information and communications technologies [ICT], and Science, Technology, Engineering, Mathematics [STEM] education and professions in digital work). Špadina examines particular aspects of digital work that need to be considered from gender equality perspective (the digital skills gap and the digital divide, the gender pay gap in the gig economy, digital work as a double burden of paid and unpaid work, exclusion from social rights in platform work and the link to female workers’ reproductive rights, and the right to disconnect in the context of gender equality). Finally, the author refers to the COVID-19 crisis and how it revealed the disproportionate burden of family care for female workers, its detrimental consequences on the reproductive rights of women, and the need for a better protection of vulnerable groups of women, such as women with disabilities, Roma women, elderly women, and women living in rural areas. Cettina di Salvo deals with gender justice in civil procedural law. The author remarks that most discussions of the effectiveness of gender equality and antidiscrimination legislation focus on substantive rather than procedural provisions. However, it is of crucial importance that procedural mechanisms secure gender equality. The author states that women affected by discrimination in the workplace are in a weaker position in legal proceedings against the discriminator, especially if the perpetrator is their employer. She thus accentuates that effective implementation across the EU requires procedural standards in national proceedings, in order to ensure an individual’s right to bring legal action against discrimination, the ability to properly defend this right before the court, and proper enforcement of the judgment; otherwise, the right to non-discrimination under EU law would lose its purpose. Appropriate procedural standards are, therefore, necessary to achieve equality of conditions in civil proceedings, which facilitate the legal protection of the right to equal treatment between men and women, and to ensure due protection from discrimination based on sex/gender. Di Salvo remarks that the case-law of the Court of Justice of the EU (CJEU) addressing a variety of procedural issues arising from proceedings before national courts prompted the adoption of the EU directives from 2004 and rules on procedure and the principle of procedural autonomy of the EU Member States. As a result of the Court’s rulings, the existing directives on equal treatment for men and women contain certain rules on legal standing, the burden of proof, sanctions, and remedies. The author gives an overview of procedural provisions stipulated in EU directives, which reflects on procedural measures that may be taken or interpretations that may be given in order to increase the effectiveness of non-discrimination right. The author explains the positive impact of the CJEU caselaw and EU law on national procedural regulations. The author concludes that the

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principles mentioned above, specifically effectiveness, have started to affect individual national procedural laws and act as a criterion for determining the basic requirements of fair judicial protection in accordance with the EU law. The author also concludes that it is of the utmost importance that training for national judges and legal practitioners is provided in order to broaden knowledge in terms of gender equality law. In this regard, protocols and joint planning actions between members of the judiciary, lawyers, academics, equality bodies, and NGOs aimed at encouraging mutual exchange and learning, can more efficiently ensure progress toward gender equality. Jelena Arsić and Nevena Petrušić take into consideration the gender equality perspective in processes of mediation as the means of peaceful conflict resolution. The authors state that the impact of gender on mediation has been neglected for a long time, but that in the last few decades, this issue has slowly started to pique the interest of both scholars and practitioners. The role of gender has been recognized in terms of the growing preference in the legal profession for resolving conflicts through mediation. The authors argue that the reasons for giving attention to gender-sensitive issues in the field of mediation are also tied with the necessity to ensure gender equality in all areas affecting the lives of men and women, as well as with the implications of gender equality values in the field of conflict prevention, resolution, and the achievement of fair and long-term standing mediation agreements. The authors consider the importance of the gender-sensitive conflict analysis performed by a mediator as a part of the mediation preparation stage and the mediation process; the importance of recognizing and effectively responding to gender-based power imbalance; and the need for gender-responsive interventions to prevent gender stereotypes and prejudices from negatively impacting the mediation process. Petrušić and Arsić outline a basic methodological approach for conducting mediation in mixed-gender conflict, based on their personal experience in this type of mediation: a gender-sensitive conflict analysis is necessary, which implies the mediator’s perceptions of the causes, motivation, structure, and dynamics of conflict from the gender perspective. Gender-sensitive conflict analysis is especially important in cases involving gender-based human rights breaches, such as domestic violence, sexual harassment, gender-based discrimination, etc. In these cases, gender-sensitive conflict analysis may reveal power relations that create major obstacles to equal participation of the parties in the mediation process, with the potential for secondary victimization. Mixed-gender conflicts require genderresponsive mediation in order for women and men to negotiate on an equal footing and reach fair and sustainable solutions that meet their interests and needs. The papers obviously deal with very different topics related to the field of private law. The converging aim and axis is gender equality—its clarification, articulation, promotion within private law theory and practice. Interesting and indicative enough is the fact that there are authors from different countries and continents. The global relevance of the gender equality perspective in legal education, legislation, and legal professions has been expressed and confirmed in the content and authorship of this book.

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The editors of the book series are grateful to the authors of this volume for offering relevant insights related to different fields of private law. They owe them appreciation for demonstrating a strong motivation and devotion to outlining, clarifying, and affirming the gender equality perspective in different fields of private law and through various issues of interest. They owe a great debt of gratitude and appreciation to the editors of this fourth volume Gender Perspective in Private Law, for their enthusiasm and great contributions. The series editors are also grateful to the publisher, who believed in and supported this pioneering attempt to collect gendercompetent and gender-sensitive legal and multidisciplinary analyses. Finally, the editors believe that the synergy and successful cooperation between authors, reviewers, editors, and the publisher contributed to the quality of all papers in this book and the book series as a whole. Belgrade, Serbia June 2022

Dragica Vujadinović Ivana Krstić

Contents

Gender Issues in Private International Law . . . . . . . . . . . . . . . . . . . . . . Mirela Župan and Martina Drventić The Reproduction of Gender Difference and Heteronormativity in Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rosemary Hunter Family Matters: Gender, Community and Personal Laws in India . . . . . Ishita Banerjee-Dube Compensation for Damages Suffered by Women Performing Unpaid Domestic Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amalia Blandino Garrido The Best Interests of the Child and Gender Perspective . . . . . . . . . . . . . Fuensanta Rabadán Sánchez-Lafuente

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Gender Perspective of Development of Labour Law . . . . . . . . . . . . . . . . 105 Ljubinka Kovačević Leading or Breeding; Looking Ahead: Gender Segregation in the Labour Market and the Equal Distribution of Family Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Mario Vinković Legal Approaches to Protection Against Gender-Based Violence and Harassment at Work with a Particular Focus on the Situation in the Republic of North Macedonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Todor Kalamatiev and Aleksandar Ristovski Digital Work and Gender Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Helga Špadina

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Gender Discrimination: Procedural Issues Between Procedural Autonomy, EU Provisions and Effectiveness of Judicial Protection . . . . . 199 Cettina Di Salvo Gender Perspectives in Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Jelena Arsić and Nevena Petrušić

About the Editors

Gabriele Carapezza Figlia is a Full Professor of Civil Law and a Head of the Department of Law, University LUMSA. Doctor of Philosophy in Civil Law at the University of Sannio, under the guidance of Prof. Pietro Perlingieri (2007), he currently holds the Chair of “Civil Law” and “Comparative Law” at the Department of Law, University LUMSA. He is a member of the Commission for National Scientific Qualification (ASN 2021–2023) and a lay member of the Judicial Council of the Court of Appeal of Palermo. He is also an Ordinary Member of numerous Italian and foreign Academies and Research Centers, including: Italian Society of Civil Law Scholars (SISDiC); Italian Society for Research in Comparative Law (SIRD); Society of European Contract Law (SECOLA); Instituto de Derecho Iberoamericano; Instituto Brasileiro de Estudos de Responsabilidade Civil (IBERC). He has been teaching and planning lectures and seminars for various Italian and European Universities. Author of various monographs, articles, and essays published in Italy and abroad, his monography “Divieto di discriminazione e autonomia contrattuale” was awarded as the best monographic work on Civil Law published in 2013 by the SISDiC. He is a member of the Scientific Board of many Italian and foreign scientific reviews; a member of various Research Projects financed by the European Union, the Italian Ministry for Research, and the Spanish Ministry for Research and scientific responsible of several research projects. He has participated as a speaker at numerous conferences, scientific seminars, and workshops in Italy and abroad. His actual research activity mainly focuses on property law, non-discrimination law, persons and family law. Ljubinka Kovačević is a Full Professor at the University of Belgrade Faculty of Law. Prior to joining this Faculty in 2005, she was a researcher at the Institute of Comparative Law in Belgrade. Currently, she is teaching the following courses: Labor Law; International Labor Law; Social Security Law; Labor and Social Law in the EU—Human Rights Aspects; Sources of Labor Law. She is the author of three monographs (“Legal Subordination in Employment Relationship and Its Limitations” /2013/, “Valid Grounds for Dismissal” /2016/, and “Entering into xix

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About the Editors

Employment Relationship” /2021/) and many papers on Serbian, international, and comparative labor law. Eleonor Kristoffersson is since 2010 a Full Professor in Law at Örebro University in Sweden. Since 2009, she is a teacher at Salzburg University’s summer school in comparative and international private law. Her main research focus is tax law, but she has also publications in private law, and teach both tax law and private law. She has a broad interdisciplinary experience and is coordinating the research schools on aging research at Örebro University.

Gender Issues in Private International Law Mirela Župan and Martina Drventić

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Notion of Gender in Private International Law Research and Methodology . . . . . . . . . . 3 Personal and Property Consequences of Matrimony Through Gender Equality Prism . . . . . 3.1 Personal Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Matrimonial Matters and Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Celebration of Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Gender Aspects of International Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Parenthood in Transnational Surrogacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Child Abduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Domestic Violence Against Cross-Border Mobile Woman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 3 6 8 12 12 15 16 16 18 21 22 24

Abstract Private international law (PIL) per se deals with private law protection in cross-border relations. Numerous issues affected by PIL dictate consideration of a holistic approach, both in theoretical and practical terms. Human rights protection, entailing the fight against gender-based discrimination, is no exception. Moreover, abundant cross-border private situations may take gender into consideration. Feminist theories affect modern PIL legislation and interpretation. Gender mainstreaming clearly affects the methodology, understanding and interpretation of private international law. The feasibility of “blind” choice-of-law rules is challenged in light of contemporary social demands and horizontal policy objectives referring to gender equality and the right to self-determination. The gender mainstreaming is reflected in the systematic mitigation of private international law methods. Instead of only mechanical connecting factors, party autonomy is introduced. However, its feasibility to ameliorate gender based discrimination gets challenged by social reality of patriarchal culture and associated gender roles.

M. Župan · M. Drventić (*) Josip Juraj Strossmayer University of Osijek, Faculty of Law, Osijek, Croatia e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_1

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Gender-affected private international law topics addressed by the paper range from personal effects of matrimony, in particular personal name, celebration and dissolution of a marriage, child marriage. Among international family law gender aspects are inspected in matters of parenthood in transnational surrogacy, child abduction and in the context of domestic violence. Paper addresses the above matters in member states of the Council of Europe and the European Union.

1 Introduction Both the Charter of the United Nations1 and the Universal Declaration of Human Rights2 provided for equality between men and women 70 years ago. The early significant actions of the EU toward gender mainstreaming have occurred in mid 1990s and have been contained in the Maastricht Treaty,3 as well as the European Commission’s document on Incorporating Equal Opportunities for Woman and Men into all Community Policies and Activities.4 However, there are still disparities in the status, rights and opportunities between women and men. Those disparities may arise from lack of legal protection or social, traditional, or cultural circumstances. Due to these disparities, women can experience difficulties in terms of their status at home and at work, their participation in various aspects of private and public life, and even when accessing crucial services such as health care and education.5 In addition, a high rate of violence against women remains present in all forms.6 To address the issues of gender inequality, an appropriate legal framework is needed in both public and private law. The aim of the so-called “gender mainstreaming” is to introduce equality between men and women in all areas of policy even before they are put into practice. This creates a strategy to prevent potential negative effects of gender inequality.7

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United Nations. 1945. Charter of the United Nations. 1 UNTS XVI, Art. 8. UN General Assembly. 1948. Universal Declaration of Human Rights. 217 A (III), Preamble and Article 16(1). 3 Article 3(3) is stating: “In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.” In the Lisabon version of the Treaty the gender equality is manifested trough the Article 2.: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” Treaty on European Union, OJ C 191, 29/07/1992, 1-110. 4 European Commission, ‘Incorporating Equal Opportunities for Women and Men into all Community Policies and Activities’ COM (1996) 67 final. 5 Bayraktaroğlu-Özçelik (2021). 6 World Health Organisation (2018, 2020). 7 Nott (2000). 2

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Private international law per se deals with private law protection in cross-border relations. Numerous issues pertaining to private international law require the consideration of a holistic approach, both in theoretical and practical terms. Human rights protection, entailing the fight against gender-based discrimination, is no exception. Gender may play a role in numerous cross-border private situations. The gender dimension of private international law rules was easily established by the scholarship in cases involving the application of foreign law or the recognition of foreign judgments rendered in a system violating equality between men and women, such as patriarchal family law concepts, Sharia law, etc.8 However, here the authors go beyond this concept. Gender issues are traced not only in a wide range of crossborder “private” law areas referring to personal status and family, but also in domestic violence torts and contracts where individual employment is at stake. These will be dealt with in this paper, however, not suggesting that the list of possible gender-related issues is exhausted. Property issues referring to marital property or assets subject to succession may be gender-affected, in particular if the applicable foreign law is discriminatory. Among various methodological approaches to the matter, authors have chosen to deal with gender mainstreaming by specific subject matter. Within each topic, gender specific aspects deal with the ratio of choice of law rule and specific connecting factors, such as blind vs substance oriented rules; pros and contra party autonomy. Legal tourism, closely linked to attempts of evasion of law as well as narrow or wide construction of public policy are tackled as well. Private international law shall not disregard the socio-economic dimension of its occurrence.9 Sociological dimension of family life is interweaved in each of the subchapters, to assure better understanding of the gender dimension in specific aspect of cross-border relation. Paper addresses the above matters in member states of the Council of Europe and the European Union. Naturally, it refers not only to European instruments, but also to globally accepted conventions and declarations.

2 The Notion of Gender in Private International Law Research and Methodology It can be generally said that feminist scholars have left the field of private international law unexplored. Scholars researching the intersection of gender studies and legal studies are mostly focused on public law and human rights protection law. Conversely, private international law scholars have little interest in incorporating a gender perspective into their research. The field of private international law is often characterised as neutral, apolitical and technical, not engaged in issues such as

8 9

Eekelaar (2016). Muir Watt (2013), p. 71 ff.

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gender equality.10 Many core questions of private international law are inseparable from gender matters, such as the recognition of foreign marriages and divorces, and international surrogacy.11 Private international law can actually play an important role in regulating interpersonal relations in cross-border situations, acting between national laws and public law.12 Due to contemporary extensive migrations, there are many relationships with a cross-border element that are regulated by private international law. In these situations, private international law regulates which law shall apply to these relationships, which court shall have subject-matter jurisdiction over the issue and how a foreign judgment can be recognised and enforced. “Blind” choice-of-law rules do not stem for the substantive but conflicts justice.13 By including a feminist theories and gender based approach therein, the rules of private international law could potentially expose the imbalance of power, wealth, and oppressive relationships, especially in relation to women.14 Unlike the alleged political neutrality of private international law, feminist theory is sensitive to structural inequalities in relation to women in various positions and members of social groups whose ability to shape their lives in self-determining directions is often scarce and inadequate.15 Feminist theories are directed towards achieving a certain result, thereby towards material effects. In the last several years, research studies were focused on the approach that combines the dimension of gender equality and private international law. Two opposing viewpoints can be found in the literature.16 One argues that the feminist methodology, manifested in a philosophically binary and simplified understanding of individual agency in transnational space, can contribute to research in private international law.17 On the other hand, the other position argues that the private international law methodology is sufficient. The existing methodology is remarkably nuanced and can produce results and insights, which cannot emerge from feminist research.18 The questions arise as to whether the benefits of both approaches can be used, whether private international law researchers are ready to incorporate feminist critiques when elaborating on certain legal questions, and whether incorporating feminist methodology into private international law would lead to the conclusion that an apolitical approach to the basic private international law methodology enhances gender-based representation and hierarchies.19

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Michaels (2019). Isailović (2019). 12 Banu (2017). 13 Kegel (1986), p. 15; Vischer (1993), p. 49. 14 Banu (2017). 15 Donchin (2000). 16 Banu (2019). 17 The authors are Mary Keyes, Roxana Banu and Ivana Isailović. 18 See: Knop et al. (2021). 19 Isailović (2019). 11

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Discrimination based on gender may appear in private international law to the fact that the application of connecting factors leads to substantive law that is discriminatory in its origin. Such discrimination would most likely come by the application of objective connecting factors such as nationality or domicile. More precisely, if the choice of law for succession uses a connecting factor of a nationality of a deceased, the substantive law of that state may contain a rule that female child of a deceased does not inherit equally as a male child of a deceased. Thus, the feasibility of “blind” choice-of-law rules is challenged in light of contemporary social demands and horizontal policy objectives referring to gender equality and the right to selfdetermination. From a methodological perspective, the change may be reflected in the systematic mitigation of private international law methods. Most prominent example is the introduction of the party autonomy, but also the content oriented application of rules of overriding mandatory provisions. Autonomy of the will, as an expression of a right to self-determination, is reflecting to law and thus gets transposed to legal rules. In private international law it is mirrored by party autonomy: either as a right to choose the applicable law or a choice of forum. Both are gaining more ground in status and family matters. In Europe it gives the right to spouses to choose the applicable regime in range of matrimonial effects: from married forename to maintenance and property regime. These do not assure gender balance instantly. Thus, party autonomy may be used to protect a person, but also to harm her interests. In matrimonial property regimes the consent is safeguarded through the rules of formal and material validity enshrined by the notion of “informed choice”.20 However, party autonomy may also be a tool for exploitation as one of the spouses, for instance, may be pushed to contractually exclude compensation payment.21 The story to be told here would reveal the hypocrisy of “choice of applicable law” rule in family matters. Legal rules are created for ideal situations, often neglecting or denying the social reality that disrupts the envisaged ideal. If the reality indicates that women do not make choices in a patriarchal society, the value of party autonomy as a connecting factor being used to ameliorate gender-based imbalance is downgraded. Public policy, as an everchanging concept, is interpreted in conformity to contemporary gender mainstreaming policies. Overriding mandatory provisions are introduced to supersede any foreign law that would discriminate based on gender. Different methods have been applied in various private international law subject matter areas, which will be presented here.

20

Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes OJ L 183, 8.7.2016, 1–29 21 González Beilfuss (2020), pp. 195–204.

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3 Personal and Property Consequences of Matrimony Through Gender Equality Prism Gender equality issues in private international law may refer to personal status issues arising as effects of matrimony. The close connection of the status with the state in which civil registers of a person’s birth, marriage and death are registered is the trigger for the states’ protectionist approach.22 Strictly state-interest motivated rules contained in national substantive and private international law have been justified by the fact of predominantly internal nature of the matter.23 In cross-border legal settings, the approach echoes with limited achievements in the harmonisation of law of personal status,24 and in the application of “blind” private international law rules. The predominance of nationality as a connecting factor in continental European countries, taken in conjunction with rules on the exclusivity of domestic nationality in the case of dual or multiple nationality,25 has often led to a break in the continuity of personal status in the event of cross-border movement of a person. Namely, statuses created under the law of one state may or may not produce effects in another state. If we focus the discussion on any of the specific status issues, we consider typical situations of granting or changing status abroad. However, the grant or change of status is often not recognized by the State of which a person is a national. Consequently, the register in which a person is registered is not updated. In legal parlance, when the status is not the same in both countries, this is referred to as “limping” status relationships. The status of an individual may differ in a number of countries, which can lead to doubts about their identity and legal uncertainty about their rights and obligations.26 This can also have an impact on other types of procedures where status comes as a preliminary issue, e.g. succession. Movement of status is a prerequisite for the movement of the family and the acquisition of various social rights, which may be impaired if the personal statuses of family members are legally inconsistent. Legal uncertainty may be reflected in the rights and obligations of third parties.27 The list of topics to be discussed in this chapter is extensive. The shot outline is thought here. Intense mobility in recent decades has modified the static approach to personal status described above. A broad interpretation of human rights guaranteed

22

Dutta (2017), p. 13. This position was supported by the Institute of International Law with a resolution after the Krakow session in 2005. Institut de Droit International Resolution ‘Différences culturelles et ordre public en droit international privé de la famille’ 25 August 2005, Rapporteur: Paul Lagarde, https:// www.idi-iil.org/app/uploads/2017/06/2005_kra_02_en.pdf. 24 See The International Commission on Civil Status / ICCS, available at: http://www.ciec1.org/. 25 Following the Garcia Avello case, it is prohibited in the event of dual or multiple EU member states nationalities. In other situations member states are still free to retain primacy. C-148/02 Carlos Garcia Avello v Belgian State (2003) ECLI:EU:C:2003:539. 26 Eliantonio et al. (2013). 27 Salerno (2019), pp. 20–25. 23

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by the European Court of Human Rights (ECtHR) has particularly contributed to this process.28 Open views on the concept of the right to private and family life provided for in Article 8 of the ECHR, along with the right not to be discriminated against on any ground provided for in the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights,29 are considered in the context of the public policy exception. A commitment of a forum to apply the law of another state or to recognize and enforce a foreign judgment or arbitral award pertains to comity accepted in international law. Its boundaries are however set by the public policy exception to the above principle. Content of public policy is not predefined, but it relates to local morality and social order.30 In personal status matters state are keen to resort to public policy exception in order to refuse recognition of a foreign order. However, the obligation to recognize the status acquired abroad, in certain areas and under certain conditions, is imposed by the ECtHR rulings.31 In this way, certain policy objectives are achieved by circumventing the rules of private international law on recognition.32 Hence, people are choosing a different legal system than their own, they ‘opt out’ of one or more specific aspects of regulation of the legal system of their residence or nationality. Citizens are thus choosing the legal regime they want to be governed by, stemming to satisfaction of their status preferences in a different way rather than through the traditional method.33 This phenomenon called legal tourism has gained more ground as it is constitutionalized by the above court rulings.34 The above general problem of status continuity can be further raised when the person moving is a woman. Gender-based discrimination may arise in particular with the application of private international law in matrimonial matters (marriage and divorce).35 Personal effects of matrimony, such as change of a personal name, as well as the property effects of Sharia law are triggered in the European milieu.36 Mahr is among the most prominent examples of property effects of marriage. Mahr is a gift groom gives to the bride with an aim to assure financial security for the wife, in particular in event of the husband’s death or dissolution.37 In the context of Islamic law mahr is providing equality to women. However, in European courts

Fawcett et al. (2016); Župan (2020). Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, 391–407. 30 Thoma (2017), pp. 1454–1460. 31 Wagner and J.M.W.L. v. Luxembourg, Application No. 76240/01, 28 June 2007; see also infra Sect. 4.1. 32 Župan (2021). 33 Smits (2010), p. 71. 34 See infra Sect. 3.1. 35 See infra Sect. 3.2. 36 Bogdan (2013), p. 59; Siehr (2017), p. 699. 37 Mahr is usualy part of marriage contract. Mahr can be paid either at the celebration of the marriage or later. Wife is entitled to ask for her full mahr at any time during her marriage or upon its dissolution. Løvdal (2008, pp. 35–41). 28 29

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judgements over a dispute involving mahr, the situation may turn to disadvantage for the wife. Mahr is unknown to non-Islamic legal systems, hence judges qualify it either as a donation, prenuptial agreement, matrimonial property, pure contract or other.38 Women is often given only half of the mahr, or, if its form or substance do not comply with norms courts have subsumed it, outcome may not be favourable for women. The most prominent example is the dispute over orally agreed mahr (mostly it has a written form), still pending before UK courts.39 This example sheds light to scholarship indicating to the fact that European judicature is often depriving mahr its main function.40 Hence, arguments against universal model of gender equality imposed by Western scholarship are viable.41 It has been rightly advocated that courts should lean on a comparative approach. Court should aim to „actively promote gender equality in a wide sense, with a view to accommodating gender difference. This points to the potential of an equal worth standard which is sensitive to the social and cultural aspects of the laws in question“.42 The standing may be supported with a CEDAW committee’s view on mahr. Namely, over the time it has shifted from mechanical gender equality approach that rejected mahr, towards equal worth approach accepting mahr as important for women in Muslim countries.43

3.1

Personal Name

The significance of one’s name in society, and consequently in law, is manifold. It is an expression of an individual’s identity, but also a reflection of heritage and belonging to a particular family, society as a whole, a particular culture, and a state.44 Personal name issues have a strong gender-based connotation. It has been argued that “contradictory embodiment occurs when normative expectations about the coincidence of bodies, sex category, gender, and forenames are breached. If individuals are perceived to have (whether by themselves or by others) a genderwrong forename, a person’s femininity or masculinity may be disrupted as a consequence.”45 Names are important to both the individual and the state. Thus, it is important to understand their intertwined role in both shaping a private sense of self-identity and

38

Løvdal (2008), pp. 109–114. https://www.theguardian.com/law/2021/aug/16/landmark-uk-court-ruling-due-in-bride-pricedispute. 40 Rotten (2011), p. 145. 41 Lamrabet (2016), pp. 1–9; Lamrabet (2015). 42 Løvdal (2008), p. 122. 43 Løvdal (2008), p. 122. 44 Župan (2019), p. 547. 45 Pilcher (2017), p. 814. 39

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reflecting and sustaining social institutions such as the state or the family.46 Complex naming issues require a holistic theoretical and practical approach.47 Private international law aspects of naming may not be perceived until social aspects are also taken into account. Many states promote gender equality by allowing a married couple to assume a premarital surname of either spouse as their common surname. This is particularly true in Europe, but it is not universal. Hence, despite the lack of legal barriers, the choice of surnames of heterosexual women and the practice of surnames given to children are predominantly patronymic: they derive from a male ancestor and are patrilineal. More specifically, this means that female spouses are routinely expected to change from their birth surname to that of their husband. Moreover, children are surnamed after their father.48 In the late 1980s, the United Nations declared patronymic family surname choices a political issue of (in)equality.49 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)50 indicated that treating men and women differently with regard to names constitutes discrimination. Nevertheless, in 2015, a Japanese court ruled that a nineteenth century law requiring married couples to use the same surname did not violate the Constitution.51 In light of the above, naming policy and social facts should be perceived in crossborder settings. In most cases, international marriage would result in women changing their surname. Such an attitude may be explained by the fact that women show connectedness and affinity, which is led by creating “we” identities.52 The change of personal name in the above scenario implies a consideration of another legal system, which, as stated earlier, is in principle quite rigid when it comes to naming policies. Given the above sociologically proven fact and the attitude of national law, blind choice-of-law rules have often led to gender-based discrimination. Until recently, most domestic rules of private international law on names were subject to the application of a person’s nationality law. This often meant that women had to make a choice. A woman either opts for a “we” identity with her new international family, or has a different name than other family members to meet the requirements of the law of her nationality. National naming rules were usually blind to other possible nationalities of that person, as well as to the legitimate interest of the person who has moved abroad to integrate into society and maintain the “we” integrity of their international family. At the very least, the law often paid no attention to people’s legitimate expectations to choose the law in this regard. This choice most frequently corresponds to an endeavour of a person to ensure the continuity of his or

46

Tirosh (2010). Peternai Andrić (2019, p. 88 ff). 48 Pilcher (2017), p. 816. 49 Pilcher (2017), p. 816. 50 UN General Assembly. 1979. Convention on the Elimination of All Forms of Discrimination against Women, UNTS vol. 1249, 1. 51 Walkowiak (2016), p. 138. 52 Davies (2011). 47

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her status. A classical view that a family surname after marriage is either one of the spouses or a combination of both is challenged. A few examples may be illustrative. A woman married to a spouse in a state where a family name consists of many words was unable to enter in the civil registry her family name acknowledged by marriage celebrated abroad. The application was rejected because the legislation of her home country allows only one or two words for the name/surname. As a consequence, the woman’s name is identical to her international family name in the host country but is shortened in the civil registry of her home country. Another example is marriage to a man originating from a naming legal system where a wife receives her husband’s forename with a possessive form. If such option is not allowed under the law of her nationality, after marriage she would be registered in the civil registry book with only her husband’s forename (without the possessive form). From the perspective of husband’s society and culture, she is perceived as his sister and not his wife!53 If private international law rules are blind to this, women are again subject to gender-based discrimination as they are denied continuity of identity across borders. Today, many private international law acts contain a provision on a limited choice of law, allowing spouses to choose a surname model provided for in the legislation of one of the spouses. Given the gender connotation, women may wish to reconsider the implications of potentially applicable laws, whether or not they are mutually harmonised or at least aligned. In the context of a name change by a transgender person, the “blind” private international law rules may lead to gender-based discrimination. Sociological studies indicate that for transgender people a “creative choice of a forename that is sex- and gender-neutral helps present and authenticate their gender identity as one that does not adhere to the binaries of female/male or feminine/masculine”.54 A cross-cultural study of 60 cultures from all over the world revealed that almost three-quarters of the given names are distinguished by gender. Moreover, in many states the gender specificity of given names is obligatory.55 However, if a person has changed their gender outside the jurisdiction of their state of nationality, their gender change may not be recognized by home authorities. This occurs if the exclusivity of domestic nationality is respected, and the changes made do not comply with the relevant domestic rules imposed.56 Gender-based discrimination in naming matters came under the scrutiny of the ECtHR. Despite the lack of a provision dealing specifically with the name, in the case of Burghartz v Switzerland57 the ECtHR places the right to a name within the scope of the Convention. Quite surprisingly, the relevant cases imply discrimination against men in relation to women! Burghartz challenged the domestic rules on

Case relating to personal names of spouses of Macedonian and Croatian nationality “Valcov/a” got media coverage, see more in Župan (2012), pp. 182–183. 54 Connell (2010). 55 Walkowiak (2016). 56 Dutta (2017), p. 1349. 57 Burghartz v Switzerland, Application No. 16213/90, 22 February 1994. 53

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personal names as discriminating against men on the basis of gender. The Court found a violation of Articles 8 and 14 of the ECHR, as under Swiss law women are allowed to use their maiden name in front of the family name of their spouse, whereas men are not. In the case of Losonci Rose and Rose v. Switzerland,58 men were again discriminated against by the Swiss authorities by denying Mr. Losonci the opportunity to choose the applicable law. The ECtHR concluded in Stjerna v. Finland,59 as in subsequent rulings, that the fact that there may exist a public interest in regulating the use of a name is not sufficient to remove the issue of a person’s name from the scope of private and family life.60 The relevance of this ruling comes with the changes introduced in the naming policy in national and private international law in Europe. Domestic rules are being relaxed to allow a wider range of options upon marriage, while the neutral choice of law is being modified by the introduction of party autonomy as the primary connecting factor.61 León Madrid v. Spain62 is another interesting naming case recently set by the ECtHR. The case concerned a child born out of wedlock, to whom her mother, the applicant, registered a personal name consisting of the mother’s two surnames (paternal and maternal). After several years, a judgement acknowledging the biological paternity of the mother’s former partner was rendered. Since parents disagreed on the surname of the child, Spanish court decided that the child would bear her father’s surname followed by that of her mother. Mother’s request for the inversion of the order of surnames was rejected. She then resorted to the ECtHR seeking for a declaration that application of Spanish law in this case leads to discrimination. It is rather specific that the Spanish law has changed in the meanwhile, giving a discretion to a judge to decide on the order of surnames of the child in event of parents’ disagreement. However, the old law applicable to the case at hand provided for a rule that, where the parents disagreed on the matter, the order of the surnames given to a child would be imposed automatically: the father’s surname would come first and the mother’s second. Despite of the above, ECtHR found that application of the old provision led to a discriminatory treatment that could not be justified by any objective and reasonable means, amounting to a breach of Article 14, in conjunction with Art. 8 of the ECHR.

58

Losonci Rose and Rose v Switzerland, ECHR, App. No. 664/06, 9 November 2010. Stjerna v Finland, ECHR, App. No. 18131/91, 25 November 1994. 60 Tirosh (2010). 61 For comparative law, see: Shakargy (2020). 62 León Madrid v. Spain, ECHR,App. No. 30306/13, 26 October 2021. 59

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3.2 3.2.1

Matrimonial Matters and Gender Celebration of Marriage

The traditional position of private international law has been in favour of recognizing marriages validly contracted abroad. This is true even if the celebration took place abroad for evasion of domestic rules, as it happened with famous Gretna Green marriages.63 The explanation for this lies in the privileged position of marriage as a civil law status with far-reaching legal consequences, and in the importance of recognizing legally acquired rights.64 There are still some forms of marriages that raise doubts about their recognition, such as child marriages,65 forced marriages or polygamy. Non-recognition of foreign marriages is most often justified by the public policy exception. The public policy exception can be understood as a tool to ensure gender equality, where a judge may decide not to recognize a foreign relationship that is found to be manifestly contrary to the principle of gender equality.66 This attitude can mitigate the negative effects of child and forced marriages. Polygamous marriages are not allowed in any EU Member States and, in principle, they would be refused recognition on public policy grounds. However, their sanction is not absolute, as a distinction must be made between the recognition of a foreign polygamous marriage in general, and the recognition of the effects of a situation lawfully created abroad. In a hypothetical case, a man from Arabic country comes to Germany with his two wives. The proximity of the marriage to the Member State would be examined, as well as whether the status would affect the common values on which public policy is based.67 Since polygamous spouses had no previous connection to Germany, it is unlikely that the second marriage would affect German public policy. However, if that man had previously resided in Germany and returned to his homeland to marry his second wife, the effects of such polygamy would be denied. The effet atténué of public policy thus allows polygamous marriages to have certain effects, such as maintenance obligations, a survivor’s pension, and some social security benefits.68 Further considerations will relate to child marriage, which is on global scale considered the most controversial and contrary to The United Nations Convention on the Rights of the Child. The sensitivity of the issue of (non)recognition of child marriages stems from two opposing aspects of child marriage.69 The first is based on the assumption that it is a forced marriage and that the child is unhappy, possibly victimized, or in urgent need of protection, while the second aspect is based on the 63

González Beilfuss (2020), pp. 126–128. Jänterä-Jareborg (2018). 65 Also called “paedogamy”. See: van Coller (2017). 66 Bayraktaroğlu-Özçelik (2021). 67 Thoma (2017), p. 1459. 68 Cornelup et al. (2017), p. 23. 69 Lambertz (2016). 64

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assumption that the marriage is not forced but voluntary and hold cultural and economic ratio.70 The most prominent case is the Z.H. and R.H. v. Switzerland,71 where the Swiss authorities refused to recognize a religious marriage between two Afghan nationals who were 14 and 18 years old at the time of their marriage, i.e. when they applied for asylum. In its decision, the ECtHR interprets the right to marry from Article 12. The ECtHR clearly states that marriage is governed by national law, that these are situations of sensitive moral choices, and that importance should be given to the protection of children and the maintenance of a safe family environment. The ECtHR makes it clear that not all cultural rights of foreign nationals can be respected or protected in Europe, especially in the case of customary law of the country of origin, which has no equivalent in Europe.72 Entering into marriage may prematurely terminate the parent-child relationship for an inappropriate purpose. It excludes the child from childhood and has the potential to deprive the child of the legal protection to which all children are entitled by introducing the child into a mature environment where various forms of exploitation may occur.73 The practice of child marriages is generally considered to be harmful to girls, who are at increased risk of premature pregnancy, maternal mortality, denial of education, domestic violence and sexual abuse.74 To improve the protection of children, international human rights instruments set a minimum age for marriage. CEDAW states that the minimum age for marriage should be 18 years,75 and adds that marriage should not be allowed before a man and a woman have reach full maturity and capacity to act.76 In some societies, child marriage is a tradition believed to promote the best interests of the family and society, and ultimately the best interests of the child.77 One of the main reasons for entering into child marriages is economic. Poor families motivate their daughters to marry young from an early age. There are well-known situations when poor families secure their financial position by receiving money or other material goods in exchange for their daughter’s marriage, and at the same time resolve their daughter’s financial situation.78 A common reason for child marriages is to protect girls from sexual exposure. In some states, a girl who is not married until late adolescence is considered a disgrace and a failure of the family.79 The reasons

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De Vido (2019). Z.H. and R.H. v Switzerland, ECHR, App. No. 60119/12, 8 December 2015. 72 Dawidowicz (2010), p. 678; Kosińska (2019), p. 88. 73 van Coller (2017), p. 366; See also Lake (2011); Sloth-Nielsen (2008). 74 Grover (2006), p. 74. 75 Committee on the Rights of the Child, General Comment No. 4, 2003; UN Committee on the Elimination of Discrimination against Women General Recommendation No. 21. 76 UNICEF. 1998. Implementation Handbook for the Convention on the Rights of the Child, New York-Geneva. 77 Jänterä-Jareborg (2016); Dethloff (2018). 78 Gaffney-Rhys (2011). 79 Jensen and Thornton (2003). 71

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for entering into a child marriage vary, and the line between coercion and consent to such a marriage is often thin and not so clear. Non-recognition of child marriages has its downside, coming from the stream which advocates that public policy can be seen as judicial cultural imperialism rather than as adherence to some widely accepted social values or norms.80 Another objection relates to the fact that public policy considerations sometimes consider only some specific issues, which are not all equally relevant to the judicial process. For example, when refusing to recognize a polygamous marriage, the court usually protects the institution of monogamy in the country where recognition is sought. When deciding on forced or arranged marriages, courts often do not give due weight to the fact of possible non-consent to marriage and prefer to discuss public policy issues.81 There are different legal regimes for child marriages in the EU Member States.82 In many of them, there is a difference between formal and substantive requirements for the validity of a marriage contracted abroad. In general rule, the law of the state where the marriage took place applies to the formal conditions, while the national law of each spouse applies to the substantive conditions. The 2015 migration crisis surprised the Member States with a number of child marriages of migrants, which resulted in very strict, often criticized, national legislation on child marriages.83 From a political, asylum and immigration perspective, refusing to recognize a child marriage in an EU Member State can have legal consequences for the child concerned. It may affect the exercise of rights related to family reunification, obtaining a visa or residence permit, and Dublin transfer. The CJEU ruling in the Noorzia84 case, did not concern the child marriages but did touch upon the right to family reunification conditional on reaching a certain age limit. The opinion of the Advocate General Mengozzi can be related by the analogy with the effects of child marriage. The Advocate General considered that the provision of national law, which makes the right to family reunification conditional on reaching a certain age limit, without any distinction and without individual examination, prevents those who have entered into a marriage sincerely and genuinely but have not yet reached the prescribed age.85 Finally, the CJEU opted out from that kind of reasoning. In the mentioned cases, the courts mostly focused on public policy and state interests, paying little attention to the best interests of the child, and not referring to gender issues at all. In cases of child marriages, judicial authorities, both at the national and supranational level have the opportunity to elaborate on the vulnerable position of girls in child and forced marriages. At the same time, they should take

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Murphy (2000). Murphy (2000), p. 644. 82 Murphy (2008); Jänterä-Jareborg (2018). 83 For Germany, See Rath (2019), and for Sweden, Bogdan (2019). 84 Case C-338/13, Marjan Noorzia v Bundesministerin für Inneres (2014) ECLI:EU:C:2014:2092. 85 Opinion of Mr Advocate General Mengozzi delivered on 30 April 2014. Marjan Noorzia v Bundesministerin für Inneres, ECLI:EU:C:2014:288, para 42. 81

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into account that if such a marriage is sincere and voluntary, possible denial of a girl’s right may lead to her separation from her husband and/or treatment under different asylum rules as a consequence of non-recognition of the marriage.

3.2.2

Divorce

Divorce results with many personal and property effects which may be closely tied to gender. Discrimination based on gender may refer in private international law to the fact that the application of connecting factors leads to substantive law that is discriminatory in nature. The discussion of private international law about the institutes of Islamic law implies a gender-based connotation. One of the most prominent examples is a unilateral divorce/repudiation/talaq. In general, these rules are considered a violation of equality between men and women because a marriage is dissolved only by the will of the husband. However, if the wife also wants a divorce, such a divorce pronounced abroad may be recognized in some Member States, such as Germany.86 In some other EU Member States, such as Belgium, the consent of spouse would not be sufficient for recognition. Article 57 of the Belgian Private International Law Code is based on two elements: the unilateral character of marriage dissolution and the fact that repudiation is the husband’s prerogative. If they are cumulatively met, recognition is refused. In these situations, women married to men whose previous marriage ended in repudiation would not be granted any subsequent rights under EU law, e.g. the right to family reunification.87 The property consequences of divorce can also lead to gender-based discrimination. The case of Ammdjadi v Germany involved the property consequences of the divorce of spouses of Iranian nationality residing in Germany. Based on the bilateral agreement, the German authorities applied the law of the parties’ common nationality in the family dispute, and not the German law of the spouses’ common habitual residence. However, under Iranian law, the wife was not entitled to right to survivor’s pension after the divorce, which she would have been entitled to under German law. The rule of applicable law clearly worked to the disadvantage of the wife as it did not contain a provision corresponding to German law. However, Iranian law contained a provision on the wife’s financial relief, which afforded her protection.88 National court in the end found no violation of public policy, as spouses could have chosen the applicable law, which they didn’t. The hypocrisy of “choice of applicable law” rules comes to the forefront here, as the legal rules are actually created for ideal situations, often denying the social reality that disrupts the ideal. The wife got “sanctioned” for failing to exercise her will, in a scenario that self-evidently indicates

86 See: C-372/16 Soha Sahyouni v Raja Mamisch (2017) ECLI:EU:C: 2017:988, and in particular the decision of the German Bundesgerichtshof XII ZB 158/18, 26 August 2020. 87 Verhellen (2014). 88 Ammdjadi v. Germany, Application No. 51625/08, 9 March 2010; Louwrens (2014).

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that the spouses belong to a patriarchal culture where they do not make any, let alone legal choice.

4 Gender Aspects of International Family Law 4.1

Parenthood in Transnational Surrogacy

Reproductive tourism in the form of surrogacy has become a well-known phenomenon that intrigues many scientific disciplines, including law. Ethical issues and the consequent heated debates about surrogacy result in a lack of political will (at national, regional, and global levels) to enact adequate legislation.89 Legal protection for women who engage in surrogacy is generally insufficient or non-existent. There are a number of solutions in national legislation, ranging from prohibition and criminalization to grey zone access and legalization. In Europe, the first two options are the most common ones.90 The above facts indicate that conflicts of laws are extreme. This problem, therefore, becomes even more complicated in cross-border settings when the discourse of private international law comes to the forefront. System shopping in surrogacy matters is not a new topic in private international law.91 However, as it raises the question of the position and protection of the most vulnerable new-born child, it occupies the context of private international law. This is particularly true following the judgments of the ECtHR Chamber cases of Mennesson v. France, Labassee v. France92 and Paradiso and Campanelli v. Italy.93 In joined cases of Mennesson and Labessethe ECtHR argues that in situations where the legal relationship between parents and children is particularly important, the scope of discretion of the state or state authorities is narrowed when it acts by restricting the rights and freedoms guaranteed to citizens.94 Such reasoning directed towards child protection also contributes to some protection of the biological parent, but as we read it, only the male biological parent. The ECtHR acknowledged that an intended biological father must be recognized as having a legal relationship with a child.95 The same does not apply to an intended mother, even if she is the biological mother of a child born through surrogacy. Ergo, the right of a 89

Attempts at unification are ongoing in the Hague Conference on Private International Law. Brunet et al. (2013); Igareda González (2019). 91 Ní Shúilleabháin (2019). 92 Mennesson v France, ECtHR, App. No. 65192/11, 26 June 2014; and Labassee v France, ECtHR, App. No. 65941/11, 26 June 2014. 93 Paradiso and Campanelli v Italy, ECtHR, App. No. 25358/12, 27 January 2015, Grand Chamber 24 January 2017. 94 Župan (2020); Advisory opinion P16-2018-001 Sylvie and Dominique Mennesson ECHR 132 (2019) 10 April 2019. 95 Advisory opinion P16-2018-001 Sylvie and Dominique Mennesson ECHR 132 (2019) 10 April 2019, para 100–101. 90

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child to family life is an acceptable human rights argument that prevents the application of the public policy exception in determining the parenthood of a biological intended father to a child born through surrogacy. On the contrary, the unrebuttable assumption that the mother is the woman who gave birth to the child remains in place in the transnational context, notwithstanding the above position regarding the biological father. Consequently, there is clear discrimination against a biological intended mother of the surrogate child. Among the cases brought so far at the ECtHR level, no gender-based arguments have been raised yet in shaping public policy regarding the intended mother or women that gave birth to a child. Gender-based discrimination is also found in international surrogacy matters against surrogate mothers. Here, the political and legal issues cannot be determined without a contemporary humanistic, sociological and feminist perspective. Commercial surrogacy causes most controversy over the choice, agency and commodification of women’s reproductive bodies and motherhood.96 Opposing arguments also dictate disagreement with global policy. Surrogacy can be perceived as economic non-choice and coercion against poor women, turning women into disposable being and incubators for babies. It can be seen as exploitation and vulnerability of women who are at risk of human trafficking. For others, i.e. intended parents, it is a reflection of the right to create a family, while for a surrogate mother, it is the right to the free disposal of one’s own body and personal autonomy, a reproductive choice, a rationally accepted exploitation (that takes place in other jobs as well), guided by economic goals of poverty alleviation and income generation.97 These diametrically opposed positions reflect political debates. One position clearly advocates for an international ban, while the other argues that legal regulation of surrogacy as work would more effectively protect women from exploitation.98 All of this is particularly relevant in a cross-border context. Surrogacy has a truly transnational dimension, especially for Europeans in whose countries it is either banned or in a grey area. Couples or individuals who could not conceive a child usually exhausted all conventional methods of reproduction available in their homeland. Therefore, they would often resort to surrogacy as their last chance, and they would often have to travel far to the USA, India or Russia. From the perspective of a surrogate mother, whether she is a commercial surrogate or is entitled to only some expenses in an altruistic surrogacy, a surrogacy contract is highly risky. If the intended parents change their minds, a surrogate mother may be left without the agreed compensation or with a child to whom she may have no biological connection. If no compensation is paid, they cannot enforce the contract in the state of the intended parents because it is a legally unknown institution. The lack of political will to adopt a global convention contributes to deeper gender, class and racial inequalities.99

96

Rozée et al. (2020), pp. 2–14. Rozée et al. (2020), p. 2. 98 Borrillo (2019). 99 Hague Conference on Private International Law is working on a surrogacy global convention since 2015, see more https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy. 97

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Gender-based discrimination in transnational surrogacy matters may result in extended discrimination in the enjoyment of other rights. At EU level, the right to social security for the intended mother/beneficiary has been denied by the Court of Justice of the European Union (CJEU). Following transnational surrogacy outside the EU, the mother applied for maternity leave under EU law.100 The CJEU refused to resort to an extensive application of the rights to adoption leave and maternity/ paternity leave.101 The CJEU hid under the cloak of its policy and resorted to a grammatical interpretation of Art. 2 (satisfying the concepts of ‘pregnant worker’ and ‘worker who has recently given birth’) and Art. 8 (assuming that the worker entitled to such leave has been pregnant and has given birth to a child). As a result, the intended mother does not fall within the material scope of the directive, despite the fact she was breastfeeding the baby after its birth. In another case, the intended mother was unable to give birth to a child due to a disability.102 The CJEU similarly denied the European nature of the right to maternity leave to a surrogate mother, leaving room for the possibility that national law of a particular Member State approves surrogacy arrangements and recognizes such right.

4.2

Child Abduction

The phenomenon of child abduction poses a major challenge to the regulation of family relations in a cross-border environment.103 The Convention on the Civil Aspects of International Child Abduction (hereinafter: the Child Abduction Convention),104 defines international child abduction as a wrongful removal or retention of a child to a country different from that of their habitual residence. Such removal is decided unilaterally by the abductor, usually a parent, without the other parent’s consent or subsequent acquiescence.105 The aim of the Child Abduction Convention is to restore the status quo by means of a safe and prompt return of a child to the state of his or her habitual residence, with limited exceptions regarding the request for return to be rejected. Even though all EU Member States are the contracting states to

100

Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) OJ L 204, 26.7.2006, 23–36. 101 C-363/12 Z. v A Government Department and the Board of Management of a Community School (2014) ECLI:EU:C:2014:159. 102 C-167/12 C. D. v S. T. (2014) ECLI:EU:C:2014:169. 103 Lamont (2011), p. 369. 104 HCCH. 1980. Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII. 105 Child Abduction Convention, Art. 3; González Beilfuss (2017).

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the Child Abduction Convention, a complementary legal framework was introduced by the Brussels IIbis Regulation, which is in force between EU Member States.106 The Child Abduction Convention rules are indirect and gender neutral. This is in contrast with the starting point of the Convention that the fathers, as non-primary care-giving parents, are responsible for most abductions. The main objective of the Convention was to return the child to its primary care-giving mother.107 This assumption is not valid any more due to changed social circumstances. Lowe and Stephens found that 73% of abducting parents in 2015 and more than 69% in 2008 were mothers.108 Possible scenarios in child abduction cases are the situations where a woman comes from a country which recognizes the principle of gender equality, while a man comes from a country with strong patriarchal values. There are countries where male domination is part of cultural and legal heritage, and it is the duty of a wife to obey her husband. In those cultures children are seen as their father’s lineage belongings.109 These circumstances can be equally harmful to both the mother and the child.110 When a family breaks up for one reason or another, a woman often returns to her home country to receive support from the family.111 Her returning home can violate her partner’s custody rights, which may trigger the return mechanism of the Child Abduction Convention. Insisting on return in such situations can affect the child’s relationship with the primary care-giving mother, who may face e.g. criminal prosecution or limited visitation rights upon their return.112 Cases involving allegations of domestic violence are of the utmost importance. Domestic violence is a serious problem in child abduction cases.113 The difficulties are manifold: first, courts

106 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003, pp. 1–29. On 1 August 2022, this Regulation will be replaced by the Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction, OJ L 178, 2.7.2019, pp. 1–115. The revision introduces more substantiated rules on child abduction, which used to be governed by one article (Article 11), and which is now governed by the whole chapter (Chapter III). 107 Dyer (1978); Schuz (2013); Pérez-Vera (1982). 108 Lowe and Stephens (2018b, p. 9); Lowe and Stephens (2018a). 109 Pretelli (2021); Nishitani (2019). 110 Case facts in the ECHR case: Neulinger and Shuruk v. Switzerland, ECtHR, App. No. 41615/07, 6 July 2010. 111 Morano-Foadi (2007), p. 17; see Šneersone and Kampanella v. Italy, ECtHR, App. no. 14737/ 09, 12 July 2011. 112 Keyes (2019), p. 8. 113 The issue has also been discussed at the meeting of the Special Commission of the Hague Conference on Private International law and is addressed in the Guide to Good Practice on Article 13(1)(b) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, https://assets.hcch.net/docs/225b44d3-5c6b-4a14-8f5b-57cb370c497f.pdf. See also the Report on the Experts’ Meeting on Issues of Domestic/Family Violence and the 1980 Hague Child

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considering return must interpret the grounds for refusal in a restrictive manner. At the same time, returning a child to a situation where he or she might be exposed to violence against himself or herself or against his or her parent, is not a healthy situation. It could be considered ‘intolerable’ for the child (in the words of Article 13(1)(b) of the Child Abduction Convention). Other difficulties relate to the problem of proving violence, which often occurs abroad, and the fact that the court must make its decision within 6 weeks. Another perspective on gender inequality comes from the findings that show that the courts in the state of refuge are more likely to issue a non-return order in cases where the abducting parent is the primary carer-mother.114 This may seem problematic in situations where there are no objective reasons for rejecting the return, despite the child’s relationship with the mother.115 In addition, there are national systems that do not recognize an automatic system of joint parental responsibility in relation to fathers, for child born out of wedlock. Some states provide for legal arrangements under which unmarried fathers have no right to parental responsibility unless they acquire it through a court decision or other method recognised in their state, such as maternal consent or paternity registration. In such systems, if the mother or another person takes the child away before the father can complete the process of legally establishing paternity, the removal is not illegal. This may also be the case when the father de facto cares for the child alone or together with the mother.116 The primary notion of child abduction situations assumed by the drafters of the Child Abduction Convention, has been shaken by the modern lifestyle and final awareness of society on necessity to address the gender inequality. Despite modern trends, the wording of the Child Abduction Convention remains the same. This still can lead to the situations where the mechanical scheme of the child return overpowers the safety and protection of mothers. In order to pertain its status as the most effective and successful instrument of private international law,117 the application of the Child Abduction Convention needs to overcome the legal and cultural stereotypes on perceiving the women as malicious.118 Such application implies the impartial but considerate evaluation of grave risk exception with certitude of imposing the adequate safety measures and/or undertaking, making the proceedings more mindful but still in line with the main objectives of the child return mechanism.

Abduction Convention, 12 June 2017, The University of Westminster, London, Information Document No 6 of the Special Commission of August 2017, https://www.hcch.net/en/ publications-and-studies/details4/?pid¼6545&dtid¼57. Accessed 20 October 2021. 114 Beaumont et al. (2016). 115 The cases of such judicial actions were identified in the national case law practice in Republic of Croatia. See the study by Župan et al. (2020). 116 Schuz (2013, p. 151). Case C-400/10 PPU J. McB. v L. E. (2010) ECLI:EU:C: 2010:544. 117 Beaumont and McEleavy (1999), p. 4; Trimmings (2013), p. 36. 118 Salter (2014), p. 23.

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5 Domestic Violence Against Cross-Border Mobile Woman Another dimension of gender in private international law concerns the protection of women who experience domestic violence. European statistics showing that 43% of women have experienced some form of psychologically abusive and/or controlling behaviour by an intimate partner,119 argue for a gender-based sociological perspective on domestic violence. Intense mobility, worldwide, and particularly in Europe, indicates that women need effective protection when they are mobile for work, family, or other reasons. The EU “protection mechanism package”120 incorporated into Directive 2011/99/EU (EPO)121 and Regulation (EU) No 606/2013 (EPO-civil)122 stems directly from the EU strategy to combat gender-based domestic violence.123 The two instruments pertain to judicial cooperation in criminal and civil matters, respectively. They were developed exclusively for cross-border situations to protect the victim who is mobile within the EU. This regime reduces the territoriality of the protection in the case of domestic violence.124 However, the application of the above mechanism is far from smooth. This largely depends on the way in which the EU protection package is implemented in the domestic order of the Member Stateand is again dependent on national procedural law. The Regulation and the Directive were drafted on the assumption that protection orders can be obtained mainly through civil and criminal law, but not all systems fit neatly into the “civil vs criminal protection orders” dichotomy envisaged by the EU legislator.125 Consequently, the way three unified prohibitions (the ban on contacting the protected person, the ban on entering certain areas, and the ban on approaching the protected person) may be issued largely depends on the national implementation, domestic procedural rules and interpretation. They further affect the procedure for imposing a measure as well as proving and evidence.126 In order to protect a women victim of domestic violence, either an EPO or an EPO-civil can be issued. Improper implementation and interpretation of the EPO-civil may result in procedural injustice and raise the objection related to inequality of arms. Since victims are by majority women, we assume gender-based denial of rights. Many 119

Shreeves and Prpic (2019), p. 2. Martinez Garcia (2019), pp. 10–24. 121 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order OJ L 338, 21.12.2011, 2–18. 122 Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters, OJ L 181, 29.6.2013, 4–12. 123 The recently rendered Gender Equality Strategy 2020–2025 calls on the Member States to further work on implementing, inter alia, the EU package of protection measures. A Union of Equality: Gender Equality Strategy 2020–2025, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Brussels COM (2020)152 final, 5.3.2020, 8. 124 Dutta (2016); Freixes and Román (2014). 125 van der Aa et al. (2014); POAM Project Team (2020). 126 Blázquez (2020). 120

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useful aspects of the EPO-civil are being abolished, and the most outstanding one relates to enforcement. By an EPO-civil, a victim is granted an automatically recognized protection order enforceable in all EU Member States, with no procedure required, within 12 months following its issuance. In terms of evidence, this means that in principle for EPO, a higher level of evidence has to be presented, but also that the behaviour must be criminalized. Violence by proxy takes place in a closed private area where there are no witnesses to confirm the abuse. Victims of domestic violence often do not utilize legal systems, as the gender-based violence indicates the highest rate of unreported violence.127 When violence is not reported to legal authorities, the scene is left with no documentary evidence. Consequently, if the behaviour cannot be proven or the victim does not wish to press criminal charges, no protection will be available to the victim.128 Despite a legal package designed exclusively to combat gender-based discrimination in cross-border domestic violence cases, the protection of mobile victims can be vague, inadequate or insufficient. Unfortunately, this legal package has recorded a minimum number of applications and not a single request for a preliminary ruling procedure to the CJEU.

6 Conclusion The field of private international law has often been characterised as neutral, apolitical, and technical, implying that it aims to achieve merely conflict justice. This approach has weakened in recent decades. The methodology of private international law has turned to substantive justice in general, and in particular, in certain areas it got affected by strong horizontal policies. Therefore, gender mainstreaming today clearly affects the methodology, understanding and interpretation of private international law. This paper shows that many fundamental aspects of private international law are inseparable from gender issues. Gender-affected topics range from personal and family issues to contracts and torts. The doctrines of private international law in the area of naming have recently been modified, giving more weight to the autonomy of the will of the spouses. The aim of this modern approach is to ensure the continuation of personal identity and status across state borders. Marital status issues affected by gender policy and non-discrimination range from polygamous marriage to child marriage and marriage of convenience, particularly in the context of religious law. European legal practice has been confronted with such cases through recent forced migrations. Another gender-affected aspect of parentage is surrogacy, where the economic rights of surrogate mothers are the least considered in private international law. Gender stereotypes of same-sex formal relationships are addressed in family matters.

127 128

Manjoo and Jones (2019); Shreeves and Prpic (2019), p. 3. van der Aa et al. (2014), p. 242.

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International child abduction is another issue with the gender dimension as over 70% of abductors are mothers. In respect thereof, tort issues may appear if alleged or proven domestic violence takes place in one state, and dispute settlement affected by such violence falls under the jurisdiction of another. Protection measures for victims of domestic violence may have EU cross-border effects in EU Member States, but it remains an open question whether the established model reflects the leading genderbased theories. Global economy impacts contractual relations, among which genderbased issues most frequently appear in relation to individual employment contracts. The rise of horizontal policy considerations has had a particular impact on the general attitude towards combating gender-based discrimination. This required a revision of existing policies and laws, including private international law. Private international law methodology is evolving. It is sometimes directly subject to gender mainstreaming policies, or what is happening is subject to other horizontal policies (such as overall human rights protection), but gender discrimination is affected as well. The effects of gender mainstreaming on Private international law rules can be identified in many different ways. Without any intention to offer a full categorization, certain conclusions can be drawn on systematization of gender mainstreaming in Private international law. First, to fully understand the gender connotation of the law, contemporary humanistic theories and socially accepted patterns, must not be neglected. Sometimes the rule itself is not gender discriminatory but becomes such taken in conjunction with socially accepted behaviours and patterns. The most prominent example appears with personal naming practices and their outcomes, which are shown to be socially unequal and consequently gender unequal. National naming rules are not per se gender discriminatory. However, from the private international law prism, they become such only due to the social reality that all over the world women change their surname upon marriage. It leads to the fact that in international marriage the violated personal statute would affect mainly women, as they would change their surnames. Second, neutral applicable law rules that would be discriminatory by gender per se are nowadays outdated. Nevertheless, discrimination based on gender may derive from substantive law which must be applied by virtue of those rules. Attempts to mitigate the risk of compromizing the fundamental values of order increase the incidence of application of public policy exception. One may realize the notion of relativity of public policy within different subject matters presented above. The fact that public policy operates both as a sword and as a shield is also confirmed here. In polygamous marriages, Europeans resort to effet utile to allow certain rights to be granted. On the other hand, in child marriages, a firm stance on gender equality is a value that must not be sacrificed for any other value. Circumvention of laws and its classical public policy remedy is sometimes outweighed to strike a balance with other values. The practice of “reproductive tourism” is made possible under certain conditions as the aspect of circumventing the law is subordinated to the general imperative of the best interests of the child and the protection of its well-being. However, the right to self-determination exercized under the human rights umbrella results with evasion of the rules of private

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international law on recognition. Another stream aimed at achieving substantive justice and reaching domestic standards emerges with the overriding mandatory provisions aimed at ensuring gender equality. Third, as already mentioned, the methodology of private international law is enriched by party autonomy and substance-oriented choice-of-law rules. Party autonomy may be used to protect a person, but also it may be a tool for economic exploitation of a spouse. The hypocrisy of “choice of applicable law” rule reveals with several subject matters presented above. Legal rules are created for ideal situations, often neglecting or denying social reality that disrupts the envisaged ideal. The reality of patriarchal society affects consent given by women and leaves doubts over the value of this connecting factor to ameliorate gender-based imbalance. Finally, the most advanced level of respect for gender equality is reflected in the rules on cross-border protection measures, which are aimed exclusively at protecting mobile women victims of domestic violence. By paradox, the full appreciation of EU legislator to gender-based violence runs to a block of narrow-minded interpretation of Member States. As a result, the prototype of gender mainstreaming in private international law is deprived of its most valuable effects. The examples presented above indicate that in private international law the gender mainstreaming has in general terms moved from in statu nascendi stage. Dynamics of its advancement depend on the specific subject matter. It’s gaining more appreciation in areas that have been gender coloured in the past years or decades by substantive law, such as employment contracts or domestic violence matters. Sensitivity to equality is needed at all levels: national, regional, and international, both by policymakers and legislators and by those enforcing and interpreting the law.

References Banu R (2017) A relational feminist approach to conflict of Laws. Mich J Gender Law 24:1–52 Banu R (2019) Gender and private international law. Max Planck Institute for Comparative and International Private Law. https://www.mpipriv.de/1119161/gender-and-privateinternational-law Bayraktaroğlu-Özçelik G (2021) SDG 5. Gender equality. In: Michaels R, Abou-Nigm VR, van Loon H (eds) The private side of transforming our world - UN sustainable development goals 2030 and the role of private international law. Intersentia, Cambridge – Antwerp – Chicago. https://www.intersentiaonline.com/library/the-private-side-of-transforming-our-world-un-sus tainable-development-goals-2030-and-the-role-of-p Beaumont P, Walker L, Holliday J (2016) Conflicts of EU courts on child abduction: the reality of article 11(6)-(8) Brussels IIa proceedings across the EU. J Priv Int Law 12:211–260 Beaumont PR, McEleavy PE (1999) The Hague convention on international child abduction. Oxford University Press, Oxford Blázquez B, Raquel. (2020) European judicial cooperation and protection of gender-based violence victims, fact or fiction? J Penal Law Criminol 8:95–115

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Bogdan M (2013) Some reflections on multiculturalism, application of Islamic law, legal pluralism and the new EU succession regulation. In: A commitment to private international Iaw. Intersentia, Cambridge – Antwerp – Portland, pp 59–59 Bogdan M (2019) Some critical comments on the new Swedish rules on non-recognition of foreign child marriages. J Priv Int Law 15:247–256 Borrillo D (2019) Disposer de son corps: un droit encore à conquérir. Éditions Textuel, Paris Brunet L et al (2013) A Comparative Study on the Regime of Surrogacy in EU Member States. Study for the JURI committee. European Parliament, Brussels. https://www.europarl.europa.eu/ thinktank/en/document/IPOL-JURI_ET(2013)474403 Connell C (2010) Doing, undoing or redoing gender? Learning from the workplace experiences of transgender people. Gend Soc 24:31–55 Cornelup S et al (2017) Private International Law in a Context of Increasing International Mobility: Challenges and Potential Migration, Study fot the JURI committee. https://www.europarl. europa.eu/RegData/etudes/STUD/2017/583157/IPOL_STU(2017)583157_EN.pdf Davies H (2011) Sharing surnames: children, family and kinship. Sociology 45:554–561 Dawidowicz M (2010) The obligation of non-recognition of an unlawful situation. In: Crawford J, Pellet A, Olleson S, Parlett K (eds) The law of international responsibility. Oxford University Press, Oxford, pp 677–686 De Vido S (2019) Against a Girl’s will: child marriages, immigration and the directive on family reunification. In: Bergamini E, Ragni C (eds) Fundamental rights and best interests of the child in transnational families. Intersentia, Cambridge-Antwerpen-Portland, pp 121–125 Dethloff N (2018) Child brides on the move: legal responses to culture clashes. Int J Law Policy Fam 32:302–315 Donchin A (2000) Autonomy and interdependence: quandaries in genetic decision-making. In: Mackenzie C, Stoljar N (eds) Relational autonomy: feminist perspectives on autonomy, agency, and the social self. Oxford University Press, Oxford, pp 236–258 Dutta A (2016) Cross-border protection measures in the European Union. J Priv Int Law 12:169– 184 Dutta A (2017) Personal status. In: Basedow J, Rühl G, Ferrari F, de Miguel Asensio P (eds) Encyclopaedia of private international law. Edward Elgar Publishing, Cheltenham, UK, Northampton MA, USA, pp 1346–1350 Dyer A (1978) Report on International Abduction by One Parent (Legal Kidnapping). Preliminary Document 1, Actes et Documents of the XIVth Session Eekelaar J (2016) Marriage, religion and gender equality. In: Banda F, Joffe LF (eds) Women’s rights and religious law domestic and international perspectives. Routledge, London, pp 32–44 Eliantonio M, Brunello S, von Freyhold H (2013) Study for the JURI Committee, European Parliament, Life in cross-border situations in the EU. A Comparative Study on Civil Status. https://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474395/IPOL-JURI_ET (2013)474395_EN.pdf Fawcett JJ, Ní Shúilleabháin M, Shah S (2016) Human rights and private international law. Oxford Private International Law Series Freixes T, Román L (2014) Protection of the gender-based violence victims in the European Union. Publications Universitat Rovira I Virgili/Publicacions Universitat Autònoma de Barcelona Gaffney-Rhys R (2011) International law as an instrument to combat child marriage. Int J Human Rights 15:359–373 González Beilfuss C (2017) Chapter C.8: child abduction. In: Basedow J, Rühl G, Ferrari F, de Miguel Asensio P (eds) Encyclopaedia of private international law. Edward Elgar Publishing, Cheltenham, UK, Northampton MA, USA, pp 298–300 González Beilfuss C (2020) Party autonomy in international family law. In: Recueil des cours 408. Brill Nijhoff, Leiden/Boston González NI (2019) Regulating surrogacy in Europe: common problems, diverse national laws. Eur J Women’s Stud 26:435–446

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Muir Watt H (2013) Concurrence ou confluence? Droit international privé et droits fondamentaux dans la gouvernance globale. Revue internationale de droit économique 1–2:59–78 Murphy J (2000) Rationality and cultural pluralism in the non-recognition of foreign marriages. Int Comp Law Q 49:643–659 Ní Shúilleabháin M (2019) Surrogacy, system shopping and Article 8 of the European convention on human rights. Int J Law Policy Fam 33:104–122 Nishitani Y (2019) Identité culturelle en droit international privé de la famille. Recueil des cours 401:127–450 Nott S (2000) Accentuating the positive: alternative strategies for promoting gender equality. In: Stephen K, Beveridge F, Nott S (eds) Making women count. Integrating gender into law and policy-making. Routledge, London Pérez-Vera E (1982) Explanatory Report on the 1980 Hague Child Abduction Convention. http:// www.hcch.net/index_en.php?act¼publications.listing&sub¼2 Peternai Andrić K (2019) Pripovijedanje, identitet, invaliditet (Storytelling, Identity, Disability). Meandarmedia, Zagreb Pilcher J (2017) Names and doing gender: how forenames and surnames contribute to gender identities, difference, and inequalities. Sex Roles 77:812–822 POAM Project Team (2020) Best practice guide: protection of abducting mothers in return proceedings: intersection between domestic violence and parental child abduction. University of Aberdeen. https://research.abdn.ac.uk/poam/ Pretelli I (2021) Three patterns, one law - plea for a reinterpretation of the Hague child abduction convention to protect children from exposure to sexism, mysogyny and violence against women. In: Pfeiffer M et al (eds) Liber Amicorum Monika Pauknerova. Wolters Kluwer, Praha, pp 363–393 Rath C (2019) Underage, married, separated. A German law abolishes child marriages in general not always in the interest of those affected, Max-Planck-Gesellschaft, https://www.mpg.de/12 797223/childmarriage-legislation-germany Rotten S (2011) The struggle of emebding the Islamic Mahr in a Western legal system. In: Mehdi R, Nielsen JS (eds) Embedding mahr: (Islamic dower) in the European legal system. DJØF Publishing, Copenhagen Rozée V, Unisa S, de La Rochebrochard E (2020) The social paradoxes of commercial surrogacy in developing countries: India before the new law of 2018. BMC Womens Health 20:1–14 Salerno F (2019) The identity and continuity of personal status in contemporary private international law. Recueil des Cours:395 Salter M (2014) Getting Hagued: the impact of international law on child abduction by protective mothers. Altern Law J 39:19–23 Schuz R (2013) The Hague child abduction convention - a critical analysis. Oxford University Press, Oxford and Portland, Oregon Shakargy S (2020) You name it: on the cross-border regulation of names. Am J Comp Law 68:647– 688 Shreeves R, Prpic M (2019) Violence against women in the EU. State of play. European Parliamentary Research Service Siehr K (2017) Evasion of laws (Fraus Legis). In: Basedow J, Rühl G, Ferrari F, de Miguel Asensio P (eds) Encyclopaedia of private international law. Edward Elgar Publishing, Cheltenham, UK, Northampton MA, USA, pp 698–709 Sloth-Nielsen J (2008) Children’s rights in Africa: a legal perspective. Routledge, London Smits JM (2010) Beyond Euroscepticism: on the choice of legal regimes as empowerment of citizens. Utrecht Law Rev 6(3):68–74 Thoma I (2017) Public policy. In: Basedow J, Rühl G, Ferrari F, de Miguel Asensio P (eds) Encyclopaedia of private international law. Edward Elgar Publishing, Cheltenham, UK, Northampton MA, USA, pp 1454–1460 Tirosh Y (2010) A name of one’s own: gender and symbolic legal personhood in the European court of human rights. Harv J Law Gend 33:247–306

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Trimmings K (2013) Child abduction within the European Union. Hart Publishing, Oxford and Portland, Oregon van Coller A (2017) Child marriage – acceptance by association. Int J Law Policy Fam 31:363–376 van der Aa S et al (2014) Mapping the Legislation and Assessing the Impact of Protection Orders in the European Member States. http://poems-project.com/wp-content/uploads/2015/04/IntervictPoems-digi-1.pdf Verhellen J (2014) Real-life international family law. A Belgian empirical research on cross-border family law. In: Boele-Woelki K, Dethloff N, Gephart W (eds) Family law and culture in Europe, developments, challenges and opportunities. Intersentia, Cambridge-Antwerpen-Portland, pp 328–330 Vischer F (1993) General course on private international law. In: Recueil des cours, vol 232. Martinus Nijhoff Publishers, Dordrecht/Boston/London Walkowiak BJ (2016) Personal name policy: from theory to practice. Wydział Neofilologii UAM w Poznaniu, Poznan World Health Organisation (2018) Violence Against Women Prevalence Estimates. https://www. who.int/publications/i/item/9789240022256 World Health Organisation (2020) COVID-19 and Violence Against Women. https://www.who.int/ publications/i/item/WHO-SRH-20.04 Župan M. 2012. Normiranje mjerodavnog prava za osobno ime - novina hrvatskog Zakona o međunarodnom privatnom pravu. In Recent trends in European private international law – challenges for the national legislations of the south east European countries, ed. u: Toni Deskoski. 179–193. Skopje: Faculty of Law Iustinianus Primus Skopje Župan M (2019) Identity of a child in cross-border legal transit (naming law at focus). In: Pavlović Z (ed) Yearbook - human rights protection: protection of the Right’s of the child “30 Years After the Adoption of the Convention on the Rights of the Child”. Provincial Protector of Citizens Ombudsman; Institute of Criminological and Sociological Research in Belgrade, Novi Sad, pp 545–565 Župan M (2020) Utjecaj ljudskih prava na suvremeno međunarodno privatno pravo. In: Barbić J, Sikirić H (eds) Međunarodno privatno pravo – interakcija međunarodnih, europskih i domaćih propisa. Hrvatska akademija znanosti i umjetnosti, Zagreb, pp 25–168 Župan M, Drventić M, Kruger T (2020) Cross-border removal and retention of a child – Croatian practice and European expectation. Int J Law Policy Fam 34:60–83 Župan M (2021) Identitet – novo mjerilo prekograničnog priznanja statusa? In: Barbić J, Župan M (eds) Identitet u prekograničnim privatnopravnim odnosima. Hrvatska akademija znanosti i umjetnosti, Zagreb Mirela Župan LLM, PhD, is a full professor at the Faculty of Law Osijek, and head of the PhD Programme in Law. She teaches Private International Law related courses. Her main professional interests include cross-border relations (contractual, vulnerable—family—child protection, animal welfare), human rights implications for PIL, as well as international arbitration. Awarded the Max-Planck Society Doctoral (2007) and Postdoctoral Grant (2011) by the MPI for Comparative and International Private Law Hamburg. Visiting professor in Maribor, Budapest and Verona. Participates in legislative processes in the EU and nationally. As a member of several research groups, has organised and participated in conferences, seminars and workshops. Has published a number of books, book chapters and papers. Martina Drventić LLM, PhD, has been a research assistant—doctoral student of the Croatian Science Foundation at the Faculty of Law Osijek since 2018. She gained experience as an expert associate at the Croatian Central Authority seated within the Ministry of Social Policy and Youth and as a junior researcher at the Faculty of Law Osijek. Her research is focused on EU private international family law and she has been actively involved in research activities on projects dealing with cross-border protection of children and families.

The Reproduction of Gender Difference and Heteronormativity in Family Law Rosemary Hunter

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Legally Recognized Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Attribution of Legal Parenthood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Division of Marital Property on Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Arrangements for Post-Separation Parenting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Family law has been a key site for the transmission of gender norms with regard to adult relationships and the parenting of children. Gendered expectations have been applied in relation to the roles of wives, husbands, mothers and fathers. These are accompanied by heteronormative expectations concerning the construction of families and family relationships. This paper interrogates the gendered and heteronormative operations of family law by reference to four aspects of family life—or family breakdown—that the law regulates: the formation of legally recognized relationships; the attribution of legal parenthood; the division of marital property on divorce; and arrangements for post-separation parenting. While the particular legal rules relating to each of these areas vary between jurisdictions, similar questions arise concerning the participation of family law in the construction of gendered and sexual subjectivity. And while family law confronts changing social practices and has been challenged to ‘keep up’ with social, medical and economic developments in each of these areas, we should be alert to the ways in which gender differences and heteronormativity are reproduced and reconfigured in changing family law.

R. Hunter (*) Kent Law School, University of Kent, Kent, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_2

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1 Introduction It is impossible to think about family law without thinking about gender. Family law participates in the construction of gender norms with regard to the roles of wives and husbands in adult relationships, and with regard to the roles of mothers and fathers in the parenting of children. In its dealings with families and family relationships it also applies heteronormative assumptions and expectations. In this paper the term ‘gender’ refers to the different social and cultural norms attaching to the sexed bodies of women and men, and the presumed binary nature of sexed bodies. The term ‘heteronormativity’ refers to the social and cultural norms attaching to relationships and the presumption that families should be formed through a male-female couple, producing children who therefore have both a mother and a father. This paper will interrogate the gendered and heteronormative operations of family law by reference to four areas of regulation: the formation of legally recognized relationships; the attribution of legal parenthood; the division of marital property on divorce; and arrangements for post-separation parenting. The particular legal rules relating to each of these areas vary between jurisdictions. But whatever the rules may be, similar questions arise. What meanings and values does the law attach to gendered subjects and relationships? What are the effects of family law on its subjects? How does family law participate in the construction of gendered and sexual subjectivity? Further, in each of these areas, family law confronts changing social practices and has been challenged to adapt to social, medical and economic developments. In tracing legal responses to these developments, I argue that we should not assume an inevitable process of enlightenment as law becomes more open to gender equality and new family forms, but rather we should be alert to the ways in which gender differences and heteronormativity are reproduced and reconfigured in changing family law.

2 Legally Recognized Relationships Heterosexual marriage has been widely established as the social norm for adult relationships and the only legally recognized form of relationship. In most cases, this has been accompanied by strong social norms concerning gender roles within marriage, partly based on biological differences in reproduction but extending well beyond biological differences to encompass gendered power differentials and ascribed positions in patriarchal societies. Historically, husbands were constructed as the head of the household, the authority figure and primary breadwinner, while wives were relegated to a secondary role (and in some jurisdictions, for many centuries, having no separate legal personality) as homemakers with primary responsibility for the care of children. Such gender differentials may still be found in

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religious personal laws and in some state laws. The Irish Constitution, for example, enshrines ‘recognition’ of the special role of woman within the home: 41.2 1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. 2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.1

In many instances state family law now reflects the notion of marriage as ‘a partnership of equals’, although this may still be interpreted and applied by courts in accordance with social norms of gender difference and hierarchy. The concept of equality, too, may operate against a social background of gender difference which results in unequal outcomes in the division of property and child care arrangements on divorce, as discussed below. Challenges to the legal privileging of heterosexual marriage have followed other social developments. In some jurisdictions, for example, a decline in marriage rates and the rise of cohabiting relationships among heterosexual couples has led to varying degrees of legal recognition for those wishing to eschew marriage. This has included the creation of new statuses such as the French pacte civil de solidarité, which provides for lesser rights and responsibilities than those attaching to marriage. In other cases, the same protections as apply to married couples have been fully extended to couples cohabiting in an enduring domestic partnership (e.g. the postseparation property regime in Australia).2 Nevertheless, in many jurisdictions marriage continues to be legally privileged, both in family law and in other areas such as immigration law and tax law.3 The legal recognition of same-sex relationships is another contemporary issue which has been the subject of national and international campaigns over the last 20 years. At the end of 2021, 31 countries provided for marriage equality, although these countries were geographically concentrated in North and South America, Western Europe, and South Africa, Australia and New Zealand.4 The progress of legal recognition in the UK has been interesting, with the government introducing civil partnerships in 2004, as a legal status exclusive to same-sex couples, which mirrored marriage in almost all respects other than the name.5 The ostensible rationale for this ‘separate but equal’ approach was to respect religious views

Constitution of the Republic of Ireland, Article 41.2 1 and 2 . For an analysis of other Constitutional provisions, see MacKinnon (2012), pp. 397–416. 2 Family Law Act 1975 (Cth), Part VIIIAB. 3 Countries providing an accelerated track to naturalisation for married partners of citizens include the Unites States, Spain, Norway, the Netherlands, France and Austria: McAvay and Waldinger (2021). The Grand Chamber of the European Court of Human Rights upheld the ability of States to distinguish between married and cohabiting couples in their tax laws in Burden v United Kingdom (2008) 47 EHRR 38. 4 See https://www.hrc.org/resources/marriage-equality-around-the-world. 5 Civil Partnerships Act 2004 (UK). 1

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which held that marriage could only be between a man and a woman.6 However many considered it to be an inadequate response which maintained discrimination against same-sex couples and in 2013, the institution of marriage was also opened up, and those who had entered civil partnerships were given the opportunity to formally convert their civil partnership to marriage.7 This created the anomalous position whereby same-sex couples had access to two forms of legal recognition— civil partnerships and marriage—whereas heterosexual couples wishing to formalize their relationships only had the option of marriage. This position was successfully challenged on equality grounds by a heterosexual couple who argued that they wished to have access to civil partnership as a legal relationship status which was more egalitarian and did not carry the traditional patriarchal baggage associated with marriage.8 In 2020, civil partnerships were made available to heterosexual couples,9 although there does not seem to have been a rush of registrations.10 By contrast, in Ratzenböck and Seydl v Austria,11 the European Court of Human Rights came to the opposite conclusion and found no violation of Art. 14 in conjunction with Art. 8 of the European Convention on Human Rights (ECHR) in Austria’s refusal to extend civil partnerships to heterosexual couples. The traditional patriarchal baggage associated with marriage has also given rise to debate as to whether successful campaigns for the extension of marriage to same-sex couples have merely reinforced the valourization of marriage and the persistence of heteronormativity—now manifested as homonormativity—with the emphasis remaining on a stable, monogamous couple producing and taking responsibility for the support of a nuclear family. Or, alternatively, do same-sex couples by their very nature disrupt traditional notions of marriage and pave the way for its transformation in the twenty-first century?12 Whatever the state of these theoretical debates, it seems clear that the aspirations of same-sex couples to get married are largely aspirations towards formal equality and ‘normality’ rather than an implicit critique of marriage and a desire to revolutionize its social meaning. Finally, while same-sex marriage may have produced some (minor?) adjustments to heteronormative marriage, there have been very few moves towards the legal recognition of mutually caring, mutually dependent relationships which are not centred on the conjugal couple—such as close, mutually supportive relationships between friends or siblings, not necessarily confined to two people. In a ground-breaking report in 2001, the Canadian Law Commission proposed a much

6

See, for example, UK Department of Culture, Media and Sport (2014). Marriage (Same-Sex Couples) Act 2013 (England & Wales). 8 R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32. 9 Civil Partnership (Opposite-sex Couples) Regulations 2019 (England & Wales). 10 See https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/ marriagecohabitationandcivilpartnerships/bulletins/civilpartnershipsinenglandandwales/2020. 11 Ratzenböck and Seydl v Austria (2017) ECHR 947. 12 See, e.g. Auchmuty (2004), Young and Boyd (2006), Barker (2012), Barker and Monk (2015). 7

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broader, principled approach to the recognition of adult personal relationships, involving careful consideration of the policy objectives in all instances where legal privileges are extended to marriage or a limited range of couple relationships, with a view to achieving those objectives through the recognition of and support for the full range of close personal relationships among adults that might be relevant to them.13 Apart from some isolated instances (e.g. legislation in the Australian state of Tasmania14) this call has not generally been taken up, and alternative relationship forms continue to be marginalized. Nevertheless, it has been the subject of considerable academic discussion and debate and would represent a decisive shift away from heterosexual marriage as the legally privileged institution.15

3 The Attribution of Legal Parenthood When a child is born as a result of ‘natural’, heterosexual conception, the child’s mother is obvious (the woman who carried and gave birth to the child) and their father, if less obvious, is nowadays easily discoverable if necessary through DNA testing. Here again, heterosexual marriage has occupied a legally privileged place. In some jurisdictions the mother’s husband is legally presumed to be the child’s father (with anyone wishing to challenge that position required to produce evidence to rebut the presumption), but a child born outside marriage may have no legal father.16 In some cases there may be a legal procedure for the ‘recognition’ of extra-marital children, but it is generally much easier for men to choose whether or not to be a father to a child conceived outside of marriage than it is for women to choose whether or not to be a mother to such a child.17 When a child is born as a result of assisted reproductive technologies (ARTs) involving sperm and/or egg donation, on the other hand, the law must ascribe legal parenthood among various contenders for that status. Should the genetic progenitors of the child or the child’s intending parents be given legal primacy? In some countries, heteronormativity is enshrined in law in the banning of such ‘artificial’ reproduction or its restriction to heterosexual married couples, excluding lesbians and single women from access to ARTs.18 But in any event, the legal ascription of 13

Law Commission of Canada (2001). Relationships Act 2003 (Tas). 15 See, for example, Barker (2012); Cossman and Ryder (2017), pp. 227–263; Palazzo (2021). 16 This is the case in a number of US States, where legal fatherhood is established only once paternity is acknowledged, registered or determined by a court. Countries where a non-marital child has no legal father until a man acknowledges paternity include Germany, Switzerland and the Philippines. 17 See, for example, Machado (2008), pp. 215–236; Marshall (2018), pp. 167–185. 18 For example, ARTs are limited to heterosexual couples in the Czech Republic, Poland and Serbia, and to married couples in China. Sunni Muslim countries further restrict ARTs to married couples using their own sperm and eggs, and do not permit gamete or embryo donation. 14

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parenthood is almost always gendered, with the law determining who is the child’s ‘mother’ and (if there is one) ‘father’, rather than attributing gender-neutral parenthood. In the UK, where lesbian couples do have access to ARTs, the legislation distinguishes between the child’s ‘mother’ (the woman who gives birth to the child) and her ‘other female parent’, refusing to allow a child to have two legal mothers.19 Traces of gender difference and heteronormativity still remain, therefore, in the requirement that a child can only have two legal parents, only one of whom can be the child’s mother. Very few jurisdictions allow for legal recognition of poly-parenting projects, in which a child may have more than two legal parents—for example a lesbian couple and a biological father or gay male couple who together wish to produce and bring up a child. The Canadian province of British Columbia is one of the few which do permit a child to have more than two legal parents, although the number of parents is limited to three and there are other restrictions, including the requirement that the ‘additional’ parent have a genetic or biological link to the child.20 Multiple parenthood could provide a solution to disputes that have arisen in failed surrogacy cases, where a surrogate bears a child for intending parents, but ultimately refuses to hand over the child after birth. In these cases intending parents have gone to court and courts have been required to decide which principles to apply—those relating to the enforcement of contracts, or to the best interests of the child. It is rare in these cases to find recognition of the gendered physical and emotional labour involved in carrying and giving birth to a child. It is more likely that the surrogate will be cast as a ‘bad mother’, engaged in deceptive or at best selfish behaviour in thwarting the hopes and legitimate expectations of the intending parents. The possibility of the surrogate being one of the child’s legal parents alongside the intending parents would provide a means of valuing the surrogate’s labour and help to defuse the tensions created by the current zero-sum approach to legal parenthood. A further gendered complication relating to parenthood has arisen in the context of transgender men giving birth. In England, the statutory criteria for a legal change of gender do not include any requirement for ‘sex change’ surgery.21 Thus, it remains physiologically possible for a woman who has legally changed gender to become pregnant and to carry and give birth to a child. In the case of R (on the application of Alfred McConnell and YY) v Secretary of State for Health and Social Care and other,22 a transgender man who had legally changed gender from female to male gave birth to a child and wished to be registered on the child’s birth certificate as the child’s father (or, failing that, as the child’s ‘parent’ or ‘gestational parent’). His application was refused on the basis that the law defines the person who gives birth to a child as the child’s mother, and therefore he could only be registered as the ‘mother’ on the birth certificate. He applied to the court for review of this decision on 19

Human Fertilisation and Embryology Act 2008 (UK), ss 33, 42–47. Family Law Act 2013 (BC), s 30. 21 See Gender Recognition Act 2004 (UK), s 2–3. 22 [2020] EWCA Civ 559. 20

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human rights grounds but was unsuccessful. The Court of Appeal ultimately held that there was no infringement of Art. 3 of the UN Convention on the Rights of the Child, and while there was an interference with McConnell’s and his child’s rights to respect for their private and family life under Art. 8 of the ECHR, the interference was justified as a proportionate means of achieving the legitimate aim of having a stable and uniformly applicable national system of birth registration.23 By contrast with the UK, Sweden does allows trans men who give birth to be recorded as the father on a child’s birth certificate. It was reported in October 2021 that McConnell was planning to travel to Sweden to give birth to his second child so as to take advantage of that country’s more complete disconnect between reproductive capacities and legal gender.24

4 The Division of Marital Property on Divorce As noted earlier, most intact heterosexual families with children are characterized by a gender division of labour. Whether or not the female partner engages in paid work, it is likely that she will take primary responsibility for home-making and child-care, and her paid work will be secondary—possibly part-time or lower earning. And whether or not the male partner engages in hands-on parenting, it is likely that he will be the primary financial provider, working full-time and with a higher income. Ignoring these gender differences when it comes to divorce results in gendered advantage and disadvantage. One way in which the difference may be ignored is by leaving assets in the hands of the partner who ‘earned’ or paid for them, disregarding the contribution made by the home-maker and child-carer to the other partner’s capacity to earn income and accumulate assets, and in effect erecting a significant financial barrier to the non-earning partner’s ability to exit from an unsatisfactory relationship. Alternatively, many jurisdictions have moved to formally equal division of marital property, but this also fails to provide for the different needs of the primary carer and the primary earner, and their different capacities to meet those needs. Receiving half of the assets does not put the primary carer in an equal position to re-house herself and the children or to support herself and the children financially. With a lower income, less capacity to pay rent or obtain a mortgage, less capacity to work full-time or otherwise increase her income, lower (if any) pension savings and often primary financial as well as caring responsibility for the children, it is not surprising that a wealth of international data demonstrates that women (and their children) are impoverished by divorce.25 Research in the UK, for example, has shown that on

23

[2020] EWCA Civ 559, at 56–82. https://www.pinknews.co.uk/2021/10/21/trans-dad-freddy-mcconnell-sweden/. 25 For example: Weitzman (1985); McDonald (1986); Thomas (2018), pp. 769–797; Mortalmans (2020), pp. 23–41. 24

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average, divorce resulted in a 23 per cent increase in men’s household income, while women’s household income fell by 31 per cent. Furthermore, women never recovered their pre-divorce financial position unless they repartnered.26 Thus, community property laws which provide for a default or uniform 50/50 division of assets also perpetuate women’s relationship-generated financial disadvantage. What is needed is an approach which enables substantive rather than merely formal equality, one which is capable of adjusting the division of assets to reflect differential future needs and capacities to meet them. Yet the general direction of law reform in the late twentieth and early twenty-first centuries has been in the opposite direction. There has been a tendency to favour formal equality in the interests of simplicity, clarity, minimising litigation and perceived congruence with the ‘modern’ notion of marriage as a partnership of equals.27 Alternatively, private ordering has been promoted, which very often results in either the perpetuation of gendered power dynamics in the relationship, or an agreement to equal shares without an appreciation of the different economic consequences for the parties.28 There is relatively little evidence in legal rules concerning the division of property on divorce of a nuanced understanding of gendered financial dis/advantage, or a more sophisticated notion of post-divorce fairness that takes social reality into account.

5 Arrangements for Post-Separation Parenting The gender division of labour in heterosexual families is not simply a neutral difference but a hierarchy, with market labour ascribed greater social value than domestic labour. Domestic work and child care is persistently un- or under-valued, resulting in further disadvantage for mothers when it comes to post-separation arrangements for children. Increasingly, formal equality in the division of assets is accompanied by notions of formal equality in post-separation parenting, which again ignores unequal contributions to child care prior to separation and the consequent difference in parenting capacities and in children’s relationships with mothers and fathers.29 Where ‘shared care’ arrangements are put in place, it is often mothers— and children—who bear the burden of making them work,30 while fathers not

26

Fisher and Low (2009), pp. 227–256. See, for example, Family Law (Scotland) Act 1985; Family Law Act 1990 (Ontario); Family Law Act 2011 (British Columbia); Divorce (Financial Provision) Bill 2017-2019 (England & Wales); Miles and Scherpe (2021), pp. 144–158. 28 See, for example, Batagol and Brown (2011); Barlow et al. (2017); Thompson (2017). 29 See, for example, Elizabeth (2019), pp. 34–52. 30 See, for example, Fehlberg et al. (2011); Newnham (2011), pp. 251–267; Trinder (2014), pp. 30–50. 27

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infrequently pass responsibility for hands-on caring to another woman, such as their mother or a new partner. Family courts also echo social gender differences in imposing different normative expectations on mothers and fathers. While fathers are expected to financially support their children—hence the label of ‘deadbeat dads’ for those who fail to do so—expectations with regard to the quality of paternal child care are low.31 So long as fathers demonstrate an apparent interest in spending time with their children after separation they are praised and rewarded, even if that interest is framed in terms of their ‘rights’ to see their children rather than being centred on the children’s best interests. When fathers seek court orders for contact with their children they are very rarely refused.32 By contrast, mothers are held to much higher standards of behaviour. They are expected to subordinate their own desires and interests to the interests of their children, to make sacrifices for their children, to give up their autonomy and freedom of movement to enable children to maintain contact with their fathers, and to support and facilitate that contact.33 When children do not have contact with non-resident fathers, it is mothers who are blamed and punished, even if this is a product of children’s own choices. Family courts have developed a string of stereotypes to characterise mothers involved in child contact disputes with their former partners— the ‘no contact’ mother, the ‘implacably hostile’ mother, the ‘alienating’ mother, the ‘enmeshed’ mother—which substitute for and deflect serious questions as to why contact is refused or resisted, and whether contact will be safe or beneficial for the child.34 In particular, mothers seeking to protect children from domestic or sexual abuse by fathers have found family courts to be unresponsive, disbelieving and/or more likely to insist on the benefits of contact with non-resident fathers than to be willing to protect children and their primary carers from the risk of further harm.35 At worst, mothers opposing contact for these reasons are accused of fabricating allegations of abuse and seeking to alienate children from their fathers, putting them in a ‘no win’ situation.36 At the same time, the value of fatherhood and of fathers to children’s lives may come into question when the bounds of heteronormativity are breached. As noted in relation to legal parenthood, social disapproval of lesbian and gay male parenting may be reflected in legal provisions which restrict access to ARTs to heterosexual 31

English cases on the granting of parental responsibility to unmarried fathers, for example, suggest that the child’s welfare is furthered simply by having a connection to her father, regardless of the father’s actual parenting capacity: Re G (A Minor) (Parental Responsibility) [1994] 1 FLR 504; Re S (Parental Responsibility) [1995] 2 FLR 648; JB v KS [2015] EWHC 180 (Fam); see also Reece (2009), pp. 1167–1171; Harris and George (2010), pp. 151–171. 32 See, for example, Smart and Neale (1999); Eriksson and Hester (2001), pp. 779–798; Hunter et al. (2021). 33 See, for example, Boyd (2010), pp. 137–158; Boyd et al. (2015). 34 See, for example, Cain (2016), pp. 67–90. 35 See, for example, Hunter et al. (2020); Hunter et al. (2021). 36 See, for example, Sheehy and Lapierre (2020), pp. 1–129.

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couples. Such disapproval may also be reflected in court decisions on postseparation child arrangements which refuse residence or contact with children to either mothers or fathers who are in a same-sex relationship.37 But even where lesbian and gay male parenting is accepted in the context of the expansion of heteronormativity to encompass homonormativity, the position of transgender parents can remain marginal. In the English case of Re M,38 the family in question belonged to the ultra-orthodox Jewish Charedi community. The father left the family and the community to live as a woman, a transition which neither the mother nor the community could accept. There was evidence that contact with the father would result in the children and their mother being rejected by the community and in the view of the trial judge, this was a decisive factor in refusing to make the order sought by the father for direct contact. The Court of Appeal took the opposite view and restated the general position that contact is always beneficial for children, and discrimination and prejudice based on religious beliefs should not be allowed to obstruct contact. Nevertheless, the fact that there was uncertainty and disagreement in these circumstances suggests that, as in the case of the attribution of legal ‘fatherhood’ or ‘motherhood’, the traditional gender binary is deeply embedded in family law. ‘Fathers’ who want to be mothers and ‘mothers’ who want to be fathers pose unsettling challenges for the law and expose its continuing gendered and sexual normativity.

6 Conclusion Family law is an area that is particularly thickly imbued with social, cultural and religious norms and thus will vary considerably between different countries and, where religious personal laws pertain, between different religious communities within countries. In this context, ‘universal’ human rights standards such as the right to respect for family and private life,39 the right to marry and found a family,40 and equal rights within marriage and on its dissolution,41 are notoriously open-textured, indeterminate and contested. In particular, as illustrated throughout this paper, norms relating to gender, gender differences and gendered relationships continue to be pervasive. Family laws persist in attaching meanings to gender which result in legal advantages and disadvantages. And as the paper has shown, family 37

Discrimination against gay male and lesbian parents is typically found in countries which discriminate against homosexuality more generally, such as Hungary, Poland, Russia, and many Middle Eastern, African and Asia/Pacific states. 38 Re M (Children) [2017] EWCA Civ 2164. 39 United Nations, Universal Declaration of Human Rights (UDHR) Article 12; ECHR Article 8. 40 UDHR Art. 16; United Nations, International Covenant on Civil and Political Rights (ICCPR) Art. 23; ECHR Art. 12. 41 UDHR Article 16; ICCPR Article 23; United Nations, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16.

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laws continue to privilege some forms of relationships while marginalising others. Indeed, human rights standards pertaining to marriage and family are themselves underpinned by heteronormative assumptions and they continue to be interpreted and applied in this way. This paper has referred to some (common and less common) examples of these legal configurations although it is by no means comprehensive and many other examples could be provided. It is also clear that family law, along with social, cultural and religious norms, is not static. Social practices and ideas change over time and family law is often challenged to adapt to and ‘keep up’ with social, medical and economic developments. But we should not assume that such changes are necessarily progressive and we should think carefully about what we mean by ‘progress’. The march of gender neutrality in law (as in post-separation property division and parenting) can create disadvantages where background social inequalities continue to operate. And the march of inclusion in law (as in the extension of marriage and legal parenthood to same-sex couples) can entrench other exclusions or create new ones. Our task as critical family lawyers is thus to continue to ask questions in our family law teaching and scholarship: are gendered and sexual normativity really being eroded or simply reproduced and reconfigured in new circumstances? What new configurations of gender difference and heteronormativity are being produced? How does family law continue to be engaged in the construction of gendered and sexual subjectivity?

References Auchmuty R (2004) Same-sex marriage revived: feminist critique and legal strategy. Fem Psychol 14:101–126 Barker N (2012) Not the marrying kind: a feminist critique of same-sex marriage. Palgrave Macmillan, Basingstoke Barker N, Monk D (eds) (2015) From civil partnership to same-sex marriage: interdisciplinary reflections. Routledge, Abingdon Barlow A, Hunter R, Smithson J, Ewing J (2017) Mapping paths to family justice: resolving family disputes in neoliberal times. Palgrave Macmillan, Basingstoke Batagol B, Brown T (2011) Bargaining in the shadow of the law: the case of family mediation. Themis Press, Sydney Boyd SB (2010) Autonomy for mothers? Relational theory and parenting apart. Fem Leg Stud 18: 137–158 Boyd SB, Chunn DE, Kelly F, Wiegers W (2015) Autonomous motherhood? A socio-legal study of choice and constraint. University of Toronto Press, Toronto Cain R (2016) The court of motherhood: affect, alienation and redefinitions of responsible parenting. In: Bridgeman J, Keating H, Lind C (eds) Regulating family responsibilities. Routledge, Abingdon, pp 67–90 Cossman B, Ryder B (2017) Beyond Beyond conjugality. Can J Fam Law 30:227–263 Elizabeth V (2019) ‘It’s an invisible wound’: the disenfranchised grief of post-separation mothers who lose care time. J Soc Welf Fam Law 41:34–52 Eriksson M, Hester M (2001) Violent men as good-enough fathers? A look at England and Sweden. Violence Against Women 7:779–798

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Fehlberg B, Smyth B, Maclean M, Roberts C (2011) Caring for children after parental separation: would legislation for shared parenting time help children? Family Policy Briefing 7. Department of Social Policy and Intervention, University of Oxford Fisher H, Low H (2009) Who wins, who loses and who recovers from divorce? In: Miles J, Probert R (eds) Sharing lives, dividing assets: an inter-disciplinary study. Hart Publishing, Oxford, pp 227–256 Harris PG, George R (2010) Parental responsibility and shared residence orders: parliamentary intentions and judicial interpretations. Child Family Law Q 22(2):151–171 Hunter R, Burton M, Trinder L (2020) Assessing risk of harm to children and parents in private law children cases: final report. Ministry of Justice, London Hunter R, Barnett A, Kaganas F, Choudhry S (eds) (2021) Domestic abuse and child contact: international experience. Routledge, Abingdon Law Commission of Canada (2001) Beyond conjugality: Recognizing and supporting close personal adult relationships Machado H (2008) Biologising paternity, moralising maternity: the construction of parenthood in the determination of paternity through the courts in Portugal. Fem Leg Stud 16:215–236 MacKinnon CA (2012) Gender in constitutions. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law. Oxford University Press, Oxford, pp 397–416 Marshall J (2018) Secrecy in births, identity rights, care and belonging. Child Family Law Q 30: 167–185 McAvay H, Waldinger R (2021) Accelerating the passage to citizenship: marriage and naturalization in France. Front Sociol, 10 May, https://www.frontiersin.org/articles/10.3389/fsoc.2021. 659372/full McDonald P (ed) (1986) Settling up: divorce and income distribution on divorce in Australia. Prentice-Hall, Sydney Miles J, Scherpe JM (2021) The legal consequences of dissolution: property and financial support between spouses. In: Eekelaar J, George R (eds) Routledge handbook of family law and policy, 2nd edn. Routledge, Abingdon, pp 144–158 Mortalmans D (2020) Economic consequences of divorce: a review. In: Kreyenfeld M, Trappe H (eds) Parental life courses after separation and divorce in Europe. Springer, Cham, pp 23–41 Newnham A (2011) Shared residence: lessons from Sweden. Child Family Law Q 23:251–267 Palazzo N (2021) Legal recognition of non-conjugal families: new frontiers in family law in the US, Canada and Europe. Hart Publishing, Oxford Reece H (2009) Parental responsibility as therapy. Family Law 39(12):1167–1171 Sheehy E, Lapierre S (eds) (2020) Special issue on parental alienation. J Soc Welf Fam Law 42:1– 129 Smart C, Neale B (1999) Family fragments? Polity Press, Cambridge Thomas L (2018) Gender differences in the consequences of divorce: a study of multiple outcomes. Demography 55(3):769–797 Thompson S (2017) Prenuptial agreements and the presumption of free choice: issues of power in theory and practice. Hart Publishing, Oxford Trinder L (2014) Climate change? The multiple trajectories of shared care law, policy and practices. Child Family Law Q 26:30–50 UK Department of Culture, Media and Sport (2014) Civil partnership review (England and Wales): Report on conclusions Weitzman L (1985) The divorce revolution: the unexpected social and economic consequences for women and children in America. Free Press, New York Young C, Boyd S (2006) Losing the feminist voice? Debates on the legal recognition of same sex partnerships in Canada. Fem Leg Stud 14:213–240

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Rosemary Hunter is Professor of Law and Socio-Legal Studies at the University of Kent. She is a feminist socio-legal scholar whose current research focuses on family law and family justice processes, judging and the judiciary, and access to justice. She has served on a number of public bodies in England and Wales concerned with family justice and regularly delivers training on domestic abuse to family judges.

Family Matters: Gender, Community and Personal Laws in India Ishita Banerjee-Dube

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Antecedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Religious as the Personal: Law, Gender, Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Women in Action: Negotiating Community, Law, and Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Toward a Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter provides a detailed and critical account of the genesis, evolution, application, and implications of family laws for religious communities that came into existence in colonial times and are operative in contemporary India. It probes the discrepancy between the normative ideals of “family” in law and the actual experience of women within marriage and family to examine the vital and varied issues raised with regard to marriage and the rights of spouses brought into relief by the presence of communitarian/collective “Religious Personal Laws”. Such laws, apart from raising crucial questions about the nature of the “Personal” in rights that are granted to communities or collectives, offer valuable insights into gender inequality within family and matrimony. Learning from these insights, and the serious conflicts over “legal pluralism” reflected in the simultaneous presence of Personal Laws and Uniform Codes, and everyday experience, women of the communities, feminist lawyers, legal scholars, activists, empathetic lawyers and judges, and members of alternative dispute resolution forums have recognized the need to move beyond value judgments to ground laws to be more sensitive and just to gender in their framing and application.

I. Banerjee-Dube (*) Center for Gender Studies (and the Center for Asian and African Studies) of El Colegio de México, Mexico City, Mexico e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_3

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1 Introduction The position of women in a given society, writes Karin Carmit Yefet, “is perhaps nowhere better reflected than in the personal status laws of a nation”, since domestic life represents the sphere in which “women across the globe tend to be the farthest from attaining equality”.1 The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), an international treaty adopted by the United Nations in 1979, constitutes a landmark since it acknowledged the presence of violence and discrimination against women in the domestic sphere. India signed the convention in July 1980 and ratified it in July 1993, keeping the personal laws of religious communities outside the purview of CEDAW. “Personal Laws” of “religious communities” are a colonial inheritance; they exist in many former British colonies such as India, Pakistan, Bangladesh, Egypt, and other countries that have not gone through direct British colonization such as Indonesia, Syria, South Africa and Greece. Personal Laws encapsulate what is recognized as “Family Laws” across the globe, although it has been pointed out that the scope of Personal Laws is wider than the terms Family Law or Law of Personal Status.2 The Legal Dictionary defines “Family Laws” as “statutes, court decisions, and provisions of the federal and state constitutions that relate to family relationships, rights, duties and finances,” while for the Britannica, they constitute “a body of law regulating family relationships, including marriage and divorce, the treatment of children, and related economic matters.”3 Family, therefore, is “an institution with a legal identity”,4 in which a specific set of people are related in a particular way, an institution that is acknowledged by the State as legitimate. The family also has an extra-legal existence in its near self-evident nature in quotidian understandings, even though in India and elsewhere, several different forms of a family were in existence till the twentieth century. Family, as we understand it now, is patriarchal, patrilineal, and hetero-sexual— an institution based on inequality of gender and age, with “gender trumping age”.5 Marriage, in turn, is fused with trouble and strife and persistently associated with conflict, deprivation, exclusion.6 In recent years, Family Laws have occasioned fierce debates that relate not just to State policies but also to wider issues of gender imbalance within marriage, spousal rights to dissolve a marriage, as well as the rights of same-sex couples to get married and adopt children.7 Such contestations have interrogated the very notion of the nuclear, heteronormative family. India (and Pakistan), with their colonial inheritance of Religious Personal Laws (RPLs), offer illuminating examples of the extremely 1

Yefet (2011), p. 554. Srivastava (1976), p. 551. 3 Legal Dictionary, s.v.; Baxter (2018), s.v., Encyclopedia Britannica. 4 Menon (2012), p. 5. 5 Menon (2012), p. 6. 6 Basu (2015), p. 3. 7 Eekelaar and George (2020), for instance. 2

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important and diverse issues that concern gendered relations within the family, the distinct conceptions of matrimony, and the rights of women in relation to their spouses, children, devolution of property, and exit from marriage. Unsurprisingly, the dual presence of Uniform Codes of Civil and Criminal Procedure accessible and applicable to all citizens, and the presence of RPLs for certain communities has produced discord and legal muddles. The confusion has been compounded by the fact that the RPLs have an ambivalent status. Parts of RPLs have been reformed to become “statutory law”, and parts of them have remained as non-State personal laws with constitutional safeguard not to be breached or intervened. This ambiguity has given rise to further clashes, litigation, and opposing interpretations and implementation, highlighting thereby the many dimensions and diverging consequences of “legal pluralism” that attempts to negotiate classical precepts with constitutional and social mandates. All these varied repercussions open new vistas for the understanding of the huge gap between idealized notions of family and matrimony and their quotidian lives, the play of power in notions of culture, religion, community, and the ways formal law and alternative methods of dispute resolution arbitrate and negotiate trouble and conflicts related to marriage and family. They enable us to explore the functioning of law from the analytical perspective of gender. With particular emphasis on Muslim Personal Law, that has been a matter of serious debate and contestation in contemporary India, this essay tracks the intricate evolution of RPLs in conjunction with court intervention, legal and social activism, and mobilization within the communities for the reform of RPLs. Such an analysis serves to bring into relief the multifarious problems and the productive possibilities of gender justice within the family.

2 Antecedents Before we proceed, it is important to briefly trace the genesis of what is increasingly called “Religious Personal Laws” (RPLs) in legal discourse in India. Our story begins in late eighteenth century India with the first Governor-General of the English East India Company, Warren Hastings.8 In 1772, Hastings and his circuit committee proposed a Judicial Plan that was implemented by the Bengal Government under the 8

The English East India Company, established as a joint-stock company of traders and merchants based in London towards the end of 1600 to participate in the vibrant Indian Ocean trade, was granted monopoly over all trade between England and Asia by a Royal Charter of 31 December 1600. In 1613, the Mughal emperor Jahangir allowed the Company to set up factories in India. Interested in textile and spices, the Company set up factories near the ports of Madras (Chennai), Bombay (Mumbai) and Hugli (and later Calcutta) in Bengal and gradually moved into the hinterland from the ports trying to control the producers as well as inland trade that involved it in clashes with local rulers. The Company’s military triumph over the nawab of Bengal in 1757 and subsequently against a combine of the nawabs of Bengal and Awadh and the Mughal Emperor in 1764, gave it great powers over the flourishing Bengal Presidency; it also got the right to collect the revenue of the province from the Mughal Emperor in 1765. The Company’s entry as the revenue

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rule of the English East India Company. The Judicial Plan laid out the basics for the administration of justice to the English and Europeans resident in Calcutta and Bengal and the “natives”. The Plan, stated to be “adapted to the manners and understandings of the people and exigencies of the country that “adhered as closely as possible to their ancient usages and institutions”, had a dual purpose. It wanted to protect the British and European subjects resident in Bengal by administering them under English (statutory) law, and to allow the “natives”, who “indulged in their own prejudices, civil and religious”, to “enjoy their own customs unmolested”. The Plan clarified that in “all suits regarding inheritance, marriage caste, and other religious usages, or institutions, the laws of the Koran with respect to the Mahometans and those of the Shaster (scriptures) with respect of Gentoos shall invariably be adhered to”.9 The Laws of the Gentoos (Portuguese term for Hindus) were searched for, haphazardly and arbitrarily selected, translated and codified through a tortuous process from a huge corpus of prescriptive, normative, and moralistic texts called Dharmashastras (scriptures related to faith), resulting in an artificial body of laws,10 inscribed and classified as A Code of Gentoo Laws to be administered in Courts.11 This signaled a new process of classification, interpretation, and application of “Hindu” law consonant with the British judicial system,12 a codified law that gave priority to scriptures over customs and usages. Marriage, inheritance, caste, and other religious usages or institutions marked out as the private sphere of the natives corresponded to matters that fell within the jurisdiction of ecclesiastical and Bishops’ courts in Britain. The demarcation of Personal Laws as “religious” derived from the English judicial system, and the purpose behind ceding jurisdiction in “family and religious affairs to private authorities” was intended to gain “native consent” for foreign rule by yielding to religious claims.13 At the same time, the uninformed assumption that the inhabitants belonging to multiple cultural and religious traditions were reducible to Gentoos and Mahometans who should be allowed to administer their family and religious affairs lumped together myriad and fuzzy sectarian orders into these two categories (Hindus and Muslims). It also made religion the principal basis of communitarian identity and objectified and transformed Indian society in crucial and enduring ways.14 It bears mention that prior to the takeover of administration by the British, the distinction made in English Law between territorial and personal laws in which “personal law” attached to a person, an individual, wherever he or she went did not

collector occasioned a devastating famine in Bengal in 1770–71. Warren Hastings was appointed as Governor General the following year by the Directors of the Company. 9 Acharya (1914), p. 153; Banerjee-Dube (2015), p. 54. 10 Rocher (1994); Bhattacharya-Panda (2008). 11 Halhead (2013/1776). 12 Parashar (2013), p. 8; Mullaly (2004), p. 676. 13 Banerjee-Dube (2015), p. 54. 14 See, for instance, Rocher (1994, 2010); Agnes (1999).

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exist in India.15 Hindus, Muslims, and all other communities regarded themselves to be bound by their respective “religious” laws that applied to all aspects of life except crime. In addition to the fact that personal matters and laws relating to them were not separately demarcated, the contours of personal laws changed from one regulation to the other in accordance with the context and exigency of the situation. The “peculiarity of governance need of the British” created “small islands” of arbitrary and artificial “Religious Personal Laws”,16 the enduring and vital reverberations of which continue to be felt in the India of today. Significantly, even after such delineation, the colonial state continued to intervene in “personal matters” of the natives over the 19th and 20th centuries.17 The abolition of the “barbaric” custom/practice of Sati—in which the wife of a deceased husband burnt herself along with the body of the husband in the funeral pyre—in 1829 was the first, followed a century later by the Child Marriage Restraint Act, and several others in between.18 The Abolition of Sati, defined satirically by feminist scholars as a case of “White men saving brown women from brown men”,19 was a “founding moment” in the history of women in modern India.20 A moment in which not just a civil but a “good” society was sought to be created out of “domestic confusion”.21 Personal Laws of “religious communities”, therefore, were not only enacted by the State, but they also evolved in constant conversation with and interpretation of English law by British judges.22 At the same time, by 1947, Personal Laws had not only had a long life of over 150 years, but they had also become a crucial element of identity, in particular for the minority communities. They could not be discarded. The conjoined and convoluted development of colonial and nationalist politics that resulted in independence with Partition and the creation of the nation-states of India and Pakistan had important consequences on India’s decisions with regard to laws and their application. For the first generation of Indian political leaders, Personal Laws were “religious”, but they were not outside the purview of the State legal system. The State could definitely implement them, although there was ambiguity over the State’s power to reform them.23 And this was at a time when the independent Indian State and the Constitution acknowledged legal reform as a major instrument of social transformation. Debates in the Constituent Assembly (that drafted the Indian Constitution) and in the public arena revealed this joint and conflicting pressure of creating and

15

Parashar (1992), p. 46. Parashar (2013), p. 8. 17 Parashar (1992), pp. 70–72. 18 The Caste Disabilities Removal Act, 1850; The Hindu Widows Remarriage Act, 1856; Hindu Inheritance (Removal of Disabilities) Act, 1928, offer illustrative instances. 19 Spivak (1988), p. 93. 20 Mani (1989), p. 88. 21 Spivak (1988), p. 93. 22 Parashar (1992), p. 72. 23 Parashar (1992), p. 76. 16

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implementing Uniform Codes of Civil and Criminal Procedure to be applicable to all Indian citizens and of retaining Personal Laws since the Uniform Code, it was felt by many, would be overwhelmingly “Hindu”. Article 44, that forms a part of “Directive Principles of State Policy” contained in Part IV of the Constitution, enjoins the State to push for Uniform Codes while Part III of the Constitution on Fundamental Rights guarantees Indian citizens the right to practice one’s religion without any obstacle. While Fundamental Rights are legally enforceable, Directive Principles are not. Family or Personal Laws of four (five) “religious” communities—the Hindus (majority community), the Muslims, the Christians (along with the Jewish people), and the Parsis—continue to be operative. Indian citizens have the right to decide on whether they want to take recourse to Personal Laws in matters such as marriage, divorce, adoption, inheritance, succession, or to the Uniform Code. The Constitution makers and political leaders felt confident to take up the matter of legal reform in relation to the Personal Laws of the majority community, the Hindus. Apart from the fact that this reinforced an idea of “Hindu law” as something singular and distinct from “western” law that is meant to be totally separate from “religion”,24 State-sponsored, limited reforms of the Hindu Code Bill indirectly indicated the Hindus as a “progressive” group interested in granting better terms and condition to their women within the family and gave impetus to the Hindu Right advocacy of reforming or discarding Muslim Personal Laws. It is important to point out in this context that since marriage is considered a sacrament—a holy and indissoluble union— in Hindu (and Christian) law unlike in Islam where it is viewed as a dissoluble contract, Hindu law did not grant women a right to divorce. Nor did it grant widows and daughters an absolute right of inheritance.25 Prior to independence therefore, Muslim personal law, that had undergone significant reform and unification in the 1930s and had granted Muslim women a judicial right to divorce in 1939, was “superior” in terms of women’s rights than the Brahmanical Hindu Law or Christian Law.26 This, however, would be completely forgotten after India’s independence, as we shall see soon. The existence of Family Laws for particular communities that do not conform to constitutional requirements and are yet enforced by the State has been variously lauded and criticized as legal pluralism. And the notion of Personal Laws as “religious” has occasioned debates on the nature of India as a “secular” democracy displacing thereby the much more significant problems of the relationship between women and the State (in its function as the legislative-executive) and the role of law (employed in the sense of a normative system) in promoting or restricting gender justice. This will become clear in the discussion of actual, important issues and cases in the following section.

24

Parashar (2013), p. 9. Agnes (1999), p. 71. 26 Agnes (2011), cited in Herklotz (2015). 25

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3 The Religious as the Personal: Law, Gender, Justice Religious Personal Laws, as indicated above, are products of human intervention in particular contexts; they are dynamic and mutable and not “divinely ordained” and hence “immutable”.27 The idea of Personal Laws as “religious”, it bears mention, shores up another unfounded assumption of a clear separation between religion and the law and marks out India, Pakistan, and other ex-colonies as different and particular, as deviations from the norm. Personal Laws are also considered “cultural rights” since the Indian Constitution grants minority communities the right to conserve and promote their “culture” and make necessary institutional arrangements to do so. The concept of culture, anthropologists have shown, is Janus faced. It refers both “to a system of shared meanings that defines the individual’s collective life”, and a system of “formulation of judgements” that helps to keep the individual “strictly within the bounds defined by society” by “excluding alterities”.28 Cultural rights for minority communities, also acknowledged by the International Community, generate ambivalence with regard to the subject of such rights. If the individual belonging to a minority community is the legal personality and the subject of cultural rights, in what sense then are cultural rights collective? What is the relation between the individual and the collective/community, between different collectives, and the collective/community and the State? Do cultural rights constitute the sum total of rights of all the individuals who constitute the community, or are they something distinct?29 These fraught issues became graphically evident in a much-discussed case of a Muslim woman, Shah Bano, divorced by her husband in 1978 in accordance with Islamic Personal Law (Shariat). Shah Bano and Mohammad Ahmad Khan, an advocate, had been married in 1932 and had three sons and two daughters. According to Shah Bano, she had been driven out of her matrimonial home in 1975; in April 1978, she filed an application against her husband in the court of the judicial magistrate of Indore (Madhya Pradesh, westcentral India) to claim monthly maintenance of approximately 40.38 USD (500 INR) under Section 125 of the Uniform Code of Criminal Procedure. Mohammad Ahmad Khan divorced Shah Bano in November 1978 by an irrevocable talaq (divorce) allowed by Muslim Personal Law and filed a criminal appeal in the Supreme Court against respondents Shah Bano Begum and others. According to the appellant, Shah Bano had ceased to be his wife after the divorce. He had paid maintenance allowance for 2 years and had also deposited approximately 242.38 USD (3000 INR) by way of dower during the period of iddat (normally the passage of three menstrual cycles or three lunar months for menopausal women during which the three talaqs are

27

Parashar (1992), p. 47. Das (1995), pp. 91–92. 29 Das (1995), p. 88. 28

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pronounced). In his terms, he had met all the requirements of divorce under Muslim Personal Law.30 The case gained prominence because Mohammad Ahmad Khan resorted to the Supreme Court and asked it to pronounce on whether Section 125 of the Uniform Code of Criminal Procedure could be applied to Muslims in “personal” matters. His real purpose probably was to revoke earlier judgments of the Supreme Court that had applied Section 125 of the Code to divorced Muslim women and revert to the Shariat for such matters. Mohammad Ahmad Khan’s appeal revived the long debate on whether the State and its legal system should intervene in “personal matters” of minority communities as well as the friction between the universal applicability of Uniform Codes and the conservation of Personal Laws. And this, too, was at a time when the authoritarian Hindu Right, always in favor of Uniform Codes, was gaining prominence in mainstream Indian politics. The judgment of the Supreme Court, delivered on 25 April 1985, upheld the earlier judgment of the Madhya Pradesh High Court that the Uniform Code was applicable to Muslims and Shah Bano’s right to maintenance, raising the monthly payment by a mere pittance, of roughly 10 USD (70 to 130 INR) from what had earlier been granted by the High Court. It is worth quoting a relevant part of the judgment: “Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Whether the spouses are Hindus or Muslims, Christians of Parsis, Pagans or Heathens, is wholly irrelevant in the application of these provisions.” Section 125 is not a part of “Civil Laws,” which define and govern the rights and obligations of parties “belonging to particular relations”; and is not affected by the “religion professed by the neglected wife, child, or parent”.31 “Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of Section 125.” Such provisions, of a “prophylactic nature”, cut across barriers of religion even while they do not “supplant the personal laws of the parties”. The “liability” imposed by section 125 to “maintain close relatives who are indigent” is based on the individuals’ “obligation to society to prevent vagrancy and destitution”.32 This affirmation clearly indicates the Court’s preference for the application of Uniform Codes over Personal Laws. Vagrancy and destitution—of women in particular—had featured for long in masculinist discussions of good society in England, India (and elsewhere). They were prompted by anxieties of Victorian morality that tried to preempt destitute women from turning to prostitution, an act that was to have serious consequences for law and order and the “morality” of a good society. The Chief Justice of the Supreme

30 Supreme Court of India (1985) Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985. 31 Supreme Court of India (1985) Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985, para 2.2. 32 Supreme Court of India (1985) Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985, para 2.3.

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Court, Y. Chandrachud, reiterated this masculinist concern in a different way by underscoring the “obligation” of men “to society to prevent vagrancy and destitution”. It had little to do with the equality of rights of the spouses. The judgment further commented on the desirability of evolving a universally applicable Uniform Civil Code as envisioned in the Constitution since all “religions” entailed “injustice” to women and on the necessity of revising the provisions of the Shariat with regard to the obligation of the husband to support a divorced wife. As indicated above, marriage in Islam is a contract and not a sacrament, and hence, it does not have provisions for maintenance upon its dissolution.33 At the same time, classical Islam considers divorce to be “most hateful” and confers arbitrary, unilateral, and unfettered rights only to the husband to dissolve a marriage, representing the most masculinist part of the Islamic law that upholds male supremacy over women.34 The efforts of Muslim leaders to reform Personal Laws in colonial India were aimed at bringing uniformity within an extremely heterogeneous community. Although initiated by Jamiat-ul-Ulema-i-Hind, the most influential “religious” body of Muslim men, the Muslim Personal Law (Shariat) Application Act of 1937 had the support of Muslim women’s organizations that preferred the Shariat over customary laws, since customary laws could often be more discriminatory towards women than the Shariat.35 At the same time, the Act mentioned almost nothing about the content of these stipulations.36 The Muslim Marriage Dissolution Act of 1939 granted the right to divorce to Muslim women under certain conditions. This Act did not mention alimony. In a similar manner, reform of the Hindu Code conducted between 1941 and 1955 that resulted in the Hindu Marriage Act (1955) and its amendment in 1976 introduced divorce by “mutual consent”, acknowledging thereby the right of the wife to egress matrimony. The heterogeneity of the judgment on the Shah Bano case combined with the fact that the Chief Justice was pronouncing on Muslim Personal Law for the first time since independence and insisting that Article 44 of the Constitution be made active in order to frame a common civil code for the country and “promote the cause of national integration by removing disparate loyalties to laws”,37 made it a “signifier” of tense and unresolved issues. The rights of minority communities, the nature of secularism, and the role of the law in securing “justice for the oppressed” came under scrutiny.38

33

Agnes (1999), pp. 33–34, 101. Yefet (2011), p. 557. 35 Supreme Court of India (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, part IV, 28. 36 Niaz (2016), cited in Jones (2019), p. 2. 37 Supreme Court of India (1985) Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985, Observation. 38 Das (1995), p. 95. 34

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This was not the first time in independent India that a divorced Muslim woman had resorted to the Uniform Code and moved the Court to secure alimony. Indeed, in two earlier verdicts, the Supreme Court had upheld the right of divorced Muslim women to resort to Section 125 of the Code of Criminal Procedure in order to claim maintenance. But the earlier cases had gone virtually unnoticed. It was the charged political situation with an ascendant Hindu Right with its demand for Uniform Codes and charge of appeasement of minorities against the ruling party and government, the political immaturity of Prime Minister Rajiv Gandhi, and the injudicious comments of the Chief Justice, a Hindu, about Muslim Personal Laws that made the situation go out of control. The rights of Shah Bano, an indigent divorced woman, to maintenance by the husband were forgotten. Media sensationalism, parliamentary and public debates underscored the “progressiveness” of the reformed Hindu Code and of the Hindus in general, the backwardness of Muslim Personal Laws, the parochialism of the Muslim Personal Law Board that raised the cry of religion and community in danger, and the circumscribed nature of India’s secular democracy on account of the presence of the RPLs. All this made Uniform Codes and national integration appear important and necessary. In the midst of this turmoil, Shah Bano retracted; she didn’t want to go against her community, she said, graphically and tragically highlighting the ineptness of “cultural/collective” rights and of legal pluralism in effecting gender justice. The monthly allowance that the Supreme Court ordered her former husband to give her was abysmally low and would not have covered her upkeep. The Shah Bano case underlined the severe problems that inhere in the family as an unequally-gendered institution, a “site of conflict”, and an unsolved discord between the State and community over control of the family.39 Feminist and legal scholars and practitioners have argued that the central issue in the Shah Bano case should have been whether existing institutional structures allowed women reasonable security within the family.40 The several petitions for maintenance filed every year by divorced women of different communities indicate that neither the family nor the community offers married women such security. In a situation where the State chooses not to encroach on “personal” matters of particular communities and the community assumes the power to legally govern its members, its zeal to conserve “culture” often denies women the opportunity to assert their individual rights or to leave the community. Where then do women and children “oppressed by pathologies of the family and the community go for redress?”41 There is neither a clear answer nor a solution in State law, RPLs, or International Law. Two more points bear mention in this connection. First, even though the reform of the Hindu Code was undertaken to grant Hindu women greater rights within the family, it was conducted overwhelmingly by men—patriarchs—who wanted to bring uniformity in the widely divergent norms, customs, and practices of an

39

Das (1995), p. 105. Agnes (2011); Menon (1998); Kishwar (1986); Sunder Rajan (2003). 41 Das (1995), p. 105. 40

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immensely heterogeneous community that now came to be reinforced as “Hindu”, and in the interest of “national integration” of a new nation-State. The reforms were conducted in a piecemeal manner; they revealed severe male anxieties about women’s sexuality and prejudices in relation to women’s rights; and made certain sections of women lose better rights they had within their localized groups and customs, as also of daughters within matrilineal groups.42 Most importantly, the reforms just intended to confer greater rights to women without being concerned about “legal equality”.43 Moreover, considerations of women’s rights appeared “only fleetingly” in the entire debate.44 The second point relates to an important consequence of the Shah Bano furor: the Muslim Personal Law Board and other sections of the Muslim community succeeded in exerting sufficient pressure on the government to get a widely maligned Act—the Muslim Women (Protection of Rights on Divorce)—passed in 1986. The central government’s attempt to respond to the crisis produced by the Shah Bano Judgment by passing the Act, it has been commented, reveals a kind of “trafficking of women” that often accompanies multi-cultural arrangements.45 Gender-equality was subordinated to religious discourse, and rights of individual women as citizens came to be refracted through the membership of a religious community. At the same time, it is important to remember that while the 1986 Act was severely censored because it removed divorced Muslim women from the purview of the Uniform Code, legal practitioners have argued that this Act, resourcefully deployed by divorced women, their advocates, and empathetic judges, has, in certain cases, given greater benefits to divorced Muslim women on account of an imaginative and interpretive appeal to the Islamic sense of justice.46 In a similar manner, the suggestive work of Yefet on the dual commitment to constitutional and Islamic law in Pakistan has sought to disprove a “facile assumption of female oppression under Islamic legal regime” to demonstrate the creative potential of Muslim jurisprudence that has successfully equipped legislatures with Islamic approaches for reforming divorce and promoting better and more equal opportunities to Pakistani women and men to dissolve marriages in a religious system in which “marital freedom is overtly gendered.”47 In a different manner, Flavia Agnes, an academic-activist and lawyer, has laboured relentlessly to interrogate the pitting of “progressive” Hindu law against “regressive-fundamentalist” Muslim law, an idea that emerged in the 1950s after the reform of the Hindu Code.48 These works impel a much more considered and critical reflection on the nature of religious personal law and its potential for gender justice, when used

42

Menon (2012), pp. 26–29; Kishwar (1994). Parashar (1992), p. 77. 44 Sunder Rajan (2003), p. 157. 45 Mullaly (2004), p. 672. 46 Agnes (2007), pp. 309–310. 47 Yefet (2011), pp. 615–616. 48 Agnes (2011), p. 21. 43

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sensitively, strategically and resourcefully by women, their lawyers, advocates and judges, as well as activists struggling to make laws more contextual and gender sensitive. The Passing of the Family Courts Act, “An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith”49 in September 1984, provides an important illustration of the awareness generated by mobilization and struggle for the recognition of gender injustice within family and marriage, as well as the need for “speedy” and reconciliatory settlement of family disputes. At the same time, Family Courts, as an alternative method of dispute resolution, serve to valorize the ideals of a heteronormative family based on companionate, conjugal love that conduces two-parental and “loving” child rearing.50 Such an ideal of the family as a site of “heteronormative harmony”, writes Srimati Basu, is often at odds with experiences of family by the women who come to Family Courts. And the claims to gender equity projected in writings that sprawl across the walls of family courts, are often not served in adjudication.51 And yet, law and legal reform remain significant in their capacity to open “strategic spaces of negotiation” for litigants, “despite the limitations of legal remedies.”52 With these insights in mind, let us turn to the actual mobilization of women from within the communities with RPLs for reform.

4 Women in Action: Negotiating Community, Law, and Justice Our focus in this section will be on Muslim women, who are normally homogenized, categorized, and perceived as “victims” of practices such as triple talaq, polygamy, purdah (veiling), and personal law.53 This perception holds true not just for South Asia but for Muslim women in general, a view that turns them into abject objects/ victims who need to be “saved” from the clutches of their own religion, customs, and practices.54 It is understandable that in a large and diverse community, efforts and actions of different groups of women to improve their conditions of life have gone in different directions. Such moves, as indicated above, have had a long trajectory going back to colonial times since they evolved in conjunction with colonial considerations of Islamic laws and Muslim men’s internalization and appropriation of such 49

Department of Justice, Ministry of Law and Justice, The Family Courts Act, 1984. Basu (2015), p. 2. 51 Basu (2015), p. 3. 52 Basu (2015), p. 4. Basu has studied the Mumbai Family Court. 53 Sur (2018). 54 See Abu-Lughod (2002), for a serious critique of this mindset and understanding. 50

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understandings to retain the privilege of governing their “women” within the family and the community. Here we will briefly touch upon actions and struggles that have gained prominence from the beginning of this century. Two trends bear particular mention. First, a range of vibrant campaigns pioneered by Muslim women’s associations to create and claim a space for women within Islam through a range of non-conformist practices.55 And second, moves to interrogate, interpret and reform personal law to redress glaring gender inequality. The first entails practices of holding and leading congregational prayers, of entering and managing mosques, of visiting shrines, officiating in Muslim marriages and functioning as Qazis to issue shari’ah based legal decisions, practices that have created a space for women in overtly masculine spheres. The second involves a critical reconsideration and interrogation of the injustice inherent in practices of matrimony and divorce. Together, they have occasioned profound changes in perceptions and practice of Islam. The Bharatiya Muslim Mahila Andolan (BMMA, Indian Muslim Women’s Movement) founded in 2007, has made codification of Muslim family laws and reform of personal laws the most important part of its agenda. In 2014 it produced a draft document, the Muslim Family Law Act, that set out by indicating that Muslim personal laws have been reformed and codified in Muslim majority countries across the world and emphasized the need for such codification in India in order to avoid arbitrariness, injustice, and variance in legal decisions. It also conducted an extensive nationwide survey of Muslim women’s opinions on family laws to uphold its claim. In its bid to secure better rights and conditions for Muslim women in matters of marriage, inheritance, children, divorce, and dissolution of marriage, the BMMA makes creative use of liberal ideals and Islamic notions of justice and equality, engages in discussions with community leaders and women’s organisations to push for reform and codification of Muslim personal laws.56 In a somewhat different manner, the All India Muslim Women’s Personal Law Board set up in 2005 oversees the application of Muslim personal laws with a special focus on women’s rights in relation to marriage, divorce, and access to the law. Such situated activism, together with critical reflections and struggles of Muslim, Christian, and Hindu lawyers and legal scholars, academics, feminist activists, and the women of the “religious” communities, have generated greater awareness and made possible better negotiation of RPLs and family laws in particular contexts. The Supreme Court verdict of 2017 with regard to the appeal of Shayara Bano, assailing the divorce pronounced by her husband by means of the practice of instant triple talaq (talaq-e-biddat/talaq e bidah), an arbitrary practice not sanctioned by the Quran, offers a case in point. The BMMA, it bears mention, supported the appeal of Shayara Bano by filing a Public Interest Litigation in 2016 to ask for the abolition of instant triple talaq, while the Bebaak collective, a campaign group that focuses primarily on Muslim women and their problems, had expressed its support in a written document. The All India Muslim Personal Law Board challenged Shayara Bano’s appeal in the Supreme Court,

55 56

Jones (2020). See also, Mahmood (2005, 2006) for similar actions of Muslim women in Egypt. Jones (2019).

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arguing that the practice constituted a part of Muslim Personal Law protected by the Constitution and hence could not be judged for legal validity. The detailed Judgement (of 395 pages) was delivered on 22 August 2017 by Jagdish Singh Khehar, the Chief Justice of India, with a bench of 4 other judges on the Civil Writ Petition (C) 118 of 2016 and a host of others related petitions. It took into account the petitioner’s “marital discord” and “her prayers”; the practiced modes of talaq amongst Muslims; the holy Quran with regard to talaq; legislation in India on Muslim personal laws, and the “abrogation of the practice of talaq-e-biddat by legislation the world over” in Muslim and non-Muslim states. The justices examined laws of Arab States, South-East Asian and Sub-continental States; Judicial pronouncements on talaq-e-biddat, and the rival contentions of the petitioners and intervener based on diverse and opposing hadiths (traditions of sayings of the Prophet) to support or deny the validity of triple talaq, in order to arrive at their Conclusions.57 They recognized that talaq-e-biddat was a common practice among Sunni Muslims belonging to the Hanafi school and has been in existence for a long time, even though it is considered sinful in Islam. Hence, the practice is “bad in theology” but “good” in law.58 The very fact that States with large Muslim populations in different parts of the world, such as Egypt, the United Arab Emirates, Pakistan, Bangladesh, Indonesia and Malaysia, had legislated to abrogate it was further proof of its existence.59 Commenting on the fact that this was the first time the Supreme Court was debating the legal validity of the practice of talaq-ebiddat, the judges declared that they had taken note of the opinion offered by the “learned counsel” of the rival parties, that it was not up to the Court to enter the “thickets” of determining whether triple talaq constituted a valid practice within Muslim personal law or to decide on the intricacies of Muslim personal law.60 They concluded that the practice of talaq-e-biddat was a constituent of “personal law” and had a stature equal to other fundamental rights, conferred on citizens in Part III of the Constitution. The practice moreover did not cause a violation of public order or constitutional morality, the grounds on which the Constitution allows the Court or the State to arbitrate on personal law.61 At the same time, they were persuaded to “exercise their jurisdiction”, granted by Article 142 of the Constitution, to intervene in the matter for the cause of “complete justice”. The practice, they affirmed, needed to be set aside since it had been “unequivocally” acknowledged by all concerned to

57

Supreme Court of India Index. 58 Supreme Court of India 189, paras. 127–128. 59 Supreme Court of India 203, para 142. 60 Supreme Court of India 199, paras. 137. 61 Supreme Court of India Conclusions, 264.

(2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017,

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be arbitrary and “gender-discriminatory”.62 The justices were “satisfied in injuncting (judicially restraining) Muslim husbands” to use talaq-e-biddat as a means for severing their matrimonial relationship. The judicial order was to be operative at first for a period of 6 months, during which a legislative process was to commence. If the outcome was a positive decision towards redefining talaq-e-biddat, or doing away with it altogether, the injunction would continue until legislation is finally enacted. If that did not happen at the end of 6 months, the injunction would cease to operate. 63 The justices also directed the “Union of India” that had supported the cause of the petitioner to consider appropriate legislation, particularly with reference to talaq-e-biddat.64 A directive that encouraged the Law and Justice Minister of the Bharatiya Janata Party government of the Union, to bring a Bill, the Muslim Women (Protection of Rights on Marriage) Bill, in the Legislature in December 2017 that sought to declare the practice illegal and void and to punish Muslim men who continued the practice with jail term and a fine. Posed in the name of saving and granting “justice” to Muslim women, the real purpose behind the Bill was to vilify Muslim men and champion the supremacy of Hindus. The Bill was stalled twice on account of the resistance offered by parties in Opposition who demanded that the matter be sent to a standing committee, but the Union Government finally managed to get the ordinance turned into an Act in July 2019 with the approval of both houses of the Indian Parliament and that of the President of India. Ironically, this Act reminds us of a much earlier one, passed first by the State of Rajasthan in October 1987 and then the central government in January 1988, in the wake of the public commitment of Sati by Roop Kanwar, an 18 year old Rajasthani woman who had lost her husband. The Rajasthan Sati (Prevention) Ordinance and the subsequent central legislation—the Commission of Sati (Prevention) Act—that got almost unanimous approval in both houses of the Parliament—ignored the vital issues of women’s choice or the lack of it, and the socio-cultural pressures they have to undergo that often promt them to commit Sati. Treating Sati as a “special offence”, the Act passed the onus of proving their innocence to by-standers of the public event. In a different twist, it turned victims into delinquents by punishing women who decided or tried to commit Sati by means of imprisonment of one to 5 years and a fine of approx. 360-1437USD (5000–20,000 INR).65 Unsurprisingly, the passing of the Law caused consternation among feminist scholars and legal experts, who came

62

Supreme Court of India (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, paras. 197, 269. 63 Supreme Court of India (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, The Declaration, 271–272, paras. 200–201. 64 Supreme Court of India (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017, The Declaration, 271, para. 199. 65 Agnes (1992), p. 31.

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to reflect once again on the usefulness and efficacy of state legislation for gender justice.66

5 Toward a Conclusion This essay has tried to explore the interface of normative ideals of marriage and family in law elaborated in overtly patrilineal and patriarchal cultural ethos, and the ground realities of these institutions to understand how the discord and lack of fit between the two inflect implementation of equality and justice viewed from the perspective of gender. Evidently, the heteronormative and unequally gendered ideals of family and marriage do not pertain to South Asia but traverse the globe, reified and valorized over and over again as the basis of nation, community, society. An exploration of the normative ideals and their perpetration and execution in the quotidian arena through mediation, conflict, interrogation, dialogue, and struggle offer incisive insights into the contingent nature and co-constitution of equality, justice, law, rights, and the very concept-category of gender. The focus on India with its “legal pluralism” that entails a dual commitment to constitutional provisions and ideals and respect for “personal” matters of citizens of particular “religious” communities, opens a richly textured panorama to view the innumerable problems and intractable difficulties that abound in matters related to family and marriage, and rights and responsibilities of the spouses in relation to their children, property, and exit from marriage and family. Such a vista allows serious reflection on the very concepts of rights -legal and otherwise-, citizenship, equality, equity, and justice, prompting further probing of the Nation-State and the Law in relation to their capacity to provide “gender justice”. It also induces critical exploration of why women’s struggles and feminist (legal) activism have turned again and again to law and legal intervention (of the State) for achieving gender equity even when the law has been shown to provide solutions that are “neither stable nor predictable”,67 often failing to offer women viable options of job and housing to make egress from matrimony feasible.68 Such limitations of law are closely tied to the ambivalent agenda, assumptions, and politics that underlie the self-assumed role of the State and the Supreme Court as the guarantor of rights and justice to the “oppressed”. I have traced the genesis and evolution of Religious Personal Laws and their manifold and diverse deployment and ramifications in contemporary India to underscore not just the perennial “trouble with marriage”69 and family, but also to insist on the importance of paying attention to the perceptions, experience, and articulations of the different actors, women in particular, who try to negotiate inequity, violence,

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Agnes (1992), Jaising (1987); Kishwar and Vanita (1987), for instance. Basu (2015), p. 4. 68 Agnes (1992), p. 33. 69 Basu (2015). 67

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and oppression in discrete and distinct ways. This focus on the actors brings into relief how law, formal and informal, distant and intimate, stern and benevolent, shapes social beings in their quest for better conditions of life and gets transformed in turn through this interaction. In other words, my attempt has been to examine how law can and does mould social beings and how social beings impinge upon and transform laws. And here, the extremely significant and relatively unexplored presence of scholar-activists-lawyers in campaigning, awareness raising, and approaching the parliament and courts becomes supremely important.70 Such campaign and activism can and has brought about legal and social reform, a fact that provides a partial answer to the paradox of why women’s struggles have demanded legal reform while continually criticizing the legal system.71 This scenario of ambiguities and contradictions, contending understandings, and conflicting claims serve to highlight how new laws created on account of struggles, activism, and political imperatives of the State are deployed by individuals and groups in anticipated and ingenious ways to lead to unexpected consequences. Such varied consequences of bargaining in the shadow of the law have taught feminist lawyers, scholars, activists, women’s groups, and individual women to displace the overarching and gender insensitive debates of secularism, religion, tradition, culture, modernization in their quest for negotiation to gain greater dignity and equity within a family, marriage, and egress from marriage via state and personal laws, and via arbitration in family and sharia courts, and to speak of a Uniform Code that includes the most gender-sensitive aspects of the personal laws of the different religious communities instead of a forcible application of the existing one. The quest and bargaining via law as a medium of social transformation continues, now with greater awareness of its blind spots in relation to gender.

References Abu-Lughod L (2002) Do Muslim women really need saving? Anthropological reflections on cultural relativism and its others. Am Anthropol 104(3):783–790 Acharya BK (1914) Codification in British India. S.K. Banerji & Sons, Calcutta Agnes F (1992) Protecting women against violence? Review of a decade of legislation, 1980–89. Economic and Political Weekly 27, 17 (25 April): Ws 19–21, 24–33 Agnes F (1999) Law and gender inequality. The politics of women’s rights in India. Oxford University Press, New Delhi, New York Agnes F (2007) The supreme court, the media, and the uniform civil code debate in India. In: Needham AD, Rajan RS (eds) The crisis of secularism in India. Duke University Press, Durham, pp 294–315 Agnes F (2011) Family law volume I: family laws and constitutional claims. Oxford University Press, New Delhi

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Banerjee-Dube I (2015) A history of modern India. Cambridge University Press, Cambridge, New Delhi Basu S (2015) The trouble with marriage: feminists confront law and violence in India. University of California Press, Berkeley Baxter IFG (2018) Family law. In Encyclopedia Britannica. https://www.britannica.com/topic/ family-law Bhattacharya-Panda N (2008) Appropriation and invention of tradition: the English East India company and Hindu law in early colonial Bengal. Oxford University Press, New Delhi Das V (1995) Communities as political actors: the question of cultural rights. In: Das V (ed) Critical events: an anthropological perspective on contemporary India. Oxford University Press, New Delhi, pp 84–117 Eekelaar J, George R (eds) (2020) Routledge handbook of family law and policy, 2nd edn. Routledge, London Gandhi N, Shah N (1992) The issues at stake: theory and practice in the women’s movement in India. Kali for Women, New Delhi Halhead NB (2013) A code of Gentoo Laws; or ordinations of the pundits: from a Persian translation; made from the original, written in the Shanscrit language. Cambridge University Press, Cambridge. Originally published in 1776 Herklotz T (2015) Religion-based personal Laws in India from a Women’s rights perspective: context and some recent publications. Südasien-Chronik - South Asia Chronicle 5:369–398 Herklotz T (2017) Law, religion and gender equality: literature on the Indian personal law system from a women’s rights perspective. Indian Law Rev 1(3):250–268 Jaising I (1987) The murder of Roop Kanwar. The Lawyers Jones J (2019) Towards a Muslim family law act? Debating Muslim women’s rights and codification of personal laws in India. Contemp South Asia 28(1):1–14 Jones J (2020) ‘Acting upon our religion’: Muslim women’s movements and the remodelling of Islamic practice in India. Mod Asian Stud:1–35 Kishwar M (1986) Pro-women or anti-Muslim?: the Shahbano controversy. Man Ther 32:4–13 Kishwar M (1994) Codified Hindu law: myth and reality. Econ Polit Wkly 29(33):2145–2161 Kishwar M, Vanita R (1987) The burning of Roop Kanwar. Manushi 42/43:15–25 Mahmood S (2005) Politics of piety. The Islamic revival and the feminist subject. Princeton University Press, New Jersey Mahmood S (2006) Feminist theory, agency and the liberatory subject: some reflections on the Islamic revival in Egypt. Temeros 42(1):31–71 Mani L (1989) Contentious traditions: the debate on sati in colonial India. In: Sangari K, Vaid S (eds) Recasting women: essays in colonial history. Rutgers University Press, New Brunswick, pp 88–126 Menon N (1998) State/gender/community: citizenship in contemporary India. Econ Polit Wkly 31 (January):3–10 Menon N (2012) Seeing like a feminist. Penguin India, New Delhi Mullaly S (2004) Feminism and multicultural dilemmas in India. Revisiting the Shah Bano case. Oxf J Leg Stud 24(4):671–692 Niaz NS (2016) Women’s Shariah Court, Muslim women’s quest for justice: an alternative dispute resolution forum for and by Muslim women. Notion Press, Chennai Parashar A (1992) Women and family law reform in India. Uniform civil code and gender equality. Sage Publications, New Delhi Parashar A (2013) Religious personal laws as non-state laws: implications for gender justice. J Legal Pluralism Unoff Law 45(1):5–23 Rocher R (1994) British orientalism in the eighteenth century: the dialectics of knowledge and government. In: Breckenridge CA, van de Veer P (eds) Orientalism and the postcolonial predicament. Oxford University Press, New Delhi, pp 215–249 Rocher R (2010) The creation of Anglo-Hindu law. In: Lubin T et al (eds) Hinduism and law: an introduction. Cambridge University Press, Cambridge, pp 78–88

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Spivak GC (1988) Can the subaltern speak? In: Nelson C, Grossberg L (eds) Marxism and the interpretation of culture. Macmillan, Basingstoke, pp 271–313 Srivastava DK (1976) Personal laws and religious freedom. J Indian Law Inst 18(2):551–586 Sunder Rajan R (2003) The scandal of the state: women, law, and citizenship in postcolonial India. Duke University Press, Durham Supreme Court of India (1985) Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985 Supreme Court of India (2017) Shayara Bano vs Union Of India And Ors on 22 August, 2017 Sur E (2018) Triple Talaq Bill in India: Muslim women as political subjects or victims? Space Cult India 5(3):5–12 West’s Encyclopedia of American Law, edition 2. S.v. Family Laws. https://legal-dictionary. thefreedictionary.com/Family+Law Yefet KC (2011) The constitution and female-initiated divorce in Pakistan: Western liberalism in Islamic garb. Harv J Law Gend 34:554–614

Ishita Banerjee-Dube is Professor-Researcher (distinguished category) at the Center for Gender Studies (and the Center for Asian and African Studies) of El Colegio de México, Mexico City. A social historian, her research explores issues of religion and law, time and temporality, gender and nation, food and emotion, and democracy and social justice in modern and contemporary India. She has authored six books and edited over a dozen, and published articles in renowned academic journals. Banerjee-Dube has been a visiting professor at several universities and academic institutions in India, Germany, USA and Ecuador, and edited the series “Hinduism” with De-Gruyter open.

Compensation for Damages Suffered by Women Performing Unpaid Domestic Works Amalia Blandino Garrido

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Pecuniary Value of Domestic Work and Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A View of Comparative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Pecuniary Dimension of Domestic Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Pecuniary and Non-Pecuniary Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 The Loss of the Ability to Carry Out Domestic Chores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Compensation for Pecuniary Damage Even if the Victim Receives Help for Free . . 5 Calculation of Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 The Replacement Cost Actually Incurred After the Accident . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Assessment of Compensation for Loss of the Ability to Maintain the Household 5.3 When the Housewife Had Hired External Domestic Help Before the Accident . . . . . 5.4 Performing Domestic and Paid Work Before the Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Assessment of Compensation in the Case of a One-Person Household . . . . . . . . . 5.6 The Economic Assessment of the Injured Housewife’s Professional Reintegration . 6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

64 66 69 71 71 73 75 76 76 77 79 80 80 81 82 82

Abstract When a person with domestic responsibilities (traditionally and, currently, mostly a woman), as a consequence of a certain accident caused by a third party, suffers significant bodily injuries that prevent her from performing household chores or performing them to a lesser extent, she should be compensated for the pecuniary damage caused. Compensation for housework should be awarded independently of the bodily damage in itself considered. Thus, although domestic work is not, strictly speaking, productive activity in economic terms, it is nowadays accepted that the injured person is entitled to be compensated for the pecuniary damage suffered. This compensation is justified whenever the injuries prevent her temporarily or definitively from engaging in her usual occupation. The question also arises about the compensation due to the death of the person who carried out the housework. Compensation for monetary damage is due even if the victim has not A. B. Garrido (*) University of Cádiz, Cádiz, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_4

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incurred the expense of a replacement housekeeper. This approach allows for adequate compensation for injuries suffered in the performance of tasks, which have traditionally and unfairly been reserved for women. However, in order to make progress in gender equality, this recognition of the compensable nature of domestic work must be accompanied by policies to reconcile family and professional life. These policies must enable women to abandon the private role of the domestic worker through an equal sharing of domestic responsibilities between men and women.

1 Introduction Traditionally, it has been women who have taken care of household tasks,1 and it is nowadays women who are more responsible for these domestic burdens2 (defined as the “trap of motherhood”3). In effect, one of the myths sustained by patriarchal society is that “housework” is, par excellence, the “natural place” of women because of its close relationship with biological reproduction.4 The reality is that, with some exceptions, it is rare to come across men who decide to give up their professional careers to take care of their wives and children and attend to domestic matters. In this respect, the Directive 2019/1158 on work-life balance for parents and carers assumes that “a major factor contributing to the underrepresentation of women in the labour market is the difficulty of balancing work and family obligations” and that “when they have children, women are likely to work fewer hours in paid employment and to spend more time fulfilling unpaid caring responsibilities”.5 To speak of domestic work in today’s societies is not only to talk of women’s “domestic role” but also of a work that is totally devalued and made invisible, whose social importance for the survival and development of societies is systematically

1

Regarding the limitation of women to the domestic-private sphere, see Palazzani (2012), pp. 15, 17, 76. 2 As stated in the United Nations Secretary-General Women in development report, “Women typically work fewer hours than men in paid employment, but when paid work and unpaid care and domestic work are taken into account, they work more hours than men overall. In countries of the Organization for Economic Cooperation and Development (OECD), women spend 2.6 times more of their time on unpaid care and domestic work per day than men, whereas they spend 0.7 times the amount of time on paid work each day than men spend” (Women in development. Report of the Secretary-General, United Nations A/74/279 General Assembly, 5 August 2019, https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N19/244/97/PDF/N1924497.pdf?OpenElement). See also Ferrant et al. (2014), p. 3. 3 Palazzani (2012), p. 27. 4 As Palazzani states, “The sexual and reproductive condition of women forces them into the role of carer and the maternal domestic role that relegates them to an inferior social status in relation to men”. Palazzani (2012), p. 30. 5 Directive (EU) 2019/1158 of the European Parliament and of The Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, para. (10).

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denied. Thanks to the questioning of feminist movements and the debates they have provoked within the social and economic sciences, it has been possible to conceptualize “housework” as work that, although it does not produce surplus value in the strict sense, produces material and symbolic goods of fundamental importance in processes of social and economic reproduction, and without which the productive sphere of society would not be guaranteed.6 The feminist movement has also questioned the assignment of domestic work as women’s work, as a female function.7 In his 2013 Women in Development Report, the United Nations Secretary General Ban Ki Moon states: “Care is an essential, universal need and supports the engagement of both men and women in paid work. Unpaid care work contributes to individual and household well-being, social development and economic growth, but it often goes unrecognized and undervalued by policymakers, as does the fact that its costs and burdens are unequally borne across gender and class. Care is primarily provided by women and girls and has important implications for gender equality”.8 Also, the 2019 report of the United Nations Secretary-General “urged Member States to recognize, value, reduce and redistribute the disproportionate share of unpaid care and domestic work done by women”.9 Several international instruments, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),10 the Beijing Declaration and Platform for Action11 and the Sustainable Development Goals (SDGs),12 call for greater recognition of the care and domestic work, the reduction and redistribution of the disproportionate burden of care borne by women and girls, and the promotion of productive employment and decent work for all women and men. Furthermore, the Directive 2019/1158 on worklife balance for parents and carers states that “policies on equal treatment should aim to address the issue of stereotypes in both men’s and women’s occupations and roles” and that “the use of work-life balance arrangements by fathers, such as leave or flexible working arrangements, has been shown to have a positive impact in reducing the relative amount of unpaid family work undertaken by women and leaving them more time for paid employment”.13 Based on these premises, it has not always been considered necessary in Tort Law to compensate for the lack of capacity to perform such domestic work. This is work 6

Peredo Beltrán (2003), pp. 54–55. Vogel (2000), pp. 151–170. 8 https://www.feps-europe.eu/attachments/events/policy%20study_care4care.pdf. 9 Women in development. Report of the Secretary-General, United Nations A/74/279 General Assembly, 5 August 2019, (https://documents-dds-ny.un.org/doc/UNDOC/GEN/N19/244/97/ PDF/N1924497.pdf?OpenElement). 10 Articles 11, 14 and 16. 11 The Beijing Declaration, para. 27. 12 Objective 5.4 is as follows: “Recognize and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies and the promotion of shared responsibility within the household and the family as nationally appropriate”. 13 Directive (EU) 2019/1158 of the European Parliament and of The Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, para. (11). 7

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that women have always done for free because it was assigned to them according to traditional gender roles. The gradual recognition of the economic value of these tasks leads to considering the need to compensate or indemnify also for this concept when the homemaker is the victim of an accident in which he/she is injured or dies. In any case, as long as there is inequality in the distribution of tasks, the lack of recognition of the economic value of domestic tasks in Tort Law is more detrimental to women.

2 The Pecuniary Value of Domestic Work and Gender The term household tasks cover activities like looking after the family, especially preparing meals, cleaning the house, washing clothes, parenting and educating children, going shopping, etc., but it is often interpreted in a broader sense and includes activities like caring for family members with special needs, caring for a spouse’s grave or even taking care of a pet.14 If there are children in the household, the following tasks are taken into account: giving children their meals, washing them, putting them to bed, playing with them, assisting them with their homework, accompanying them, and providing transport for them. In two-person (couple) households, the time spent on caring for a household member requiring care is included.15 In addition to these traditionally accepted domestic chores, the broad vision in some countries is also reflected in taking into account other jobs, such as attending to car repairs, gardening, plumbing repairs, decorating, painting, etc.16 The ability to organize family life, and to some extent, social life in general, also seems likely to be recoverable in some jurisdictions.17 This wide perspective is also maintained in Italy, where the courts appreciate that domestic chores include tasks like coordinating domestic work and organizing and supervising family life.18 Ultimately, this is not a closed list but rather a list of all the work done free of charge in the home. From an economic point of view, the progressive incorporation of women into paid work19 has highlighted the replacement cost that this incorporation entails and

14

Concerning the use of surveys to determine the number of hours spent on household chores, in Switzerland, the following tasks, for example, are listed: preparation of meals, washing up, putting away the dishes, laying the table, shopping, clearing up, making beds, washing, ironing, repairing, decorating, sewing, knitting, care for domestic animals, care for plants, gardening, and administrative work (Landolt et al. 2012, pp. 254–255). 15 Landolt et al. (2012), pp. 254–255. 16 In this regard, see for Austria, Karner and Wallner-Friedl (2012), pp. 16–17; See for Germany, Gleixner and Spickhoff (2012), p. 114; and for England and Wales, Morris (2012), pp. 46–47. 17 Karner and Oliphant (2012), p. 292. 18 Bargelli (2012), p. 137. 19 Regarding women’s participation in the labour market, see the European Semester Thematic Factsheet Women In The Labour Market, https://ec.europa.eu/info/sites/default/files/europeansemester_thematic-factsheet_labour-force-participation-women_en_0.pdf.

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the opportunity cost incurred by families in which women stay at home to take care of domestic work.20 The unpaid work that takes place in households without resulting directly in money is a resource as essential to the welfare of developed societies as labour applied to production for the market.21 However, in addition to valuing domestic work, it is essential to promote measures to ensure the full participation of women in the labour market and the equal sharing of domestic responsibilities between men and women, such as those contained in Directive 2019/ 1158 on work-life balance for parents and carers. The recognition of the economic value of the domestic activity is based on the fact that this work is the one that allows at least one other member of the family group to obtain income in a remunerated activity undertaken outside the family sphere.22 In this sense, in the Family Law field, some legal systems recognize that one way of contributing to the support of family expenses is through work dedicated to the household. As an example, we can cite Article 1438 of the Spanish Civil Code establishes that work for the household shall be counted as a contribution to the burdens of the marriage and shall entitle the spouse to obtain compensation which the judge shall determine, in the absence of an agreement, upon the termination of the separation of property regime.23 This is a recognition of equality between paid and unpaid work in the marital sphere. However, what happens when a person performing domestic work is involved in an accident? Is the pecuniary damage suffered as a result of the victim’s injuries or even death compensated in the same way as if they were carrying out paid work? When, for example, a woman who works exclusively at home, as a consequence of a certain accident, suffers significant bodily injuries that prevent her from carrying out her usual domestic activities, the question arises as to whether it is appropriate to compensate her for the pecuniary damage caused (apart from the biological and psychological damage in itself considered). In these cases, there is a tendency to think that if the woman’s activity does not generate economic income, there is no pecuniary damage that should be compensated. However, for the victim, the fact of not being able to devote herself to the work she was doing in her home before suffering the injuries constitutes a loss that must be compensated.24 The fact that these tasks’ (also economic) value is gradually being recognized leads us to consider the need to also compensate or indemnify for the damage caused to this work capacity. The recognition of the pecuniary dimension of the damage suffered by the person performing the unpaid housework leads to the conclusion that the injured party

20

Del Olmo García (2013), p. 4. Durán Heras (2005), p. 47. 22 Ferrant et al. (2014), pp. 4–5. 23 In German law, paragraph 1360.1 BGB also expressly provides that both spouses are obliged to “feed” (“unterhalten”) adequately support the family with their work and property, stating that if one of the spouses is assigned the task of carrying out household tasks (“Haushaltführung”), he or she fulfils his or her obligation to contribute to the support of the family by carrying out this activity. 24 Karner and Oliphant (2012), pp. 278, 286–287. 21

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suffers pecuniary damage. Indeed, even if the work of a housewife is not a productive activity in economic terms, it is necessary to recognize that the injured party is entitled to compensation for the pecuniary damage suffered, to the extent that the injuries prevent her, temporarily or permanently, from engaging in her usual occupation. The accident that leaves the housewife injured and unable to carry out her tasks entails the destruction of a workforce with a pecuniary value, regardless of whether actual expenditure has been made to replace those tasks. However, in quantifying the damage, as we will see below, the salary of a person replacing the injured housewife may be used as a criterion. At the legislative and judicial level, in Europe, there are legal systems that recognize the compensable value of domestic work, while in others, it is admitted but in a very timid way. In any case, the doctrine of “loss of consortium”, which legitimised the husband to claim for damages suffered by the wife, has been superseded.25 In order to help overcome the discrimination experienced by housewives, one necessary step is to recognize that a person who performs unpaid domestic work, if injured in an accident, is entitled to receive compensation for the loss of capacity for housework, even in cases where there have been no replacement costs or other economic damage. Judges and courts must compensate the pecuniary damage caused irrespective of the actual costs incurred. This measure should undoubtedly

25 Historically, in German and English law, the husband was entitled to claim compensation on his own behalf for the loss of his wife’s services (“loss of consortium”) caused by an intentional injury to his person. However, when the husband was injured, the wife was not entitled to a corresponding right to recover for the loss of his consortium. Thus, in Germany, under Article 845 of the German Civil Code (BGB), only the husband could claim compensation for the loss of the wife’s ability to provide household services, insofar as the domestic activity was considered a service that the wife owed to her husband. Since the Law on Equality of the Sexes of 30 June 1958, the husband’s right to claim for the loss of services rendered by the wife disappeared. Housework is no longer considered a service owed by the wife to her husband but an economically adequate use of her own labour capacity comparable to paid employment. See Gleixner and Spickhoff (2012), p. 99. In the context of English common law, Riseley commented that this action differs in nature from one where the third party brings an action in his own right against the tortfeasor (1980–1981, 421). As this author recalled, “a husband in the Middle Ages was not regarded as a third party, simply because husband and wife were not two but one entity, the legal persona of which was located in the male spouse. In fact, a wife could not sue as femme sole for direct injury to her person except by joining her husband in action. Furthermore, his right to sue for loss of consortium was founded not on a breach of duty owed to him by the wrongdoer, but for the wilful invasion of a proprietary right”. See Fleming (1987), p. 212. Finley stressed that the “the rationale for this disparity was once again that wives essentially became their husband’s chattel or property upon marriage, and owed their husbands household and sexual services, while husbands owed no such legally enforceable obligations to wives” (1989, 49). As Mckay pointed out, “one reason for granting this right to the husband while denying it to the wife was that she was his inferior and only the husband, as the superior, had a property right in the consortium.” He added that “[. . .] Another explanation for denying the wife damages for losing her husband’s consortium was procedural. At the common law, she could not sue unless her husband joined her, and he was entitled to the proceeds of the action. Hence, even if she had been accorded the right to sue, she could not have effectively exercised that right” (1959, 57).

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be accompanied by policies that encourage men to assume equal responsibilities for the care of the household and family members.

3 A View of Comparative Law While there is no international treaty or convention in Europe that obliges States parties to accept a duty to compensate for damage caused to a person performing domestic work before the accident, several non-binding instruments provide some rules in this area. In this respect, Resolution (75)7 of the Committee of Ministers of the Council of Europe on compensation for damages in the event of personal injury and death from 14 March 1975, has pronounced in this sense in Principle 5, stating that “for the victim, the fact of no longer being able to carry out the work he was doing in his home before the injurious event constitutes a loss which gives rise to the right to compensation, even if he has not been replaced by another person for this work. This right to compensation belongs personally to the victim”. This principle establishes the compensability of domestic work, even if no actual replacement expenditure is made. It is also recognized that the right to claim corresponds to the victim herself, that is, to the subject who suffers it as a personal injury (and not, as was the case in the past, to the injured woman’s husband). The compensable character of domestic work is also recognized in the Draft Common Frame of Reference (DCFR),26 when, in the commentary to paragraph (4) of the Article VI.-2.101,27 the following is given as an example of other forms of “economic loss”: “A wife and mother (M) is so severely injured in a road accident that for a considerable period she is no longer able to provide domestic services in the family home. If M engages a home help, the latter’s wages, due from M, constitute for M an economic loss. Moreover, even if a home help is not engaged and the family decides to struggle through the difficult situation without outside assistance, there is still an economic loss. There is admittedly no ‘loss of income’ because M was not remunerated for her domestic activity. Nonetheless, M’s housekeeping has an economic value and its cessation constitutes a loss to M for which compensation is due”.28 The same criterion emerges from Article 10:202 (“Personal injury and death) of the Principles of European Tort Law (PETL) which recognizes, albeit in a more abstract approach,29 that pecuniary damage includes not only “loss of income” but also the “impairment of earning capacity (even if unaccompanied by 26

At the beginning of 2008, the Draft Common Frame of Reference for European private law (Draft Common Frame of Reference-DCFR) was presented. The text is the result of the work of many specialists in European private law from the member states of the European Union and is intended to be an academic proposal, responding exclusively to scientific criteria. 27 Paragraph (4) of the article VI.-2:101 of the DCFR provides: “(a) economic loss includes loss of income or profit, burdens incurred and a reduction in the value of property”. 28 Von Bar and Clive (2009), p. 3150. 29 Del Olmo García (2013), p. 6.

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any loss of income)”. This implies considering as compensable damage the damage caused to the house worker in her/his capacity to work, even if they did not receive a salary before the accident occurred and, therefore, there is not, strictly speaking, a loss of income. It then discusses the broad lines of some European legal systems when dealing with the issue of compensation for pecuniary damage suffered by those who, as a result of an accident, are temporarily or permanently unable to carry out unpaid domestic tasks they had been carrying out until that moment; the question also arises as to the compensation to be received in the event of the death of the person who carried out the domestic tasks. From a comparative point of view, there are two basic models in Europe for the compensation of damages suffered by a person who before the accident was performing unpaid domestic work. On the one hand, there are legal systems that have no problems in assessing the pecuniary dimension of the personal injury suffered by a person with housekeeping responsibilities. This approach is followed in Germany, Austria, Switzerland, or Norway,30 and more recently in Spain.31 In these countries, the patrimonial value of domestic work, even if it is unpaid work, is affirmed. It is thus considered that the victim can claim the value of his or her work, that is, the work capacity undermined by the accident, even if it has not entailed any other economic damage for the victim (for example, because a relative or friend has provided these services free of charge or the injured party has assumed them himself), or for his or her relatives (who, for example, have not had to suspend or limit the performance of their remunerated work). On the other hand, in other legal systems, as in the case of France,32 the pecuniary aspect of the personal injury caused to the housewife is not so well established, insofar as the damage tends to be identified with the expense incurred and not with the incapacity to perform domestic tasks. In contrast to these two models represented, on the one hand, by the explicit recognition of the pecuniary aspect of the personal injury suffered by the housewife (Germany, Switzerland, Austria, Norway, Italy or Spain) and, on the other hand, by

30

Among the European systems that have come to approach the issue of damages to the housewife in a more comprehensive and coherent way, in the sense of recognising that domestic work has patrimonial value, even if it is unpaid work, are Germany (Gleixner and Spickhoff 2012, pp. 100–110), Austria (Karner and Wallner-Friedl 2012, pp. 2–14), Switzerland (Landolt et al. 2012, p. 225); Karner and Oliphant (2012, p. 316) or Norway (Askeland 2012, pp. 189–190). In Poland, there is less clarity due to less detailed doctrinal and jurisprudential treatment (Ludwichowska-Redo 2012, pp. 199–200, 205). In Italy, the work of Annunziata stands out, who considers that it is currently accepted that the housewife carries out an activity that, despite not being paid in money, has economic value and that for this reason, personal injuries that prevent or limit its exercise represent a financial loss that must be compensated, in addition to the biological damage in itself considered. (2010, 154). 31 In Spain, Law 35/2015, of 22 September 2015, on the system’s reform for the valuation of damages caused to persons in traffic accidents, values unpaid work consisting of dedication (exclusive, and sometimes even partial) to household chores. 32 G’sell-Macrez (2012), pp. 69, 78.

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the tendency to ignore this pecuniary aspect and limit compensation to cases of actual expenditure or, at least, loss of earnings (France), a middle way adopted in the English and Dutch systems should be mentioned. Indeed, in the common law systems of England and Wales, a peculiar position is adopted when the accident victim has received the services of a relative or friend free of charge, since it has sometimes been considered that compensation is awarded to compensate the third party, albeit indirectly, and not the damage caused to the victim himself.33 In the Netherlands, within certain boundaries, third parties (friends, professionals) are entitled to compensation for the monetary costs they incur because the primary victim’s capacity to do the housekeeping has been reduced.34 The most appropriate system for overcoming gender inequality is one that recognizes the right of the housewife herself to receive compensation for the economic loss of her ability to perform domestic work. The requirements and scope to be given to this model are set out below.

4 The Pecuniary Dimension of Domestic Damage The pecuniary damage suffered by a person performing unpaid domestic work or his or her family members must be compensated in the same way as in the case of paid work. For this purpose, it is necessary to distinguish the pecuniary dimension of the damage caused from other damage of a personal nature. Within the pecuniary damage, the compensation of replacement costs is undisputed. However, what is compensated is the pecuniary damage caused by the loss of the ability to perform domestic work, irrespective of whether replacement costs have been incurred or whether the victim has received help from relatives or friends.

4.1

Pecuniary and Non-Pecuniary Damage

The inability or death of a person who, before the accident, was carrying out domestic tasks without receiving remuneration raises the question of the compensation for the pecuniary damage caused. When the victim, a housewife, suffers bodily harm or dies, it is undisputed that the tortfeasor should compensate for these personal injuries. Therefore, compensation for the biological or bodily harm caused to the housewife is undisputed. Likewise, the assistance of a third party to the victim, which enables her to overcome the autonomy problems caused by accident, is also undisputedly compensable. In this case, compensation is not paid for the work the victim did for others, but only for what is necessary to ensure that the victim is well

33 34

Morris (2012), p. 38. Engelhard and Giesen (2012), p. 149.

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cared for personally after the accident35 by providing compensation to enable the victim to pay for the assistance of a third party.36 There is no doubt that if the person who has been left unable to carry out domestic work due to the accident suffers bodily damage, she is entitled to compensation. But what about the pecuniary damage? The debate focuses on the compensation of the pecuniary damage, i.e. the problem arises concerning the pecuniary damage suffered by the victim or his or her family members. The recognition of the pecuniary dimension of the damage caused requires distinguishing the damage resulting from the loss of the ability to carry out domestic activities, which is pecuniary damage, from other damage caused to the victim, which is of an extra-pecuniary nature.37 Focusing on the pecuniary damage, some items are indisputable, such as the specific expense of replacing the injured victim. Thus, if a third party is hired to perform the tasks that the injuries prevent the victim from performing, regardless of who pays for those services (the victim or another family member), it is accepted that the tortfeasor should compensate the amounts spent on hiring that third party. Where no actual expenditure has been incurred through the employment of a third party, it is disputed whether the impossibility of continuing to perform household chores constitutes pecuniary or non-pecuniary damage. The debate arises in certain situations or concerning specific items. Doubtful situations refer to the assumption that, despite the injuries suffered, the victim continues to carry out household chores with more significant effort and suffering. Another problematic situation is when the victim’s relatives or friends have mitigated the injuries. Let us consider the supposition that it is a relative who suspends or reduces his remunerated activity with the domestic chores due to the victim’s incapacity to perform them. In both cases, the loss of domestic capacity must be considered a compensable pecuniary loss, as is the loss of the ability to perform gainful employment.38 Regarding compensations items that may be closer to non-pecuniary damage,39 reference is made to gardening or childcare.40 This point of contact with non-pecuniary damage is also highlighted in activities such as walking a dog or 35

G’Sell-Macrez (2012), p. 80. In this regard, Article VI.-2:201 of the DCFR determines that loss caused to a natural person as a result of injury to his or her body or health “includes the costs of health care including expenses reasonably incurred for the care of the injured person by those close to him or her”. 37 In French law, especially since the Dintilhac Report, https://www.vie-publique.fr/sites/default/ files/rapport/pdf/064000217.pdf, a distinction is made between damage (“dommage”) and loss (“préjudice”): damage would be the attack on the integrity of a person or thing (which is covered by Article In both cases, the loss of domestic capacity should be considered a compensable pecuniary loss, just as the loss of the ability to perform gainful employment is a compensable pecuniary loss, while harm would be the financial or non-financial consequences of this attack (French Civil Code, Article 1245-1). 38 Karner and Wallner-Friedl (2012), p. 21. 39 As (Magnus 2001), p. 198, points out, the case of loss of earning capacity is, together with loss of use of a thing and loss of use of leisure time, on the borderline between property and non-property damage. 40 G’Sell-Macrez (2012), p. 88. 36

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carrying out maintenance work on a sailing boat, insofar as, being activities closer to a hobby, they are considered to be non-pecuniary damage.41 It has been pointed out that the criterion for deciding the cases in question is whether the victim can be replaced in these tasks by hiring a paid third party.42 In this sense, the borderline between pecuniary and non-pecuniary damage can be appreciated by taking into account that there are tasks associated with the care of the home that have a markedly non-fungible character and that, for this reason, cannot be contracted out to third parties. In England, judges recognize, in these cases, an increase in compensation to compensate for the loss of services that cannot be replaced at the same level (love, affection and support. . .).43

4.2

The Loss of the Ability to Carry Out Domestic Chores

The accident that leaves the person in charge of carrying out domestic chores injured and unable to do so implies the removal of a labour force with a patrimonial value. The domestic tasks that were being carried out are considered to generate a pecuniary benefit and, therefore, this actual loss of earnings is compensated, even though the victim does not earn money by carrying out her work.44 What is compensable is the domestic work that the victim will no longer be able to carry out as a result of the accident. It is not, however, a question of compensating the pure labour force destroyed, but the labour force employed at the time of the accident.45 Therefore, a person who does not currently have domestic responsibilities is not entitled to compensation.46 Also, since the assessment of the injury suffered depends on the particular circumstances, a victim who was already disabled and not fully capable of performing domestic activities before the injury is only entitled to compensation for loss of domestic capacity to the extent that the tortfeasor has caused a further diminution of it.47 The fact that the victim of domestic work has incurred a replacement cost due to hiring outside help to do the housework should not be decisive. In this sense, the asset value of the domestic work and the award of compensation for the loss of these services should be independent of whether or not an expense has been incurred. Indeed, if the payment of compensation by the defendant for damage effectively

41

Landolt et al. (2012), p. 258. A similar approach is taken in Norway, as highlighted by Askeland about the loss of the ability to throw parties, have friends for dinner or to organise social relationships. (2012), 192. 42 Karner and Wallner-Friedl (2012), pp. 17–18. 43 Morris (2012), p. 49. 44 Karner and Wallner-Friedl (2012), p. 2. 45 Del Olmo García (2013), pp. 5–6. 46 Karner and Wallner-Friedl (2012), p. 7. 47 Karner and Wallner-Friedl (2012), p. 15.

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caused is conditional to the realization of an effective replacement expense, this would be an unjustified incentive for the injured persons to resort to third parties to carry out these tasks by paying for these services. In addition, it would imply double discrimination for housewives without economic resources who cannot hire the services of a third party. In cases where the injured woman has few resources, she will receive external help from a relative who will do it free of charge and who, as we will see, will generally be another woman. This approach leads to the unfair situation that it is easier for those who can easily finance the external assistance of a third party to claim than for those who are less well off and cannot advance the expense or run the risk of non-recovery in the subsequent claim against tortfeasor. The class-based discriminatory dimension of identifying the damage with the actual replacement cost is evident insofar as more educated women have access to paid work and are part of households with two salaries.48 Likewise, denying compensation or awarding a lower amount than the damage actually caused to the housewife or (in the case of death) to her relatives will result in the tortfeasor benefiting from this identification between damage and replacement expenditure incurred, which is considered unfair and inefficient.49 The use of the salary of a person who replaces the injured housewife serves to measure the damage, not to decide whether the damage exists or not.50 This pecuniary damage also occurs irrespective of whether a loss of earnings has been experienced. If the victim, despite the loss of her ability to work, continues to carry out domestic tasks, albeit in more arduous conditions (using more time or with greater intensity), it is also appropriate to compensate for the pecuniary damage caused by the loss of the ability to carry out domestic work.51 What is compensated is the loss of the ability to perform domestic work, so it is not a question of compensating separately as non-pecuniary damage the tremendous effort that the victim has to make in order to perform domestic tasks. The obligation to compensate for pecuniary damage should apply both in case of injury, temporary or permanent, and in case of death. The right to compensation in case of bodily or other injuries to health should not be limited to cases where there is a marital relationship between the victim and the person in whose favour the free services are provided but should be extended to unmarried couples (including samesex couples);52 moreover, it should also apply to other forms of cohabitation resulting from the changing social reality.53

48

Del Olmo García (2013), p. 47. Del Olmo García (2013), p. 47. 50 Del Olmo García (2013), p. 6. 51 Karner and Wallner-Friedl (2012), pp. 5, 13. 52 Gleixner and Spickhoff (2012), pp. 106, 108 and Morris (2012), p. 36. 53 Karner and Wallner-Friedl consider that “the ephemeral contact between casual flat sharers can, in our view, not be considered equivalent to the nature of the relationship in cohabitation”. They add that “as there is neither a legal duty of care nor an analogous type of at least factual maintenance, a 49

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In the event of the accident victim’s death, apart from the moral damages, this means that the victim’s relatives or friends will definitively lose the domestic work they used to receive from the victim, which causes the need to readjust their lives to the new economic reality. Consequently, when the victim dies, based on the patrimonial nature of the damage, the loss of the services provided to the victim’s family or relatives will be compensated. The question arises as to whether the persons who benefited from the work performed by the deceased and who, therefore, will be harmed after his death must have a relationship recognized by family law or it is sufficient for them to be relatives or even friends. In this respect, the German and Austrian systems have particular criteria in that only person to whom the deceased had a legal maintenance obligation can claim damages for the loss of domestic help caused by the death of their relative. 54

4.3

Compensation for Pecuniary Damage Even if the Victim Receives Help for Free

When the victim who is unable to perform domestic work has not made an actual expenditure on hiring outside help, she has likely received free help from her relatives or friends. Usually, the family member who will do the housework in place of the victim will also be a woman (for example, a mother or a sister). Indeed, the care sector -both paid and unpaid- has always been predominantly the domain of women.55 There is undoubtedly compensable damage in these cases where there has been no actual replacement expenditure because the victim has received help from family or friends. Impairment of working capacity is considered a loss of income and is therefore compensable even if the victim compensates for this loss with the help of family or friends.56 Therefore, it cannot be said, if there has been help provided free of charge by family and friends who have avoided an expense, that there is no concurrence of damages and that the tortfeasor does not have to compensate. This result would be unsatisfactory and, to reject it, many systems insist on the idea that the relatives and friends want to help the victim and that it would be paradoxical that their help would end up benefiting the tortfeasor in the form of exclusion or a

loss of housekeeping capacity will not be compensable in respect of the other flat sharers”. (2012), 8. 54 See in Germany, Gleixner and Spickhoff (2012), pp. 100, 105, 106 and, in Austria, Karner and Wallner-Friedl (2012), p. 4. 55 These data are reported in the European report “Towards a fairer, are-focused Europe” (https:// www.feps-europe.eu/attachments/events/policy%20study_care4care.pdf). In Spain, according to the Spanish Society of Geriatrics and Gerontology and the Spanish National Research Council (CSIC), 89% of carers in 2018 in Spain were women (http://envejecimiento.csic.es/documentos/ documentos/Estudio-Cuidadores-segg.pdf). 56 Karner and Wallner-Friedl (2012), p. 5.

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reduction in the compensation owed by him.57 However, this paradoxical result may be achieved if, as is the case in some systems (France, partly UK, some Spanish case law), the requirement that an actual replacement cost has been incurred to award compensation is insisted upon. It makes little sense to increase the difficulty for the victim to resort to the help of the victim’s relatives because they are likely to be able to take over the domestic tasks in a way that is more suitable for the victim, in many cases providing her with the best possible care. It should be borne in mind that domestic work is sometimes very close to care work, and it seems clear that the victim will often prefer to receive care from her relatives. It also makes no sense that if the victim nevertheless prefers to use the help of his or her relatives, they should be hired to be eligible for compensation. As regards the relationship between the victim and the helper, the perspective should be broad, without limiting these situations by requiring a particular relationship or kinship. The treatment should be the same for any assistance a third party provides, whether a relative or not. Therefore, the fact that a relative or a friend takes care free of charge of the household chores of a person who has been injured or killed in an accident is not a circumstance that excludes the duty to compensate for the pecuniary damage caused.58 It is appropriate to compensate using the module of the gross salary paid to an assistant so that the victim can turn to the market to hire external help if, for whatever reason, he or she no longer receives help from his or her relatives.59

5 Calculation of Compensation This section deals with calculating the compensation of the pecuniary damage resulting from the personal injury or death of the person who performs the domestic tasks. In this respect, while the expenses actually incurred do not pose any particular difficulties, assessing the pecuniary damage in the absence of actual disbursements is complex.

5.1

The Replacement Cost Actually Incurred After the Accident

The compensable nature of expenses already incurred for the employment of a substitute does not seem to be disputed, the focus shifting to the determination of

57

Gleixner and Spickhoff (2012), p. 101. Karner and Wallner-Friedl (2012), p. 20 and Gleixner and Spickhoff (2012), p. 117. 59 Karner and Wallner-Friedl (2012), p. 19. 58

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the necessity of the expense and the reasonableness of its amount.60 The compensation shall comprise the salary of the third party, including social contributions and taxes. It may be that the loss of domestic capacity exceeds the costs of hiring a replacement. In such circumstances, the tortfeasor must compensate the remainder of the housewife’s loss of domestic capacity.61 In order to judge the reasonableness and necessity of the expense, it is often necessary to start from a medical report establishing to what extent the victim can or cannot perform the tasks he/she was doing before the accident.62 Once the victim’s inability to do domestic work has been medically established, it is necessary to know how much domestic help is needed and how much it costs, which will also be judged in light of a reasonableness test. For this, it will have to be taken into account whether the victim had hired third-party domestic help already before the accident.

5.2

The Assessment of Compensation for Loss of the Ability to Maintain the Household

If no paid help is hired after the accident, the compensation must include the replacement costs that are foreseen as necessary to cover the work that the victim will no longer do in the future. It is not a matter of assessing what has been spent for hiring a third party to replace the victim, which is a more straightforward task, but of assessing the damage caused to the victim when there has been no actual expenditure. Therefore, the cost of an adequate replacement is decisive, irrespective of whether a replacement is actually recruited.63 In the German system, the assessment of damage to domestic work capacity is carried out in three steps:64 firstly, the actual workload before the accident has to be assessed, i.e. it has to be estimated how many hours per week the injured person spent on domestic activities;65 in a second step, the percentage of the actual decrease in domestic care capacity has to be specified; finally, the costs of hiring adequate domestic help have to be specified. The cost or price of the performance by a third party of the domestic work constitutes an essential element for quantifying the compensation. However, the 60

According to ARTICLE 1304 ABGB, the general duty to mitigate the loss has to be observed, and unnecessary or exaggerated expenses cannot be claimed, at least not in full (Karner and WallnerFriedl 2012, p. 2). In general, Karner and Oliphant (2012), p. 292. 61 Karner and Oliphant (2012), p. 280. 62 Karner and Oliphant (2012), p. 291. 63 Karner and Wallner-Friedl (2012), p. 19. 64 Gleixner and Spickhoff (2012), p. 111. 65 Compensation for loss of ability to maintain the household should be calculated on the basis of the particular circumstances of the case (e.g, the number, age and state of health of family members as well as the size and equipment of the household). Karner and Wallner-Friedl (2012), p. 7 and Gleixner and Spickhoff (2012), p. 111.

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approach is different in the two models that we have described in comparative law because, while for the French model, the cost incurred to replace the victim is precisely the compensable damage, for the German system, this cost is only a criterion for the measure the damage suffered by the victim.66 The assessment of the loss of working ability either be based on an objective or abstract calculation or based on a subjective or concrete assessment of the damage suffered.67 Among the objective or abstract criteria, the most common is the average price of domestic care provided by a third party on the market. For this purpose, the module used is what the worker in question would charge or what a company providing such services would charge (gross or net pay).68 In some jurisdictions, it is considered that, where no actual payment has been made, but it is a relative or friend who performs these tasks, or if it is the victim himself who undertakes the tasks beyond his burden of mitigating the damage, a discount should be made in the compensation.69 The objective is to compensate for the cost, not the remuneration. The underlying idea is that this discount reflects the fact that a worker’s salary includes items (social contributions and taxes) that do not have to be paid when the victim himself/herself or one of his relatives performs the domestic tasks. It has even been pointed out that the family member is often spared the travel costs that the professional would have to incur.70 In contrast, Austrian jurisprudence, with better criteria, bases its calculations on gross pay and therefore also takes into account social insurance contributions, extra vacation payments, Christmas and Sunday bonuses, as well as holiday premiums, to place the victim and his or her family members, as far as possible, in the situation in which they would have been if the harm had not occurred.71 It is therefore considered that the injured party must be placed in the position of being able, at any time, to pay a replacement with all the costs that this entails. Furthermore, it is emphasised that it is not permissible for the tortfeasor to benefit from the increased efforts of the victim and his relatives.72 In addition to the price of what it would cost to replace the injured in her domestic work, an objective and global amount of unskilled labour (minimum wage) can also be used to determine the compensation. In Italy, an alternative method of calculation recommended by the Supreme Court is based not on the market value of the domestic acton ivity but the social security benefit granted to non-income persons. This is a module foreseen as a closing clause for the calculation of damages for loss of earnings in case of traffic accidents for persons who cannot prove earnings and

66

Gleixner and Spickhoff (2012), pp. 110–111. Karner and Wallner-Friedl (2012), p. 9. 68 Karner and Oliphant (2012), p. 296. 69 Gleixner and Spickhoff (2012), p. 115. 70 Morris (2012), pp. 52–53. 71 Karner and Wallner-Friedl (2012), p. 19. 72 Karner and Wallner-Friedl (2012), p. 19. 67

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applies to housewives, minors, students, unemployed, as fictitious loss of earnings that can be claimed by those who do not receive income from their activity.73

5.3

When the Housewife Had Hired External Domestic Help Before the Accident

The victim should be compensated irrespective of whether he/she had hired help prior to the accident. However, in some legal systems, it is considered that the compensation of a person who only uses part of his labour force to carry out domestic tasks because he/she has hired outside help before the accident cannot be equal to that of a person who is exclusively engaged in such tasks. Indeed, if the injured person had contracted domestic services before the accident, there are two possible positions in the European legal systems. On the one hand, there is the approach of those who consider that in the same way that the compensation for loss of earnings for someone who only works part-time cannot be the same as the compensation for someone who is employed full-time, the compensation for the victim who carried out domestic work will be lower if, prior to the accident, he or she had hired external help. The same occurs—according to this thesis—in the case where both spouses or partners are in paid employment and both perform part of the domestic work. Contrary to this view, in Austrian law, it is irrelevant whether the victim had hired domestic help before the accident because the victim needs external domestic help after the accident and what was previously an option for her becomes necessary.74 The idea is sound and adapted to the real situation of the victim. In general, in systems that do not focus so much on the expenditure incurred on the labour force destroyed (Germany, Switzerland, Austria), it is clear how to treat the case of those who only partly use external domestic help after the accident. In those cases where the victim himself/herself or his/her family continues to perform part of the domestic tasks that the victim performed before the accident (because the external help hired after the accident only covers the other part of those tasks), compensation only for the expenditure incurred is not enough, but total compensation is required. The Italian doctrine, about the case of a victim who had hired domestic help before the accident, employs an interesting argument. It consists of pointing out that domestic tasks also include management and coordination tasks which are a plus over and above the tasks usually contracted with a third party and which allow the victim to be compensated even if he/she already had extensive domestic help before the accident. Indeed, limiting the claim of homemakers who had hired domestic help before the accident, in the sense that it is only entitled to compensation if an additional expense caused by an accident is proven, is an unjust and unrealistic 73 74

Bargelli (2012), p. 135. Karner and Wallner-Friedl (2012), p. 5.

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approach. It tends to ignore the fact that domestic chores are not limited to the daily tasks that are most often contracted out to third parties but include planning, organisational and control tasks that are usually reserved for one (or some) of the family group members. The possibility of using relatives to take care of these other tasks should also be open to the victim.

5.4

Performing Domestic and Paid Work Before the Accident

When the injured victim combines domestic work with paid work, compensation should be awarded for the former in addition to the usual claim for loss of earnings derived from the salaried worker.75 In the Italian and English systems, it has been poi out that, in these cases, the domestic work is presumed not to be as important as that performed on a full-time basis.76 In Italy, it has even been pointed out that the claimant has to prove that the two tasks (work and housework) are compatible. The same idea that domestic work will be of lesser importance is also present in France77 and Switzerland.78 From a similar point of view, and probably with the non-compensation of minor damage in mind, in Germany, compensation is refused to a spouse engaged in gainful employment and offers only occasional assistance to his or her spouse in carrying out domestic duties tasks.79 Under Spanish law, the unpaid work of the victim who did not earn an income because she/he was the person who contributed to the support of her/his family unit through exclusive dedication to household chores is compensable. Specifically, it is valued as an annual minimum interprofessional wage. However, if the victim suffered a reduction in working hours to make paid work compatible with the household chores of her family unit, the amount to be received would be a third of the amount fixed.80

5.5

The Assessment of Compensation in the Case of a One-Person Household

In principle, the fact that the victim lives alone before the accident should not prevent applying the principles discussed above on compensation for pecuniary damage

75

Karner and Wallner-Friedl (2012), p. 20. Morris (2012), p. 53. 77 G’sell-Macrez (2012), p. 90. 78 Landolt et al. (2012), p. 261. 79 Gleixner and Spickhoff (2012), pp. 99–100. 80 Articles 84, 85 and 131 of the Law on civil liability and insurance in the circulation of motor vehicles, approved by Royal Legislative Decree 8/2004, of 29 October, after the 2015 reform. 76

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caused.81 A distinction arises in these cases between tasks performed for others and tasks performed for oneself. The loss of such domestic activity belongs to the category of damages for increased needs, which opens the way to a claim for damages.82 However, since in non-single-family households, there are what economists call economies of scale, the domestic work to be done in a one-person household is more than half that in a two-person household.83

5.6

The Economic Assessment of the Injured Housewife’s Professional Reintegration

Likewise, concerning work for the household, the question arises as to what should be the economic assessment of the damages if the housewife, in addition to her dedication to housework, had practical possibilities of returning to work. Due to the tort attributable to a third party, the victim suffers a situation of temporary or permanent incapacity, which prevents her from devoting herself to her usual activities and frustrates her professional reintegration. In these cases, the damage suffered cannot technically be classified as a loss of earnings. Nevertheless, it should not be ignored that the harmful event causes damage insofar as it frustrates the possibilities of professional reintegration and, consequently, deprives the victim of the capacity to obtain earnings. In such cases, we are faced with what doctrine and case law described as ‘loss of opportunity’, which means the loss by the victim of an opportunity linked to a right or a specific expectation, which prevents the possibility of a future event that could be beneficial to him or her from taking place. Thus, the certainty of the loss of generating a profit constitutes a compensable pecuniary loss, provided that the necessary causal link between the harmful event and the lost opportunity is accredited, which must undoubtedly be assessed according to the specific circumstances of each case.84

In these cases, as Karner and Wallner-Friedl state, “loss of housekeeping capacity is not deemed to be a loss of earnings. Nonetheless, compensation is granted under the heading of increased needs (vermehrte Bedürfnisse)”. (2012), 24. 82 Gleixner and Spickhoff (2012), p. 103. 83 For example, Engelhard and Giesen explain that in the guideline tables used in the Netherlands to calculate compensation for domestic work, the recommended amount of compensation for a one-person household is 75% of the amount used for a two-person household. (2012), 159. 84 Mesa Marrero (2014), p. 290. 81

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6 Conclusion The recognition of the pecuniary value of domestic work, i.e. the awarding of compensation for the pecuniary damage caused to those who perform household tasks, is an issue closely linked to gender, given that historically it has been women who have assumed exclusive responsibility for domestic tasks. It is true that, nowadays, domestic tasks are not performed by women to the same extent as in the past; however, there is still a gap between women’s dedication to these tasks and men’s participation. Consequently, ignoring the patrimonial value of domestic work and, in this sense, the part of the population that has unfortunately been responsible for carrying it out constitutes discrimination that must be addressed. Therefore, even if the unpaid domestic work is not a productive activity in economic terms, it should be recognized by the courts that, if injuries are caused to the house worker, the injured person is entitled to compensation for the pecuniary damage suffered, insofar as the injuries prevent her/his, temporarily or permanently, from engaging in her usual occupation. An accident that leaves the house worker injured and unable to carry out her duties entails the destruction of a labour force with pecuniary value, irrespective of whether actual expenditure has been incurred to replace those duties. Otherwise, the victim with limited financial resources will be doubly disadvantaged: she has taken on this domestic work because of her gender and, in addition, after suffering the accident, she cannot hire the services of a third party. The right to receive compensation for the damage caused to the house worker should also be independent of whether the injured person has received free help from family and friends (usually also women). In any case, the recognition of the compensable nature of the pecuniary damage caused to domestic workers demands the promotion of policies that make it possible to overcome the inequality that still exists in the distribution of domestic tasks. In conclusion, recognizing the pecuniary value of domestic work requires further progress in implementing reconciliation measures aimed at an equal sharing of domestic responsibilities.

References Annunziata G (2010) Responsabilità civile e risarcibilità del danno: responsabilità extracontrattuale, fattispecie di responsabilità presunta, responsabilità dei medici, categorie del danno risarcibile, tecnica risarcitoria e determinazione del danno. Cedam, Padua Askeland B (2012) Liability for loss of housekeeping capacity in Norway. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 185–198 Bargelli E (2012) Liability for loss of housekeeping capacity in Norway. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 125–145 Brooks K (2005) Valuing Women’s work in the home: a defining moment. Can J Women Law 17: 177–195 Del Olmo García P (2012) Liability for loss of housekeeping capacity in Spain. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 217–244

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Del Olmo García P (2013) El trabajo doméstico en el Derecho europeo de daños. InDret 4:1–54. https://raco.cat/index.php/InDret/article/view/270132/357688 Durán Heras MÁ (2005) El trabajo no remunerado y las familias. Aequalitas: Revista jurídica de igualdad de oportunidades entre mujeres y hombres 17:47–59 Engelhard E, Giesen I (2012) Liability for loss of housekeeping capacity in the Netherlands. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 147–183 Ferrant G, Pesando LM, Nowacka K (2014) Unpaid care work: the missing link in the analysis of gender gaps in labour outcomes. The issues paper. OECD Development Centre Finley LM, A break in the silence: including Women’s issues in a torts course, Fleming JG (1987) The law of torts. The Law Book Company Limited, London G’sell-Macrez F (2012) Liability for loss of housekeeping capacity in France. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 69–96 Gleixner E, Spickhoff A (2012) Liability for loss of housekeeping capacity in Germany. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 97–124 Karner E, Oliphant K (2012) Liability for loss of housekeeping capacity in comparative perspective. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 275–319 Karner E, Wallner-Friedl N (2012) Liability for loss of housekeeping capacity in Austria. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 1–27 Landolt H et al (2012) Liability for loss of housekeeping CSwitzerlandSwizterland. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 245–274 Ludwichowska-Redo K (2012) Liability for loss of housekeeping capacity in Poland. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 199–216 Magnus U (2001) Unification of tort law: damages. Kluwer Law International, The Hague Mesa Marrero C (2014) El derecho de daños desde una perspectiva de género, In Mujeres, contratos y empresa desde la igualdad de género, eds. Carolina Mesa Marrero and María del Carmen Grau Pineda, 281-308. Valencia: Tirant lo Blanch Mckay LH (1959) Is a wife entitled to damages for loss of consortium? Dickinson Law Rev 64:57– 63 Morris A (2012) Liability for loss of housekeeping capacity in England and Wales. In: Karner E, Oliphant K (eds) Loss of housekeeping capacity. De Gruyter, Berlin/Boston, pp 29–68 Palazzani L (2012) Gender in philosophy and law. Springer Briefs in Law Peredo Beltrán E (2003) Mujeres, trabajo doméstico y relaciones de género: Reflexiones a propósito de la lucha de las trabajadoras bolivianas. In: Mujeres y trabajo: cambios impostergables. Veraz Comunicação, Porto Alegre Riseley AC (1980–1981) Sex, housework and the law. Adelaida Law Rev 7:421–456 Vogel L (2000) Domestic labor revisited. Sci Soc 64(2):151–170. http://www.jstor.org/ stable/40403837 Von Bar C, Clive E (2009) Principles, definitions and model rules of European private law: draft common frame of reference (DCFR), full edn. Sellier-European Law Publishers GmbH, Munich

Amalia Blandino Garrido PhD, is a Professor of Civil Law at the University of Cadiz, Spain. Member of the INDESS (University Institute of Research for Social Sustainable Development) at the University of Cadiz. She holds a Degree in Law and a Doctorate in Law from the University of Cadiz. She is the author of several publications on Civil Law, especially in the field of Family Law. She is the principal investigator of a Spanish Ministry-funded R&D&I project. Professor Blandino is a member of the Research group “Hombre, Libertad, Derecho, Familia y Propiedad” (SEJ-327) since 1999 and belongs to the project “New Quality in Education for Gender Equality – Strategic Partnership for the Development of Master’s Study Program Law and Gender (Lawgem)”.

The Best Interests of the Child and Gender Perspective Fuensanta Rabadán Sánchez-Lafuente

Contents 1 Some General Ideas on the Best Interests of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 2 Child’s Interests and Parental Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 3 Child’s Interests and Work-Life Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 4 Child’s Interests and Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

Abstract The best interests of the child is an indeterminate concept, the definition of which depends on the case or situation in which it is applied, although there are standard parameters as to what should be understood in this regard. This indeterminacy has led to the interpretation of this principle reflecting gender inequalities or stereotypes. For example, when it is stated that the mother is per se, i.e., because of her status as a woman, more suitable for the care of young children than the father. Conversely, the connection between the child’s interests and gender equality has also been understood. Thus, for example, when legal texts recognise the equal rights and responsibilities of the mother and father in the upbringing and education of children. Another example can be found in the recent decision of a Spanish Court that has admitted benefits for risk during breastfeeding, integrating the ‘child’s perspective’ with the gender perspective. In this sense, some problematic issues such as the work-life balance, shared custody and gender-based violence have been debated, sometimes confronting the child’s interests with gender equality, and sometimes affirming the compatibility between these two principles. However, even today, questions such as if shared custody can favour joint parental responsibility or can contribute to maintaining inequality; if it is a sexist demand; if a system of joint parental responsibility is convenient in cases of gender-based violence, among others, are still being raised. This paper will analyse all these questions.

F. Rabadán Sánchez-Lafuente (*) Universidad de Cádiz, Cádiz, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_5

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1 Some General Ideas on the Best Interests of the Child The United Nations Convention on the Rights of the Child of 20 November 1988 (CRC), in Article 3, para. 1, refers to the best interests of the child, stating that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. Furthermore, the CRC repeats the reference to the best interests of the child in other articles such as Article 9 (child’s separation from his or her parents), Article 18 (parents’ obligations) and Article 21 (adoption). Moreover, the General Comment No. 14 (2013) of the Committee on the Rights of the Child1 states the objective of the concept of the child’s best interests which is “ensuring the full and effective enjoyment of all the rights recognised in the Convention and the holistic development of the child”,2 or in other words child’s physical, mental, spiritual, moral, psychological and social development. Thus, General Comment No. 14 identifies, among the parameters to bear in mind to give full effect to the child’s best interests, the interrelated nature of children’s rights, the recognition of children as rights holders and the effects of actions related to children’s development over time.3 In this sense, the principle of the child’s interests is based on two fundamental premises: the consideration of the child as a person and as a human being in the process of development.4 Precisely, the irruption of the concept of the child’s interests responds to the taking into consideration of the minor as a person, as a human being in development, because of the progressive change produced in the family and social order. Family and social structures were based on the pater familias’ authority in the past. In contrast, the gradual overcoming of this hierarchical system has led to a redistribution of family roles (marital equality, co-responsibility of father and mother for their children) which has also affected the child’s position in the family and society.5 For centuries a rural way of life prevailed. Under the father’s authority, all family members contributed to the family’s support, which is why children were another productive force from a very young age. Specifically, in the nineteenth century, industrialization changed the way to produce resources, which moved from the family to the factory, and children ceased to be considered labour force. Moreover, a concern for their welfare began to emerge, an awareness of the importance of

1

See General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration. This text seeks to ensure the application of and respect for the child’s best interests by States parties to define the requirements for due consideration in judicial and administrative decisions, actions, and laws concerning children. It also seeks to guide decisions by all those concerned with children, including parents and caregivers (Article 10). 2 See General Comment No. 14, para. 4. 3 See General Comment No. 14, paras. 16 (a), (b) and (e). 4 Rivero Hernández (2000), p. 107. 5 Rivero Hernández (2000), pp. 33–34.

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childhood in the future development of children, with the consequent consideration of children as persons with their own rights.6 Therefore, the principle of the child’s interests is not a positive measure but a way of guaranteeing children their status as persons and the fundamental rights to which they are entitled. However, this protection must be adapted to the minor’s age since the minor cannot exercise his or her rights in the same way as an adult, and therefore preference must be given to him or her in the event of a conflict with other interests.7 As we have seen, this prevalence of the child’s interests is established in Article 3, para. 1 of the CRC when it states “the best interests of the child shall be a primary consideration”. Thus, it is underlined by General Comment No. 14 when it states that this provision “gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere”.8 Moreover, General Comment No. 14 explains what the expression of the ‘primary consideration’ means. It means “that the child’s best interests may not be considered on the same level as all other considerations” and “that the child’s interests have the highest priority and not just one of several considerations”.9 It also points out that this is justified by the fact that children are less likely than adults to be able to defend their own interests, because of their special situation of dependence, level of maturity and voicelessness. Furthermore, General Comment No. 14 underlines that the child’s best interests is a threefold concept: a substantive right of the child to have his or her bests interests taken as a primary consideration; a fundamental interpretative legal principle, whereby the interpretation which most effectively serves the child’s best interests should be chosen; and a rule of procedure, insofar as the assessment and determination of the best interests of the child require procedural guarantees.10 Likewise, Article 24, para. 2 of the Charter of Fundamental Rights of the European Union of 7 December 2000 (CFREU) states that “in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”.11 Now then, we must bear in mind that the child’s interests are an indeterminate legal concept, which must be filled with content in each specific case.12 Indeed, some standard parameters help to approach it,13 nevertheless, the concreteness of these 6

Avilés Hernández (2019), p. 201. Rivero Hernández (2000), pp. 37–38, 90. 8 See General Comment No. 14, para. 1. 9 See General Comment No. 14, paras. 37, 39. 10 See General Comment No. 14, para. 6. 11 Thus, for example, in divorce proceedings, where children’s interests may come into conflict with parents’ interests. 12 Rivero Hernández (2000), pp. 50, 94, points out that “there is not minor but minors”. For this reason, the author stresses the importance of attending to each case and child’s circumstances to determine their interests. 13 In this sense, General Comment No. 14 establishes the elements to be considered to evaluate and determine the child’s best interests which are the child’s opinion; his or her identity; the 7

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interests will depend on the circumstances of each case. Thus, General Comment No. 14 emphasises that the concept of the child’s best interests is complex, flexible, and adaptable, and it should be adjusted and defined on an individual basis, according to the specific situation of the child.14 Furthermore, according to age and maturity, the child may participate in determining his or her interests by expressing his or her opinion through the right to be heard.15 The indeterminacy of this concept has the advantage that its contents must be concretised or filled according to the child’s particular situation. In this way, the obtained solution fits the contours of the concrete problem as if it were a mould. On the other hand, the disadvantage is the possible instrumentalization of the concept to serve other interests that are not necessarily the child’s interests.16 These advantages and disadvantages have been underlined by General Comment No. 14 when it states that the flexibility of the concept of the child’s best interests allows it to adjust to the situation of individual children and to evolve knowledge about child development, but it may also lead to manipulation. In this sense, it also points out that the concept of the child’s best interests has been misused by Governments and State authorities to justify racist policies; by parents to defend their own interests in custody disputes; and by professionals who rejected the assessment of the child’s best interests as irrelevant.17 In the latter sense, the child’s best interests may be interpreted as genderstereotyped or used to perpetuate gender inequalities.18 Examples of genderstereotyped assertions that have been made in relation to the best interests of the child include the following:19 (a) custody of young children should not be granted to the father but to the mother, because it is understood per se, that is, because of her status as a woman, that she is better suited to care for the children than the male;20 (b) a mother who continues to work and does not leave her job to care for her

preservation of the family environment, the care, protection and security of the child; his or her situation of vulnerability; his or her rights to health and education (See paras. 52 to 79). 14 See General Comment No. 14, para. 32. 15 Article 12 of the CRC and Article 24, para. 1 of CFREU include this right. See also General Comment no. 14, paras. 43 to 45. 16 Rivero Hernández (2000), pp. 58, 59. 17 See General Comment No. 14, para. 34. 18 Jacob (1997), pp. 848–850, 856. Rodríguez Ruiz (2017), pp. 51, 54. 19 For a more detailed study of this issue, see Jacob (1997), pp. 845–894; Vivas Tesón (1999), pp. 322, 325; Rivero Hernández (2000), pp. 102–106; Raday (2019), pp. 17, 18, 26; Avilés Hernández (2019), p. 202. 20 For example, until 1990, Article 159 of the Spanish Civil Code stated that if parents did not reach an agreement, children under the age of seven remained in their mother’s care, unless the Judge, for special reasons, decided otherwise. Conversely, see Leonov v. Russia, ECtHR, App. No. 77180/11, 10 April 2018. The ECtHR considered that the decision of granting custody to the mother was based on the child’s interests to not modify the son’s status quo in his detrimental (he was living with the mother since his parents’ separation) and not in gender-stereotyped assertions about the better ability of women for caring young children.

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children is not a good mother;21 (c) custody should not be granted to the mother because of her unconventional way of life (promiscuity, prostitution);22 (d) care of daughters should be granted to the mother and care of sons to the father;23 (e) the father with financial resources should be given priority over the mother without a stable income (even if she has been the primary caregiver of the children);24 (f) a good father is the one who brings home money even if he has not taken care of the children; (g) to give preference to the father who has remarried in granting custody but to deny custody to the mother for the same reason; (h) deny custody to either the father or the mother because of their sexual orientation.25 These assumptions have sometimes been reflected in laws, and others have been the justification for judicial decisions. Moreover, as can be seen, they are fundamentally related to the role of men and women in children’s care and upbringing, which gender roles have always marked (the mother as a caregiver, the father as breadwinner). Therefore, in the following, the child’s interests will be analyzed concerning three aspects: parental responsibility, work-life balance, and custody.

2 Child’s Interests and Parental Responsibility If we go back to the international normative texts, we observe that they are favourable to the co-responsibility of parents in the development of their children. Thus, Article 18, para. 1 of the CRC establishes that “States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child”. In addition, it points out that parents have the primary responsibility for the upbringing and development of the child and in this regard, it underlines that “the best interests of

21

Some examples can be found in USA Courts’ decisions. For a more detailed study of these cases, see Jacob (1997), pp. 866, 868–871. 22 In this regard, See Babayeva v. Azerbaijan App. 57724/11, ECtHR, 30 January 2020. The ECtHR considered that Azerbaijan violated Article 8 (right to respect private and family life) of the ECHR as its Courts’ decision denying custody to the mother was only based on the mother’s personal life (she has had an extramarital affair) and not in children’s best interests. 23 Conversely, the judgement of the High Court of Justice of Navarra (Spain) No. 42/2003, 30 September, considered that this practice caused the separation of the siblings against the interests of the children. 24 Such examples can be found in several USA Courts’ decisions. For a more detailed study of these cases, see Jacob (1997), pp. 857–862. 25 In this regard, see Salgueiro Da Silva Mouta v. Portugal, App. No. 33209/96, ECtHR, 21 December 1999) and X. v. Poland, App. No. 20741/10, ECtHR, 16 September 2021. In both cases, the ECtHR considered that States violated Articles 8 (right to respect private and family life) and 14 (prohibition of discrimination) of ECHR because their Courts’ decisions denying custody to the father, in the first case, and to the mother, in the second case, were based on parent’s homosexual orientation.

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the child will be their basic concern”. Also, General Comment No. 14 is of the view that “shared parental responsibilities are generally in the child’s best interests”.26 Similarly, the Convention of 18 December 1979 on the Elimination of All Forms of Discrimination against Women (CEDAW), in Article 5 (b), states that States parties shall take all appropriate measures to ensure “the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases”. Moreover, in Article 16, para. 1 (d) and (f), CEDAW emphasizes that States Parties shall ensure, on a basis of equality of men and women, the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; and in respect of guardianship, wardship, trusteeship, custody and adoption of children; in all these cases, the interests of the children shall be paramount. Likewise, the Article 5 of the Protocol No. 7 of the European Convention of Human Rights (ECHR)27 stipulates that the spouses shall enjoy equality of rights and responsibilities in their relations to their children, as to marriage, during marriage and in case of its dissolution. Regardless of the States take such measures as are necessary for the interests of the children. We highlight that these international texts speak of “common responsibility”, and “same rights and responsibilities”. Specifically, Article 18, para. 1 of the CRC calls upon States to “use their best efforts” to ensure the recognition of these common obligations. Therefore, the recognition in these legal texts of the co-responsibility of father and mother in their children’s care and education leads us to conclude that this is in the child’s best interests. That is to say, a priori, it is possible to maintain that the search for the minor’s interests is compatible with a situation of equality between men and women in the exercise of their responsibilities as parents. However, it should also be borne in mind that the texts mentioned above emphasise that the children’s interests must guide the exercise of this co-responsibility and must also be a primary consideration. Thus, although the connection between parental co-responsibility and the interests of the minor is assumed, this is not enough to guarantee those interests, so that, in the exercise of their responsibilities, in making decisions about the care, education and development of the children, the parents will have to take care primarily of these latter’s interests and give it primary consideration in the event of possible conflict with other interests. Moreover, if the fulfilment of their obligations towards their children is not carried out correctly and could be harmful to the children, it would be necessary to take measures in this respect. That situation could lead to only one of the parents exercising this responsibility, withdrawing custody or parental responsibility from the parent who fails to comply. In this regard, Article 9 of the CRC states that

26

See General Comment No. 14, para. 67. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed at Rome on 4 November 1950.

27

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separation of the child from his or her parents may be necessary for the best interests of the child in a particular case such as one involving abuse or neglect of the child by the parents. General Comment No. 14 repeats the same idea.28 Likewise, Article 24, para. 3 of the CFREU sets out the child’s right to maintain a personal relationship and direct contact with both parents unless that is contrary to the child’s interests. In this respect, the ECtHR has ruled in many cases, assessing the possible violation of Article 8 of the ECHR (right to respect for private and family life) which encompasses issues related to parental responsibility, custody, and visitation rights. Thus, for example, in Jovanovic v. Sweden29 the ECtHR considered that the decision to not finish the public care of the child was based on the child’s interests considering the injuries suffered by him during his cohabitation with his parents. And, in Tlapak and Others v. Germany30 the ECtHR held that the withdrawal of some parts of parents’ authority (right to decide children’s residence and health) and the consequent emplacement of the children in foster families were based on children’s interests. The measures were taken into account that children were subject to regular corporal punishment (caning), with possible detrimental to their psychological health, due to the convictions of their parents and the commune where they lived. In both cases, ECtHR ruled there was no violation of Article 8 of ECHR. Likewise, in P.F. v. Poland31 visits were restricted as an interim measure while the father was being prosecuted for alleged sexual abuse of his daughter. Although he was not finally convicted, the ECtHR considers that there was no breach of Article 8 of the ECHR as the measure was taken in the child’s interests. In Leonov v. Russia,32 the ECtHR considered that restrictive measures concerning the contact between father-son were taken under the child’s interests at the risk of the minor’s abduction by the father. Also, the ECtHR held that the decision of granting custody to the mother was based on the child’s interests to not modify the son’s status quo (he was living with the mother since his parents’ separation) and not on a genderstereotyped assumption about the better ability of women for caring young children.33 Finally, the ECtHR concluded that there had not been a violation of Articles 8 and 14 (prohibition of discrimination) of ECHR. Regardless, as noted above, the difficulty would arise where, in a particular situation, it would be necessary to discern whether the parents are carrying out their obligations correctly or to the detriment of the child’s interests and, in the latter case, what would be the measures required in the child’s interests. It is here, as

28

See General Comment No. 14, paras. 61, 67. See Jovanovic v. Sweden, ECtHR, App. No. 10592/12, 22 October 2015. 30 See Tlapak and Others v. Germany, ECtHR, App. No. 11308/16 and No. 11344/16, 22 March 2018. 31 See P.F. v. Poland, ECtHR, App. 2210/12, 16 September 2014. 32 See Leonov v. Russia, ECtHR, App. No. 77180/11, 10 April 2018. 33 Conversely, the only dissenting opinion considered that this decision was based on an authority’s report that stated the importance for a child to be raised by the mother until the age of five or six. 29

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stated, that gender biases or stereotypes must not guide the concreteness of the concept as an issue. Therefore, some situations require granting the exercise of responsibility for the children to only one of the parents or even to none of them. However, the starting point is the connection between the minor’s interests and the parents’ co-responsibility, overcoming a patriarchal system in which the father exercised his authority over the children and assumptions, such as the doctrine of the tender years, which consider the mother per se more capable for children’s care and education. Moreover, it is no longer possible to speak of authoritarian power but of the exercise of responsibility and rights in common and in the interests of the children, respecting children’s personality, and physical, mental, spiritual, moral, psychological, and social development.34 On the other hand, although the emphasis has been placed on recognising the equality of father and mother in the exercise of their parental responsibility, in the case of same-sex families, co-responsibility must also be present in the children’s interests following the international texts mentioned above. On the other hand, the affirmation that co-responsibility is beneficial for the child does not imply disdain single-parent families.35

3 Child’s Interests and Work-Life Balance One of the difficulties parents encounter in exercising their parental responsibilities is the balance of the care and upbringing of their children with the performance of their professional work. As far as this problem is concerned, it is still primarily women who face the work-life balance as a particularly complicated reality due to their traditional role as caretakers.36 For this reason, it is necessary to establish measures that facilitate the work-life balance, although these measures should not focus solely on women. Otherwise, it would mean taking a paternalistic attitude that would contribute to perpetuating gender prejudices about the role of women in childrearing. Suppose these measures are focused only on working mothers. In that case, they could result in fathers relinquishing their childcare responsibilities to mothers, or they could make it difficult or impossible for workers to fulfil their parental

34

Normatively speaking. In practice, there may be cases where parental responsibility is exercised (either by one or both parents) in an authoritarian manner or a manner disrespectful of the child’s interests. In these cases, measures should be taken following Article 9 of the CRC, as we have seen above. 35 In this regard, it must be taken into account that Article 2, para. 1 of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, concluded at Hague on 29 May 1993, includes intercountry adoption by spouses or by only one person. Likewise, Article 7 of the European Convention on the Adoption of Children (Revised, 27 November 2008) says that member States’ law shall permit a child to be adopted by two persons or by one person. 36 Moraga García (2014), p. 483; Lousada Arochena (2020), pp. 23, 27.

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responsibilities, which, in either case, constitutes gender discrimination.37 In this regard, the scholars have pointed out the advisability of recognizing equal and non-transferable leave for fathers and mothers in the context of work-life balance, as a measure that would encourage more remarkable dedication by men in caring for their children and ensure that motherhood ceases to be an obstacle to women’s development in the workplace.38 This idea has also been understood by Directive (EU) 2019/1158.39 The Directive starts precisely on Article 18(1) of the CRC, which establishes the joint responsibilities of parents in their children’s care. In its Preamble, the Directive (EU) 2019/1158 states that “imbalance in the design of work-life balance policies between women and men reinforces gender stereotypes and differences between work and care”, therefore, “policies on equal treatment should aim to address the issue of stereotypes in both men’s and women’s occupations and roles”.40 In this sense, the Directive (EU) 2019/1158 considers that a right to paternity leave for fathers should be introduced to promote a more equal sharing of care responsibilities between women and men and to enable early bonding between fathers and children.41 Also, taking into account that most fathers do not take their parental leave or transfer a high proportion of them to mothers, the Directive extends from one to two months the minimum period of parental leave which cannot be transferred from one parent to the other to encourage fathers to take parental leave.42 In particular, Articles 4 and 5 of the Directive contain the obligation for the Member States to take measures to provide for such leave described above. Therefore, if we have stated that the parents’ co-responsibility is beneficial to the child’s interests, all these egalitarian measures that seek to facilitate the exercise of their family responsibilities for male and female workers are also in the child’s interests. Likewise, in the field of work, benefits for risk during breastfeeding have related to the child’s interests by pointing out that protecting the health of the working woman during breastfeeding also involves protecting the child’s health in child’s own interests. This statement is included in the Judgment of the High Court of Justice of the Canary Islands (Spain) from 2019,43 which also expressly refers to the need to integrate the gender perspective with what the judgment calls “the child’s perspective” to resolve the case. This judgment of the Spanish Court deals with a case about denied benefits for risk during breastfeeding. To resolve the case, the Court points out that it is necessary to “integrate the gender perspective as a

37

Lousada Arochena (2020), pp. 84, 85. Moraga García (2014), p. 485; Rodríguez Ruiz (2017), p. 181. 39 See Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers. 40 Directive (EU) 2019/1158, Preamble, para. 11. 41 Directive (EU) 2019/1158, Preamble, para. 19. 42 Directive (EU) 2019/1158, Preamble, para. 20. 43 See Judgment of the High Court of Justice of the Canary Islands (Spain), no. 1339/2019, Judgment of 17 December 2019. 38

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methodology for imparting equal justice”. Furthermore, then it adds, “in addition to the unquestionable gender impact of the benefit claimed, there is another impact on the child (infant)” and concludes that because of this “the best interests of the child must also be taken into account as a legal hermeneutic criterion derived from Article 3.1 of the International Convention on the Rights of the Child, which is binding on States”. Finally, the Court recalls the obligation to guarantee the child’s well-being, following the Convention. Therefore, it points out “a well-being which, in the present case, is connected with the right to breastfeed naturally without any danger to the child’s health and as a unique way of obtaining adequate nutrients for his physical and psychosocial development”.44

4 Child’s Interests and Custody Before starting, it is necessary to clarify that custody has different meanings in different legal systems. Thus, simplifying the issue, some legal systems distinguish between “physical custody” (living together with the child) and “legal custody” (parental responsibilities),45 and others distinguish “custody” (living together and daily care) from the exercise of parental responsibility or parental authority.46 On the other hand, custody (physical, legal, or simply custody) may be granted to only one parent (sole) or both parents (joint or shared). Also, in some legal systems, the terms “joint” or “shared” may have a different meaning, and in others, they are synonyms.47 We will use the term “shared” in a broad sense that also encompasses “joint custody”. We will try to use the term custody in a broad sense that encompasses its different meanings, and when we consider it necessary, in order not to induce confusion, we will make the relevant clarifications. As mentioned above, the child’s interests must be a primary consideration and must prevail even over the interests of the parents. The child’s interests must be particularly taken into account in child custody proceedings due to the parents’ divorce or break-up. This is because in these proceedings the interests of the child and those of the parents may come into conflict, adding to the already existing confrontation between the spouses or couple themselves. The choice of the regime of

44

In this regard, see the Court of Justice of European Union (CJEU), Case Elda Otero Ramos v. Servicio Galego de Saúde e Instituto Nacional de la Seguridad Social, Judgment of 19 October 2017, about benefits for risk during breastfeeding and interpretation of Directives 2006/54/CE and 92/85/CEE. 45 For example, in the USA. For a more detailed study of the issue, see Jacob (1997), pp. 894, 895; Rabadán Sánchez-Lafuente (2011), pp. 64–70; and Avilés Hernández (2019), pp. 196, 197. 46 See, for example, the Spanish Civil Code (Articles 92 and 156, para. 5) and the Italian Civil Code (Article 337- quater). For a more detailed study of this issue, see Rabadán Sánchez-Lafuente (2011), pp. 64–70. 47 Rabadán Sánchez-Lafuente (2011), pp. 64–70.

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custody of the minor is a complex issue as the court will have to decide if the mother, the father, or a shared regime is preferable. This choice must consider the child’s interests, which is an indeterminate concept and, therefore, manipulable and influenceable by gender prejudices or stereotypes, as already underlined. Firstly, if we start from the general rule that co-responsibility is beneficial to the child, there is no reason, in principle, to modify it when the parents no longer live together. It would be compliant with Article 18, para. 1 of the CRC and Articles 5 (b) and 16, para. 1 (d) and (f) of the CEDAW, which establish the obligation of States parties to recognize the joint responsibility of both parents for the care, development, upbringing, and education of the children without making a distinction between situations of cohabitation and situations of separation. Moreover, Article 16, para.1 (d) of the CEDAW precisely states the obligation of States parties to ensure, on a basis of equality between men and women, the same rights, and responsibilities as parents “irrespective of their marital status”, in matters relating to their children. Also, Article 5 of Protocol No. 7 of ECHR provides equality of rights and responsibilities between spouses in their relations to their children during marriage and the event of its dissolution. Divorce or the breakdown of the parents’ cohabitation should not diminish their parental responsibilities, although it will force them to reorganize how they live with their children and exercise those responsibilities.48 To ensure that the children are affected as little as possible by the break-up, continuity with the previous situation should be sought (status quo principle).49 That is why measures to put in place after the divorce or separation should attribute the cohabitation, care, and decisionmaking about the child’s health and education to both parents. In other words, a system to be established that allows both parents to continue to live with the child and exercise parental responsibilities as they did before the break-up of the family unit or, at least, in a similar way as possible. Here, shared custody appears as a model or system favouring the continuity of the egalitarian situation that existed during cohabitation.50 It should be borne in mind that the different forms of custody reflect the evolution that the exercise of care and responsibility for children has undergone throughout history.51 Thus, initially, as a consequence of a patriarchal system, custody was granted exclusively to the father, who continued exercising his power over the children and family after divorce or separation.52 Subsequently, under the influence of the so-called “tender years doctrine”, custody was granted only to the mother, as she was considered more capable of taking care of the children.53 This assumption

48

In a similar sense, see Verdera Izquierdo (2014), p. 6. Rabadán Sánchez-Lafuente (2011), p. 103. 50 Verdera Izquierdo (2014), pp. 5, 10. 51 Avilés Hernández (2019), p. 198. 52 Avilés Hernández (2019), pp. 199, 200. 53 Avilés Hernández (2019), p. 202. 49

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also underlies a patriarchal conception, which continues to consider the role of care and the domestic sphere to be women’s own.54 Although a neutral regime was established in the law, “custody shall correspond to the most suitable parent”, the woman’s role as caregiver has continued to weigh so heavily that judges opted to grant custody to the person who had taken care of the children before the break-up, i.e., the mother in most cases.55 Shared custody appears as the consequence of a new conception of the children’s care and education that understands it should be a responsibility attributed to both the father and the mother in the minor’s interests. It is also a reflection of a new stage in which we are witnessing the gradual incorporation of the man in the domestic sphere and in children’s care, which is why, after the break-up, the father wants to continue to be present in his children’s development.56 In contrast to sole custody, the authors have pointed out the advantages of this model, which are to favour a more egalitarian relationship between the child and both parents; avoid that the burden of childcare falls on the custodial parent, usually the mother, due to her traditional role of a caregiver; and reduce conflict, as parents do not dispute custody between one and the other.57 Concerning the figure of shared custody, some authors58 have criticised its benefits in achieving an egalitarian system of parental responsibility after spouses or couple’s break-up. This critical view considers that shared custody should only be successful in cases where there was an egalitarian family model before the divorce or separation.59 In their view, in those societies where, even though there may be a formal recognition of equality between men and women, a patriarchal family model with the mother as primary carer of the children remains in practice, shared custody will not help to correct this inequality after the break-up.60 On the contrary, the regime would be successful in those societies that have managed to remove the obstacles that prevented this equality and have measures and infrastructures that make it possible for childcare to be carried out equally by both parents during cohabitation.61 Moreover, in their opinion, shared custody is many times a sexist claim, which fathers carry out with the purpose of not losing their power, from a patriarchal sense of domination of the family and the woman through the children, or to free themselves from economic burdens, such as the payment of alimony.62 We consider that, just as the existence of families with patriarchal roles in the practice is not an excuse for the normative recognition of equal rights and

54

Avilés Hernández (2019), pp. 201, 202, 207. Vivas Tesón (1999), p. 339; Verdera Izquierdo (2014), p. 6; Rodríguez Ruiz (2017), p. 44. 56 Avilés Hernández (2019), pp. 203–207. 57 Verdera Izquierdo (2014), p. 6; Avilés Hernández (2019), p. 207. 58 Post (1990), pp. 316–325; Moraga García (2014), pp. 479–491; Raday (2019), pp. 8, 9. 59 Moraga García (2014), pp. 480, 490. 60 Moraga García (2014), p. 485; Raday (2019), pp. 8, 9. 61 Moraga García (2014), pp. 484, 485, 490. 62 Post (1990), p. 316; Moraga García (2014), pp. 482, 489, 490. 55

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responsibilities for parents during cohabitation, neither should it be an excuse in the case of a break-up. We believe that this model favours the continuity of a parity childcare system after the break-up, even though there are sexist positions that manipulate shared custody. Also, the purpose of shared custody is not to correct the inequality that existed concerning the children’s care before the divorce or separation. However, the purpose of shared custody is to continue sharing these functions that already existed before the break-up and promote an equal relationship between the child and both parents. As mentioned above, shared custody appears as a response to a social reality in which fathers have become involved in their children’s care. Nevertheless, not all fathers are indeed involved in their children’s care and not always they are involved in as same way as women because gender roles are still heavily present. Therefore, here is where we will have to remove the obstacles that prevent this equality and establish measures, among others, in terms of work-life balance.63 However, we understand that this is compatible with the regulation of shared custody. We advocate the normative recognition of models or systems that favour the cohabitation and co-responsibility of both parents after the break-up. In our opinion, the best model to continue with the situation of cohabitation and co-responsibility that existed before the break-up would be one in which the custody regime involves the cohabitation of the child with both parents for alternative periods of equal (or almost equal) duration, accompanied by the joint exercise of the rest of the parental responsibilities (health, education, financial support of the children, among others). In other words, this model involves what in some legal systems would be shared custody and a shared exercise of parental responsibility, and in others, a shared physical and legal custody.64 This model is possible in theory, but it must also find the proper circumstances to make it possible in practice; otherwise, it would not be beneficial for the child either. Therefore, it requires the occurrence of certain circumstances to be successful, such as the proximity between homes, the understanding and fluid communication between the parents, and the involvement of both parents in the child’s care before the break-up. In addition, other circumstances of the case must be considered, among others, children’s age and development, their opinion, their relationship with the parents, parents' capacity to allow a good relationship between the child and the other parent, and the time availability of the parents.65

63

On this point, we agree with Moraga that the concern for equality should not focus on the moment of the parents’ break-up but also deal with removing the structures that prevent it during the couple’s cohabitation. Moraga García (2014), p. 488. 64 For example, in Spain, this model involves shared custody and a shared exercise of parental responsibility or “patria potestad”. In the USA, this model could involve joint physical and legal custody. See above, in fn 45 and 46. 65 For a more detailed study of the issue, see Rabadán Sánchez-Lafuente (2011), pp. 99–120. Also, the Spanish Supreme Court (“Tribunal Supremo”) points out these circumstances, for example, in the judgements no. 623/2009, 8 October 2009; and no. 257/2013, of 29 April 2013.

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However, there will be cases in which shared physical custody is not possible, for example, when the parents’ homes are far apart.66 Then a system of sole physical custody is necessary, accompanied by other measures that favour a fluid relationship of the child with the non-residential parent and joint decision-making by both parents (extensive visiting rights, legal custody, or shared parental responsibility, among others). Concerning the involvement of both parents in the child’s care before the breakup, the success of this regime will be more significant when both parents have been involved in the children’s care, upbringing, and development before the divorce or separation. Although equal sharing is desirable, we consider that, for the establishment of a shared physical custody regime, this prior involvement need not have been 50/50, but it must have been sufficiently significant on the part of both parents. In other words, parental involvement in childcare is not easy to quantify. In this sense, there may have been a division of tasks; one may be more involved in the child’s school development, the other in the child’s diet. Likewise, it is possible that because of their work schedules, for example, one parent has devoted more hours than the other to the child’s daily care or that this involvement has fluctuated over time. The point is that both must have been significantly involved in the child’s upbringing before the break-up. Moreover, the Court will have to assess such parental involvement without gender stereotyping. It would be a stereotypical assertion to consider that, because he is male, it is justified that the father has been much less or only occasionally involved in childcare; that he devotes more time to work and less to childcare, or that he does not devote to certain tasks related to childcare because they are women’s tasks.67 When there has been a family model with markedly stereotyped roles in a specific case, and disproportionately, the mother has been responsible for care tasks, a system of sole physical custody would be best for the child.68 The custody would be granted to the mother to continue the status quo or situation prior to the break-up for the child’s benefit, without prejudice to being accompanied by the child’s visitation right

66

The Spanish Supreme Court has preferred sole physical custody in the judgements no. 115/2016, of 1 March 2016 (the distance between parents’ homes was 300 km); no. 748/2016, of 21 December 2016 (the distance was 50 km); and no. 4/2018, of 10 January 2018 (1000 km of distance), among other cases. On the contrary, when parents’ homes are not at a high distance, the Spanish Supreme Court has established shared physical custody, for example, in the judgments no. 110/2017, of 17 February 2017 (the distance was 20 km); and no. 637/2019, of 25 November 2019 (the parents lived in two different towns 4 km apart). 67 See above different examples of gender stereotyping concerning childcare. For a more detailed study of gender bias in the USA Courts’ decision to custody, see Jacobs (1997), pp. 863–868. 68 For example, the Spanish Supreme Court denied shared physical custody in judgement 263/2016, of 20 April 2016 considering that the mother has been the primary caretaker during cohabitation and the father just started to be more involved in the children’s care since the break-up. Also, the Court pointed out that the father did not offer a feasible model of shared custody with guidelines about children’s education, day-care, or health.

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with the father and other measures that favour co-responsibility.69 However, the fact that these specific cases require a regime of sole physical custody in the child’s interests should not lead to disdain for shared custody as a model that favours co-responsibility in all those families in which, prior to the break-up, both parents have been involved in the children’s care and education. In cases of high conflict between the parents, shared physical custody may not be advisable, as it requires a higher level of understanding between the parents for it to work than an exclusive regime.70 In this case, a system of sole physical custody should be chosen, which should be accompanied by other measures that favour the child’s relationship with the non-residential parent and the co-responsibility of both parents. We highlight that there should not be violence between the parents in these high conflict cases because if this were the case, shared physical custody would not be in the child’s best interests.71 In cases of gender-based violence, physical custody should be granted to the mother72 because it is not beneficial for the child that the parent with whom he/she will live and who will be in charge of his/her daily care and education is the one who has exercised violence on the other (which may have been witnessed by the child73). That is, the one who has had aggressive behaviour, does not respect the mother and will not educate the children on the values of equality and respect for the other.74 69

The aim is to maintain the situation in which the children were before the break-up so that they suffer as little as possible the consequences of the break-up; hence custody is attributed to the parent who can best ensure continuity with their previous life. Rabadán Sánchez-Lafuente (2011), p. 103. 70 The Spanish Supreme Court points out that there could be disagreements due to the divorce or break-up and shared physical custody can work properly if the parents’ relationship is respectful and collaborative. See, for example, judgements no. 566/2014, of 16 October 2014; no. 242/2016, of 2 April 2016; and 369/2016, of 3 June 2016. However, this regime cannot develop correctly if the disagreements go beyond (hostility, disrespectful behaviour, lack of cooperation or dialogue). Thus, the Spanish Supreme Court denied shared physical custody due to the hostility between the parents in judgement no. 559/2016, of 21 September 2016. In this case, the parents did not have an attitude open to dialogue and after the break-up, during the time they kept on living in the family home, they communicated to each other only by SMS. 71 Guilarte Martín-Calero (2009), p. 220; Raday (2019), p. 11. Also, see the Spanish Civil Code (article 92 para. 7) that forbids shared physical custody in cases of domestic violence or genderbased violence. Under this provision, the Spanish Supreme Court has denied shared physical custody in the judgements no. 175/2021, of 29 March; and no. 729/2021, of 27 October 2021. In both cases, the father was convicted of gender-based violence so the Court pointed out that there was not the cooperative and respectful relationship between the parents that the proper development of shared physical custody requires in the child’s interests. 72 Moraga García (2014), p. 490; Raday (2019), p. 11 says that in case of domestic violence between parents, the sole parenting model with the non-violent parent may be the only option to not harm the child. 73 In this respect, see Article 26 (protection and support for child witnesses of violence) of the Istanbul Convention on preventing and combating violence against women and domestic violence, of 11 May 2011. 74 Moraga García (2014), p. 490, points out that when a man assaults his wife, there is a direct attack on the values that must preside over the family and direct harm to the members that compose it, including sons and daughters, so custody must not correspond to the abuser. For instance, see the

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Some authors advocate that the exercise of parental responsibility must not correspond to the parent who has committed gender violence.75 Instead, they consider that the exercise of parental responsibility implies taking decisions in common that can hardly be carried out when the father is not allowed to approach or contact the mother. Moreover, they add that the violent father can oppose certain decisions of the mother that are beneficial to the child, to continue to harm the woman through the children.76 Concerning visiting rights, it is possible to suspend them in the child’s interests, for example, when measures are prohibiting the violent father from approaching the mother and children.77 Furthermore, unsupervised visits can lead to tragic consequences for mothers and children and even the murder of the children by their father as revenge.78 One example is case decided by the CEDAW Committee, Ángela González Carreño v. Spain,79 which dealt, in the context of a case of gender violence, with the murder in 200380 of a girl by her father in the course of visits and even though the mother requested restricted visits due to the father’s inappropriate and instigating behaviour. The CEDAW Committee notes that the authorities in charge of supervising the regime of visits had as their main purpose the normalisation of father-daughter relationships, without fully assessing the benefits or harms to the child, and decided to pass to an unsupervised scheme of visits without a prior hearing of the mother and daughter.81 The Committee notes that all these elements reflect “a stereotyped conception of visitation rights based on formal equality which, in the present case, gave clear advantages to the father despite his abusive conduct and minimised the situation of mother and daughter as victims of violence”.82 The Committee recalls that “in matters of child custody and visitation rights, the best interests of the child must be a central concern” and therefore decisions in this regard “must take into account the existence of a context of domestic violence”.83 It finally concluded that “the authorities of the State party,

judgement of the Spanish Supreme Court no. 175/2021, of 29 March 2021. In this case, the father severely and frequently insulted the mother, even in front of their child, and he was convicted of abusing the mother. The Court granted the physical custody to the mother who has taken care properly the child and denied shared physical custody considering it was not good for the child’s interest. Also, the Court underlined that the father’s disrespectful behaviour towards the mother does not favour the cooperation among them and does not offer a proper model to the daughter. 75 Guilarte Martín-Calero (2009), p. 213; Reyes Cano (2017), pp. 348–347. 76 Guilarte Martín-Calero (2009), p. 213; Reyes Cano (2017), pp. 348–347. 77 Guilarte Martín-Calero (2009), p. 214. 78 Raday (2019), pp. 15, 26. 79 CEDAW Committee, Ángela González Carreño v. Spain, Communication No. 47/2012, Decision of 16 July 2014. 80 The case is previous to the Spanish Law against gender-based violence (Ley Orgánica 1/2004, de 28 de diciembre, de Medidas de Protección Integral contra la Violencia de Género). 81 CEDAW, Ángela González Carreño v. Spain, para. 9.4. 82 CEDAW, Ángela González Carreño v. Spain, para. 9.4. 83 CEDAW, Ángela González Carreño v. Spain, para. 9.4.

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in deciding on the establishment of an unsupervised scheme of visits, applied stereotyped and therefore discriminatory notions in a context of domestic violence and failed to provide due supervision, infringing their obligations.”84 Likewise, other examples of children killed by their fathers not in the course of visits but in a context of gender-based violence could be found in Kontrová v. Slovakia, and in Talpis v. Italy.85 In both cases, the ECtHR considered that the States infringed, among others, Article 2 of ECHR (the right to life) because they did not take the necessary measures to avoid this risk. Finally, where the child is directly subject to violence or abuse by one parent, physical custody should be granted to the other parent. In this case, joint decisionmaking by both parents would not be appropriate either. For example, it would not make sense for the violent parent to decide about the child’s health or education. However, he or she should not be relieved of his or her responsibility to contribute to the child’s financial or material support. Nor would visitation rights be appropriate, under Article 9 of the CRC, which says that separation of the child from his or her parents may be necessary for the child’s best interests in a particular case such as one involving abuse of the child.86 Therefore, a model where both parents share physical custody and responsibilities is beneficial for the child insofar as it favours the continuity of cohabitation and the co-responsibility that existed before the break-up. However, another question is that, in the specification of this child’s interests, a sole custody system is more beneficial for certain cases. As has been pointed out, in determining the child’s interests, the status quo principle is taken into account, without prejudice to the need to introduce changes or to move away entirely from the situation prior to the break-up, when this would be harmful to the child. In any case, the choice of the custody regime must consider the child’s interests, avoiding gender prejudices or stereotypes, such as those indicated above. In this regard, following the recommendation of the CEDAW Committee,87 the elimination of gender stereotypes and incorporation of a gender perspective into all aspects of the justice system, in particular in family and custody proceedings, will require awareness-raising and capacity-building programmes for all justice system 84

CEDAW, Ángela González Carreño v. Spain, para. 9.7. In this regard, Lousada Arochena (2015), pp. 14–15 highlights that it was not a judicial error but the abnormal functioning of the administration of justice due to a situation of systemic discrimination for which the Spanish State was responsible, which at the time did not have norms to prevent these cases of violence, thus failing to comply with the provisions of the CEDAW. 85 See, Kontrová v. Slovakia ECtHR, App. No. 7510/2004, 31 May 2007; and Talpis v. Italy, ECtHR, App. No. 41237/2014, 2 March 2017. 86 Also, see Article 24, para. 3 of the CFREU. As an example, see P.F. v. Poland, ECtHR, App. 2210/12, 16 September 2014. In the case, visits were restricted as an interim measure while the father was being prosecuted for alleged sexual abuse of his daughter. Although he was not finally convicted, the ECtHR considers that there was no breach of Article 8 of the ECHR as the measure was taken in the child’s interests. 87 See Article 29 (a) and (b) of General Recommendation No. 33 on women’s access to justice of the Committee on the Elimination of Discrimination against Women.

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personnel (judges, prosecutors) and law students. Also, healthcare providers and social workers because they play an important role in cases of violence against women and family matters.

5 Conclusion The path towards the elimination of traditional gender roles involves incorporating women into the labour market and the public sphere and the incorporation of men into the private sphere, taking on domestic tasks and caring for children. The suitability to carry out one or the other role does not depend on gender or sex. For example, childcare should not be the exclusive role of women; fathers are equally suitable for it, and this should be a shared function. The rights and responsibilities over children can no longer be conceived as sole male power and neither, in its caring aspect, as a woman’s task because she is considered per se more capable. Parental responsibility must be granted and taken over by the fact of having a child and not by the fact of being a man or a woman. It must include the same rights and obligations for both parents and be exercised in the child’s best interests, respecting his/her personality and complete development. Co-responsibility is in the child’s best interests, and we can conclude that from the inclusion of this principle in the CRC. Therefore, measures in work-life balance that favour this co-responsibility, such as the recognition of individual and non-transferable parental leave, are in the child’s best interests. On the other hand, co-responsibility should not be diminished in the event of a breakdown in the parents’ cohabitation. Thus, it is necessary to advocate for the regulatory recognition of models that allow the child to continue living with both parents and the joint exercise of their responsibility for the children, including shared custody. Although shared custody is beneficial for the children, the child’s specific interests may lead to establishing a regime of sole custody. In any case, the choice of custody regime should be made in the child’s interests, taking into account the specific circumstances of the case and free of gender stereotypes. Finally, the normative recognition of equal parental responsibility during the cohabitation or after the break-up must also be accompanied by measures to correct the gender inequalities and roles that persist in practice such as mothers being the primary caregivers or families with markedly patriarchal roles.

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Guilarte Martín-Calero C (2009) La atribución de la guarda y custodia de los hijos menores y el régimen de comunicación y estancia en los supuestos de violencia de género. In: De Hoyos Sancho M (dir) Tutela Jurisdiccional frente a la violencia de género. Lex Nova, Valladolid, pp 203–230 Jacob SB (1997) The hidden gender bias behind “The Best Interest of the Child” standard in custody decisions. Georgia State Univ Law Rev 13:845–900 Lousada Arochena JF (2015) El Caso González Carreño contra España. Aequalitas 37:6–15 Lousada Arochena JF (2020) El enjuiciamiento de género. Dykinson, Madrid Moraga García MA (2014) Igualdad y custodia compartida. In: Valencianes C (ed) Igualdad y democracia: el género como categoría de análisis jurídico. Litolema, Valencia, pp 477–491 Post D (1990) Arguments against joint custody. Berkeley Women’s Law J 4:316–325 Rabadán Sánchez-Lafuente F (2011) Ejercicio de la patria potestad cuando los padres no conviven. Thomson Reuters-Aranzadi, Cizur Menor Raday F (2019) Gender equality and Women’s Rights in the context of child custody and child maintenance: an international and comparative analysis. UN Women Discussion Paper Series No. 30. UN Women, New York Reyes Cano P (2017) La patria potestad a examen ante la violencia de género. Anales de la Cátedra Francisco Suárez 51:335–356 Rivero Hernández F (2000) El interés del menor. Dykinson, Madrid Rodríguez Ruiz B (2017) Género y Constitución. Mujeres y varones en el orden constitucional español. Editorial Juruá, Lisboa Verdera Izquierdo B (2014) El ejercicio de la patria potestad en igualdad de condiciones. Valoración de la custodia compartida. In: Mesa Marrero C (dir), Grau Pineda C (coord) Mujeres, contratos y empresa desde la igualdad de género. Tirant lo Blanch, Valencia, pp 453–480 Vivas Tesón I (1999) La situación de la mujer en el derecho civil, Tomo III. In: Rubio Marín R (coord) Mujer e Igualdad: la norma y su aplicación. Instituto Andaluz de la Mujer, Sevilla, pp 299–398

Fuensanta Rabadán Sánchez-Lafuente is Assistant Professor in the Department of Private Law (Civil Law area) at the UCA. Author of a monograph “Ejercicio de la patria potestad cuando los padres no conviven” (Exercise of parental authority when parents do not live together), Aranzadi, 2011; and of several articles and collective books about the right to know the biological origins; surrogacy; civil protection of the rights to honour, privacy and self-image; alimony; de facto unions; minor’s right to be heard; and retraction of joint owners. Member of the research projects “Acquisition and Pre-emptive Rights”, and “Housing and Family in the 21st Century”; and of the European project “New Quality in Education for Gender Equality, LAW AND GENDER” for the implementation of studies on gender equality. Researching and teaching stays at the Universities of La Sapienza in Rome (Italy) and Cergy-Pontoise (France), among others.

Gender Perspective of Development of Labour Law Ljubinka Kovačević

Contents 1

Treatment of Gender Issues in Classical Labour Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Labour Law in the Second Half of 19th and First Decades of 20th Century . . . . . . . 1.2 Period Following the End of World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Use of Gender as an Analytical Category in Labour Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Progress in Building a Legal Framework for Prevention and Protection Against Gender-Based Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Unresolved Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Contribution of International Standards to Gender Sensitization of Labour Law . . . 3 Gender Perspective of Current Tendencies in the Development of Labour Law . . . . . . . . . . 3.1 Economic and Political Turn Towards Neoliberalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Demographic Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Economic and Financial Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The classical labour legislation sought to protect the role of women in society with its norms, primarily by limiting their working hours and night work, and by protecting maternity. Although there were legal reasons for restrictive employment policies for women (prohibition of employment of married women) in certain legal systems, special labour protection of women was based primarily on biological and social reasons, and legislators favoured the view that taking care of children and doing household chores was more important for personal development of women than working in factories. Thus, labour law is traditionally conceived according to the model of male worker engaged on the basis of open-ended full time employment contract. That resulted in regulating only a few marginalized “women’s” labour law issues and in failure to provide sufficient consideration of the specific needs that women have as participants in the labour market, while some of protective measures eventually blocked women’s opportunities to work under the same conditions as

L. Kovačević (*) University of Belgrade Faculty of Law, Belgrade, Serbia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_6

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men. Use of feminist method opened up a new set of labour law issues, with the progress in building a legal and institutional framework for protection against gender-based discrimination in the exercise of labour rights. However, when it comes to practice, women often have difficulty finding and retaining employment. On the other hand, contemporary legislation is aimed primarily at women’s empowerment in the world of work, which can lead to oversimplification and ignorance of the importance of men’s role for implementation of the principle of gender equality. The authoress will put the issue of gender equality into the context of historical and conceptual framework genesis of regulating employment relationship in order to give an overview of main tendencies in this field.

1 Treatment of Gender Issues in Classical Labour Law 1.1

Labour Law in the Second Half of 19th and First Decades of 20th Century

Although the emergence of labour law is associated with the last several decades of the XIX century, the preconditions for the regulation of employment relationship appeared much earlier, with the legalization of individualistic principles.1 Of course, this idea of equal legal status and personal freedom of every individual included the freedom to work. At the same time, employers and workers were entrusted to regulate their own relationship themselves, in accordance with the premise that the employment relationship is an exchange between autonomous, evenly matched and (legally) equal subjects. Economic superiority of the employer was ignored or explained as a consequence of the current market imbalance, which would soon be eliminated, owing to the free competition.2 However, at the end of the nineteenth century, the principles of the laissez-faire doctrine were reconsidered, primarily due to economic crises and the strengthening of the working class, especially since, in practice, the formal equality of workers and employers was dramatically disrupted. Although judges, admittedly only sporadically, found ways to protect the weaker party in the name of fairness, when employers abused their prerogatives, a thorough and effective protection of workers was impossible without imperative norms of protective legislation. The adoption of these norms initiated the formation of labour law, as an autonomous branch of law. This turn of events wouldn’t have been possible had the idea not been accepted that the work performed by employees is dependent and subordinate, which, in turn, resulted in the limitation of the subject

1 A starting point for this paper were the results of our earlier research presented in the section “Introduction” of the chapter “Labour Law and Gender”, which was accepted for publication as part of the book Vujadinović et al. (2022) (co-authors of the chapter “Labour Law and Gender” are Mª Isabel Ribes Moreno and Thais Guerrero Padrón). 2 Dockès (2005), p. 4.

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matter of the labour law to the work performed by employees under (managerial, normative and disciplinary) prerogatives of an employer, for which they receive compensation which is the exclusive or predominant source of livelihood for most workers. This further meant that parties to employment relationship were not equal, unlike other legal relationships that are formed on the grounds of work for another, where the principle of equality of the contracting parties applies (par in parem non habet imperium). Namely, in addition to the de facto authority (expressed through economic dominance), employer had the legal authority to manage the work of employees, regulate rights, obligations and responsibilities stemming from employment relationship and punish employees for disciplinary offences. Affirmation of subordination as a key feature of employment relationship was an imperative of industrialization, because it enabled the proper functioning of enterprises and accumulation of capital.3 Hence, labour law emerged from the need to legislate and limit the prerogatives of employer, in order to mitigate the negative consequences of inequality between workers and employers, thus enabling the gradual “humanization” of the employment relationship.4 This development in regulation of the employment relationship is a result of workings of several different factors, such as changes in characteristics of states, economic development, ideology and the activities of labour movements, employers’ associations and civil society organizations.5 By protecting workers, labour law norms contributed to the establishment and preservation of social peace and approaching the ideal of social justice and social cohesion, while minimal harmonization of the working conditions led to the harmonization of labour costs, as an important instrument for preventing unfair competition among employers. In this regard, we should bear in mind that labour legislation was, at first, aimed at protecting the most vulnerable categories of workers—women and children. They

3

Veneziani (1986), pp. 71–72. Durand and Jaussaud (1974), p. 4. Although subordination is widely accepted as a basic element of the employment relationship in contemporary labour law, this concept is very fragile and dependent on changes taking place in the world of work, and requires constant review. New models of organization and management have called into question the traditional concept of subordination. Certain authors, therefore, believe that the classical concept of subordination has lost clear boundaries and should be rejected as an ineffective criterion for the definition of employment relationship (Goldin 2006, p. 121). These proposals aren’t acceptable, as in certain cases, subordination is taking on new forms, i.e. showing its “new face” (Supiot 2000, p. 131). These cases of “attenuated subordination” cannot, however, be considered to be the rule. All the more so as they are characterized by subordination of an employee to the prerogatives of an employer, which is sometimes intensified (e.g. due to the use of new technologies for monitoring workers). More precisely, this means that employees differ from other groups of workers who need protection, precisely due to their subordination to an employer, which is why they are afforded legal protection. Therefore, the retention of the subordination criterion seems justified, with possible minor adjustments of its content to the novelties in the world of work. 5 Hepple (2011), pp. 36–41. 4

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had to join the workforce because wages of adult male workers were so low that they were unable to provide for all family members.6 Special protection of children included protectionist measures (improvement of working conditions) as well as abolitionist measures (exclusion of persons younger than certain age from the labour market).7 Women were the other category of workers targeted by state intervention, as industrialization enabled them to work outside the family.8 The original labour legislation sought to protect the role of women in society with its norms, primarily by limiting their working hours and night work, by protecting maternity, and in some countries by allowing longer lunch breaks for women with family duties.9 However, in the first couple of decades of the labour law, this protection was not afforded to all workers, but only to young women, e.g. to girls under the age of 21 in France and Luxembourg.10 In certain countries, the ban on underground work was extended only to girls under the age of 14 (in Belgium), while in Denmark, due to opposition from feminists, special protection of women included only a ban on work in mines.11 General protection of women workers was not introduced in Europe until the last decade of the nineteenth century. It was based on biological and social reasons, which is why legislators were not asked to treat men and women equally. This is how protective legislation contributed to the entrenchment of the view that women should be committed to housework and raising children,12 while views of equality between men and women were perceived as “denying women authenticity” and an obstacle to their liberation, because working for an employer would double their workload (professional activity and household chores).13 A distinction was also made between the individual and collective aspects of equality between men and women, with the former being viewed as the right of women to have access to the same jobs as men.14 On the other hand, the understanding of the collective aspect of equality was based on the premise that equality between men and women can be achieved only if women are rid of household chores, i.e. if the community takes on that burden.15 Legislators, however, did not favour the separation of women from household chores, and, in the name of defending the family, proclaimed that child care and housework were more important for women’s personal development than factory work. All the more so as the role of a mother in raising a child was considered

6

Rouast and Durand (1963), p. 22. Betten (1993), p. 289. 8 Rivero and Savatier (1956), p. 299. 9 Ramm (1985), p. 94. 10 Scelle (1927), pp. 63–64. 11 Ramm (1985), p. 94. 12 Ramm (1985), p. 86. 13 Rivero and Savatier (1956), pp. 299-300. 14 Rivero and Savatier (1956), p. 300. 15 Rivero and Savatier (1956), p. 300. 7

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irreplaceable, while the establishment of childcare facilities was considered to be an unreasonably high expenditure for the state.16 On the other hand, we should not lose sight of the legal reasons for the restrictive policy for employment of women, as certain legal systems and certain work environments had a ban on employment of married women.17 In that context, labour law is traditionally conceived according to the model of male worker employed on the basis of open-ended full time employment contract, while social security law is built on the male breadwinner model, where the female takes care of the (young and old) family members dependent on other people’s care and help (female /unpaid/ caregiver), so that marriage and motherhood emerge as an alternative to the paid work for an employer.18 This further means that unequal treatment of men and women in the world of work was based on gender division of labour and hierarchy that existed between men and women in the family and the society, since the power that men had in the family and the society facilitated their domination in the world of work and vice versa.19 More specifically, in societies where paid work is crucial for enjoying a number of rights and benefits, reducing the unpaid work of women at home to the issue of family or social law (and not the labour law) has strengthened the idea that unpaid work at home matches the natural role of women and that in the societal hierarchy of jobs—it should be valued less than paid work for the employer.20 This approach survived even after the lifting of the ban on employment of married women, resulting in failure to provide sufficient consideration of the specific needs that women have as participants in the labour market, and contributing to the legal invisibility of women, as well as to the legitimization of the patriarchal concept of work and workers.21

1.2

Period Following the End of World War II

The period following the end of World War II was marked by the intensive inclusion of women in the labour market in Europe and North America. This has been influenced by post-war welfare reforms that led to improving women’s material status and position in society, their access to education, declining fertility rates, rising rates of divorce and the development of public services.22 In that context,

16

Rivero and Savatier (1956), p. 300. Deakin (2005), p. 57. 18 See: Lyonette (2013), pp. 198–203. 19 Pascall (1997), pp. 2–3. 20 Fudge (2011), p. 136. 21 Hunter (1991), p. 320. 22 Dale and Foster (1986), pp. 3–4; Rodgers (2016), p. 30. 17

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economic independence ensured via paid work has been seen by many as one of main prerequisites of freedom of women, along with control of fertility.23 However, labour legislation continued to regulatе only a few marginalized “women’s” labour law issues, primarily maternity protection and special protection of women due to their weak constitution (ban on employing women in physically demanding jobs, such as jobs performed underground, underwater or in construction). Biological differences between sexes were considered to be the key reason for making qualitative differences between male and female workers.24 Although this legislative intervention in the area of maternity protection was an improvement, given the period of labour exploitation that preceded the adoption of protective labour legislation, some of these legal solutions eventually led to a “legal blockade” of women’s opportunities to work and earn under the same conditions as men.25 In this sense, some authors treat protective legislation as a reflection of paternalistic views of the male labour ‘aristocracy’.26 This approach is also referred to in the literature as ‘benign discrimination’,27 and is, above all, related to the ban on night work of women in industry. In addition to biological differences, this ban was supposed to allow for the functional differences between men and women, since women almost exclusively did housework, which is why the ban on night work allowed them to rest longer during the night (because they couldn’t rest during the day due to child care and other household chores) and devote themselves more to household chores.28 In addition, the ban on night work was motivated by moral reasons, due to the belief that such work is immoral for women, and that the ban protects them from the risk of being attacked or harassed when going to work or returning from work.29 In addition to efforts to protect women’s health and well-being, the ban on night work was introduced in order to even up production costs and prevent unfair competition between countries that have introduced a ban on night work of women in industry and those that haven’t yet done so.30

23

Kelly (2006), p. 13. Kollonay-Lehoczky (2017a), p. 359. 25 Kollonay-Lehoczky (2017a), p. 359. 26 Ramm (1985), p. 86. 27 Kollonay-Lehoczky (2017a), p. 359. 28 Night work for women (1992), pp. 184–185. 29 Night work for women (1992), pp. 184–185. See: Camaji et al. (2014), p. 12. 30 In addition, the need to combat unemployment was used as an economic reason for introducing night work, because immense increase in night work resulted in hyper production which consequently increased unemployment. International Labour Conference (2001). Report of the Committee of Experts on the Application of Conventions and Recommendations - General Survey of the reports concerning the Night Work (Women) Convention, 1919 (No. 4), the Night Work (Women) Convention (Revised), 1934 (No. 41), the Night Work (Women) convention (Revised), 1948 (No. 89), and the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948. Geneva: International Labour Office, paras. 35–36. 24

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The ensuing stages in development of labour law were characterized by gradual reorientation of labour legislation from the paternalistic attitude of the state towards women and other vulnerable categories of workers—towards the concept of labour law at the heart of which is the right to fair working conditions for all workers.31 However, labour legislation, as a rule, did not take into account experiences typical of female workers, nor did it identify the specific consequences that the seemingly neutral labour law rules or practices have on them. Also, the tension that exists between the professional and family duties of female workers has traditionally been considered a natural and inevitable consequence of women’s participation in the labour market, which is why the legislation lacked instruments aimed at facilitating the reconciliation of these duties.32 This was reflected to Labour Law as a learning discipline as well, since sex or gender, as a rule, are not considered an important analytical category, which is why the study of Labour Law was regularly based on the premise of more or less homogeneous working class composed primarily of men. In that sense, issues related to the position of female workers were often ignored in Labour Law textbooks, or only mentioned in several footnotes, or, at best, covered in one or two sections, which, again, were dedicated to typical women’s labour law topics.33

2 Use of Gender as an Analytical Category in Labour Law 2.1

Progress in Building a Legal Framework for Prevention and Protection Against Gender-Based Discrimination

In the 1980s, social sciences started applying the feminist method, which opened up a new set of labour law issues.34 Thus, the ban on women’s night work in industry, which was confirmed by International Labour Organization (ILO) Conventions Nos. 4, 41 and 89,35 was called into question, as the results of scientific research confirmed that night work has an equally detrimental effect on men’s and women’s health. This was the reason for the ILO Administrative Council to abrogate Conventions Nos. 4 and 41, while Convention No. 89 is still in force, with the 1990

31

Hepple (2011), p. 34; Rogovski (2013), p. 87. Conaghan (2017), p. 94. 33 Hunter (1991), pp. 307–308. 34 Conaghan (2017), p. 100. 35 See: Night Work (Women) Convention, 1919 (No. 4); Night Work (Women) Convention (Revised), 1934 (No. 41); Night Work (Women) Convention (Revised), 1948 (No. 89). For controversies that accompanied the ban on night work of women in industry, see: Politakis (2001), pp. 403–428. 32

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Protocol establishing a broader list of exceptions to the previously envisaged general ban on night work for women.36 This was influenced by case law of the European Court of Justice, which confirmed that the general ban on night work of women that existed in the European Community Member States, in accordance with their obligations undertaken by ratification of the ILO Convention No. 89, is not justified, because the dangers that the night work poses to the health of workers in no way depends on their sex.37 Many countries have therefore cancelled the ratification of this ILO Convention, due to the notion that restricting the prohibition of night work only for women cannot be considered a permissible exception to the prohibition of discrimination, and that is in fact a violation of this principle, except during an employee’s pregnancy. Therefore, night work can be performed by both men and women, assuming measures are taken to protect their health and safety (pre-employment and periodic medical examinations, right to be transferred to day work if justified by health reasons), as well as their family duties. The same is true for easing the ban on women working in physically demanding jobs, although several European countries (Azerbaijan, Cyprus, Moldova, Slovenia, Turkey) maintained those bans in the second decade of this millennium, which the European Committee of Social Rights qualified as a violation of Article 20 of the Revised European Social Charter.38 The last four decades have been marked by a significant increase in the number of working married women and working mothers, as well as an increase in the number of educated female workers, which, unfortunately, was not accompanied by a proportional increase of men performing family duties.39 This double working engagement of women represents a great challenge for labour law. Especially because the culture of capitalism underestimates the economic value of raising children and caring for dependent family members and often overestimates the benefits of women’s participation in the labour market.40 Thus, implementation of the feminist method in labour law influenced the conceptualization of the need to reconcile the professional and family duties of employees, with the insistence on abandoning socially constructed roles related to unpaid housework and child care and care for other family members dependent on assistance from others.41 In the field of labour law, these circumstances have created the need to outline and effectively apply legal norms that may lead to an even division of family duties between men and women, because measures to promote equal participation of women and men in

36

Protocol of 1990 to the Night Work (Women) Convention (Revised). Judgment of the European Court of Justice of 25 July 1991, C-345/89 (Criminal proceedings against Alfred Stoeckel), ECLI:EU:C:1991:32, paras. 14–18. 38 Kollonay-Lehoczky (2017a), p. 368. 39 Kollonay-Lehoczky (2017a), p. 343. 40 Grgurev (2014), p. 136. In the spirit of the ideological matrix of individual choice and personal autonomy, the idea was promoted that, to be successful, a woman has to dedicate herself to personal progress and be more career-oriented (Hepple 2014, p. 59). 41 Marry (2012), pp. 342–343. 37

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both paid work for employer and unpaid family work can help boost employment rates among women.42 This was followed by efforts to remove barriers for employment of women who wanted to work and the creation of conditions for enjoyment of all labour rights, regardless of whether they work within a standard or non-standard form of employment. Also, there is an effort to recognize the special needs of workers who decided to become mothers. However, their needs should be examined in the light of goals of pronatal policies and the need for women’s participation in providing care for children and adults who require care and assistance.43 Besides, the state has a need for greater participation of women in the labour market, primarily because they are largely educated, and in addition, it has an obligation to prevent sex/ gender-based discrimination.44 Harmonization of these conflicting, but legitimate goals requires prescribing a number of legal obligations for employers, as well as a number of obligations for the state, since shifting the significant burden of maternity and family protection to employers can make them refrain from hiring women, due to the costs incurred in connection with the family duties of employees.45 As the role of laws, as instruments for achieving social change and especially change concerning consistent implementation of the principle of gender equality, is rather limited, efforts have been made to use different instruments, including collective agreements and other sources of autonomous law. Although greater prospects for promoting gender equality through social dialogue exist in countries with a solid legal framework for combating gender-based discrimination, gender issues are rarely regulated by collective agreements.46 This can be explained, among much else, by modest number of women that are trade union members, or members of trade union committees that participate in collective bargaining, or members of trade union governing bodies that make important decisions.47 There can be many reasons for this, from the burden of family duties not leaving them with enough time to participate in trade union activities, professional segregation and insufficient training of women to participate in trade union activities, to gender stereotypes and the fact that trade unions are insufficiently sensitive, due to male dominance in membership and leadership, to the needs of their female members.48 All the more so because women are underrepresented in governing bodies of employers’ associations and in tripartite bodies, although it cannot be reliably claimed that greater representation of women at these levels necessarily contributes to better representation of their 42

Green Paper on ageing. Fostering solidarity and responsibility between generations, Brussels, 27.1.2021 COM(2021) 50 final, 6. 43 Grgurev (2014), p. 135. 44 Grgurev (2014), p. 135. 45 Grgurev (2014), p. 150. 46 Briskin and Muller (2011), pp. 8–9. 47 In EU Member States, women make up about 40% of members, but occupy on average only 5–20% of seats in union bodies, with a particularly modest number in higher status bodies, as opposed to secretariats or working groups whose members are appointed on the basis of expertise, in which the representation of women is somewhat higher. Briskin and Muller (2011), p. 12. 48 ABC of women workers’ rights and gender equality (2007), p. 70.

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interests in the social dialogue.49 But even with that reservation, there is a need for collective labour law to become gender sensitive.

2.2

Unresolved Problems

We can conclude that past decades were marked by progress in building a legal and institutional framework for protection against gender-based discrimination in the exercise of labour rights. Despite the positive changes in legislation related to proper and complete identification and regulation of certain issues in light of the special needs and risks that are particularly inherent to female workers, certain problems remain unresolved. This is particularly true of the fact that women, even highly skilled women, often have difficulty finding and retaining employment, largely because of prejudices and stereotypes related to their work and their commitment to family duties.50 Also, we must not lose sight of the so-called statistical stereotypes that have influenced stipulation of (male) sex as a special requirement for certain jobs only because the physical capabilities of an average woman are less than the physical capabilities of an average man.51 Further, due to statistical stereotypes, employers often make unfavourable decisions regarding job candidates of a certain sex, believing that, in certain jobs, workers of one sex are less productive and successful than the workers of the opposite sex, which regularly leads to occupational segregation, in terms of giving preference to workers of one sex when hiring for certain jobs.52 Such approach leaves women in poorly paid work, often in service sector and caring professions, “replicating expectations of women’s work in home”.53 This is accompanied by the “glass ceiling” phenomenon, especially since it is manifested not only in the obstacles that women encounter during career advancement, but also in the lack of their participation in decision-making and supervision of work.54

49

Briskin and Muller (2011), p. 8. Fenwick and Hervey (1995), p. 446. 51 Holzleithner (2017), pp. 16–17; Timmer (2016), p. 38. 52 International Labour Conference 1998. Equality in employment and occupation. General Survey by the Committee of Experts on the Application of Conventions and Recommendations, Geneva: International Labour Organization, par. 97. 53 Kelly (2006), p. 14. 54 Pascall (1997), pp. 30–31, 50–51. 50

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Furthermore, increase in the number of economically active women is not accompanied by equal quality of employment of men and women.55 That can be qualified as de facto gender-occupational segregation. It does not exist only between sectors or between occupations, but can equally exist within a particular work environment, since women, who graduate universities more than men, are more likely than men to get a job in lower-paying sectors, while also making up a smaller portion of the total number of employees in information and communication technologies, science, engineering and other more promising sectors. On the other hand, men are underrepresented in the areas of (primary and secondary) education, health care and social protection. In that context, we can conclude that in order to achieve gender equality, it will not be enough to enable women to compete in the labour market under the same conditions as men, in accordance with the rules that reflect the lifestyle and work patterns that are characteristic for men.56 In addition, there is a risk of discrimination within the group of workers of the certain sex. More precisely, in the job market, women who belong to a certain group are put in a less favourable position, precisely because they belong to that group. Being a part of a certain group can make them particularly sensitive to intersectional discrimination, which in practice will be caused by the interaction of different personal characteristics, especially sex/gender, ethnic origin, disability and age.57 Unfortunately, for decades, this phenomenon entailed a separate treatment of discrimination based on each individual personal characteristic and a fragmented legal framework for prevention and protection against discrimination, which made it difficult to properly and fully understand the causes and (cumulative) consequences of discrimination against women.58 On the other hand, we should not forget the warnings of certain authors who said that insisting on intersectional discrimination leads to the so-called degenderization of labour law, since it reduces the attention that is paid, in legislation, to sex/gender as a personal characteristic.59 Finally, we should bear in mind the fact that the labour law, when creating conditions for achieving gender equality, is aimed primarily at women’s empowerment in the world of work. This approach leads to ignoring the special needs of men

55

Across the EU, in 2016, the employment rate for women aged 20–64 was 65.3% compared to 76.8% for men of same age. In the same year, women represented 3/4 of workers who pursue paid work on a part-time basis (22% of those women worked less then 20 hours a week) and they tend to work in lower-paying sectors and at more junior levels than men. In 2021, еployment rates among women remain 11.7% lower, and more women tend to work part time despite more women than men obtaining a university degree. Аcc. to: Gender equality at work - European Working Conditions Survey 2015 series (2020), p. 13; European Group on Ethics in Science and New Technologies (2019), p. 32; Green Paper on ageing. Fostering solidarity and responsibility between generations, 6. 56 Atkins and Hoggett (1984), p. 46. 57 Holzleithner (2008), pp. 33–34. 58 Kofman et al. (2009), p. 49. 59 Conaghan (2017), p. 99; Lombardo and Rolandsen Augustin (2011), pp. 482–512.

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in the world of work, as well as ignoring their importance for implementation of the principle of gender equality and women’s empowerment.60

2.3

Contribution of International Standards to Gender Sensitization of Labour Law

It is not easy to assess the importance of international and European instruments for protection against gender-based discrimination in countries where they are implemented, especially given the gap that often exists between the rhetoric of international discourse and the situation on the ground.61 In terms of UN and ILO acts, a significant indicator of their importance is the number of their contracting parties. For some of these acts, that number is quite large (Convention on the Elimination of All Forms of Discrimination against Women,62 International Covenant on Economic, Social and Cultural Rights, ILO Convention No. 111), which reflects the wide, general acceptance (if only formal) of the principle of gender equality. Despite the universality of the principle of equality and the principle of non-discrimination, these sources of law are flexible enough to be applied in countries that are significantly, sometimes even dramatically different in terms of legal tradition, economic development and political system. Therefore, countries are, as a rule, permitted to choose the measures that will ensure the application of the principle of gender equality. On the other hand, we should bear in mind that the effective implementation of the principle of gender equality in the world of work is not fully possible if this

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Men and masculinities: Promoting gender equality in the world of work (2013), pp. 2–3. Spencer and Spencer (2004), p. 55. 62 CEDAW provisions are primarily aimed at women working in the formal sector, especially pregnant women and mothers, while the Convention lacks provisions that would take into account the employment status of women from marginalized groups, such as migrant women, older women and women from other groups who are also discriminated against on the grounds of gender, which the Committee on the Elimination of Discrimination against Women seeks to compensate for in its jurisprudence (Farha 2008, p. 560). On the other hand, the ILO standards draw a limited connection between sex and non-standard/precarious work, and the concept of decent work, designed by the ILO precisely in order to improve the “opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and human dignity” represents a turning point. Equality was confirmed as one of the elements of decent work, which should be provided to all workers, whether they perform paid or unpaid work in the formal or informal economy. This especially acknowledges the need to protect workers from the periphery of the formal employment and social security systems, which, in addition to non-standard forms of employment in which women often work, includes their unpaid domestic work. Vosko (2006), p. 58. 61

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principle is not applied consistently in other, or in fact, all other areas of life.63 In this sense, we can conclude that (legal and other) measures taken in order to fulfil the obligations undertaken by ratification of international instruments must be viewed as part of a wider set of mutually harmonized measures aimed at gradually building a society free from discrimination.64 The most important among these measures are aimed at regulating protection against gender-based discrimination in constitutions, laws in the field of employment, as well as in anti-discrimination legislation, and sources of autonomous labour law, with the proviso that it is important to keep in mind that, in addition to prescribing the rules contained in the relevant sources of law, there is a need for these norms to have a practical impact on achieving equality. In this sense, the creation of conditions for the realization of (judicial and alternative) protection of the rights of workers who believe that they are discriminated significantly contributes to the effective implementation of international instruments. Finally, this means that the potential and the inability of international instruments to contribute to the protection against gender-based discrimination should be looked at in light of the fact that ratification of an instrument does not necessarily mean its effective implementation, as some states do not have adequate administrative and other mechanisms.65 Besides, we should bear in mind that the level of independence that the state sovereignty implies is unequal, and in fact depends on the economic strength and political power of each state, which can seriously jeopardize the preservation of equality, as an essential prerequisite for world peace.66 This is compounded by the complexity of the ILO’s supervisory mechanism, as well as the likelihood that it will impose only political, and not legal, sanctions for breaches of obligations.67 The same is true for the standards of the (Revised) European Social Charter, although they have significantly contributed to the development of the concept of equality and non-discrimination in the Council of Europe Member States, especially with regard to reconciling affirmative action with the concept of equal treatment, which was met with resistance in certain countries.68 Finally, the law of the European Community and EU have made a significant contribution to the development of protection against employment discrimination, because when compared to universal standards, the norms adopted at the EU level are more detailed and comprehensive. Also, the fact that the directives are not subject to ratification, and that the European Court of Justice (Court of Justice of the EU) makes a great

This refers to the pronounced discrimination in certain fields, which can affect the field of employment, e.g. discrimination in the field of education regularly “spills over” into the field of employment, especially in terms of educating pupils and students for typically “male” and typically “female” occupations. 64 International Labour Conference (1998), par. 241. 65 Weiss (2011), p. 52. 66 Chemillier-Gendreau (2014), p. 2. 67 Spencer and Spencer (2004), p. 50, 70. 68 Kollonay-Lehoczky (2017b), pp. 510–511. 63

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contribution to the accurate and complete understanding of the directives, contributes greatly to their effective implementation.

3 Gender Perspective of Current Tendencies in the Development of Labour Law 3.1

Economic and Political Turn Towards Neoliberalism

First current tendency in the development of labour law that requires consideration from a gender perspective is related to the economic and political turn towards neoliberalism. Counter to the protection of workers established after the World War II, within the dominant welfare state model of development,69 neoliberalism assumes greater flexibility in the labour market and the lowering of state costs for protection against social risks. It is believed that labour legislation, due to the obligations and (direct and indirect) costs it creates for employers, adversely affects employers’ competitiveness, which further discourages them from establishing a standard employment relationship, or rather encourages them to resort to flexible forms of employment as well as bogus self-employment and undeclared work. At the heart of this concept is the idea that labour law is not only an instrument for protecting the dignity of workers, but also an instrument for meeting labour market needs and establishing a “fair” balance between the needs and interests of workers, on the one hand, and the needs and interests of employers, on the other hand.70 In such environments, States face pressures to reduce labour costs as much as possible, leading to the devaluation of human labour (relative to capital).71 This tendency should be viewed in light of the relativization of the idea of societal responsibility for full employment, and the affirmation of the idea of improving the ability of workers to adapt to the jobs available on the market. This refers to the concept of employability, which is viewed as a synonym for work flexibility, but also as a substitute for job security. However, the idea that a flexible labour market has emancipatory potential (in terms of creating opportunities for personal development of workers) seems like a myth, because a flexible labour market almost exclusively benefits the employers.72 We should bear in mind that certain authors believe that high standards of labour protection won’t affect the general rate of (un)employment, but rather which categories of workers will lose their jobs.73 It is believed that the rigidity of

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See: Nedović (1995), pp. 40–53; Young (1990), pp. 67–70. Van Bever (2012), p. 183. 71 Supiot (2007), p. xviii. 72 Supiot (2007), p. xviii. 73 Rogovski (2013), p. 143. 70

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labour protection leads to an increase in unemployment of women (as well as young workers and low-skilled workers).74 On the other hand, the decrease in labour protection, in line with the concept of flexicurity, has, in most countries, instead of the expected increase in employment, led to the marginalization and impoverishment of certain categories of workers, especially women,75 a significant disruption of employment stability and an increase in the number of workers working without employment contracts. In that context, there is a need for re-examining the tendency to make employment relationships more flexible from a gender perspective, as it influenced the emergence of a number of non-standard employment contracts and new forms of work, many of which are extremely precarious, and in which women are disproportionately more represented than men.76 Their position is additionaly worsened by neoliberal cuts in the welfare state making women responsible for more caring. This could be very demanding if we have in mind that worsening of working conditions has led to working very long hours or having two or more jobs.77

3.2

Demographic Changes

The world of work is affected by demographic changes, especially the tendencies of population aging and increased life expectancy, which emphasize the need for rising institutional assistance as well as engagement of both gender in the care for elderly. Аlso, there is a need for maintaining the working ability (and work motivation) of older workers, as well as the need to enable young workers to gain work experience and advance in their careers. However, many older women care for family members who are dependent on someone else’s care and assistance (grandchildren, parents). Their unpaid work helps younger workers to better reconcile family and professional duties, but it is also an obstacle to the integration of older female workers into the labour market and is the cause of their lower wages (due to part-time work).78 On the other hand, young women are at higher risk of unemployment than young men, partly because in some cultures they are encouraged to marry early and become mothers. In addition, young women are often steered, in line with occupational segregation, towards low paying occupations and jobs with modest chances of advancement,79 whilst unemployment of young men can lead to criminal behaviour which is rarely the case with young women.80

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Rogovski (2013), p. 143. Moreau (2006), p. 72. 76 Fredman (2004), p. 299. 77 Kelly (2006), p. 15. 78 Green Paper on ageing. Fostering solidarity and responsibility between generations, 11. 79 ABC of women workers’ rights and gender equality (2007), p. 201. 80 ABC of women workers’ rights and gender equality (2007), p. 202. 75

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Also, the tendency of intensive international migration must be taken into account. This process can have a positive impact on the world of work, especially in countries with low birth rates. Migration can also deepen the economic problems in the host country, especially if there is a high unemployment rate of domestic citizens, which can lead to the establishment of various statuses for migrant workers. Some of them are very precarious because employment depend on their country of origin, the length of stay in the host country, the type of residence permit or work permit, and, in some cases, their occupation and legal status.81 That may also prove to be especialy unfavourable for women. This is especially true for female domestic workers and lower-skilled occupations, as well as refugees and returnees.82 Stereotypes and intersectional discrimination lead to greater gender differences, and migrant women, regardless of their level of education, often face long-term unemployment, or employment in the low-paid and insecure jobs, as well as the so-called “3D” (i.e. dirty, dangerous and demeaning) jobs, frequently without an employment contract.83 This is especially the case for migrant female workers who come to a foreign country for family reunification, as, until recently, many countries were denying them access to the labour market during the first couple of years of their stay.84

3.3

Economic and Financial Crisis

Regulation of employment relationships is significantly affected by economic and financial crises, to which labour legislation is particularly sensitive. Both the crisis from 2008 and the crisis caused by the COVID-19 pandemic can testify to that. In both cases, the consequences of the crisis have hit women particularly hard, deepening the existing gender inequalities. The 2008 crises and austerity gave rise to the substantial (unwanted) part-time work (four out of five part-time jobs in the EU are done by women) and other forms of precarization of work, which affect mostly women, with widening the pay gap and inequality in distribution of care.85 However, we should not lose sight of the fact that, as a rule, economic and financial crisis initially have more negative effects in male-dominated sectors, while in further

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Fudge (2014), p. 36. Oris (2017), p. 16. See: Resolution adopted by the General Assembly on 19 December 2018 Global Compact for Safe, Orderly and Regular Migration, A/RES/73/195, par. 22, point k); ILO Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), par. 8, point e). 83 This is mostly true for migrant female workers who were born outside of the host country (the so-called first generation of migrant women), while the second generation of migrant women has a better chance of finding and maintaining employment, primarily because they were educated in the host country. Kofman et al. (2009), p. 47. 84 Kofman et al. (2009), p. 62. 85 Meneses et al. (2020), p. 189. 82

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phases women are particulary affected by crisis.86 On the other hand, negative health consequences of the pandemic (for “front line” female workers) and its negative economic consequences have hit the service sector, which mostly employs women, particularly hard, since many jobs have been dissolved or reduced due to housholds expenditure reductions and welfare services cuts. Also, pandemic has resulted in an even more difficult balancing of family and professional duties primarily due to more intense remote work, suspension of kindergartens and schools and restrictions on the movement of the elderly due to lockdown. Furthermore, crisis-induced unemployment is an important factor in the degradation of working conditions, as high unemployment allows employers to have a much greater impact on hiring and working conditions than what is provided by law, especially as a “reserve army” of workers is available on the market and willing to work even under indecent working conditions.87 This means that in contemporary times, all workers face new risks: employees with standard employment relationship are faced with job insecurity, pay insecurity and underestimation of skills, while employees with non-standard employment relationship, as well as workers engaged in new forms of work, face partial or complete exclusion from the scope of labour legislation.88 In that sense, recent changes in the world of work can be summed up as jobs quality erosion.89 Special attention should be paid to Conaghan’s warning that the further the labour law deviates from the standard employment relationships and moves to the field of precarious and unregulated work, the greater the chances for the emergence of forms of employment in which gender appears as a significant factor (e.g. work in an employer’s household, outsourcing, human trafficking for the purpose of labour exploitation).90 Also, the establishment of tripartite legal relations between employees, employers and user undertakings, means that certain employer functions are now performed by entities that have not entered into an employment contract with an employee, which can be delicate from the point of view of determining responsibility for gender based discrimination.91 However, when it comes to the new forms of work that do not require entering into employment relationships, we should not lose sight of the fact that the application of labour rules on protection against discrimination in most European countries is reserved only for employees and possibly for economically dependent self-employed workers, which leaves other self-employed persons without adequate protection.92 The unclear legal position of workers with new forms of work has also contributed to this situation, which further complicates the provision of effective protection against

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Meneses et al. (2020), p. 190. De le Court (2018), p. 23. 88 Stone (2006), pp. 166–174. 89 Philip et al. (2020), p. 154. Hence, the conclusion that the lack of good jobs is a real obstacle to achieving gender equality seems justified. Rodgers (2016), p. 219. 90 Conaghan (2014), p. 9. 91 Kovács (2018), p. 12. 92 Kovács (2018), p. 8. 87

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gender-based discrimination. This series is continued by the widespread informal economy, as well as the underdevelopment and degradation of social dialogue. On the other hand, consequances of unprecedented technological development are manifested in different ways, starting with short-term disruptions, creation of new jobs and improvements in working conditions, in terms of abandoning many physically demanding and routine jobs.93 However, broad work automation has decreased the need for many jobs, primarily jobs from the bottom of the hierarchy that are often performed by women.94 Unfortunately, the “new knowledge elite” sector cannot accommodate the majority of laid-off female workers, and their transition to the service sector is often hampered by the requirement to possess particular skills, which many of them do not have, primarily due to unequal access to training and career breaks for family duties.95 In addition, there are climate changes that are having harmful effects on businesses, although they can create opportunities for new jobs. The negative effects of climate change are harder on women, because, due to poverty, they oftentimes depend more on the depleted natural resources than men, and because they make up the majority of employees in the field of food production.96 Also in many societies, due to social and cultural norms, women have less geographical and professional mobility in the event of natural disasters, and, consequently, less of a chance at finding a new job.

4 Conclusion Unequal treatment of men and women in the world of work was based on gender division of labour and hierarchy that existed between men and women in the family and the society. Namely, the role played by women in the family and other elements of their social position facilitated their secondary role in the world of work, since labour law traditionally conceived according to the model of male worker engaged on the basis of standard employment contract. That resulted in failure to provide sufficient consideration of the specific needs that women have as participants in the labour market, while some of protective measures eventually blocked women’s opportunities to work under the same conditions as men. In that sense, contemporary labour law is aimed primarily at women’s empowerment in the world of work when creating conditions for achieving gender equality. This approach is mostly justified,

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Philip et al. (2020), p. 153. European Group on Ethics in Science and New Technologies (2019), pp. 27–30. 95 It is estimated that about 14 percent of employees in EU Member States will be affected by automation. The majority will be low-skill workers who perform routine jobs in the private sector. This refers to jobs that, as a rule, do not require soft skills and the so-called transferable skills and that lack training relevant to maintaining employment. Pouliakaѕ, pp. 1–28. 96 Committee on Employment and Social Policy (2008), par. 14. 94

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given that female workers are tipically in a disadvantageous situation in the labour market. Their jobs are predominantly poorly paid, often part time and on short-term, while women are more likely to be discriminated against than men, which tends to reinforce all other inequalities and vulnerabilties.97 This trend could not be eradicated by building a legal and institutional framework for protection against gender-based discrimination. Although such legislation is important in raising consciousness on discrimination issue, it cannot alone alter women’s position at work. That change is not possible without the participation of all stakeholders in that process. Therefore, all citizens must participate in the process of combatting gender-based discrimination in the world of work, and a special responsibility, in addition to the state, lies with the social partners. In this sense, there is a need to strengthen the role of trade unions, employers and employers’ associations in this area, primarily through strengthening (bipartite and tripartite) social dialogue on the issue of gender equality. On the other hand, persisting with the approach that gender equality in the world of work has to be aimed primarily at women’s empowerment can lead to an oversimplified understanding of the principle of gender equality, ignoring the special needs of men in the world of work, as well as ignoring the importance of their role for the implementation of the principle of gender equality and women’s empowerment.98 Therefore, in order to eliminate gender-based discrimination from the world of work, there is a need to take into account stereotypes that measures concerning the reconciliation of professional and family duties of employees should only be addressed to women as well as to the stereotype that male workers do not need special protection in the workplace.99 To the contrary, labour law should strive for more substantial participation of men in family duties, through fair rules on paternity leave and leave for child care, just as there is a need for special protection for male workers working dangerous jobs. Also, we should not lose sight of the fact that many labour markets are nowadays marked by the worsening of the employment situation of male workers, since many of them perform low-paid jobs and get into a more precarious situation.100 Although paradoxically this leads to a reduction of the gender gap, there is a need to achieve gender equality in matters of employment and occupation through the improvement of women’s as well as men’s working conditions. In that sense, it can be concluded that current tendencies in the development of labour law (reflections of neoliberal economic policies, economic and financial crisis, demographic changes, intensive international migration, technological development and climate changes) shed new light on the problem of gender

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Meneses et al. (2020), p. 194. Men and masculinities: Promoting gender equality in the world of work (2013), pp. 2–3. 99 Resolution concerning gender equality at the heart of decent work, adopted by the General Conference of the International Labour Organization at its 98th Session on 17 June 2009, par. 6. 100 Meneses et al. (2020), p. 190. 98

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inequality in the world of work, which has a devastating effect on social cohesion, deepens the poverty pit and increases social stratification.101 However, legal systems do not recognize all of those changes. Some of them are waiting to be recognized by the lawmakers and social partners, since they are perceived as accidental, i.e. as part of the social and natural context in which labour law is created, applied and interpreted, while “gender tends to be positioned as external to law, carrying empirical and distributional, not conceptual or theoretical, significance”.102

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Timmer A (2016) Gender stereotyping in the case law of the EU Court of Justice. Eur Equal Law Rev 1:37–46 Van Bever A (2012) Open norms and the foundations of employment law: a legal examination of hidden patterns in employment relationships. Eur Labour Law J 3(2):173–186 Veneziani B (1986) The evolution of the contract of employment. In: Hepple B (ed) The making of labour law in Europe: a comparative study of nine countries up to 1945. Mansell, London/New York, pp 31–72 Vosko LF (2006) Gender, precarious work, and the International Labour Code: the ghost in the ILO closet. In: Fudge J, Owens R (eds) Precarious work, women, and the new economy – the challenge to legal norms. Hart Publishing, Oxford, pp 53–75 Vujadinović D, Fröhlich M, Giegerich T (eds) (2022) Gender competent legal knowledge. Springer, Heidelberg Weiss M (2011) Re-inventing labour law? In: Davidov G, Langille B (eds) The idea of labour law. Oxford University Press, Oxford, pp 43–56 Young IM (1990) Justice and the politics of difference. Princeton University Press, Princeton

Ljubinka Kovačević is a Full Professor at the University of Belgrade Faculty of Law. Prior to joining this Faculty in 2005, she was a researcher at the Institute of Comparative Law in Belgrade. Currently, she is teaching the following courses: Labour Law; International Labour Law; Social Security Law; Labour and Social Law in the EU—Human Rights Aspects; Sources of Labour Law. She is the author of three monographs (“Legal Subordination in Employment Relationship and Its Limitations” /2013/, “Valid Grounds for Dismissal” /2016/ and “Entering into Employment Relationship” /2021/) and many papers on Serbian, international and comparative labour law.

Leading or Breeding; Looking Ahead: Gender Segregation in the Labour Market and the Equal Distribution of Family Responsibilities Mario Vinković

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Gender Equality and Family-Friendly Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Relevant EU Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 National Maternity, Paternity, and Parethood Policies: Different Steps to Same Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 “Mother Educator” and “Parent Educator”: Childcare or Gender Discrimination? . 2.4 Paternity Leave: A New Way or Just One Step? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Gender Segregation in the Labour Market and Family Responsibilities . . . . . . . . . . . . . . . . . . . 4 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The contribution addresses the issue of gender segregation in the labour market and its relationship to family-friendly policies and the equal distribution of family responsibilities in the European Union. Gender equality in the world of work in the European Union has been characterized by evolutionary development over a period of more than four decades. The transition process, which was intensified with equality policies and the first directives on equal treatment in the mid-1970s, has continued with various aspects of maternity protection and then parenthood, as well as the promotion of the equal distribution of family responsibilities. The view of this evolutionary path is specific to the context of both developed Western democracies and relatively new Member States of post-communist provenance. The paper will analyze a specific institution of a “mother educator” in some national legislations, the problems of ineffective national anti-discrimination measures, educational

This paper is a product of work that has been fully supported by the Faculty of Law, Josip Juraj Strossmayer University of Osijek, under the project No. IP-PRAVOS-3 “Labour law facing the challenges of the 21st century; transformation, humanisation, discrimination and equality”. M. Vinković (*) Josip Juraj Strossmayer University of Osijek, Chair of Labour and Social Security Law and Social Work, Osijek, Croatia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_7

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inequality, and simultaneous participation of women in leadership positions. It will also attempt to answer the question of whether certain measures are contradictory in their substantive substrate since women today still live predominantly on two tracks: family and professional, while at the same time some experts criticize gender quotas and increasingly call for “quotas for men”. The methodological framework is focused on socio-legal analysis, qualitative research, and standard scientific methods in the field of legal sciences.

1 Introduction Looking at gender segregation in a broader context, both at the EU and global level, it goes far beyond segmentation in education, labour market opportunities, the glass ceiling and breaking the glass ceiling, and the fight against the gender pay gap. Women in EU Member States have increasingly distinctive and significant academic achievements, they are more represented in the total number of graduates in a number of fields, but, despite the normative framework established by the Treaty of Rome as early as 1957, they are still not paid equally for work and work of equal value as their male counterparts. Academic achievements and the number of highly educated women in the labour market only mitigate, or rather blur, the real size of the gender pay gap, which would otherwise be much larger at their expense. Thus, it is not surprising that the highest gender wage gaps are in female-dominated sectors (such as health care), while the lowest wage gaps are in male-dominated sectors (such as energy, mining, construction, and water supply).1 Only recently have research studies more clearly identified a few possible causes related to the fact that women often do not hold higher-paying leadership and management positions, are employed in lower-paying sectors that are still somewhat different from predominantly male-dominated sectors, have different employment contracts and different work schedules, often work part-time, and suffer the “parttime pay penalty”.2 However, most of these causes are unexplained patterns associated with discrimination, stereotypes, prejudices and cultural differences, as well as attempts to present careers downshifted due to motherhood and caring for children and families, and temporary exit from the labour market as possible reasons for their inadequate and discriminatory position in society and gender segregation in the labour market.3 Therefore, the focus in this paper will be mainly on the cause-effect relationship between gender segregation in the labour market and family care, because women undoubtedly work much longer hours than men on a daily basis and perform a

1

Eurofound (2021), pp. 4, 8 and 9. Eurofound (2021), pp. 4, 8, 17, 18 and 19. 3 Eurofound (2021), p. 20. 2

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variety of unpaid activities related to motherhood, parenthood, and caring for family members and dependants. Moreover, through a relatively long continuum of normative activities, we seek to answer the question of whether women have had options other than balancing between family and work responsibilities, particularly in those societies that have a more pronounced gendered division of family roles or suffer from publicly available deficits in preschool childcare. Has the entire development path of the fight against discrimination against women and for gender equality offered any alternative, apart from possible sacrifices and personal choices about what should take precedence—family life or career? Last but not least, our discussion is about the question of whether the whole path of struggle for a more equal distribution of family responsibilities and equal participation of women in the labour market was accompanied at the same time by normative solutions, which in their substrate exposed women even more to the danger of making an impossible choice (what to give priority to), and implicitly turned motherhood and parenthood into a profession in some cases.

2 Gender Equality and Family-Friendly Policies 2.1

Relevant EU Legislation

The struggle for gender equality in the European Union began almost by accident in 1957 with the Treaty of Rome and the then Article 119 (Article 157 TFEU) on equal pay for equal work (and work of equal value) for women and men. The history and reasons for the insistence on the content and eventual adoption of this article are more than known and described in the literature. They are undoubtedly primarily related to the fear of possible social dumping in the European Single Market, rather than a desire to protect women from discrimination in the labour market.4 However, this article is at the same time clear evidence that changes in legal interpretation and judicial activism of the EU Court of Justice in a number of very significant cases observed over a relatively long period of time can lead to normative progress necessary to achieve gender equality and fight discrimination against women in the field of labour and employment.5 Despite strong opposition from Member States, thanks to the Court of Justice’s ruling in the Defrenne II case, the article had horizontal and vertical direct effect in the mid-1970s, and elevated gender equality to a fundamental principle of EU law.6 At the level of EU secondary legislation, this would subsequently mean the gradual adoption of a series of directives necessary for the full affirmation of gender equality as a fundamental principle of the EU legal

4

Hepple (2009), p. 138; Barnard (2013), pp. 255–256; Vinković (2018), p. 10. Barnard (2013), pp. 311–317; Vinković (2018), pp. 11–12. 6 Barnard (2013), p. 297; Shaw et al. (2007), p. 369. 5

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order: the Directive on equal pay for men and women,7 a far-reaching and important Directive on equal treatment for women and men in employment,8 the Directive on equal treatment for men and women in statutory schemes of social security,9 the Directive on equal treatment for men and women in occupational social security schemes,10 and the Directive on equal treatment between self-employed men and women,11 but also two directives that have had a major impact on the harmonisation of maternity and parenthood protection in the Member States since the 1990s, namely, the Pregnant Workers Directive12 and the Parental Leave Directive.13 The list needs to be extended to include the new Work-Life Balance Directive,14 with

7

Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ L 45, 19.2.1975, 19–20. 8 Council Directive 76/207/EEC of 9 February 1976 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, OJ L 39, 14.2.1976, 40–42 (amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/ EEC of the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ L 269, 5.10.2002, 15–20, repealed by Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006, 23–36). 9 Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ L 6, 10.1.1979, 24–25. 10 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, OJ L 225, 12.8.1986, 40–42 (amended by 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, OJ L 46, 17.2.1997, pp. 20–24, repealed by Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006, 23–36). 11 Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, OJ L 180, 15.7.2010, 1–6. 12 Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work for pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of the Directive 89/391/EEC), OJ L 348, 28.11.1992, 1–7. 13 Council Directive 96/34/EEC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ L 145, 19.6.1996, 4–9 (repealed by Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC, OJ L 68, 18.3.2010, 3–20. The latter directive will be repealed by Directive (EU) 2019/1158). 14 Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188, 12.7.2019, 79–93.

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which national legislations of the EU Member States must be harmonised by 2 August 2022. In order to overcome gender stereotypes regarding work and family care which contribute to the under-representation of women in the labour market,15 Directive introduces, inter alia, paternity leave,16 as well as much more demanding, complex, and challenging in terms of implementation and monitoring, flexible working arrangements for workers with children.17 Catherine Barnard considers the European Union’s “family-friendly” policies or “work-life balance” as having three strands.18 The first strand focuses on pregnancy, childbirth, and motherhood. The second strand deals with the “reconciliation” of work and family life (which, by virtue of the normative framework, in particular the Directive on part-time work,19 the Directive on fixed-term work20 and the Directive on temporary agency work,21 includes a certain degree of protection for atypical workers, most of whom are nota bene women). Finally, the third strand is predominantly focused on childcare and care for other dependants.22 Jane Lewis emphasises that from a gender perspective it is more appropriate to speak of work-family balance rather than work-life balance, and to refer to the relevant policies as work-family balance policies because they include leisure and care and include all workers. This shifts the focus away from the prevailing division, i.e., the combination of paid and unpaid work.23 In contrast, the term work-life balance, which is widely used in national government and EU documents as well as in everyday communication, avoids addressing the gendered dimension of paid and unpaid work.24 Policies that focus on maternity, parental and paternity leave, their understanding and their functioning, imply the simultaneous realisation of multiple benefits for children, parents and society as a whole. Indeed, they clearly reflect both the relationship between national economic and social policies and the welfare model to which each individual country belongs. In the conditions of depopulation of certain areas and the inexorable trend of aging of the European population, one should not only underestimate their potential as relatively dynamic mechanisms, but also not overestimate their achievements if they remain mainly at the narrative level instead of effective implementation. 15

Directive (EU) 2019/1158, Recital 10 of the Preamble. Directive (EU) 2019/1158, Article 4. 17 Directive (EU) 2019/1158, Article 9. 18 Barnard (2013), p. 401. 19 Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Annex: Framework agreement on part-time work, OJ L 14, 20.1.1998, 9–14. 20 Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixedterm work concluded by ETUC, UNICE and CEEP, OJ L 175, 10.7.1999, 43–48. 21 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, OJ L 327, 5.12.2008, 9–14. 22 Barnard (2013), pp. 401–402. 23 Lewis (2009), p. 15. 24 Lewis (2009), p. 15. 16

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Debates about how to treat women in EU law date back at least four decades and reflect clear conceptual differences within feminist legal theory itself. In the 1980s, when discussing pregnancy and maternity protection, some feminists pointed out that pregnancy should be equated with all other reasons for incapacity and absence from work, as part of a broader concept of ‘generic sickness’ or ‘disability’. In contrast, the second strand of feminist legal theory insisted on the idea that gender equality implies the recognition of gender-specific rights and the necessary protection of pregnant women as a prerequisite for women and men to compete on an equal footing in the workplace.25 On the other hand, the Court of Justice of the European Union will clearly distinguish pregnancy as a specific biological condition unique to women from illness,26 and EU law will provide pregnancy, motherhood and parenthood with a special framework that, in correlation with non-discrimination, constructs substantive equality and contributes, inter alia, to overcoming prejudice, stereotypes and stigmatisation in order to achieve social change.27 The purpose of maternity leave is to protect a woman’s special biological condition and the special bond between a woman and her child during the period following pregnancy and childbirth, and to prevent that bond from being jeopardised by multiple stresses associated with simultaneously seeking employment.28 Dismissal due to pregnancy, as well as a woman’s inability to be employed or to advance in her career due to pregnancy or during maternity leave, undoubtedly constitutes direct discrimination on the basis of sex, as has been confirmed in a number of cases before the European Court of Justice.29 On the other hand, the protection of women in the context of pregnancy and maternity justifies different treatment, so that the special rights granted by the Pregnant Workers Directive do not discriminate against men, but are considered an exception to the principle of equal treatment according to previous opinion and interpretation; today they will be considered a necessary means of enabling the full application of the principle of equal treatment of women and men.30 The EU legal framework for maternity leave also has some limitations, mainly related to the fact that it is intended only for pregnant mothers and women who have given birth, but not for adoptive or surrogate mothers.31 In addition, maternity leave applies only to one parent, i.e., the mother, which means that the father (who is, according to some authors, discriminated against in this way), and a

25

Conaghan (2013), p. 81. Case C-179/88 Handels- og Kontorfunktionaerernes Forbund i Danmark, acting on behalf of Birthe Vibeke Hertz v. Dansk Arbejdsgiverforening, acting on behalf of Aldi Marked K/S, [1990], ECLI:EU:C:1990:384. 27 De Vos (2020), pp. 64, 73. 28 Case C-184/83 Ulrich Hoffman v. Barmer Ersatzkasse [1984] ECR 3047, ECLI:EU:C:1984:273, paragraph 25; C-116/06 Sari Kiiski v. Tampereen kapunki [2007], ECLI:EU:C:2007:536, para. 46. 29 Burri (2019), p. 23. 30 European Commission (2017), p. 32. 31 See Case C-167/12 C. D. v. S. T. [2014], ECLI:EU:C:2014:169. 26

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non-bearing mother in lesbian couples are excluded.32 The interdependence of maternity leave and gender equality is undeniable because it also underlines the problem of discrimination between parents and mothers themselves, taking into account the possibility of different duration of the (mandatory) part of maternity leave in the Member States, and consequently unequal competition for women in the labour market.33 Taking care of children is a constant task. As Caracciolo di Torella and Masselot point out, it is an ongoing responsibility, an often endless and indefinite caregiving task that requires emotional commitment, a willingness to give and take, and an awareness of human vulnerability and dependence on others.34 Commitments and responsibilities related to caregiving are something that is non-negotiable, and when caregiving is perceived as a choice, it is usually associated with emotional, that is, personal and cultural experiences.35 However, these authors dispute that having and caring for children is simply a matter of choice. This is primarily a question of how one cares for children, i.e., whether one delegates parental responsibilities or prioritises them over the work one does to earn a living, but also a question of the emotional, financial, and physical costs associated with informal care.36 Care for children, especially at a young age, is not gender-balanced, as mothers are still predominantly responsible for the care and upbringing of children in almost all societies, both at the global and European levels.37 A more even distribution of family responsibilities and shared childcare have been the focus of European policies and activities since the mid-1990s. At that time, with the aim of strengthening the active role of fathers in the care and upbringing of children, a framework agreement on parental leave was concluded by the European social partners and transposed into the aforementioned Parental Leave Directive.38 Although the latter has been replaced to date by two new directives mentioned earlier (footnote 13), the introduction of gender neutrality was motivated by positive efforts to achieve gender equality. However, despite significant normative changes in many of the then EU Member States, it was found that the major obstacle was insufficient changes in society, which not only reduced the impact of legal changes, but also had a demotivating effect on the number of men who would use parental leave.39 With regard to the 2010 Parental Leave Directive, it was highlighted that at the national level there is a stigmatisation of social roles of women and men related to childcare and family responsibilities, as women are undoubtedly still placed in the position of

32

De la Corte-Rodriguez (2018), p. 441. De la Corte-Rodriguez (2018), p. 444. 34 Caracciolo di Torella and Masselot (2020), p. 8. 35 Caracciolo di Torella and Masselot (2020), pp. 8–9. 36 Caracciolo di Torella and Masselot (2020), p. 9. 37 See Luce and Brenner (2007), p. 123; Abbott (2020), p. 71; Roosalu and Täht (2016), pp. 250–273. 38 Burri (2019), p. 18. 39 Clauwaert and Harger (2000), p. 11. 33

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almost exclusive beneficiaries taking parental leave.40 In addition, there are difficulties related to insufficiently flexible national legislation and undeveloped working time modalities that would allow reconciliation of work and family life, as well as the controversial amounts of benefits paid for this purpose, all of which can have a demotivating effect. Finally, parental leave is a result of an agreement between the social partners, and pregnancy and maternity leave are regulated by Commission proposals, so an integrated EU labour law approach to maternity and parenthood protection could pro futuro contribute to a more successful work-family balance.41 The data from the 2016 European Quality of Life Survey42 show that one-third of respondents indicate difficulties in balancing work and family life, i.e., combining paid work and care responsibilities, and that half of respondents in some Member States clearly express that they are unable to meet their family responsibilities due to the amount of time they spend at work, the issue of family-friendly policies remains a key issue in the EU.43 Moreover, it is women who, under conditions of inadequate social service systems, are more inclined to reduce their working hours in favorem family obligations and responsibilities.44 Normative initiatives that allow for a better work-life balance and flexible work arrangements are therefore a possible response to the existing problems. These include, in particular, the following forms of work scheduling, work location or employee support: – Annual work hours—employees are required to work a fixed number of hours per year, but this does not have to remain the same throughout the year; – Flexitime—hours can be built up so that employees can come in later, leave earlier or take a day off; – Compressed hours—employees have a full-time contract but can work their hours over four days rather than five days per week; – Commissioned outcomes—no fixed hours, but there is an agreed level of performance that must be achieved over a period of time; – Mobile working—working outside of the traditional workplace, including working from home; – Term-time working—fixed hours, but employees can take time off during school vacations; and – Childcare support—employees have on-site daycare or receive a childcare subsidy.45 However, we should not forget that some of these forms are only possible in societies with a higher standard of living and higher minimum and average wages, otherwise very few workers will use models where fewer working hours consequently mean significantly lower wages. We are thinking in particular of the

40

Directive (EU) 2019/1158, Recitals 10 and 11 of the Preamble. European Commission (2015), p. 27. 42 Eurofound (2017), pp. 1–108. 43 Eurofound (2017), p. 39. 44 European Commission (2018), pp. 2–3; Abbott (2020), p. 71. 45 European Commission (2018), p. 4. 41

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EU periphery countries, the former post-communist countries with lower living standards and lower wages, and the non-EU countries.

2.2

National Maternity, Paternity, and Parethood Policies: Different Steps to Same Goals

National maternity, paternity, and parenthood protection policies can play a very important role in supporting families during the early years of a child’s development. After maternity and parental leave expire, childcare can be entrusted to institutions that provide institutional forms of childcare (nurseries, kindergartens, preschool programmes). Their availability, level of development, and geographic coverage are therefore extremely important factors in strengthening the family and socialising children. Otherwise, this care will be provided by the family, and in cases where grandparents cannot care for their grandchildren, mothers are likely to stay out of the labour market. The only exceptions are those families whose financial circumstances allow the use of a nanny, au pair, etc. Some family-friendly policies support and reinforce breastfeeding as an important element in a child’s healthy development.46 Breastfeeding breaks for working mothers, however, are not guaranteed by EU legislation but by national regulations of individual countries, mostly as a result of ratified relevant ILO conventions on maternity protection (ILO Conventions No. 103 and No. 183). The research conducted by Chzhen, Gromada and Rees is based on four indicators: (a) the duration of paid leave available to mothers (including cases where a father can take part of this leave), (b) the duration of paid paternity (parental) leave reserved exclusively for fathers, (c) the share of children below the age of three in formal childcare facilities, and (d) the share of children between the age of three and compulsory school age in preschool centres and other formal childcare facilities.47 These indicators were also relevant for identifying the following five (working) welfare state models used by researchers: Social Democratic/Nordic Model, Conservative/Corporist Model, Anglo-Saxon/Liberal Model, Post-Communist European Model and Models of the Former USSR. One of the ways in which these models differ is, inter alia, in the family-friendly policies they adopt.48 The research results show that Sweden, Norway and Iceland (as countries that belong to the SocialDemocratic/Nordic model of the welfare state) are at the forefront of family-friendly policies when it comes to paid leave for fathers and the share of children below the age of three in formal childcare facilities.49 In contrast, the Czech Republic, Slovakia and Poland (countries that belong to the Post-Communist European model of the 46

Chzhen et al. (2019), p. 4. Chzhen et al. (2019), p. 4. 48 European Data Journalism Network (2019). 49 Chzhen et al. (2019), p. 7. 47

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welfare state) are generous when it comes to maternity leave, but they also provide rather poor access to early childhood education.50 Furthermore, parental leave, which usually follows maternity leave, is usually accompanied by a low salary that does not correspond to the average salary earned before the start of leave or does not cover the entire duration of parental leave (e.g. Estonia and Hungary, which nota bene belong to the Model of the Former USSR and the Post-Communist European Model, respectively).51 Croatia (which belongs to the latter welfare state model) can also be counted among them, where the maternity benefit is equal to the full salary for the first six months, but with a limited maximum amount (which is unfavourable for mothers and fathers with higher salaries, i.e., in better paid occupations). This benefit has been increased several times for the remaining six months of parental leave to mitigate negative democratic trends, but despite announcements and political promises, the cap on the maximum amount has not been lifted.52 Along with cultural factors, this is probably the main reason why only about 4% of fathers in Croatia take parental leave or part of maternity leave.53 In other words, fathers most frequently tend to take this leave only when they are unemployed or when mothers earn far more and have better-paying jobs. However, it is expected that the introduction of compulsory paternity leave through the transposition of the WorkLife Balance Directive into the Croatian national legal system will encourage the increased use of parental leave.54 In most countries, children between the ages of three and compulsory school age attend preschool centres and other formal childcare facilities. In Croatia, this percentage is about 51%, compared to 99% of children in Belgium and Iceland.55 However, children under the age of three are much less likely to attend a nursery or kindergarten, i.e., less than 10% of children in the Czech Republic, Greece, Poland and Slovakia, compared with 50% or more in Luxembourg and Sweden (51%), Norway (52%), Iceland (65%) and Denmark (70%).56 These data should be considered in the context of welfare state models, which in the Northern European countries imply higher participation of women in the labour market, higher wages, taxes and standards of living, and greater trust in their public system, compared to

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Chzhen et al. (2019), p. 7. Chzhen et al. (2019), p. 8. 52 Hina: Od 1. travnja veće rodiljne i roditeljske potpore za drugih šest mjeseci, Oporba tvrdi da to nije dovoljno za zaustavljanje negativne demografije. https://www.jutarnji.hr/vijesti/hrvatska/od-1travnja-vece-rodiljne-i-roditeljske-potpore-za-drugih-sest-mjeseci-oporba-tvrdi-da-to-nijedovoljno-za-zaustavljanje-negativne-demografije-9913198. 53 According to data from 2015, which included 23 EU Member States, an average of 10% of fathers used parental leave. The percentage ranged from just 0.02% in Greece to 44% in Sweden. It was up to 2% in France, up to 3% in Finland, around 16% in Ireland and almost 30% in Germany. See van Belle (2016), p. 9; European Parliament (2015), p. 73. 54 HRT: Očevi u Hrvatskoj jako malo koriste rodiljne i roditeljske potpore. https://vijesti.hrt.hr/ hrvatska/ocevi-u-hrvatskoj-najmanje-koriste-rodiljne-i-roditeljske-potpore-5261612. 55 Chzhen et al. (2019), p. 15. 56 Chzhen et al. (2019), p. 15. 51

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the post-communist countries, whose welfare models are characterised by relatively good quality of life (based on old socialist traditions), but still significantly lower standards of living, lower wages, slower economic growth, higher inflation, as well as lower trust in public systems.57 Moreover, the availability of institutional care and childcare, the (under)development of such a network, and the conditions for co-funded preschool care, together with family circumstances and cultural stereotypes and prejudices, can significantly affect women’s activity and representation in the labour market. Post-communist states, for ideological reasons and lack of labour force needed to build and reconstruct war-torn states and societies after World War II, developed a model of two breadwinners in the family.58 This was in contrast to the traditional division of gender roles that prevailed in the democratic states of Western Europe at that time. However, with the development of anti-discrimination laws and women’s rights, this trend is beginning to change in today’s “old” EU Member States, while in the 1990s in some post-communist countries there was a certain retraditionalisation of gender roles or perhaps a”transition to modernity”, as stated by Tomić Koludrović.59 In these conditions it is interesting to recall the introduced (anachronistic) institutions that should be considered from the point of view of today’s family-friendly policies, as well as gender equality and gender segregation in the labour market.

2.3

“Mother Educator” and “Parent Educator”: Childcare or Gender Discrimination?

The institution of the mother educator was introduced into the Croatian legal system by the 1995 Labour Act, which turned the de facto special biological condition of women into a kind of profession or vocation. The legal solution provided that employed and unemployed women with four or more children would be granted the status of educators pursuant to special regulations, acquiring in that way inter alia the right to financial compensation, pension, disability and health insurance.60 In other words, by promoting pro-natalist population policy and reducing the negative natural growth rate, mothers with four or more children were given the opportunity to professionalise their role and, instead of participating in the labour market, become educators of their own children and, to this end, receive some financial compensation (salary) from the state budget. Based on amendments to specific regulations, in particular amendments to the Labour Act of 2001, this provision was weakened to the extent that the term “mother educator” was renamed See http://www.learneurope.eu/index.php?cID¼300. Zrinščak (2003), pp. 92–93; Herman and Vinković (2003), p. 838; Vinković (2011), p. 210. 59 Tomić-Koludrović (2015). 60 Article 63(1) and (2) of the 1995 Croatian Labour Act, Official Gazette, 38/1995. 57 58

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into gender-neutral term “parent educator”, but without effectively influencing the father to truly “professionalise” his role as a parent.61 However, as in most other post-communist states at the time, there was no need to worry about social and family policies, as the transition process was entirely focused on political and economic reforms and pro-natalist policies, including parental leave and other mechanisms inherited from communist pro-natalist policies lost it’s significance due to inflation.62 Some countries had to bear an additional financial burden due to specific historical events and sufferings, and since in Croatia no special regulations were enacted that would have enabled the realisation of the guaranteed rights, only a very small number of people benefited from ”mother educator” or ”parent educator” measure. Although latter measure disappeared as an institution from the new 2009 labour legislation for several reasons, including harmonisation with the acquis communautaire, labour and social legislation and everyday practice gradually made women undesirable in the labour market. Consequently, the measures that stricto sensu constituted reverse discrimination in favorem maternity and parental protection63 led to further discriminatory practice on non-discrimination grounds due to a series of negative effects.64 The problem was exacerbated by the fact that judicial protection was initially quite poor, due to both a lack of understanding of the concept of equality and ignorance of the case law of the European Court of Human Rights and the EU Court of Justice, but also to a formalistic approach to interpretation, with strong deficiencies in teleological and comparative methods.65 The institution of “mother educator” and its gender-neutral but objectively and essentially identical version of the “parent educator” would very likely, and notwithstanding the principle of subsidiarity, not easily satisfy the proportionality test, even taking into account a negative natural increase and shortage or underdevelopment of public institutional care systems for infants and preschool children (in certain areas or countries). This is mainly because in an attempt to “disguise” direct sex discrimination, it would very likely be easy to prove indirect sex discrimination using a statistical method or a real or hypothetical comparator. However, this has not prevented the application of this institution in the local or regional selfgovernment unit, or more precisely, in Zagreb, the capital of Croatia with one million inhabitants. Under the guise of caring for the family and the youngest

61

Article 17 of the amendments to the 2001 Croatian Labour Act, Official Gazette, 17/2001. Frejka et al. (2016), p. 21. 63 Previous practice of asking questions about intended pregnancies, and even special contractual clauses in employment contracts committing women not to conceive for a certain period of time after employment (although ex tunc null and void), modification of such questions and indirect means of similar communication (on the basis of normative changes in terms of the existence of direct sex discrimination in such cases) due to relatively long maternity and parental leave, stereotypes and perceptions of frequent absences of women from work due to childcare. See Vinković (2006), p. 129; Galić and Nikodem (2009), p. 127. 64 Vinković (2011), p. 210; Vinković (2006), p. 135. 65 Vasiljević (2016), p. 67. 62

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members of society, populist rhetoric and the desire to win new political votes served as the main motive for the introduction of the measure in 2016 and an increase in the measure-related financial aspects in 2018. Triggered by the intention of the new city administration to abolish or significantly reduce the rights of the “parent educator”, this issue has recently been revived in Croatia by both the media and professionals, and parents affected by the said measure are threatening to sue for the revocation of acquired rights.66 According to the pro-natalist policy measure of the City of Zagreb, the term “parent educator” encompassed unemployed parents (mother, father, foster parent or other person entrusted with the care and upbringing of children) living in a household with at least three children, the youngest of whom did not reach compulsory school age, and the oldest of whom was not older than 26 years of age (or older than 26 years of age and severely disabled) at the time of application. Monetary compensation for this group of persons amounted to 65% of the average gross wage earned in the economy of the City of Zagreb.67 This measure relieved the burden on nurseries and kindergartens in the densely populated City of Zagreb, but it is certain that over 90% of mothers benefited the said measure. As of the end of 2021, the measure has restricted rights and introduce the possibility of employing the “parent educator” institution. Interestingly, few have pointed out that the measure violates the principle of gender equality, although it is controversial from various points of view, mainly because it discriminates against parents with fewer than three children, i.e., it favours children in larger families in terms of the time they can spend with their mothers (parents). Demographic experts consider the measure praiseworthy, because existential security is necessary for starting a family.68 They also point out that Croatia is affected by the “white plague” because every year fewer children are born than inhabitants die, and they say that it is not true that this measure “keeps women at home”, because it is their own decision.69 The measure is seen as good for women who work in lower-paying jobs; they can stay at home, raise their children, and receive higher compensation than the salary they would otherwise earn.70 From the point of view of labour law and the labour market, it cannot be ignored that such a measure is at least a “push factor” for stigmatisation and segregation of women in the labour market. It can, of course, be seen as a kind of advantage for women who work in low-paying or precarious jobs or are unemployed, but from a social security perspective there are other ways to “privilege” women who have more children. We refer here primarily the well-known practice in some countries, where, when calculating the length of service required for an (old-age) pension, each mother or parent who has actually been involved in the upbringing of children is

66

Balija (2021). Official Gazette of the City of Zagreb, 16/2016, 19/2016, 10/2018. 68 Kustura (2016). 69 Kustura (2016). 70 Kustura (2016). 67

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credited with a certain period of service for each child born.71 Such a measure represents a kind of mitigation of the effects of previous discriminatory practices, i.e., practices that could be disputable from the point of view of the principle of equality. Objectively speaking, it could be called a belated reaction, because mothers (and sometimes fathers, or both parents if they so agree) are granted certain rights in the name of motherhood (and parenthood) at an age that is certainly not a reproductive period, i.e., when they are about to retire and may be able to take care of their grandchildren as a form of free family care for the youngest members of society. Family planning and childbearing are inter alia personal and intimate decisions that are, of course, conditioned by cultural, social, religious and other factors, but they must not serve as a “tool” that becomes an end in itself. This is mainly due to the fact that in many Western European countries the social benefits enjoyed by those who deliberately and intentionally do not participate in the labour market without any real and objective justification, are becoming increasingly problematic from a media and political point of view. In other words, caring for families with multiple children can be successful by investing in the necessary infrastructure and human resources, and increasing the quality of services, rather than reinforcing practices that deepen the problems of segregation of women in education, work and employment. In fact, the much more benevolent and advocated modalities of working time arrangements, which are supposed to contribute to a successful reconciliation of work and family life, carry the serious hidden internal trap that their use is predominantly or exclusively in the hands of women, so that all the negative effects of such a situation will affect their position in the family, society and the world of work. Therefore, the proposed mandatory establishment of paternity leave can be an introduction or a signpost for the new development of family-friendly policies.

2.4

Paternity Leave: A New Way or Just One Step?

As an institution introduced by the Work-Life Balance Directive, which can be granted under national law of a Member State to another equivalent parent, paternity leave means a paid leave of ten working days to be taken on the occasion of the birth of the worker’s child.72 It is left to discretion of the Member State to decide whether or not to allow paternity leave to be taken partly before or only after the birth of the child or in a flexible manner.73 However, it cannot be made dependent on the duration of employment with (the same) employer and is completely independent of the worker’s marital or family status, as defined in national law.74 This institution is not unknown to national laws of a number of Member States, but has so far been

71

Adanić (2018). Directive (EU) 2019/1158, Article 4(1). 73 Directive (EU) 2019/1158, Article 4(2). 74 Directive (EU) 2019/1158, Article 4(3). 72

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largely limited to the relatively short number of paid working days that fathers could take immediately after the birth of a child.75 The introduction of this institution is a kind of turn in the prevailing perception of work-life balance issues as predominantly a “women’s issue”, designed to reconcile the practical needs of women to balance work commitments with unpaid care work at home, which has long had “segregating effects” on the labour market. Bearing this institution in mind, parenthood is definitely beginning to be perceived as a shared responsibility,76 enabling the exercise of the right exclusive to fathers that was first guaranteed in Norway almost three decades ago as a four-week paid leave.77 The introduction of mandatory paid paternity leave will have a significant impact on combating gender-based stereotypes and prejudices in the world of work and the dominant “corporate culture” where the father is not expected to enjoy parental benefits and rights, and when taken, this can sometimes cause feelings of embarrassment, concern, and even ridicule from work colleagues.78 In terms of family and social policies, the Nordic welfare model was the first to focus on the individualisation of women and men as workers, i.e., the perception of a male breadwinner and a female carer transformed into an individual model of all adults to be both breadwinners and carers79 (dual carers and dual careers). Such a transition of gender roles should not be alien to post-communist countries, EU Member States and the EU periphery countries, which have traditionally nurtured the role of two breadwinners in the family, because this is mutatis mutandis modernisation of their earlier models. In the context of retraditionalised gender roles, this is a somewhat more complex problem that can be overcome through a genuine affirmation of national gender equality policies and an inclusive struggle of all social stakeholders, social partners, education systems and media against retrograde stereotypes and prejudices. This process formally and partly began with the introduction of the paternity leave institution in the context of growing debates about “father-friendly policies”, but also as a result of the Directive “throwing down the gauntlet” to existing stereotypes and assumptions about gender-based roles (especially the role of fathers in caring for and raising children) and strengthening family diversity.80 In addition, the Directive opens up space for future research on the shared parental roles typology,81 and strengthens the normative framework for multidisciplinary analysis of part of engaged fatherhood.82 However, is this the beginning of a deconstruction of gender segregation in the labour market and only the first necessary step toward a clearer understanding of the 75

European Commission (2017), pp. 43–45. Chieregato (2020), p. 9. 77 Koslowski and O’Brien (2022), p. 142. 78 Koslowski and O’Brien (2022), p. 148. 79 Kvande (2022), p. 154. 80 Chieregato (2020), pp. 9–10. 81 Weldon-Johns (2021), p. 321. 82 For more information about engaged fatherhood, see Riley Bowels et al. (2022), pp. 299–325. 76

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relationship between family care responsibilities and labour market positions, or something more than that?

3 Gender Segregation in the Labour Market and Family Responsibilities Segregation has many faces, as it narrows employment opportunities and reinforces gender stereotypes, denies women access to better-paying jobs and better hierarchical positions, directs women to economic sectors and occupations where it is possible to combine professional challenges with caring responsibilities, which has the effect of inappropriately valuing women’s work and skills, and consequently a different range of contractual provisions in employment, different working hours arrangements, worse working conditions, and lower wages.83 EU primary and secondary legislation does not define segregation expressis verbis, nor does it contain an explicit mechanism to address its harmful effects. It is mainly exhausted in policies and strategies that address, inter alia, the problems of gender segregation in the labour market,84 and in the context of the legal framework, it leaves room for legal protection to be achieved through the institution of indirect gender discrimination. Indeed, we believe that segregation is most pronounced as a form of indirect sex discrimination, in which prima facie unquestionably neutral legal norms, criteria or practices have far-reaching discriminatory consequences. This applies inter alia to the various modalities of flexible working hours and employment contracts that prima facie contribute to a more balanced distribution of family and professional responsibilities, but may have far-reaching discriminatory effects, especially if they are predominantly and statistically proven to be used by women. Occupational segregation is not only a source of gender-based differences in terms of job quality and wages, but also a key element in understanding the underemployment gender gap. Therefore, education is an extremely important tool in the fight against underemployment risk. This is especially true for tertiary education, which helps women overcome barriers in the labour market and guides young women to pursue education in previously male-dominated educational programmes.85 Statistical analyses indicate that 75% of part-time jobs in the EU are still held by women, despite an increase in the proportion of part-time jobs held by men between 2009 and 2019.86 Moreover, the share of part-time jobs for both women and men is highest in female-dominated jobs, but it decreases as the number of men in an 83

Burchell et al. (2014), pp. 7, 29–30. See the European Pillar of Social Rights and European Commission (2020), pp. 10–11. 85 Acosta-Ballesteros et al. (2021), p. 35. 86 Eurofound and European Commission (2021), p. 27. 84

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occupation increases (and is therefore lowest in male-dominated jobs).87 Occupational gender is much lower at the level of Member States when it comes to those with a university degree, so education is undoubtedly an “important vector equalising” access to equal work for women and men. In contrast, less qualified women and men perform different jobs.88 In the same period, there was an increase in the share of women employed in predominantly publicly funded sectors such as education and health care, in which they are overrepresented, and there was a decline, for example, in manufacturing and agriculture, as well as other maledominated sectors affected by the Great Recession about a decade ago.89 Today, the fast-growing gig economy raises new risks because it can offer women some flexibility in terms of working hours and work schedules. However, the gig economy does not offer solutions to the challenges of gender segregation, as they are basically unresolved and complex issues of unpaid domestic and care work and work-life balance, and the replacement of secure jobs with essentially precarious jobs.90 Parental leave schemes created for “traditionally” employed parents limit parents in atypical and precarious employment, and flexibility and ”choice” policies do not contribute to gender equality.91 They actually foster a “maternalistic” culture and shift the responsabilities for children to women.92 This is especially pronounced in the conditions of inaccessible and unaffordable public services of early care for young and preschool children.93 Vertical segregation analysis suggests that men are most likely to be supervisors in almost all occupational groups and that most female-dominated occupations, with the exception of health care occupations, do not offer many supervisory opportunities compared to male-dominated and mixed-occupations.94 The largest difference is seen in corporate managers, where women make up nearly 52% of the public sector workforce, compared to just over 31% in the private sector. Similarly, in engineering and computer science, women are nearly 18% more represented in the public sector than in the private sector.95 In other words, women have more opportunities in the public sector, but on the other hand, they are also at higher risk of losing their jobs in cases of saving, cost cutting and public sector downsizing.96 Attempts to strengthen the role of women in economic decision-making, corporate governance and consequently better vertical stratification were also articulated in the 2012 proposal for a

87

Eurofound and European Commission (2021), p. 27. Eurofound and European Commission (2021), p. 33. 89 Eurofound and European Commission (2021), pp. 33, 35. 90 Vyas (2021), p. 46. 91 Dobrotić (2021), pp. 416–417. 92 Dobrotić (2021), p. 416. 93 Dobrotić (2021), p. 416. 94 Burchell et al. (2014), p. 62. 95 Burchell et al. (2014), p. 88. 96 Burchell et al. (2014), pp. 29, 88. 88

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Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges.97 However, the proposal for a Directive was not adopted after heated debates and criticism because it was emphasised, inter alia, that the quota system would jeopardise quality,98 i.e., that being a woman would be more important than other credentials.99 Some have therefore also called for quotas for men.100 We believe that such arguments are nota bene the result of stereotypes and prejudices that underestimate the impact and importance of positive action rather than functional and rational thinking. Namely, in such an environment, men determine the criteria and perception of a successful career, which can subsequently lead women to conform to masculinity stereotypes and behave accordingly, or to fear that they will not be taken seriously if they do not accept the behavioural patterns of the male corporate environment.101 In presenting numerous arguments in favorem gender-balanced corporate boards, Senden points out that this is necessary first and foremost for better business results, the quality of decision-making, business ethics, fairness, but also for social justice, democratic legitimacy and fundamental principles, since women with the same qualifications as men should have the same economic, social and financial rights as all other EU citizens.102 Ignoring and neglecting normative activities that would help overcome vertical gender segregation in the labour market also makes the fight against the gender pay gap more difficult. The gender pay gap is conditioned by sectoral segregation and the overrepresentation of women in low-paying sectors, shorter working hours and parttime employment due to child and family care, but also by the persistence of discrimination in the application of the principle of equal pay for equal work and work of equal value for women and men. Additionally, the glass ceiling, which is the opposite of the previously mentioned principle penalises women twice—by making it impossible for them to be employed in the highest paid positions of company managers and by paying them less than what they really deserve and receive.103 Policies aimed at reducing gender segregation focus largely on promoting women’s education in predominantly male-dominated fields (technical and engineering occupations, science, mathematics and IT) and on pursuing non-traditional careers, but they do not target men and their employment in female-dominated occupations, even when these occupations are attractive because of wages and working conditions.104 The introduction of quotas for men as a positive action measure to mitigate the effects of feminisation of certain occupations and reduce gender segregation must be balanced so as not to divert the focus from the problems

97

European Commission (2012). ILO: Improving gender diversity in company boards, p. 5. See also Leslie et al. (2014), p. 966. 99 Senden (2016), pp. 79, 81. 100 See Murray (2014), pp. 520–532. 101 Senden (2016), p. 82. 102 Senden (2016), p. 83. 103 Eurofound and European Commission (2021), p. 59. 104 Fagan and Norman (2013), p. 213. 98

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burdening the female workforce and lead to the ‘status quo’ by actually strengthening the position of men.105 Research clearly indicates a direct link between motherhood and a woman’s role as a mother on the one hand, and work-related ‘choices’ on the other. Personal choices are often conditioned by current employment and childcare support modalities available to women, but also by the potential segregation that results from an employer’s decision to hire a man or a woman (mother).106 Men and women are not the same, but they must be equal. From a feminist perspective, therefore, it seems much better to be different from men than to be their substandard model.107 In this regard, labour law must understand that the feminist focus on unpaid work at home is motivated by egalitarian and justice seeking aspirations.108 Employment relations are changing, and traditional workplaces are largely disappearing, leading not only to gender-based disadvantage in the social organisation of work, but also to the end of the old gender role with all its benefits and risks.109 In this sense, employment relationships need to be transformed so that women’s life patterns of balancing responsibilities at work and at home become the standard for all.110

4 Concluding Remarks Gender segregation in the labour market and the equal distribution of family responsibilities as a result of the implementation of modern family-friendly policies are two sides of the same coin, i.e., a problem that is very slow to accept the change not only in labour relations but also in traditional gender roles, neglecting the importance and function of the realization of the principle of equality between women and men as a fundamental principle of the legal order of the European Union. A retrospective view of the development of European legislation indicates a long-term, modest and not always explicit, but consistent effort to achieve a more equal distribution of family responsibilities and, instead of making women and mothers choose between motherhood (parenthood) and career, to introduce institutions that will change the traditional understanding of gender roles. However, this modest path, sometimes simultaneously confronted with different interpretations and practices of national pro-natalist policies and measures to support the demographic recovery, is slowed down by retrograde institutions that in some cases try to turn motherhood and parenthood into a profession (”mother educator” and ”parent educator”). Moreover, and no less importantly, some institutions, introduced with

105

Fagan and Norman (2013), pp. 214–216. Burchell et al. (2014), p. 8. 107 Conaghan (2013), p. 147. 108 Conaghan (2018), p. 272. 109 Conaghan (2018), p. 284. 110 Conaghan (2018), p. 285. 106

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the intention of achieving a more equal distribution of family responsibilities through flexible working hours and flexible work arrangements intrinsic to developed labour legislation and welfare models, have had essentially and overwhelmingly completely opposite effects. They have been used almost exclusively by women who have become undesirable in the labour market, or by individuals condemned to accept gender-segregated jobs with unfavourable conditions and work arrangements. The recent normative initiatives that will soon introduce mandatory paid paternity leave in all EU Member States could be a first step forward, a step that has the potential to promote a wider and necessary use of parental leave by fathers. However, this will not be possible without adequate financial instruments and insistence on the non-transferability of at least some of the aforementioned rights for fathers, as well as further efforts to overcome gender stereotypes through education, media, social partnership and national (pro-natalist and demographic) policies. In addition, finding appropriate modalities and broad societal support, including the necessary infrastructure and availability of institutional care for children, as well as strong advocacy for active fatherhood, are some of the modalities that present women not with the (impossible) choice - career or parenthood, but with the choice of what form of care they choose for their own children.

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European Parliament (2015) Maternity, paternity and parental leave: Data related to duration and compensation rates in the European Union, Study for the FEMM Committee, https://www. europarl.europa.eu/RegData/etudes/STUD/2015/509999/IPOL_STU(2015)509999_EN.pdf Fagan C, Norman H (2013) Men and gender equality: tackling gender segregation in family roles and in social care jobs. In: Bettio F, Plantenga J, Smith M (eds) Gender and European Labour Market. Routledge, Abingdon, pp 199–223 Frejka T, Gietel-Basten S et al (2016) Fertility and family policies in Central and Eastern Europe after 1990. Comp Popul Stud 41(1):3–56. https://www.comparativepopulationstudies.de/index. php/CPoS/article/view/212 Galić B, Nikodem K (2009) Neki aspekti diskriminacije žena pri zapošljavanju u Republici Hrvatskoj (Some aspects of discrimination against women in employment in the Republic of Croatia). In: Franičević V, Puljiz V (eds) Rad u Hrvatskoj: Pred izazovima budućnosti (Eng. Labour in Croatia: facing the challenges of the future). Centar za demokraciju i pravo Miko Tripalo and Pravni fakultet Zagreb, Zagreb, pp 107–130 Hepple B (2009) Equality at work. In: Hepple B, Veneziani B (eds) The transformation of labour law in Europe, a comparative study of 15 countries 1945-2004. Hart Publishing, Oregon, pp 129–163 Herman V, Vinković M (2003) Ravnopravnost spolova – ogledi o izabranim pitanjima europskog i hrvatskog radnog prava (Eng. Gender equality – review of selected issues of European and Croatian Labour Law). Zbornik Pravnog fakulteta u Zagrebu 53(3-4):813–844 Hina: Od 1. travnja veće rodiljne i roditeljske potpore za drugih šest mjeseci, Oporba tvrdi da to nije dovoljno za zaustavljanje negativne demografije (Eng. As of April 1, higher maternity and parental benefits for the other six months, the Opposition argues that this is not enough to stop negative demographics). https://www.jutarnji.hr/vijesti/hrvatska/od-1-travnja-vece-rodiljne-iroditeljske-potpore-za-drugih-sest-mjeseci-oporba-tvrdi-da-to-nije-dovoljno-za-zaustavljanjenegativne-demografije-9913198 HRT: Očevi u Hrvatskoj jako malo koriste rodiljne i roditeljske potpore (Fathers in Croatia use maternity and parental benefits very little). https://vijesti.hrt.hr/hrvatska/ocevi-u-hrvatskojnajmanje-koriste-rodiljne-i-roditeljske-potpore-5261612 ILO: Improving gender diversity in company boards. https://www.ilo.org/wcmsp5/groups/public/% 2D%2D-ed_dialogue/%2D%2D-act_emp/documents/briefingnote/wcms_754631.pdf Koslowski A, O’Brien M (2022) Father and family leave policies: what public policy can do to support families. In: Grau MG, Maestro M l H, Bowels HR (eds) Engaged fatherhood for men, families and gender equality, healthcare, social policy, and work perspectives. Springer, Cham, pp 141–152 Kustura I (2016) Demografi: mjeru roditelja odgojitelja provesti u cijeloj zemlji (Demographers: implement the measure of parents educators throughout the country). Večernji list, October 19. https://www.vecernji.hr/vijesti/demografi-mjeru-roditelja-odgojitelja-provesti-u-cijelojzemlji-1121821 Kvande E (2022) Individual parental leave for fathers: promoting gender equality in Norway. In: Grau MG, Maestro M l H, Bowels HR (eds) Engaged fatherhood for men, families and gender equality, healthcare, social policy, and work perspectives. Springer, Cham, pp 153–163 Leslie ML, Mayer DM, Kravitz DA (2014) The Stigma of affirmative action: a stereotyping-based theory and meta-analytic test of the consequences for performance. Acad Manage J 57(4): 964–989 Lewis J (2009) Work-family balance, gender and policy. Edward Elgar Publishing Limited, Cheltenham Luce S, Brenner M (2007) Women and class: what has happened in forty years? In: Yates MD (ed) More unequal: aspects of class in the United States. Monthly Review Press, New York, pp 119–130 Murray R (2014) Quotas for men: reframing gender quotas as a means of improving representation for all. Am Polit Sci Rev 108(3):520–532

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Roosalu T, Täht K (2016) Maternity leave – once a Bargain, always a Bargain? Impact of care breaks on mother’s occupational mobility: the case of Estonia. In: Roosalu T, Hofäcker D (eds) Rethinking gender, work and care in a New Europe: theorizing markets and societies in the postpostsocialist era. Palgrave Macmillan, Basingstoke, pp 250–273 Senden L (2016) Getting women on company boards in the EU: a tale of power-balancing in three acts. In: Vukobrat NB, Rodin S, Sander GG (eds) New Europe – old values? Reform and perseverance. Springer, Cham, pp 77–95 Shaw J, Hunt J, Wallace C (2007) Economic and social law of the European Union. Palgrave Macmillan, Basingstoke Tomić-Koludrović I (2015) Pomak prema modernosti: žene u Hrvatskoj u razdoblju “zrele” tranzicije (The shift towards modernity: women in Croatia in the period of “mature” transition). Naklada Jesenski i Turk and Hrvatsko sociološko društvo, Zagreb van Belle J (2016) Paternity and parental leave policies across the European Union. Rand Europe. https://www.rand.org/pubs/research_reports/RR1666.html Vasiljević S (2016) New laws and values: anti-discrimination law in post-communist countries. In: Vukobrat NB, Rodin S, Sander GG (eds) New Europe – old values? Reform and perseverance. Springer, Cham, pp 55–76 Vinković M (2006) The motherhood in the Republic of Croatia – protection of biological condition or discrimination? Pravni vjesnik 23(3-4):127–138 Vinković M (2011) Spolna segregacija i tržište rada – hrvatski diskurs europskih trendova (Gender segregation and the labour market – Croatian discourse of European trends). In: Radačić I, Pallua JV (eds) Ljudska prava žena, Razvoj na međunarodnoj i nacionalnoj razini 30 godina nakon usvajanja Konvencije UN-a o uklanjanju svih oblika diskriminacije žena (Eng. Women’s human rights, Development at the international and national level 30 years after adoption of the UN Convention on the Elimination of All Forms of Discrimination against Women). Institut društvenih znanosti Ivo Pilar, Zagreb, pp 201–216 Vinković M (2018) Transformation of employment relations and social dumping in the European Union: the struggle between David and Goliath? In: Sander GG, Tomljenović V, Vukobrat NB (eds) Transitional, European, and national labour relations, flexicurity and new economy. Springer, Cham, pp 1–19 Vyas N (2021) “Gender inequality- now available on digital platform”: an interplay between gender equality and the gig economy in the European Union. Eur Labour Law J 12(1):37–51 Weldon-Johns M (2021) EU work-family policies revisited: Finally challenging caring roles? Eur Labour Law J 12(3):301–321 Zrinščak S (2003) Socijalna politika i rodna jednakost (Social policy and gender equality). In: Rodin S (ed) Jednakost muškarca i žene, Pravo i politika u EU i Hrvatskoj (Eng. Equality between men and women, Law and Politics in the EU and Croatia). Institut za međunarodne odnose, Zagreb, pp 77–98

Mario Vinković is a Professor of Labour Law and Social Security, as well as Equality Law, and the Head of the Chair of Labour and Social Security Law and Social Work at the Faculty of Law, Josip Juraj Strossmayer University of Osijek, Croatia. He is a member of the European Committee of Social Rights, a full member of the Croatian Academy of Legal Sciences and a member of the State Judicial Council. Mario Vinković was the holder of the Jean Monnet Chair in EU Labour, Equality and Human Rights Law from 2013 to 2016.

Legal Approaches to Protection Against Gender-Based Violence and Harassment at Work with a Particular Focus on the Situation in the Republic of North Macedonia Todor Kalamatiev and Aleksandar Ristovski

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Gender-Based Harassment at Work Through the Legal Approaches in the United States and the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Harassment and Sexual Harassment in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Harassment and Sexual Harassment in the European Union . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Other Significant Issues Related to Harassment and Sexual Harassment . . . . . . . . . . . 3 Gender-Based Harassment in the Field of Employment and Work in the Legislation of North Macedonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Defining the Term Gender-Based Harassment in the Context of Macedonian Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Prevention and Protection against Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Legal Remedies and Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The problem of gender-based violence and harassment at work poses a universal threat to the integrity and dignity of people in the world of work, and in particular to disproportionately affected categories of workers, such as women workers, and their equal opportunities in the labour market, including accessing, remaining and advancing in employment. The need for protection against such a universal threat has already been addressed by certain international instruments (including recent international labour standards) and regional instruments. Nevertheless, legal approaches in comparative law are strongly influenced by the concepts of protection against “harassment and sexual harassment” enshrined in the legal systems of the United States on the one hand, and the European Union and various European states on the other.

T. Kalamatiev · A. Ristovski (*) Ss. Cyril and Methodius University, Skopje, North Macedonia e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_8

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The national legislation of North Macedonia addresses the issues of harassment and sexual harassment, as well as psychological harassment (i.e.mobbing) as issues, principally covered by the regulations in the fields of labour and equal opportunity and non-discrimination law. Hence, one of the main goals of this article is to contribute to an improved definition and understanding of the concept of genderbased harassment in the context of the Macedonian national legislation, and particularly of the legal regimes through which it can be addressed. Authors of this article also analyze the no less important elements in the system of protection against harassment, such as prevention and protection and legal remedies and sanctions for perpetrators of harassment.

1 Introduction Violence and harassment in the workplace is a negative and dangerous phenomenon which can affect all workers, irrespective of their employment status, type of work they perform, sectors in which they work (private or public, urban or rural) and the fact whether they are employed in the formal or informal economy.1 While the term ‘violence’ has traditionally referred to certain physical forms of conduct or behavior (e.g. physical attacks, beating, kicking, slapping, stabbing, shooting, pushing, etc.), over the last few decades, more forms of violence and harassment at work that are mainly of non-physical nature, have become subject to regulation, including: psychological forms (e.g. manipulating a person’s reputation, isolating a person, slandering and ridiculing, devaluating rights and opinions, setting impossible working goals and deadlines, underutilizing talent, etc., which can also manifest as mobbing and/or bulling) and sexual forms (e.g. all sorts of sexual assaults, blackmails, advances, comments, innuendos, etc.) of violence and harassment at work.2 Given the wide spectrum of negative and often overlapping behaviors and practices of violence and harassment at work, any attempt to distinguish or treat these terms independently is a complex manipulation. However, despite such a setting, the first international instruments regulating violence and harassment in the world of work in an integral manner were adopted only in 2019.3 ILO Convention No. 190 defines the term ‘violence and harassment in the world of work’ (which essentially encompasses two separate but functionally related terms) in the broadest sense, as a ‘range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical,

1

International Labour Organization (2020a). Chappell and Di Martino (2006); International Labour Organization (2020b). 3 See International Labour Organization Convention No. 190 and Recommendation No. 206 on Eliminating Violence and Harassment in the World of Work. 2

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psychological, sexual or economic harm, and includes gender-based violence and harassment.’4 Historically, regulating the prevention and protection against gender-based violence and harassment at work has been a long-standing aspiration of many workers’ organizations, NGOs, women’s political movements. Two key factors are frequently mentioned in literature that contribute to creating early normative responses aimed at targeting this phenomenon. Such are: the progress of feminism in industrialized countries (an occurrence which corresponds to the period of adoption of significant regulations in the field of equal opportunities and non-discrimination, but also the publication of various studies related to harassment and sexual harassment at work5) and feminization of labour force (whereas, the greater participation of women in the labour market led to more reported incidents of harassment at work and primarily of a sexual nature).6 As a result of these factors, international human rights instruments and international labour standards have begun to address gender-based violence and harassment (particularly sexual harassment) in the field of employment since the 1980s.7 Four decades later, the aforementioned Convention No. 190 of 2019 has defined gender-based violence and harassment in the world of work as ‘violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment’.8 Although, it is evident from the text of the Convention that gender-based violence and harassment is a subcategory of violence and harassment in the world of work, the Convention does not exclude the possibility of qualifying these terms as a single

4

ILO Violence and Harassment Convention, 2019 (No. 190), Art. 1, para. 1, a. Notable studies which have raised public awareness and strongly influenced the development of movements for protection against moral or psychological harassment in the workplace in Europe, are the publication of the Swedish psychologist Heinz Leymann ‘Psychological violence at work places. Two explorative studies’ of 1984, and of the French psychologist Marie-France Hirigoyen ‘Le harcelement moral, la violence perverse au quotidien’ of 1998. See Guerrero (2004); Lippelt (2010). In the United States, one of the first sources to use the term ‘sexual harassment’ is a book by psychiatrist Caroll Brodsky, entitled ‘The harassed worker’. See Schultz (1998). 6 Husbands (1992). 7 Chronologically, the most significant activities at the international level in relation to protection against gender-based violence and harassment, and in that regard against sexual harassment in employment, are the result of the work of the International Labour Organization and the UN Committee for the Elimination of Discrimination against Women (CEDAW). Although the ILO Convention No.111 of 1958, on Discrimination (Employment and Occupation) does not explicitly mention sexual harassment, the ILO Committee of Experts on the Application of Conventions and Recommendations, in its 1988 General Report, categorizes sexual harassment as a form of discrimination, which can be further subcategorized in the ‘quid pro quo’ and ‘hostile work environment’ form. In 1989, the ILO, at the Meeting of Experts on Special Protective Measures for Women and Equality of Opportunity and Treatment, identified the issue of sexual harassment as a health and safety matter. Also worth mentioning is Recommendation No. 19 on Violence against Women, adopted by CEDAW in 1992, which for the first time provides a clear definition of the term sexual harassment and outlines the actions that need to be taken to address this phenomenon. 8 ILO Violence and Harassment Convention, 2019 (No. 190), Art. 1, para. 1, b. 5

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or separate concepts, depending on the legal approach in national laws.9 Hence, having in mind the different cultural and normative contexts in which the concepts of ‘violence and harassment’, i.e. ‘gender-based violence and harassment’ in the world of work are developed, in the comparative section and the section dedicated to North Macedonia of this paper, we primarily use the more frequently applied term ‘harassment’ (i.e. ‘gender-based harassment’, understood as harassment related to sex, i.e. gender and sexual harassment). Gender-based violence and harassment are often a consequence of circumstances and risk factors that are closely related to social norms, values and stereotypes that cause gender inequalities, discrimination against women and unequal power relations between men and women.10 While anyone can be victim of such violence and harassment (e.g. persons who do not conform to gender stereotypes or to traditional societal perceptions based on gender, such as LGBTI persons), the greater majority of reported cases concerns women.11 Women who are particularly exposed to and vulnerable to gender-based violence and harassment in the workplace are: single mothers, divorcees and widows, young women and those entering the labour market and entering into non-standard employment contracts, women from ethnic minorities, women with disabilities, women working in male-dominated jobs, etc.12 The current health crisis caused by the Covid-19 pandemic has further increased the risks and incidence of gender-based violence and harassment at work or in relation to work. Covid-19 lockdowns, curfews and restricted mobility forces people to stay at home, and when possible work from home. This often leads to spikes in domestic violence, particularly against women.13 The issue of recognizing, preventing and protecting against gender-based violence and harassment at work is becoming an increasingly relevant and important issue within the Macedonian society and legal system. The social background of North Macedonia is largely characterized by circumstances and factors such as stereotypical gender roles and norms according to which a woman is expected to be subordinated to her husband, partner, father, brother and all other male family members; to carry out nearly all unpaid care work; to take care of children and other family and household members, etc.14 These factors have a negative ‘echo’ in relation to gender equality and slow down the systemic fight against gender-based violence and harassment at work. Gender inequality in the Macedonian labour market is also evident. According to the data of the North Macedonia’s State Statistical Office for the second quarter of 2021, the employment and the economic activity rate is significantly lower among women (40.9% and 45.2% respectively)

9

ILO Violence and Harassment Convention, 2019 (No. 190), Art. 1, para. 2. Pillinger (2019). 11 Pillinger (2019). 12 Bakirci (1998). 13 International Labour Organization (2020d). 14 Dimusevska and Trajanovska (2017). 10

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compared to men (59.1% and 67.2% respectively).15 Women also receive lower wages compared to men, with the gender pay gap standing at 17.3% according to data from 2015.16 The legal framework for addressing gender-based violence and harassment at work in North Macedonia is subject to slow but gradual making over a decade and a half. The term ‘violence’ is primarily placed in the context of criminal law and regulated in the Criminal code.17 Its specific forms to which women are disproportionately more exposed than men, such as domestic violence and violence against women, are subject to the regulation of certain special laws. These laws are the Law on prevention, elimination and protection against domestic violence of 201418 and the Law on prevention and protection against violence against women and domestic violence of 202119 as an implementing act of the Council of Europe Convention on preventing and combating violence against women and domestic violence, ratified by North Macedonia’s Assembly in 2018. Instead, Macedonian legal system uses the concept of protection against harassment at work as an integral concept (including gender-based harassment), first within the general regulations on labour relations and equality and non-discrimination, and then with the special regulation on protection against workplace harassment. Anyhow, the legal framework is still characterized by a series of conceptual ambiguities, obscurities and contradictions that refer to almost all the more significant issues related to protection against gender-based harassment at work, starting from the definition and prevention and protection to legal remedies and sanctions for perpetrators of harassment.

2 Gender-Based Harassment at Work Through the Legal Approaches in the United States and the European Union While the all embracing notion ‘violence and harassment’, i.e. ‘gender-based violence and harassment’ in the world of work is of a more recent date, and is an expression of the inclusive, integral and gender-responsive approach of the ILO Convention No. 190, for many years at a comparative level, a number of different terms (e.g. psychological harassment, moral harassment, mobbing, bulling, etc.20), have been used, that are usually unified around the terms ‘harassment’ and ‘sexual harassment’ at work. In principle, there are two dominant paradigms on which the explanation of the terms harassment and sexual harassment is built. The first paradigm (primarily represented in the US legal system) is based on the concept of 15

State Statistical Office of the Republic of North Macedonia (2021). Petreski and Mojsoska-Blazevski (2015). 17 Official Gazette of the Republic of Macedonia, no. 37/1996. 18 Official Gazette of the Republic of Macedonia, no. 138/2014. 19 Official Gazette of the Republic of North Macedonia, no. 24/2021. 20 International Labour Organization (2020c). 16

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perceiving harassment, solely as a form of discrimination, while the second (primarily represented in EU law and continental European countries), although, treating harassment (and particularly sexual harassment) as a form of discrimination is based on the concept of understanding harassment as a broader issue of protection of dignity.21 While the US concept is designed to protect against discriminatory harassment (primarily in the fields of racial and sex-based harassment), the concept of the EU and European continental law, although containing an anti-discrimination component, generally develops on a broader scale and leans towards protection against any form of workplace harassment (discriminatory and non-discriminatory) that applies to all workers, not just certain groups of workers (for example, members of minority groups or women).22

2.1

Harassment and Sexual Harassment in the United States

The United States is the first country to recognize and prohibit harassment in employment and work since the early 1970s, at the outset, as a form of racial discrimination, i.e. harassment.23 Despite the initial resignation and reluctance of US courts to classify sexual harassment as sex discrimination,24 the second half of the 1970s marked the beginning of the first significant judgments which identified sexual harassment (or, more specifically, its ‘quid pro quo’ form that is always associated with a specific tangible detriment or economic loss for the employee) as prohibited discrimination based on sex.25 In 1980, the United States Equal Employment Opportunity Commission (EEOC) issued its non-binding Guidelines on Discrimination because of sex, which defines sexual harassment as: ‘unwelcome sexual

21

See Friedman and Whitman (2003). See Lerouget and Heber (2013). 23 The first case in which U.S. jurisprudence recognizes a race-based hostile work environment, violating Title VII of the U.S. Civil Rights Act of 1964 (so-called Anti-discrimination Act), which provides for protection against discrimination in employment on the grounds of race, color, religion, sex or national origin is the case of “Rogers v. EEOC” (1971). The case is about a plaintiff (Hispanic worker, employed in a hospital) who alleges that her optometrist employers had discriminated against her on the basis of national origin by segregating patients along ethnic lines. See Shultz (1998). 24 Five of the first seven cases that considered the question related to sexual harassment, found that the U.S Civil Rights Act of 1964, did not cover sexual harassment as a form of sex-based harassment. The positions taken by the courts in explaining the behavior of the defendants (usually male supervisors) in the context of the claims brought by the plaintiffs (usually female subordinates) for protection against sexual harassment were also striking. The courts considered (i.e. relativized) the relationship between the parties concerned, i.e. the behavior of the defendants, as ‘nothing more than a personal proclivity, peculiarity or mannerism’ (as in the case of Corne v. Bausch and Lomb, (1975), or “a controversy underpinned by the subtleties of an inharmonious personal relationship” (as in the case of Barnes v. Train, (1974). See Henken (1989). 25 See Williams v. Saxbe (1976); Barnes v. Costle (1977). 22

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advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature’, which commonly occur in two general forms: ‘quid pro quo’ (when submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or submission to or rejection of such conduct is used as the basis for employment decisions affecting such individual) and ‘hostile work environment’ (when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment).26 The significance and progressive nature of the EEOC Guidelines are reflected in the broad and comprehensive way of defining sexual harassment as unlawful sex discrimination. Namely, the guidelines asserted that in the EEOC’s view, sexual harassment does not exist only in cases resulting in employment retaliation (quid pro quo), but also in cases where it has the effect of creating an intimidating, hostile or offensive working environment, without there being a specific material or economic loss for the person exposed to such behavior.27 Under the influence of the EEOC Guidelines US courts begun to adopt the first judgments sanctioning sexual harassment in the hostile work environment form as sex discrimination.28 Gender-based harassment that occurs in the hostile work environment form, does not always have to be motivated and expressed in a sexual connotation. Female employees also face a broad range of harassing conduct that is motivated by gender, but not by sexual desires (e.g. unwarranted criticism, rudeness, ridicule, insults, and epithets directed at women motivated from a gender-based animus).29 Gender-based harassment of the hostile work environment type, is more likely to be found in male dominated jobs and professions (e.g. police, firefighting, etc.).30 US courts protect female employees against this kind of harassment as well,31 but are reluctant to offer protection against bullying, i.e. workplace harassment in general, unless the perpetrator’s conduct is motivated by the victim’s membership to a protected class (e.g. race, colour, national origin, religion, sex,

26

Hebert (1995). See Rubenstein (1983). 28 One of the landmark cases in this regard, where the US Supreme Court first recognized a claim of hostile work environment sexual harassment was ‘Meritor Say. Bank v. Vinson’, In Meritor, the plaintiff (Ms. Mechelle Vinson, employed as an assistant branch manager with Meritor Savings Bank) alleged that Mr. Sidney Taylor (the manager of the office where she worked) subjected her to a three-year pattern of sexual harassment and abuse. Ms. Vinson estimated that she had sexual intercourse with Mr. Taylor between 40 and 50 times over a three-year period, stressing that her consent to engage in the sexual intercourse was due to fear of losing her job. In addition, Ms. Vinson alleged that Mr. Taylor publicly fondled her, exposed himself to her, and even forcibly raped her. Although the District Court accepted the defendant’s argument that no harassment existed because Ms. Vinson ‘voluntarily’ engaged in sexual intercourse with her supervisor, the Supreme Court rejected the District Court’s assessment of ‘voluntariness’, and instead asserted that the alleged sexual advances were unwelcomed and the plaintiff neither invited nor appreciated them. See Juliano (1992). 29 Thorpe (1990). 30 McColgan (2007). 31 E.g. Hall v. Gus Construction Co. See Westman (1992). 27

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age or disability).32 Although the main difference between sexual harassment and gender harassment is based on the choice of the ‘weapon used’ (whether or not the perpetrator used conduct of a sexual nature against the victim), all in all, the demarcation line between the two types of harassment is often thin. Both of them are motivated by the same purpose (to ‘show’ women their place and role in the workforce) and have similar effects (to offend, humiliate and embarrass).33

2.2

Harassment and Sexual Harassment in the European Union

The process of regulating harassment and sexual harassment under EU law goes through a long and evolutionary journey. While Council Directive 76/207/EEC on equal treatment for men and women of 1976,34 did not explicitly recognize the terms ‘harassment related to sex’ and ‘sexual harassment’ as forms of sex discrimination, these terms were mentioned in a number of soft-law acts adopted in the late eighties and nineties of the last century.35 Much of their content that addressed harassment related to sex and sexual harassment was based on the findings and suggestions of the so-called Rubenstein Report from 1987. However, the proposal of the Report for the adoption of a separate Directive on the Prevention of Sexual Harassment,36 never resulted in the recommended normative solution at the Community level. Instead of a special and purposeful Directive on Sexual Harassment, the European Union, at the beginning of the new millennium, addressed the issue of harassment, including sexual harassment, through several Directives in the field of equal opportunities and non-discrimination: the Council Directive 2000/43/EC on equal treatment between persons irrespective of racial or ethnic origin (so-called Race Equality Directive) of 2000 which defines harassment related to racial or ethnic origin,37 the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (so-called Equality Framework Directive) of 2000 which defines harassment related to religion or belief, disability, age or

32

Burga de las Casas (2019). Hebert (1995). 34 Official Journal L 039, 14/02/1976 P. 0040 – 0042. 35 During this period, harassment related to sex and sexual harassment is subject to regulation by the EC soft law, through a number of legislative acts, such as: the European Parliament’s Resolution on Violence against Women of 1986; the European Council Resolution on the protection of the dignity of women and men at work of 1990; the European Commission’s Recommendation on the protection of dignity of women and men at work with the associated Code of Practice on measures to combat sexual harassment of 1991; the European Council Declaration on the implementation of the Commission Recommendation and Code of Practice of 1991; The European Parliament Resolution on a new post of a confidential counsellor at the workplace of 1994; etc. 36 See Michael Rubenstein (1988). 37 Official Journal L 180, 19/07/2000 P. 0022 – 0026, Article 2.3. 33

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sexual orientation as regards employment and occupation38 and the Directive 2002/ 73/EC of the European Parliament and of the Council of 2002 amending Council Directive 76/207/EEC which defines both the harassment related to the sex of a person and sexual harassment and which in 2006 was amalgamated into the so-called Gender Equality Directive (recast) 2006/54/ЕC of 2006.39 The Gender Equality Directive (recast), under the term ‘harassment’ recognizes ‘unwanted conduct related to the sex of a person with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment,40’ while under the term ‘sexual harassment’, ‘any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment’.41 The Directive implicitly addresses the so-called form of ‘quid pro quo’ harassment, defining it as a separate form of ‘less favorable treatment based on a person’s rejection of or submission to’ harassment or sexual harassment.42 The fluid status of harassment related to sex and sexual harassment (reflecting both the concepts of protection against ‘discrimination’ and protection of ‘dignity’) is also mirrored in the way in which these issues are defined and regulated in the Directive in question. Formally, although they are deemed to be types of sex discrimination, they do not entirely reflect the common concept of discrimination which requires the element of actual or hypothetical comparison (i.e. comparator) to exist.43 Contrastive, this element was considered to be sought at a time when sex-related harassment and sexual harassment were covered only by EU soft law acts44 which implicitly referred to the application of Council Directive 76/207/EEC on equal treatment. Although, as evidenced by previous legal acts, harassment and sexual harassment in the EU are regulated in the context of anti-discrimination legislation, the European legislator has never intended to deviate from the perception of these negative behaviors as a violation of the principle of women’s, i.e. peoples’ dignity. In their regulatory approach, the social partners at EU level are also supporting the perception of harassment and sexual harassment as an integral part of the concept of protection of dignity and integrity (in terms of health and safety at work) of workers. This is evidenced by the Framework Agreements adopted by the European Social Partners, among which, of particular importance in the context of protection against

Official Journal L 303, 02/12/2000 P. 0016 – 0022, Article 2.3. Official Journal L 204, 26.7.2006, p. 23–36. 40 Art. 2.1 (c). 41 Art. 2.1. (d). 42 Art 2.2. (а). 43 Ellis and Watson (2012). 44 See Burga de las Casas (2019). 38 39

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harassment and sexual harassment in the workplace is the Framework Agreement on Harassment and Violence at Work of 2007.45

2.3

Other Significant Issues Related to Harassment and Sexual Harassment

A common denominator of the national legal systems that recognize and regulate harassment and sexual harassment is the definition of these phenomena as ‘unwelcome’ or ‘unwanted’ behaviors. Yet, in practice, it could be sometimes difficult to qualify certain behavior as unwelcome if there is no clear and unequivocal resistance by the victim. In some cases, the unwelcome nature of the behavior that qualifies as sexual harassment is more obvious (e.g. sexist epithets, physical violence, touching of intimate parts of the body, etc.), compared to others, (e.g. social invitation that is not inherently offensive).46 Although the term ‘unwelcome’ behavior is a reflection of the terminology used in US law, and the term ‘unwanted’ conduct derives from EU law, there is essentially no significant difference in the qualification of these terms. In the United States, there is a wealth of jurisprudence in determining potential lines of distinction between the criterion of ‘unwelcomeness’ (which is sometimes deemed to exist even if the victim ‘voluntarily’ complies with certain behavior of a sexual nature)47 and what is coined as a ‘provocation’ by the victim.48 In these regard, Courts typically use a variety of tests (such as the ‘totality of the circumstances test’, that takes into consideration all the circumstances in assessing the nature of the behavior, or the ‘incitement/solicitation test’, that assesses whether the victim incited/solicited the behavior through her choice of clothing, actions or personality),49 which are often rightfully criticized

45

The Framework agreement on harassment and violence at work was signed by the social partners: BUSINESSEUROPE, CEEP, UEAPME and the ETUC on 26 Aprlil 2007. The Framework Agreement, inter alia, provides a range of different forms of harassment and violence at work such as: physical, psychological and/or sexual; one-off or more systematic patterns; among colleagues, between superiors and subordinates or even by third parties such as clients, customers, patients or students; from minor cases of disrespect to more serious acts of harassment or violence, including criminal offences. See Blanpain (2014). 46 Husbands (1992). 47 See Meritor Say. Bank v. Vinson. 48 E.g. in McLean v. Satellite Technology Services, Inc. (1987) where a female employee regularly offered to engage in sexual acts with other employees and often lifted her skirt to show her supervisor that she was not wearing undergarments, a single attempt by her supervisor to hug and kiss her was held not to be sexual harassment. See Cihon and Castagnera (2011). 49 E.g. in Rabidue v. Oscola Refining Co. (1986), the court found no hostile environment even though the plaintiff was subjected to degrading language and sexually explicit posters. By describing the plaintiff’s personality with a list of mostly negative adjectives, the court implied that the plaintiff’s personality justified the behavior of the harasser. In Swentek v. USAir, Inc. (1987), the trial court found that the past conduct of Swentek (a flight attendant) and use of foul language meant

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by feminist theorists because they pay less attention to social prejudices and shift the jury’s focus from the defendant’s behavior to that of the plaintiff.50 What is also important for revealing the true nature of the contested behavior and the sanctioning of the alleged sexual harasser, is to determine whether such behavior is ‘severe and pervasive enough’ to qualify as sexual harassment. It is necessary to determine whether the victim subjectively perceived the behavior to be, and that it was, indeed, objectively offensive from the perspective of a ‘reasonable person’, or more precisely, from the perspective of a ‘reasonable women’ (because women and men may have different perceptions of what constitutes sexual harassment).51 For a conduct to be considered ‘sufficiently severe and pervasive’, it does not have to cause serious psychological harm to the victim.52 The more frequent the harassing conduct occurs, particularly over a short period of time, the more likely the courts are to hold that the conduct created an abusive or hostile environment.53 Compared to the term ‘unwelcome’ conduct applicable in US law, in defining harassment and sexual harassment, the EU law uses the similar term ‘unwanted’ conduct. Considering the dilemma of the ‘subjective versus objective’ perception of the sexual conduct, the term used in EU law is more in congruence with the victim’s ‘subjective’ view of the conduct, rather than with the more ‘general impression’ whether the conduct constitutes unwanted sexual harassment through the prism of the harasser.54 What really matters in the EU law is the effect of the conduct upon the victim rather than examining the effect of equivalent conduct on a reasonable person or the motive of the perpetrator.55 Proving that harassment, i.e. sexual harassment, was committed is a complex procedural operation. Compared to the ordinary cases of discrimination in which the existence of two elements (harm and causation) is generally sought, in cases of sex-related harassment and sexual harassment, several additional elements are required to be satisfied. Such element are: the determination that the conduct of which complaint is made is unwanted; has the purpose or effect of violating the dignity of the complainant and creates an “intimidating, hostile, degrading, humiliating or offensive environment”.56 In any case, a general rule deriving from the European Equal Treatment Directives concerning the procedure for protection against discrimination, including harassment and sexual harassment, is that once

that the harasser’s comments were not unwelcome even though she told the harasser (a pilot) to leave her alone”. However, the court of appeal, put a partial limitation on evidence of the plaintiff’s past conduct, noting that where the alleged harasser was not exposed to the plaintiff’s past conduct, such conduct could not form a basis for waiving legal protection against unwelcome harassment. 50 Juliano (1992). 51 Smith and Williams (2002). 52 See, e.g., Harris v. Forklift Sys., Inc. (1993). 53 See Goldman (2013). 54 Lerouget and Heber (2013). 55 Bernardt (2012). 56 Ellis and Watson (2012).

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the claimant has established facts from which an act of discrimination can be presumed to exist, the burden to prove that there is no breach of the principle of equal treatment falls on the respondent.57 It means that, in the event of a dispute for protection against harassment or sexual harassment in the workplace, the claimant (i.e. the employee) must first present specific evidence, sufficient to establish a prima facie case, i.e. to indicate the existence of harassment, i.e. sexual harassment (e.g. through witness statements, medical certificates, notes, etc.), after which, the burden of proof shifts to the defendant, who has to prove that the contested conduct does not constitute harassment, i.e. that it is based on legitimate reasons that are subject to the test of proportionality.58 Eventually, the decision is made by a competent court or other competent body, taking into account the facts established by the claimant and the defense presented by the defendant.59

3 Gender-Based Harassment in the Field of Employment and Work in the Legislation of North Macedonia The issue of harassment at work has been the subject of gradual legal regulation in North Macedonia for approximately 15 years. The chronology of the regulation of harassment at work (including gender-based harassment) may be structured in three phases, in particular: first phase (2005–2009), second phase (2009–2013) and third phase (2013-present day). The first phase (2005–2009) started with the first attempt for more concrete recognition and regulation of harassment at work in North Macedonia within the frames of the 2005 Labour Relations Law60 (hereinafter: LRL). Within this phase, harassment and sexual harassment were defined exclusively as forms of discrimination, i.e. discriminatory harassment. The second phase (2009–2013) covers the period of expansion of the meaning and context of harassment and results in amendments to the LRL from 2009 which established the term psychological harassment – mobbing, again defined as discriminatory harassment. The third phase (since 2013) marked the beginning of the cross-cutting legislative approach to harassment, under which harassment, on one hand, started to be regulated independent of the existence of any prohibited discrimination ground (primarily through the enactment of the Law on protection against workplace harassment, hereinafter: LPAWH61), while, on the other, it persisted as a form of discrimination (within the framework of the LRL), but also as a subject matter of the equality of treatment and non-discrimination regulations, such are the Law on equal

57

Directive 2006/54/EC, Art.19; Council Directive 2000/78/EC, Art.10; Council Directive 2000/ 43/EC, Art.8. 58 See Graser et al. (2003). 59 See Sophie Robin-Olivier (2010). 60 Official Gazette of the Republic of Macedonia no. 62/05. 61 Official Gazette of the Republic of Macedonia no. 79/2013.

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opportunities of women and men of 201262 and the Law on prevention and protection against discrimination of 2020.63 In Macedonian legislation, the term ‘harassment’, generally appears in two forms: first, as discrimination, i.e. discrimination-based harassment and second, as non discrimination-based harassment, i.e. harassment in the workplace.64 While the former is regulated by one set of legislative acts (LRL, Law on equal opportunities of women and men and Law on prevention and protection against discrimination), the letter is governed by the LPAWH, which contains an indicative list of behaviours and activities that are not considered harassment at the workplace and among which is discrimination.65 This division is further reflected in the ‘legal channels’ of protection against harassment at work. Compared to the legal channel of protection envisaged in the LRL (which only provides rules regarding the shifting of the burden of proof to the employer66 and protecting persons who have initiated proceedings or testified during a procedure for legal protection against psychological harassment67), the LPAWH, establishes a more comprehensive system for reporting and resolving disputes for protection against harassment, which, despite numerous weaknesses, has emerged as the main and most important legal channel. Anyway, despite the substantial and procedural differences between the two legal regimes for regulating harassment, in practice, the line between them is very thin, or virtually inexistent. This is so because in the procedures for court redress against harassment at work, the courts are tolerating claims based both on LPAHW and LRL, and in the judgments passed they rarely belabour the existence or inexistence of discrimination in the context of the existence or inexistence of harassment at the workplace.68 Genderbased harassment in the Republic of North Macedonia is not a separate and distinct concept of harassment, but it is regulated and developed within the broader term ‘harassment’ at work, which includes sexual harassment. In the last few years, the first more significant researches aimed at identifying sexual violence and harassment, including sexual harassment, have been conducted.69 However, despite the slow but gradual development of the regulation of violence and harassment at work

62

Official Gazette of the Republic of Macedonia, no.6/2012. Official Gazette of the Republic of North Macedonia no. 258/2020. 64 See Каламатиев (2013). 65 See LPAWH, Art.8, para 1, point 1. 66 LRL, Art.11, para 2. 67 LRL, Art.11, para 3. 68 See: Judgments of the Appelate Court in Bitola (dated 09.10.2019, ROZH no. -834/13; dated 23.04.2020, ROZH no. -604-19;) Judgment of the Appelate Court in Skopje (dated 15.10.2014, ROZH no. -219/14; dated 15.09.2016, ROZH no. -316/15; dated 10.10.2013, ROZH no. -834/13; dated 24.10.2013, ROZH no. -775/13). 69 According to a research conducted as part of a Study on the scope of various forms of sexual violence in the Republic of Macedonia from 2017, the following forms of sexual harassment in the workplace were recognized: abuse of position (demonstration of power); sexual blackmail (job loss); comments and jokes with sexual connotations; unwanted touches; issues of intimate life; sexually connoted proposals; exposure to pornographic material; employment based on 63

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(including gender-based violence and harassment) and the raising of awareness of these phenomena, the impression is that they are still not sufficiently recognized by people in the country.

3.1

Defining the Term Gender-Based Harassment in the Context of Macedonian Legislation

Principally, gender-based harassment at work in North Macedonia, on the one hand, can be subsumed into harassment related to sex, i.e. gender, sexual harassment and/or psychological harassment- mobbing (as forms of discriminatory harassment), but on the other hand, it can also be encompassed by the concept of harassment in the workplace (which can appear in the forms of psychological and sexual harassment, regardless of the existence, or inexistence of a discriminatory basis, i.e. motive). While in the first case, ‘gender-based harassment’ is primarily regulated by the LRL in the second case, it is subject to regulation by the LPAWH. The definition of gender-based harassment as harassment related to sex, i.e. gender, implicitly emanates from the general definition of the term ‘harassment’ within the LRL, which refers to any unwanted behavior caused by any of the grounds of discrimination (including sex) that aims at or constitutes violation of the dignity of the job candidate or the employee, and which causes fear or creates hostile, humiliating or offensive behavior’.70 It is important to note that the LRL does not determine ‘gender’ as a separate ground of discrimination, different from sex.71 The term ‘sexual harassment’ is defined in an identical manner, both in the LRL and the LPAWH. This term is defined by the abovementioned laws as ‘any verbal, non-verbal or physical behavior of a sexual nature that aims at or constitutes violation of the dignity of the job candidate or employee, and which causes fear or creates hostile, humiliating or offensive behavior’.72 Macedonian labour legislation defines the term sexual harassment in a partial way, envisaging only the so-called hostile work environment, but not the equally important quid pro quo form.73 The need for regulating the ‘quid pro quo’ form of harassment, i.e. sexual harassment in the context of employment and work, is continuously indicated by the ILO

physiognomy; comparison of physiognomy between colleagues with a detailed description; ambiguous comments, etc. See Dimusevska and Trajanovska (2017). 70 LRL, Art.9, para 3. 71 See Kalamatiev et al. (2011). 72 LRL, Art.9, para 4 and LPAWH, Art.5, para 2. 73 The ‘quid pro quo’ form of sexual harassment in North Macedonia, is implicitly regulated under criminal law as a crime against sexual freedom and sexual morality, that is, as sexual assault by position abuse. See Association for Emancipation, Solidarity and Equality of Women in the Republic of Macedonia (2011).

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supervisory bodies.74 Compared to Directive 2006/54/EC, i.e. the Gender Recast Directive (Article 2, paragraph 1, d) and ILO Convention No. 190 (Article 1), the omission of the qualification of sexual harassment as ‘unwanted/unacceptable’ behavior, is also evident. The biggest dilemmas in defining the term harassment, including gender-based harassment in the field of employment and work in general, stem from the legal qualification of the term ‘psychological harassment in the workplace’. This term is found in the two different legal regimes for regulating harassment at work (i.e. LRL and LPAWH), and the differences in its definition within the two laws are evident. In addition to the main differentia specifica, which is the status of discrimination attached to psychological harassment according to the LRL there are at least two other significant differences between the aforesaid laws. The first difference refers to the period of time within which the negative behaviour is recurring, that is necessary to qualify such behaviour as psychological harassment (where LRL provides for a period of at least 6 months,75 LPAWH notes that should be recurring continually and systematically,76 without specifying a period of time). Macedonian case law usually inclines to the qualification laid down in LRL, under which the prerequisite for the existence of psychological harassment is that the plaintiff suffered psychological harassment for a period of at least 6 months.77 Argumentum a contrario, the chances of a one-off negative behaviour violating the dignity, integrity, reputation and honour of the employee being qualified as psychological harassment, notwithstanding the extent of the adverse effects it has caused, are very slim, since neither the legal framework, nor the Macedonian jurisprudence recognize such behaviour as psychological harassment. The second difference relates to potential consequences, i.e. the ultimate goal of psychological

74 In the last 10 years, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has sent several Observations and Direct Requests to the Government of North Macedonia on the alignment of the national regulations with international standards on equality and non-discrimination. In the most recent Observation dated in 2019 in the context of the implementation of the Discrimination (Employment and Occupation) Convention no. 111, the Committee of Experts reiterated its request to the Government of North Macedonia to clarify the dilemma whether the Law on Equal Opportunities for Women and Men includes the two forms of sexual harassment in the workplace, i.e. ‘quid pro quo’ and ‘hostile work environment’. Furthermore, the Committee of Experts, in the Direct Request dated 2020, once again requested from the Government of North Macedonia to submit information concerning: (i) the measures adopted by the labour inspectorate to prevent and address sexual harassment; (ii) the number of complaints filed and of cases detected; and (iii) the remedies available, and the sanctions imposed. 75 LRL, Article 9-а, para 1. 76 LPAWH, Article 5, para 1. 77 For instance, such position has been taken by the Appellate Court in Skopje, which, in its Judgment dated 08.11.2018 (ROZH-1422/18) states that ‘the plaintiff has worked at the job from the time of appointment of the defendant as the new director of the institution until the time of filing the lawsuit at hand less than six months, which is the minimum requirement for establishing the existence of psychological harassment in the workplace’. In another case, the Appellate Court in Bitola, in its Judgment dated 03.10.2017 (ROZH-529/17), stated that ‘the harassment activities should be very intensive at least once per week or should occur in the course of a longer period of time of at least six months’.

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harassment. While under LRL the ultimate goal may be termination of employment or resignation of the employee, under LPAWH, in addition to termination of employment or resignation, the ultimate goal of psychological harassment may also be causing harm to the physical or mental health and compromising the professional future of the employee. The jurisprudence, restrictively sticks with the consequences of psychological harassment laid down in LRL. In a number of litigations for protection against psychological harassment, the courts are implicitly making the qualification of certain behaviour as psychological harassment contingent upon the prior decision on termination of employment of the plaintiff (employee).78

3.2

Prevention and Protection against Harassment

The existing legal framework for prevention of harassment (including gender-based harassment) at work is regulated in a superficial way. Primarily stems from the general obligations that the LRL assigns to the employer to protect and respect the personality, dignity and privacy of the worker and ensure that no worker is a victim of harassment and sexual harassment.79 A more specific operationalization of these principles cannot be found neither in the Law on occupational safety and health of 2007,80 which in no provision explicitly addresses the dangers and risks that may lead to violence and harassment (including gender-based violence and harassment) at work.81 The LPAHW provides certain general rules for the conduct of the employer and the employee at work, as well as certain general obligations and responsibilities of the employer and the employees, which are important for prevention and protection against harassment. However, the LPAWH does not oblige the employers with any provision: to adopt policies (internal acts) for protection against harassment in the workplace; to inform and consult the workers’ representatives in the adoption of such policies; to train individuals exercising the authority, duties or responsibilities of an employer, to properly manage human resources and deal with requests from employees for protection against harassment; to appoint a person (employee) tasked with hearing, counselling, assisting and supporting the person who has initiated a procedure or is a victim of gender-based violence or harassment in the workplace, or the perpetrator of the harassment. The procedure for protection against harassment in the workplace, according to LPAWH is carried out in two instances: at the employer (i.e. internal procedure) and

78

See the following Judgments of the Appellate Court in Skopje: Judgment dated 10.10.2013 (ROZH no. -834/13); Judgment dated 15.10.2014 (ROZH no. 219/14); Judgment dated 15.09.2016 (ROZH no. 316/15). 79 LRL, Article 43. 80 Official Gazette of the Republic of Macedonia, no. 92/2007. 81 LPAWH, Article10 and Article 11.

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before the competent court (i.e. external procedure). The procedure for protection against harassment in the workplace at the employer (i.e. internal procedure), principally consists of two stages: a preliminary procedure and a procedure at a request for protection against harassment in the workplace (i.e. mediation procedure). The first stage, or the so-called preliminary procedure, requires submission of a written warning, i.e. addressing of the perpetrator of the harassment by the harassed person, that the harasser’s conduct is disturbing,82 or that it is inappropriate, unacceptable and unwanted.83 The aim of the preliminary procedure is to resolve the dispute in such a manner that, following the warning, the perpetrator of the harassment shall forthwith stop the unwelcome behaviour, and the harassed person shall not instigate further procedure upon a request for protection against harassment in the workplace at the employer.84 If the preliminary procedure fails, it is deemed that the harassed person can initiate the second stage, i.e. procedure at a request for protection against harassment in the workplace, which is, actually, a procedure that provides the basis for the start of internal mediation as a mechanism of peaceful settlement of the dispute at the employer (mediation procedure). The mediation procedure is conducted by mediators appointed by the employer from its employees.85 There are two possible outcomes of the mediation procedure. The first is that the parties agree on the selection, i.e. appointment of a mediator, and the second is that the parties fail to agree on the selection, i.e. appointment of a mediator who would conduct the mediation procedure. In case of the first outcome, the mediator should complete the procedure within 15 days.86 The procedure may end with successful mediation (if the parties agree on the end of the harassment, recommendations and manner for removal of possibilities for further harassment), where the employer is obliged to act upon the recommendations of the agreement, and with unsuccessful mediation (where the parties fail to reach an agreement). The Law does not specify the content of the recommendations, i.e. actions that would arise therefrom. In case of the second outcome, the employer, i.e. the person authorized by the employer, is obliged, within 8 days, to deliver written notification to the person who filed the request for protection against harassment that no mediator has been selected,87 whereupon the person who filed the request shall be entitled to legal recourse within a period of 15 days.88 The mutual relationship and causality of the two stages (the preliminary and the mediation) of the procedure for protection against harassment at the employer (i.e. internal procedure) and their relationship and causality with the procedure for protection before the competent court (i.e. external procedure) are regulated in a vague manner. In practice it is usually

82

See LPAWH, Article 5, para. 3. See LPAWH, Article 17. 84 See LPAWH, Article 17. 85 See LPAWH, Article 12. 86 See LPAWH, Article 24, para. 5. 87 LPAWH, Article 22, para. 2. 88 LPAWH, Article 22, para. 3. 83

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deemed that the preliminary procedure (written warning, i.e. address) is not a prerequisite for initiating the procedure upon request for protection against harassment in the workplace (mediation procedure) or exercising legal recourse against harassment in the workplace before the competent court. The establishment of an appropriate and effective mechanisms and procedures for internal protection against harassment in the workplace is also hampered by the superficial and underdeveloped system of mediation, which fails to determine the competences and criteria for the appointment of mediators by the employer and prescribes no obligation for the employers to provide training to the mediators. The judicial protection against workplace harassment (i.e. external procedure) is exercised by bringing a lawsuit to the competent court. The dispute has the character of a labour dispute89 and the provisions of the Law on civil procedure90 apply accordingly. The courts with jurisdiction to rule on labour disputes in the first instance are the Basic Courts with general jurisdiction (i.e. the courts adjudicating in the first instance in civil law disputes).91 The Appellate Courts have the jurisdiction to rule in the second instance, i.e. in the procedures of appeal against the decisions of the basic court.92 Finally, in the third judicial instance, the Supreme Court of the Republic of North Macedonia has the jurisdiction to decide on extraordinary legal remedies against effective decisions of the courts and the decisions of its panels when it is stipulated in law.93 The extraordinary legal remedy (review) of second instance judgments may be exercises in any case of labour disputes on termination of employment, notwithstanding the value of the dispute.94 If the labour dispute does not relate to termination of employment, or if the value of the dispute is not exceeding MKD 1,000,000, the review shall be dismissed as impermissible. Such restriction also applies to disputes relating to protection against harassment in the workplace.95 The LPAWH does not regulate the periods for bringing a lawsuit for protection against harassment to the competent court in a clear and coherent manner. The only case where the Law provides for a preclusive period of 15 days for bringing a lawsuit and initiating court proceedings is the case where the parties concerned fail to reach an agreement on the appointment of a mediator.96 The Law fails to settle the dilemma relating to the period for filing a lawsuit in the case when the mediation procedure has been initiated and completed unsuccessfully, i.e. the parties have failed to reach an agreement. In the procedure before the

89

See LPAWH, Article 31. Official Gazette of RM No. 79/05. 91 See Law on Courts (Official Gazette of R. Macedonia no. 58/06), article 30, paragraph 2, indent 9. 92 See Law on Courts, article 33, paragraph 1, indent 1. 93 See Law on Courts, Article 35, para. 1, indent 4. 94 See Law on Civil Procedure, Article 372, para. 3, indent 3. 95 For example, the Supreme Court dismissed the motion for review of a second instance judgment in a case of discrimination and psychological harassment in the workplace with a value of MKD 610,000.00, (Rev 3. no. 105/2014). See Macedonian Association of Young Lawyers (2014). 96 See LPAWH, Article 22, para. 3. 90

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competent court, the burden of proof is on the defendant, if the plaintiff, in the course of the procedure, has rendered likely the existence of the harassment.97 However, it appears that the rules on the burden of proof do not play a significant role in the court’s decision-making, since, in some judgments, courts shift the burden of proof expressly to the plaintiff (i.e. the alleged victim of harassment), stating that the plaintiff has failed to prove the existence of the grounds, i.e., failed to prove that he or she has been subjected to workplace harassment.98 When the procedural anomalies are added to the substantial ambiguities in defining and determining the concept of harassment at work, the epilogue is that judicial protection against harassment at work in North Macedonia is still very weak.99 In addition to the evident need to improve the legal framework against harassment at work, what is also evident is that there is still room to improve the level of training and sensitise the judges in the cases of protection against harassment in the workplace and discrimination.100

3.3

Legal Remedies and Sanctions

Macedonian legislation provides for several legal remedies for protection against harassment (including gender-based harassment). Such are: the interim measures for protection (issued by the employer or the competent court), compensation for damage (adjudicated by the court in favor of the victim of harassment) and the right to resignation by the employee due to exposure to violence at work with indemnification by the employer. The interim measures are reduced to temporary redeployment to different work premises, i.e. environment (if issued by the employer)101 or a restraining order instructing the harasser not to get close to the workplace of the employee and prohibiting the harasser not to make phone calls or communicate (if ordered by the court) in order to prevent violent behaviour or remove irreparable damage.102 In both cases (when they are imposed by the 97

See LPAWH, Article 33. See: Judgment of the Appellate Court Skopje (ROZH 316/15), Judgment of the Appellate Court in Bitola (ROZH 589/18). 99 It is considered that the first judgment finding psychological harassment-mobbing in the country was adopted only in 2016. By Judgment of 2016 (RP-215/14), the Basic Court Skopje II Skopje found that the plaintiff was psychologically harassed by two persons (defendants), who, through their actions, caused him mental anguish, fear, degradation and violated his dignity, honour, and reputation, with the ultimate goal of making him resign his employment. In a procedure upon an appeal by the defendants, the Appellate Court in Skopje adopted the Judgment (ROZH-86/18) reversing the judgment of the Basic Court Skopje 2 and dismissing the claim. However, in a review procedure, in February 2020 the Supreme Court of RNM, by a Judgment in Review (Rev. 3, no. 15/2018) reversed the judgment of the Appellate Court and upheld the judgment of the Basic Court Skopje 2. 100 See Macedonian Association of Young Lawyers (2014). 101 See LPAWH, Article 27. 102 See LPAWH, Article 34. 98

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employer and by the court), the LPAWH does not stipulate clearly for whom are such temporary measures intended (whether the harassers or the harassed). The protection that may be provided by the court, may also include compensation for pecuniary and nonpecuniary damage caused by the harassment in the workplace.103 Finally, the employee who is facing insults and violent behaviour by the employer, or whose employer, despite the warnings by the employee that he or she is exposed to insults and violent behaviour by other employees, fails to prevent such behaviour, shall be entitled to certain legal remedies arising from the LRL In the case referred to above, the employee may terminate the employment contract with the employer without a notice, acquiring a right to compensation in the amount of at least the salary lost (as if he or she has worked during the notice period) and severance pay (as if his or her employment has been terminated due to economic reasons).104 The legal framework against harassment in the workplace also governs the matter of the sanctions, i.e., disciplinary liability of the perpetrator of harassment. In the selection of disciplinary measures against the perpetrator of the harassment, LPAWH initially refers to systemic laws governing labour relations (primarily, the LRL as well as other special laws in the field of civil servants). However, one should take into account the fact that the LRL (as a lex generalis) does not govern the matters of disciplinary procedure and disciplinary sanctions in a systematic manner. Currently the only disciplinary measure that arises implicitly from LRL is the monetary fine for violation of the work order and discipline or work duties. The LPAWH itself stipulates the possibility for issuing a disciplinary measure—termination of employment of the perpetrator of harassment. Yet, LPAHW makes such a disciplinary sanction a subject of the fulfilment of two cumulative conditions, in particular: firstly, the employer has previously issued another, alternative disciplinary sanction against the harasser, laid down in the laws referred to above, and secondly, the harasser has repeated the harassment within a period of 6 months upon the time when he or she has been issued the disciplinary sanction.105 In practice, the manner in which disciplinary liability and disciplinary sanctions against the harasser are established raises several dilemmas. One of the dilemmas is whether the initially issued disciplinary sanction for harassment in the workplace, always has to be more lenient than termination of employment, independent of the gravity of the harassment and its effects on the victim, including victims of sexual harassment? Another relevant dilemma is whether the prerequisite for repeating the harassment within a period of 6 months, which may result in termination of employment, is a period of time that is too short concerning the protection of the victim against harassment, i.e., what would happen if the harasser repeats the harassment following the expiry of the 6 months upon the issuing of the prior, alternative disciplinary measure, i.e. whether the harasser would be sanctioned by termination of employment or by another more lenient sanction?

103

See LPAWH, Article 32. See LRL, Article 100. 105 See LPAWH, Article 29, para. 2. 104

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4 Conclusion Violence and harassment in the world of work is a violation or abuse of human rights. It threatens the integrity and dignity of workers, and as such, is incompatible with the universally recognized concept of decent work. Rooted in unequal gender power dynamics and gender stereotypes, gender-based violence and harassment in the world of work (as a narrower concept compared to the general concept of violence and harassment in the world of work) particularly affects women, impeding their access to and progress in the labour market, and at the same time affecting the sustainability of the economy as a whole. Regulation of gender-based violence and harassment at work has been the subject of gradual and continuous development on a universal, supranational and national level for several decades now. Today, almost 150 countries have adopted national regulations addressing harassment and sexual harassment in the workplace.106 In addition to pursuing modern social, cultural and normative achievements aimed at establishing equal opportunities and treatment between women and men in all spheres of life, countries decide to regulate gender-based violence and harassment at work also due to the need to reduce the economic and social costs that such phenomenon causes. Workers (overwhelmingly women) victims of gender-based violence and harassment at work face health problems, reduced productivity, limited employment and labour market opportunities, gender wage differences and the like. Therefore, employers see to increase occupational safety and health and reduce absenteeism, high turnover and other negative effects on employees morale and productivity by taking measures to prevent and protect them from hostile work environment. Depending on different approaches in different countries, normative responses directed against gender-based violence and harassment at work can be found in the regulations on equality and non-discrimination, labour relations (including occupational safety and health), tort and criminal law. The legal approaches can also be classified in terms of whether they are inclined to the concept of treating harassment, solely as a form of discrimination (which is predominant in the United States) or to a combined concept which in addition to discrimination, emphasizes the aspect of protection of dignity and integrity (which is predominantly represented in the EU and the European countries in general). By adopting the first international labour standards (ILO Convention No. 190 and Recommendation No. 206 concerning the Elimination of Violence and Harassment in the World of Work) which envisage an integral, inclusive and genderresponsive approach to regulating violence and harassment in the world of work, it seems that the conceptual differences in addressing gender-based violence and harassment at work are becoming less important. The most important thing is that everyone has the right to a world of work free from violence and harassment. By ratifying relevant international and regional instruments and aligning national legislation with EU law, North Macedonia has been shaping its legal framework for protection against violence and harassment at work, including gender-based 106

World Bank Group (2019).

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violence and harassment, for more than 15 years now. Gender-based violence and harassment at work in North Macedonia (acknowledged as harassment related to sex, i.e. gender and sexual harassment), is generally addressed through two legal regimes that govern harassment in the field of employment and work. The first legal regime derives from the LRL and regulates harassment (including psychological harassment - mobbing) as discrimination. The second legal regime derives from the LPAWPH and regulates harassment as psychological and sexual harassment in the workplace, without it being defined as discrimination. In practice, not only is the difference between the two concepts of protection against harassment (including gender-based harassment) ambiguous, but it is also unclear, which of them, would be more adequate to seek protection from. It seems that with the adoption of the LPAWPH in 2013, the Macedonian legislator is inclined towards more thorough and comprehensive protection from violence and harassment in the workplace (including gender-based violence and harassment). However, this law contains several systemic weaknesses in regards to prevention and protection, legal remedies and sanctions. Fortunately, the social partners represented in the Economic and Social Council of the Republic of North Macedonia (i.e. the representatives of the Government and the representative organizations of workers and employers), in March 2021, unanimously supported the initiative for ratification of the Violence and Harassment Convention, No. 190 of the ILO. At the same time, a new Law on protection against workplace harassment is being drafted, as well as a new Law on labour relations. This increases the optimism that the future legal framework for protection against gender-based violence and harassment at work will be more harmonized and improved, while the awareness of recognizing and reporting such a workplace behavior will be increased.

References Bakirci K (1998) Sexual harassment in the workplace in relation to EC legislation. Int J Discrimin Law 3:3–28 Bernardt C (2012) EU employment law. Oxford University Press, Oxford Blanpain R (2014) European labour law. Kluwer Law International Burga de las Casas SP (2019) Psychological harassment in the workplace and the right to work in dignity: a comparative review of the laws in Colombia, Peru, United Kingdom and the United States. ILSA J Int Comp Law 25:465–489 Chappell D, Di Martino V (2006) Violence at work. International Labour Office Cihon PJ, Castagnera JO (2011) Employment and labor law. South-Western Cengage Learning Димушевска E, Трајковска Љ (2017) Студија на опсег на различните форми на сексуално насилство во Р.Македонија. Национална мрежа против насилство врз жените и семејно насилство – Глас против насилство. http://www.glasprotivnasilstvo.org.mk/wp-content/ uploads/2013/11/studija-za-seksualno-nasilstvo-vo-rm-1.pdf. Accessed Nov 2021 Ellis E, Watson P (2012) EU Anti-discrimination law. Oxford University Press, Oxford Friedman GS, Whitman JQ (2003) The European transformation of harassment law: discrimination versus dignity. Columbia J Eur Law 9:241–274 Goldman AL (2013) Labour law in the USA. Kluwer Law International

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Graser M, Manaouil C, Verrier A, Doutrellot-Phillipon C, Jard O (2003) Legislative recognition in France of psychological harassment at work. Med Law 22:239–250 Guerrero MIS (2004) The development of moral harassment (or mobbing) law in Sweden and France as a step towards EU legislation. Boston Coll Int Comp Law Rev 27:477–500 Hebert LC (1995) Sexual harassment is gender harassment. Kans Law Rev 43:565–607 Henken JW (1989) Hostile environment claims of sexual harassment: the continuing expansion of sexual harassment law. Villanova Law Rev 34:1243–1264 Husbands R (1992) Sexual harassment law in employment: an international perspective. Int Labour Rev 131:535–559 International Labour Organization (2020a) Safe and Healthy Working Environments Free from Violence and Harassment. https://www.ilo.org/global/topics/safety-and-health-at-work/ resources-library/publications/WCMS_751832/lang%2D%2Den/index.htm International Labour Organization (2020b) Safe and Healthy Working Environments Free from Violence and Harassment. The Report at a Glance. https://www.ilo.org/wcmsp5/groups/public/ %2D%2D-ed_protect/%2D%2D-protrav/%2D%2D-safework/documents/publication/wcms_ 751838.pdf International Labour Organization (2020c) Policy Brief. ILO Violence and Harassment Convention No. 190 and Recommendation No. 206. https://www.ilo.org/wcmsp5/groups/public/%2D%2Ded_dialogue/%2D%2D-actrav/documents/briefingnote/wcms_749786.pdf International Labour Organization (2020d) Policy Brief. ILO Violence and Harassment Convention, 2019 (No. 190): 12 ways it can support the COVID-19 response and recovery. https:// www.ilo.org/wcmsp5/groups/public/%2D%2D-dgreports/%2D%2D-gender/documents/publi cation/wcms_744676.pdf Juliano AC (1992) Did she ask for it?: the unwelcome requirement. Cornell Law Rev 77:1558–1592 Каламатиев T (2013) Антидисриминацијата и психолошкото вознемирување (мобинг) во позитивното право на Република Македонија. Droit du Travail. Première Journèe d’ètude de droit comparè franco-macèdonien, 139–150 Kalamatiev T, Mitrevski Z, Ristovski A (2011) Права од работен однос на жените и младите во Република Македонија. Фондација “Фридрих Еберт” – Канцеларија во Скопје Lerouget L, Heber LC (2013) The law of workplace harassment of the United States, France, and the European Union: comparative analysis after the adoption of France’s new sexual harassment law. Comp Labor Law Policy J 35:93–122 Lippelt K (2010) The law of workplace bullying: an international overview. Comp Labor Law Policy J 32:1–14 Maкедонско здружение на млади правници (2014) Анализа за стратешко водење на предмети во судска постапка од областа на дискриминација. https://myla.org.mk/wpcontent/uploads/2016/10/2014.pdf McColgan A (2007) Harassment. In: Schiek D, Waddington L, Bell M (eds) Non-discrimination law. Hart Publishing, Oxford and Portland, Oregon, pp 477–560 Petreski M, Mojsoska-Blazevski N (2015) The gender and motherhood wage gap in the former Yugoslav Republic of Macedonia: an econometric analysis. International Labour Organisation Working Paper No.6/2015 Pillinger J (2019) Handbook Аddressing violence and harassment against women in the world of work. International Labour Organization and UN Women Robin-Olivier S (2010) French prohibition of harassment at work: a case of complex articulation of moral and sex, under European influence. Eur Labour Law J 1:141–146 Rubenstein M (1983) The law of sexual harassment at work. Ind Law J 12:1–16 Rubenstein M (1988) The Dignity of Women at Work. Commission of the European Communities Brussels – Luxembourg. https://op.europa.eu/en/publication-detail/-/publication/db562ac17ad0-4b57-92e1-6b48f5982cfc Schultz V (1998) Reconceptualizing sexual harassment. Yale Law J 107:1683–1805 Smith D, Williams RT (2002) Sexual harassment. Georgetown J Gender Law IV:639–682

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State Statistical Office of the Republic of North Macedonia (2021) News Release (Active Population in the Republic of North Macedonia, Results from the Labour Force Survey – II quarter 2021) https://www.stat.gov.mk/pdf/2021/2.1.21.30_mk.pdf Thorpe JF (1990) Gender-based harassment and the hostile work environment. Duke Law J 1990: 1361–1397 Westman BB (1992) The reasonable woman standard: preventing sexual harassment in the workplace. William Mitchell Law Rev 18:795–828 World Bank Group (2019) Compendium of international and National Legal Frameworks on sexual harassment in the workplace volume III of V — countries H-P. https://openknowledge. worldbank.org/bitstream/handle/10986/32817/SexualHarassment_Volume%20I.pdf? sequence¼1&isAllowed¼y Здружение за еманципација, солидарност и еднаквост на жените на РМ (2011) Насилство врз жени на работно место (психичко вознемирување и сексуално вознемирување). https://esem.org.mk/en/pdf/Publikacii/Ostanati/2011/.pdf

Todor Kalamatiev is Full Professor and Chair of the Department of Labour and Social Security Law at the Ss. Cyril and Methodius University in Skopje (Iustinianus Primus Law Faculty) where he teaches labour law, social security law and other subjects at undergraduate, postgraduate and doctoral level studies. In the period 2008–2012, he was appointed Vice Dean for Education at the Iustinianus Primus Law Faculty. Professor Kalamatiev has participated in several international research projects and has on many occasions been engaged as external collaborator of the ILO on labour law and industrial relations’ related projects in North Macedonia. He also is a national expert for North Macedonia in the European Labour Law Network (ELLN) and the Comparative Civil Service Network (CCSN). Professor Kalamatiev is also a President of the Association for Labour and Social Law of North Macedonia (ЗТСП) and a President of the Macedonian Bar Examination Commission. Aleksandar Ristovski is Associate Professor at the Ss. Cyril and Methodius University in Skopje (Iustinianus Primus Law Faculty) where he teaches labour law, social security law and other subjects at undergraduate and postgraduate level studies. Professor Ristovski has participated in several international scientific projects and has on multiple occasions been engaged as external collaborator of the International Labour Organization (ILO) on labour law and industrial relations’ related projects in North Macedonia. He also is a national expert for North Macedonia in the European Labour Law Network (ELLN), the CEElex network of national legal experts on labour and industrial relations in Central and Eastern Europe and the Comparative Civil Service Network (CCSN). Since 2019, Professor Ristovski is vice-president of the Association for Labour and Social Law of North Macedonia.

Digital Work and Gender Equality Helga Špadina

Contents 1 2 3 4 5

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Theoretical Framework of Gender Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Framework of Gender Equality at Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gender (In)Equality at Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gender Equality Challenges in Digital Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Digital Skills Gap and Digital Divide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Gender Pay Gap in the Digital Platform Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Digital Work as a Double Burden of Paid and Unpaid Work . . . . . . . . . . . . . . . . . . . . . . . 5.4 Exclusion of Social Rights in Platform Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Right to Disconnect in the Context of Gender Equality . . . . . . . . . . . . . . . . . . . . . . . . 6 Covid-19 and Gender Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Digitalization of work in recent years has suddenly accelerated following the appearance of COVID-19 in 2020. This rapid digitalization of work has not affected parents equally and it is estimated that balancing online work with family obligations and childcare has led to an increased burden for women. As the new reality poses a threat to gender equality in the workplace, the European Agency for Gender Equality focused its Gender Equality Index 2020 on the effects of digitalization on the lives of women and men, through an analysis of the contribution of technological solutions to the more even sharing of care at home. This is particularly important in the light of the legal obligations of the EU WorkLife Balance Directive adopted in 2019 to achieve gender equality through the more balanced sharing of parental leave and the introduction of flexible working arrangements.

H. Špadina (*) Josip Juraj Strossmayer University of Osijek, Faculty of Law, Department of Labor and Social Security Law and Social Work, Osijek, Croatia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_9

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This paper will therefore analyze the legal aspects of gender equality, taking into consideration the specifics of digital work. It will discuss the importance of gender equality of the new rights in labour law pertaining to digital work—the right to disconnect and the right of a worker not to be available online to the employer after regular working time. We will also analyze the possible implications of remote online work for the rights enshrined in the EU Work-Life Balance Directive and other EU legal instruments. The aim of the paper is therefore to contribute to the legal discussions on gender equality in digital work.

1 Introduction Digital work includes work through online web-based platforms that allow remote delivery of electronically transmittable services, and also offline, on-demand work in a specified physical location that is mediated by digital labour platforms or mobile apps.1 Telework is defined as the use of information and communications technologies (ICTs), such as smartphones, tablets, laptops, and desktop computers, for work that is performed outside the employer’s premises. Following Convention No. 177, consideration is limited to teleworkers who work at their home (or another location of their choosing) on a regular or permanent basis.2 Home work is defined by the ILO’s Home Work Convention (No. 177) and Recommendation (No. 184), 1996, as “work carried out by a person . . . (i) in his or her home or in other premises of his or her choice, other than the workplace of the employer; (ii) for remuneration; (iii) which results in a product or service as specified by the employer, irrespective of who provides the equipment, materials or other inputs used.” Home-based digital platform work refers to service-sector tasks performed by “crowdworkers” according to the specifications of the employer or intermediary, in situations in which the workers do not have the autonomy and economic independence to be considered independent workers in national law.3 Digital work has numerous advantages because workers can benefit from flexible arrangements pertaining to digital work, such as increased flexibility and autonomy, the potential to improve work-life balance, reduced commuting times, cost savings, and the ability to transverse temporal and geographical boundaries in terms of delivery of work and working hours. Female workers can be more productive when working from a place of their choice and can benefit from a better spatial match between supply and demand of labour without the need to move to another location, so that teleworking does not exacerbate the unequal distribution of unpaid care and domestic work between

1

De Stefano (2015); Codagnone et al. (2016). International Labour Organization (ILO) (2016). Eurofound and ILO (2017). 3 Eurofound and ILO (2017). 2

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women and men and for it to be an engine for promoting gender equality.4 This also “reduces the importance both of time and space restrictions where women often lack time due to double responsibilities both for gaining income and fulfilling family chores, and sometimes underlie conventions restricting their mobility in the public”.5 Thus, digital or any other telework allows women improved participation in the labour market through increased flexibility in the organisation of working time and in combining unpaid care responsibilities with paid employment. Digital work also provides anonymity that female workers can benefit from by precluding all kinds of gender-specific restrictions to gaining information, spreading knowledge, inserting own content and expressing own opinions in addition to access to financial transactions, commercial activities and distance learning.6 A survey conducted in 2017 in the USA revealed that one third of female platform workers adopted a gender-neutral username in order to maintain anonymity7 as a tool to fight gender-based discrimination. The digital transition was seemingly a distant strategic goal of developed countries, so the digitalization of labour did not appear an issue that should be properly legally regulated. With the emergence of the Covid-19 pandemic, remote work from home had to be organized practically overnight and without an adequate legal framework because in times of health emergency changes to labour laws were not seen as a priority. This is the reason why Ewig and Lord Hendy claim that British labour law failed workers during the Covid-19 pandemic by being unable to react swiftly to the wide introduction of telework, often in the realm of unregulated labour rights of new digital workers.8 This is applicable to other legal systems as well as we did not see the proper and timely introduction of legal norms to prevent abuse of labour and social rights of workers during Covid-19 in European countries. Some categories of workers were particularly vulnerable to the violation of labour rights, such as female workers who were more often likely to be furloughed during Covid -19 in Britain and the “insecurity and vulnerability of workers on precarious contracts, wholly dependent on employers on whether or not to be furloughed.”9 We should not forget to mention the general degradation of working conditions during Covid-19, especially affecting vulnerable workers, including particularly women on precarious contracts, such as women in digital platform work working on so called zero hours’ contracts. Degradation was very visible in denial of payment of full remuneration because of Covid-19 isolation or because of the fact that Covid19 pandemic induced sudden furloughs and workers feared for their jobs. Ewig and Lord Hendy point to the exploitation of British critical workers in essential services, many of whom were employed on or below the minimum wage hourly rate, as well

4

European Economic and Social Committee (2021a). Sorgner et al. (2017). 6 Sorgner et al. (2017). 7 Hyperwallet (2017). 8 Ewing and Lord Hendy (2020). 9 Ewing and Lord Hendy (2020), pp. 531–532. 5

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as the double exploitation of low paid critical workers in essential services on the additional ground that those exposed to the risk of contracting Covid-19 were not paid in full during periods of sickness or self-isolation beyond statutory sick payment.10 As employers operated in an unregulated digital work environment, doing what they considered was the best for their business, legal gaps in the regulation of working hours resulted in workers becoming “omni-available” to employers as they were “anyhow home and online all the time”. Employed women who were part of the nonessential workforce and had the option to work from home were expected to have the same or even a better work performance, but this time without child-care support, the ability to use domestic help services, and with limited (if any) interaction with superiors or colleagues, leading to social isolation and exclusion from business-related decision-making and very limited opportunities for professional advancement. This resulted in the most serious threat to gender equality in the labour market because women, facing the choice between care for family and paid employment, opted for their families and started to leave the workforce to fully assume family care duties.11 Therefore, noting that digital work without adequate care support jeopardises all achievements in the area of gender equality, this paper will explore aspects of digital work which have to be taken into account when developing legal instruments and implementing measures aimed at reducing gender inequalities in digital work between men and women. The paper is divided into five sections. In the first section, I present the theoretical framework of gender equality and the notion of substantive equality as opposed to formal equality. In the second section, I outline the international and European legal frameworks of gender equality at work. In the third section, I present gender inequality in four areas where women are over-represented (poverty, part-time work, work from home, and with the bigger share of family care and household duties) and three areas where they are still underrepresented (decision-making and political structures, ICT and STEM education and professions in digital work). In the fourth section, I argue that gender equality in digital work can be successfully mainstreamed only if we take into consideration (and properly regulate) five distinctive features of digital work relevant for gender equality—the digital skills gap and the digital divide, the gender pay gap in the gig economy, digital work as a double burden of paid and unpaid work, exclusion from social rights in platform work and the link to the reproductive rights of female workers, and the right to disconnect in the context of gender equality. If we are to engage in the development of a legislative framework and policy measures to tackle gender inequality in digital work, we can further undertake an assessment of four interrelated aims of

10 11

Ewing and Lord Hendy (2020), pp. 531–532. See results of surveys conducted to support this claim in: Madgavkar et al. (2020). Sorgner et al. (2017).

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substantive equality in areas of the current and future possible gender inequalities in digital work.

2 Theoretical Framework of Gender Equality Gender equality at work presumes gender equality in society.12 Looking into the current state of affairs for gender equality, the developed countries have achieved a remarkable, although still far from a full level of, gender equality. Estimates are that at the current rates of progress, gender pay equality will be reached in 150 years.13 Therefore, constant efforts should be invested into legislation and jurisprudence to remove current obstacles to gender equality, including gender-based violence,14 sex discrimination and structural inequality.15 Substantive equality, as opposed to formal equality, is supported by the Montreal Principles proposing that ICECSR is interpreted to require the realization of women’s substantive de facto equality,16 and it is only by using such an approach that we can surpass the limits of formal equality in addressing structural barriers to women’s equal enjoyment of economic, social and cultural rights.17 If the laws solely regulate equality without taking into consideration the effect, they might have on gender equality de facto, we only have equality on paper, often incapable of achieving the intended goals. In the context of digital work, equality on paper is not instrumental to achieve full and real equality of genders unless we take into the consideration gender substantive equality as defined by Fredman to have four interrelated aims: (a) redressing disadvantages; (b) addressing stigma, stereotyping, humiliation and violence; (c) accommodating difference and transforming institutions; and (d) facilitating participation.18 This is the reason why it is of utmost importance to provide a proper labour status for digital workers because only in those circumstances women at the reproductive or adoption age of working life would be fully interested to engage in digital work including social rights, i.e. full pregnancy, maternity, and adoption coverage, as well as entitlement to sick leave for family members. If we diligently assess whether or not each statutory right or social policy measure indeed achieves one or more of the four aims of substantive gender equality and

12

Madgavkar et al. (2020). Wodon et al. (2020), p. 6. 14 The Council of Europe Convention on preventing and combating violence against women and domestic violence from 2011 firmly establishes the link between achieving gender equality and the eradication of violence against women, Council of Europe (2011). 15 European Commission (2020), p. 2. 16 Otto (2014), p. 219. 17 Otto (2014), p. 219. See also Fredman (2014), p. 22. 18 Fredman (2011). 13

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commit to undertaking a proper, substantive gender analysis during the development of digital work tools and the related subsequent legal regulation, we could actually engage in meaningful gender mainstreaming and achieve a higher rate of gender equality.19

3 Legal Framework of Gender Equality at Work At the international level, gender equality is the fifth UN Sustainable Development Goal of Agenda 2030.20 Numerous human rights instruments are relevant for gender equality at work, the most important being the CEDAW. Human rights law allows, and under certain circumstances requires, States to adopt temporary special measures aimed at accelerating de facto equality between men and women (Article 4, CEDAW).21 The 1995 Beijing Declaration and Platform for Action22 identified the eradication of violence against women as a strategic objective among other gender equality requirements.23 Relevant ILO gender equality Conventions are the Equal Remuneration Convention,24 Discrimination (Employment and Occupation) Convention,25 Workers with Family Responsibilities Convention No. 15626 and Maternity Protection Convention No. 183.27 At the European level, Articles 2 and 3(3) TEU, Articles 8, 10, 19 and 157 TFEU and Articles 21 and 23 of the EU Charter of Fundamental Rights set gender equality as a core value of the EU, a fundamental right and key principle of the European Pillar of Social Rights.28 This commitment to gender equality in the EU is translated into legal instruments for gender equality in and related to employment.29 Crucially

19

Fredman (2014), p. 20. United Nations (2015). 21 United Nations General Assembly Human Rights Council (2009, p. 67). Convention on Elimination of All Forms of Discrimination against Women (1979), CEDAW/C/GC/31-CRC/C/GC/18. 22 Beijing Declaration and Platform of Action (1995). 23 Council of Europe (2011), p. 1. 24 The ILO Equal Remuneration Convention (No. 100) (1951). 25 ILO Discrimination (Employment and Occupation) Convention No.111(1958). 26 Workers with Family Responsibilities Convention No. 156 (1981). 27 Maternity Protection Convention No. 183 (2000). 28 Consolidated version of the Treaty on European Union, OJ C 326, 26.10.2012, pp. 13–390. Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, pp. 391–407. European Pillar of Social Rights. 29 They include in chronological order of adoption: Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, Official Journal L 6, 10.1.1979, pp. 24–25; Directive 92/85/EEC of 19 October 1992 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 (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), Official Journal L 20

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important is the case-law of the Court of Justice of the European Union,30 as well as the Article 1 Protocol no. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms stipulating general prohibition of discrimination which can be applied to address gender inequality in digital work.31 Council of Europe was also very instrumental in regulating gender equality. Their Gender Equality Strategy 2018–2023 has six strategic objectives, covering prevention of gender stereotypes and sexism, violence against women and domestic violence, provision of the equal access of women to justice, a balanced participation of women and men in political and public decision-making, gender mainstreaming in all policies and measures and protection of the rights of migrant, refugee and asylumseeking women and girls.32 The current EU Gender Equality Strategy covering the period from 2020 to 2025 was drafted and adopted prior to the pandemic and in a far-sighted manner pointed out that “progress with regard to gender equality is neither inevitable nor irreversible”.33 The Strategy, inter alia, focuses on gendered digital transition, the digital inclusion of women, the gender pay gap and the gender care gap. Gender parity has been reached only in basic education, while the secondary education attainment remains unequal between boys and girls.34 The gender gap and gender inequality in Europe are still present in employment, pay, care, power and pensions.35 The female employment gap might be reduced by the equal sharing of caring responsibilities between parents and flexible working arrangements addressed in Directive (EU) 2019/1158 on work-life balance for parents and carers.36 348, 28.11.1992, pp. 1–7; Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC—Annex: Framework agreement on part-time work, Official Journal L 14, 20.1.1998, pp. 9–14; Council Directive 2004/ 113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services Official Journal L 373, 21.12.2004, pp. 37–43; Directive 2006/54/EC on equal opportunities and equal treatment of women and men in employment and occupation (recast), Official Journal L 204, 26.7.2006, pp. 23–36; Directive 2010/ 18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/ EC, Official Journal L 68, 18.3.2010, pp. 13–20; Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, Official Journal L 180, 15.7.2010, pp. 1–6; Directive 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, Official Journal L 188, 12.7.2019, pp. 79–93. 30 See: European Union, Compilations of case law on the equality of treatment between women and men and on non-discrimination in the European Union. 31 Council of Europe Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Rome, 4 December 2000. 32 Council of Europe Gender Equality Strategy 2018–2023. 33 European Commission (2020). 34 Wodon et al. (2020), p. 21. 35 European Commission (2020), p. 1. 36 OJ L 188, 12.7.2019, 79–93.

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Work-family balance is a crucial gender equality indicator37 and points to the availability of resources and personal preferences, cultural context, and the institutional setting for opportunities that contribute to establishing individual work-life balance strategies and, more generally, the gender contract between partners.38

4 Gender (In)Equality at Work In order to understand better the legal issues of the topic of gender equality, we need to clearly specify areas of working life in which women are currently overrepresented and others where they are under-represented and suggest the reasons for such an imbalance. Women globally are over-represented among the extremely poor.39 Brodsky and Day argue that “poverty is a sex equality issue because women’s poverty is a manifestation of persistent discrimination against women”.40 Fredman argues that female inequality in poverty is specifically affected by gender-based factors such as the unpaid caring role in the family, limiting the access of women to paid employment41 and forcing women into precarious, low-paid, insecure, temporary jobs.42 Other limiting factors include the changing family status (primarily in cases of women are becoming divorced or widows) and the inability of women to access family income (due to traditional norms and views that male income earners should decide on family expenditures).43 Women were also subject to the historical devaluation of paid and unpaid female work, particularly visible in the area of unpaid and undervalued family care work, but also applicable to devaluation of paid female work in professions traditionally held more frequently by women.44 Lamarche argues that “the gendered aspects of poverty can largely be explained through an examination of patriarchy, culture, gender stereotypes, extreme capitalism, and women’s disproportionate burden of family and community responsibilities.”45 The second over-representation of women related to the labour market is that women are largely globally over-represented in part-time jobs. In the EU in 2018,

37

Caracciolo di Torella and Masselot (2010), Crespi and Lomazzi (2018). Rees (1998) cited in: Lomazzi et al. (2019), p. 2. 38 Becker (1981), Geist and Cohen (2011) cited in: Lomazzi et al. (2019), p. 2. 39 United Nations General Assembly Human Rights Council (2009), p. 67. 40 Brodsky and Day (2002). 41 Fredman (2009), p. 219. 42 Rosenblat and Rake (2003). 43 Chant (2006), p. 208. 44 Montreal Principles on Women’s Economic, Social and Cultural Rights (2004) cited in: Otto (2014) in: Goldblatt and Lamarche (2014), p. 219. 45 Lamarche (2014) in: Goldblatt and Lamarche (2014), pp. 65–66.

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31% of women and 8% of men worked in part-time jobs.46 The main reason for this unequal distribution of workers between full-time and part-time jobs is the caring responsibilities for children, elderly family members, and other family members or relatives. The third over-representation of working women related to the labour market is over-representation in work from home. According to the estimation by the International Labour Organization (ILO) in 2019 (prior to the Covid-19 pandemic), 260 million people were working from home (making up 7.9% of the global workforce), out of whom 147 million were women and 113 million were men, with women accounting for 56% of all home-based workers in high-income countries and 65% in low-income countries.47 ILO points out that the two main reasons for the over-representation of women in home-based and often informal work include unpaid care work and cultural and gender norms including stigmatization or even prohibition of work outside the home.48 The fourth relevant over-representation of women lies in the share of family care and household duties. In 2020 the European Commission reported that women were spending an average of 22 hours per week on care and household work, while men were spending 9.49 Research by the Spanish National Statistical Institute in 2018 demonstrated that 32% of workers admitted having difficulties in reconciling professional and family life.50 Data segregated by gender clarifies that time dedicated to paid work for male workers determines the amount of time they can devote to their families, while for female workers the reverse is true.51 Thus, without proper attention given to improved care infrastructures of all types, the provision of quality services for all throughout life, and the recognition of women and men as equal earners and equal carers,52 we cannot move forward in the area of gender equality. On the other hand, we also have the under-representation of women in matters of gender equality at work. Women are highly under-represented in political and decision-making structures in industry and business, despite the fact there are more female university graduates in Europe than male.53 Women sit on 7.5% of board chairs, constitute 7.7% of CEOs in the EU’s biggest listed companies, and make up only 32.2% of national parliamentarians in the EU.54

46

Eurostat (2018). International Labour Organization (2021), p. 10, 44. 48 International Labour Organization (2021), p. 44. 49 European Commission (2020), p. 12. 50 Nieto Rojas (2021), p. 3. 51 Nieto Rojas (2021), p. 3. 52 European Economic and Social Committee (2021b). 53 European Commission (2020), p. 9. 54 European Commission (2020), p. 13. 47

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Finally, women are under-represented in the ICT and STEM (Science, Technology, Engineering, Mathematics) fields of education and work, despite the paradoxical fact that girls outperform boys in digital literacy.55 This is supported by the results of an EIGE survey which demonstrated that in 14 Member States women have superior information skills to men.56 In all Member States, there is stark inequality in the number of ICT graduates where men far outnumber women. Subsequently, and because of their under-representation in ICT and STEM education, women are also under-represented in the gig economy and in digital work in general. The recent EIGE survey indicates inequality (to various degrees in various countries) in working in the ICT sector in which none of the EU Members States have so far achieved gender equality.57

5 Gender Equality Challenges in Digital Work 5.1

Digital Skills Gap and Digital Divide

We cannot speak of gender equality in digital work unless we have parity of digital skills and equal access to digital tools to start with. According to previously mentioned EIGE research, girls outperform boys in digital literacy and still we have gender gaps among highly qualified workers, notably among STEM graduates, entrepreneurs and managers.58 This is closely linked to gender segregated professions and the cultural perceptions of certain professions as masculine and feminine, which may all have an impact on the low interest of girls in pursuing an ICT education and career. Instead of policy reducing the digital skills gap, we have evidence that it increases it.59 Even when women do work in the ICT sector, they usually occupy low-status positions (in 2014, according to Eurostat, women represented only 19.2% of managers in the ICT sector, compared to 42.5% in the non-ICT service sector).60 Thus, even if initiatives are in place to bring more women into the ICT and STEM professions or entrepreneurship, we still have the “glass ceiling” preventing women from advancing into leading management positions.61

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Information and Communications Technology (2021). Science, Technology, Engineering and Mathematics (2021). International Computer and Information Literacy Study (ICILS) (2018) in: European Commission (2020), p. 10. 56 European Institute for Gender Equality (EIGE) (2020). 57 European Institute for Gender Equality (EIGE) (2020). 58 Sorgner et al. (2017), p. 7. 59 Wajcman et al. (2020), p. 6. 60 Wajcman et al. (2020), p. 6. 61 Sorgner et al. (2017), p. 7.

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In addition to low participation rates in ICT education for both genders, we have another issue—the digital divide—which can be defined as “a stark and pervasive gender inequality in terms of access, ownership of digital devices, digital fluency as well as the capacity to make meaningful use of the access to technology”.62 Liff distinguishes four key dimensions of the gender digital divide: technical access (access to an Internet-ready device, the type of device involved, and the quality of the connectivity); the ability to use access (the extent to which men and women know other people who use the Internet and can provide help; the skill levels they perceive they have reached, their comfort/discomfort with ICT-based systems, and worries about potential negative consequences of access (e.g. fraud or viruses)); take-up of access (whether men and women are Internet users, any variation in the length of use; how much use they make of access; and what range of activities they use it for, the impact of access (the degree to which Internet use has changed patterns of activities, any views as to the significance of this, in this context focusing on the extent to which access is being used in ways that challenge or reinforce genderstereotypical behavior.63 We should not forget that disadvantaged women like single mothers, teenage mothers, older women, women from disadvantaged socio-economic groups, women living in rural areas, women with lower education, migrant women, Roma women, and women with disabilities have unequal access to connectivity and digital technologies, which contributes to an even wider digital divide.64 These gender gaps in digital inclusion result in further gender inequalities, especially in labor markets.65 The most important tool for empowering women is digital inclusion, i.e. their access to ICT and to the internet,66 digital literacy67 and changes in stereotypical perceptions of ICT education and work as being masculine. This can be achieved through better monitoring of implementation of legal norms regulating equality of access, prohibition of discrimination and equal pay in all professions. Particular attention should be paid to sometimes invisible obstacles to higher digital inclusion such as gender bias which can be reduced by early education in equality and continues awareness raising on the necessity of gender digital equality. Another approach might be introduction of leadership digital positions’ gender quotas.68

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Mariscal et al. (2018). Liff (2004), p. 3. 64 European Economic and Social Committee (2021a). 65 European Economic and Social Committee (2021a). 66 Sorgner et al. (2017), p. 7. 67 Sorgner et al. (2017), p. 7; OECD (2018), Mariscal et al. (2018). 68 Sorgner et al. (2017), p. 54. 63

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5.2

Gender Pay Gap in the Digital Platform Work

Digital work entails another important aspect which is one of the key features of gender equality and that is the gender pay gap. At first glance, it might seem that digital work is more gender neutral and provides more equality of opportunities, particularly when we remove from it access to reproductive health rights and family sick leave where female workers face the highest rate of discrimination in the process of employment and later when they often get demoted upon return from pregnancy or maternity leave. Curiously enough, this is not the case when it comes to digital work where we have significant rates of the gender pay gap as showed in the results of an EIGE survey on the gender pay gap among European countries. The gender pay gap in the EU ICT sector ranges from
7.6% in Cyprus and
1.5 in Portugal to a rate of 18% in Lithuania.69 The situation is not any better when we examine data for platform work, with 47% of women making less than $5 an hour, compared to 36% of men, while 21% of women make less than $3 an hour, compared to 10% of men.70 The reasons for the gender pay gap are multiple and multifaceted, ranging from the individual characteristics of the worker, such as their level of education, their work experience in the off-line labour market, their digital work experience, as well as the health and age of individual workers,71 to the unequal distribution of household and family duties because of which women are not able to dedicate as much time to crowdwork and have flexible work schedules in the same manner men can. Particularly vulnerable to pay gap are women with young children because their domestic responsibilities affect their ability to plan and complete work online, being constantly interrupted by children or family members.72 Women also tend to concentrate in labour intensive and low-paid digital jobs and do not own IT equipment required to perform platform work in an equal way to men.73 Finally, we should not underestimate the possibility of a gender bias and discrimination algorithm and the customer’s gender biased ratings in which they rate male workers more highly than women.74

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Lithuania 18%, Estonia 17.5%, Czech Republic 17.2%, Poland 16.6%, Austria 15.9%, Italy 14.6%, UK and Romania 13.9%, Slovakia 13.6%, Greece 12.1%, Ireland 11.6%, Latvia 9.4%, Netherlands 9%, Bulgaria 8.7%, Malta 8.4%, Slovenia 7.4%, Croatia and Luxembourg 6.9%, Spain 6.4%, Germany 6.3%, Denmark 5.7%, Finland 3.8%, Sweden 3.6%, France 2.1% and Belgium 1.6%, EIGE (2020). 70 Adams-Prassl and Berg (2017). 71 Adams-Prassl and Berg (2017), p. 20. 72 Adams-Prassl and Berg (2017). 73 Adams-Prassl and Berg (2017), see also Fan Chiu (2021), p. 8. 74 See more: Fernandez Sanchez (2021, p. 3), EIGE (2020).

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189

Digital Work as a Double Burden of Paid and Unpaid Work

While fully acknowledging the whole range of previously mentioned benefits of digital work for the advancement of women in the labour market, we have also to be very cautious about the possible negative implications of well-intended digital inclusion policies and rather to insist on achieving the goals of substantive gender equality. In this regard, the European Economic and Social Committee called attention to the risk that telework might “exacerbate existing gender inequalities. . . . the risk of using teleworking as a possibility of taking up the double burden of paid and unpaid work” and reiterated the need “to remove structural barriers to more equal distribution of the unpaid domestic work”.75 Such structural barriers include accessibility of the necessary technologies, facilities and skills, i.e. the digital infrastructure, an accessible and affordable care infrastructure, services for children and people with special needs and seniors, and remuneration transparency.76 If we manage to remove those structural barriers to gender equality in digital work, we might achieve higher gender balance in digital work. Prior to the Covid-19 pandemic, women were doing 75% of the world’s unpaid work (care for children and the elderly, cooking and cleaning) with the pandemic significantly increasing the burden of unpaid work, resulting in women dropping out of paid employment at a higher rate than men.77 This regressive effect of the health pandemic shows the fragility of the progress achieved so-far in gender equality in the labour market and indicates how crucial policies and the legislative framework are in reducing the gender care gap between men and women. In this regard, we have innovative measures aimed at reducing the gender care gap, such as the Swedish tax break for cleaning costs, with a limit of around 50,000 kronor ($5170) a year,78 or the introduction in Belgium of service vouchers for household domestic help.79 The availability of high quality, flexible, diversified, and affordable childcare and community-based and person-centered services for vulnerable children and adults with specific needs, as expressed in the EC Common European Guidelines, allow women to participate in the labour market and are preconditions to achieve all other rights as regulated in the EU Work-Life Balance Directive and other gender equality instruments.80 Digital, home-based work can all to easily further jeopardise gender equality as it might increase the burden for women to do even more unpaid domestic work, 75

European Economic and Social Committee (2021b). European Economic and Social Committee (2021b). 77 Mahajan et al. (2020), p. 4. 78 https://www.bbc.com/worklife/article/20200303-how-sweden-is-fixing-the-housework-gendergap. Accessed 12 October 2021. 79 http://impact-phs.eu/national-practices/belgium-the-service-voucher-system/ Accessed 12 October 2021. 80 European Economic and Social Committee (2021b). 76

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leading to reduced productivity, reduced access to training and professional development, fewer opportunities for promotion and professional advancement and increased exposure to domestic and online violence.81

5.4

Exclusion of Social Rights in Platform Work

An important point of discussion on gender equality is the fact that digital work is still largely unregulated, leading to the widespread practice of digital platforms to conclude contracts with digital workers under the pretext of so-called bogus selfemployment, resulting in the lack of any labour or social rights of digital workers.82 Unless we provide a proper labour status for digital workers and stop considering them as independent contractors outside traditional working relations, we cannot expect interest from women at the reproductive or adoption age of working life to engage in such work if they have alternative options of full employment status, including social rights, i.e. full pregnancy, maternity and adoption coverage, as well as entitlement to sick leave for family members. Deficits in labour and social rights of digital workers are one of the key issues in unequal participation of women and men in digital platform work. In the development of a legal framework, we need to acknowledge that women are disadvantaged in this area compared to men due to their biological predisposition to pregnancy and maternity and we can redress this inequality only by providing them with access to reproductive health rights and adoption rights. If digital work (including telework, platform work) continues to operate under the pretext of bogus self-employment, i.e. without proper labour and social rights of workers, including access to pregnancy and maternity rights, we might preclude digitally educated women from engaging in digital work, instead finding them in traditional, sometimes less well-paid jobs, or jobs for which they are overqualified, but jobs that provide the opportunity to realise the full spectrum of reproductive and/or adoption rights.

5.5

The Right to Disconnect in the Context of Gender Equality

The dark side of digital flexibility is hyper-connectivity or the unrestricted digital availability of a worker thanks to the possession of various devices with Internet connection, primarily laptops and mobile phones. Constant availability for work poses significant challenges to the physical and mental well-being of digital workers and removes the previously legally imposed restrictions of working time and 81 82

European Economic and Social Committee (2021b). Fan Chiu (2021, p. 11), Špadina (2021), p. 4.

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obligatory periods of rest. Therefore, the ILO has invited employers to “dismantle such a culture.”83 Kéfer argues that the limits to working hours as regulated in EU Directive 2003/8884 concerning certain aspects of the organisation of working time have disappeared and pose a threat to the worker’s health as the work day has stretched out, with digital work being interspersed with personal and family obligations.85 She also points out the often neglected issues of digital competition, the over-engagement culture and digital addiction leading to the inability to disconnect.86 During the Covid-19 pandemic, Eurofound reported that 27% of workers worked long hours while home-based,87 while the same agency in 2017 reported that digital or teleworkers are placed “under a quasi-permanent scrutiny of the employer” which erased “the diving line between work and rest, the quality of which is diminished.”88 Having in mind the potentially detrimental effects on the fundamental labour rights of all workers, among whom women are particularly affected due to their increased burden of family, caring and household responsibilities, the ILO89 and European Commission90 have developed proposals for a new right, increasingly important when we speak of gender equality and the digital inclusion of women – the right to disconnect. This right entails freedom from digital invasion,91 implies the workers’ right not to engage in work-related activities or communications outside working time through the use of digital tools, such as phone calls, emails or other messages, and it implies the duty of the employer to undertake “the necessary measures to provide workers with the means to exercise their right to disconnect.”92 The proposed European Resolution and other relevant documents recognise female workers as being particularly vulnerable to the detrimental effects of constant on-line availability to do digital work due to their increased burden of family and care responsibilities.93

83

ILO (2019a). Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organization of working time, OJ L 299, 18.11.2003, 9–19, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼celex%3A32003L0088. 85 Kéfer (2021), p. 3. 86 Kéfer (2021), p. 6. 87 European Parliament Resolution on the right to disconnect (2021). 88 Eurofound (2017). 89 ILO (2019b). 90 European Parliament Proposal Resolution on the right to disconnect (2021). 91 Kéfer (2021), p. 13. 92 Article 3 of the Proposal, European Parliament Resolution with Recommendations to the Commission on the right to disconnect (2019). 93 Article 3 of the Proposal, European Parliament Resolution with Recommendations to the Commission on the right to disconnect (2019). 84

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6 Covid-19 and Gender Equality Gender equality in digital or any other work—be it paid or unpaid—has never existed. With the global health crisis, we faced some regressive policies and practices affecting women’s ability to participate in paid employment, such as the closure of child-care facilities, the inability to accommodate elderly family members in community care facilities, the inability to benefit from outsourced domestic help, more frequent furloughs for vulnerable workers on precarious contracts (many of them are female), or degradation of working conditions for certain categories of vulnerable workers and many more factors affecting women’s (in)ability to engage in paid employment. McKinsey’s Global Institute estimated that “female job loss rates due to Covid-19 were about 1.8 times higher than male job loss rates globally, at 5.7 percent versus 3.1 percent respectively,” and “female jobs are 19 percent more at risk than male ones simply because women are disproportionately represented in sectors negatively affected by the Covid-19 crisis.”94 It will take years before we manage to rectify the negative consequences of pandemic and lockdowns for gender equality. Covid-19 movement restrictions revealed the disproportionate burden of family care for female workers who were trying to juggle care duties with their professional work, but this time from the same place—sometimes even the same room—where children were following on-line school—and where they had to cook and clean while doing digital work. This proved to be unbearable for many of women, forcing them out of the paid work and maintaining only the unpaid care work from which they were unable to resign. Covid-19 also had detrimental consequences on the reproductive rights of women, with contraceptives being unavailable in many underdeveloped countries and remote places,95 so we have to take into consideration that the unmet need for family planning resulting in unplanned pregnancies will surely affect women’s access to work, as well as girls’ access to schooling leading to further gender inequalities. Particular attention needs to be paid to the labour and social rights consequences of a pandemic for the specific groups of women such as women with disabilities who with the introduction of digital work became more competitive in the labour market due to the protection of privacy in digital work, but in the same time increased their exposure to domestic and digital violence. We would need to explore more how Covid-19 affected women who are members of minority groups, such as for example Roma women, and if availability of digital jobs and public services would decrease multidimensional discrimination they frequently face and provide them with more non-discriminatory access to services.

94

Madgavkar et al. (2020), pp. 2–3. UNPFA estimated 47 million women in 114 low- and middle-income countries are projected to be unable to use modern contraceptives due to COVID-19 lockdown, which might result in 7 million unwanted pregnancies in case of six month total lockdown, or 15 million unwanted pregnancies for 12-months full lockdown. UNFPA (2020). 95

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Availability of digital public services and health and social services might have impact on decreasing their exposure to prejudices and bias which often precludes them from the full access to their fundamental rights, including labour and social rights. Availability of home-schooling options might positively impact women of lower education attainment to increase literacy rate or education level, but under the precondition that digital equipment is provided to disadvantaged households. Senior women and women living in rural areas who were facing serious gender and age disparities on the labour market prior to COVID-19 might benefit from the protection of privacy offered by digital work at home as it provides protection from age discrimination (ageism), protection of privacy in a case of severe poverty, ability to work without additional travel costs or any other costs involved with outside work (such as clothes, food, etc.). Senior women and women living in rural areas benefit from the ability to work remotely at the places of their choice because they are able to organize their own work schedules and engage in additional home work (for example in agriculture for women in rural areas). In the same time, more attention must be paid to the provision of paid child and elderly care services in rural areas (often without those basic services) should we increase the participation of rural women in labour market. Digital jobs need to provide better social protection and full access to health and social insurance, both being of particular importance for seniors and women from rural areas.

7 Conclusion The introduction of digital work has brought the most profound changes to labour and social law so far. This was further exacerbated by the COVID-19 global health crisis when it was estimated that one third of the workforce became teleworkers almost overnight, involuntarily and without having the spatial and technological requirements to perform digital work from home. In the meantime, we need to focus on reducing female over-representation in poverty, part-time work, working from home and their share of family care and household duties and increase the currently low rates of female participation in decision-making and political structures, ICT and STEM education and professions in digital work. In order to achieve gender equality in digital work, we have to properly redress the disadvantaged position of women in five areas of digital work: the digital skills gap and the digital divide, the gender pay gap, digital work as a double burden of paid and unpaid work, the exclusion of social reproductive rights in platform work and the right to disconnect in the context of gender equality. We have to attend to the differences between male and female digital workers and facilitate the participation of women in the design and in the implementation of gender sensitive equality policies. The legal framework needs to reflect all the aspects of gender equality in digital work. It can then be hoped that in implementing the given legal measures, gender equality in all areas of digital work will be significantly increased.

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Conventions, Reports, Strategic Documents Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391–407, https:// eur-lex.europa.eu/legal-content/EN/TXT/?uri¼CELEX:12012P/TXT Consolidated version of the Treaty on European Union, OJ C 326, 26.10.2012, p. 13–390, https:// eur-lex.europa.eu/legal-content/EN/TXT/?uri¼celex%3A12012M%2FTXT. Convention on Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/31CRC/C/GC/18 Council of Europe Convention on preventing and combating violence against women and domestic violence from 2011 firmly establishes the link between achieving gender equality and the eradication of violence against women, Council of Europe. 2011. Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul Council of Europe Gender Equality Strategy 2018-2023, https://www.coe.int/en/web/ genderequality/gender-equality-strategy Council of Europe Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Rome, 4 December 2000. https://www.echr.coe.int/Documents/ Library_Collection_P12_ETS177E_ENG.pdf Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organization of working time, OJ L 299, 18.11.2003, p. 9–19, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼celex%3A32003L0088. Directive 2006/54/EC on equal opportunities and equal treatment of women and men in employment and occupation (recast), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼celex%3 A32006L0054 Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼celex%3A32010 L0018 Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, https://eur-lex. europa.eu/legal-content/EN/TXT/?uri¼celex%3A32010L0041

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Directive 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, https://eur-lex. europa.eu/legal-content/EN/TXT/?uri¼celex%3A32019L1158. Accessed 10 October 2021 Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri¼celex%3A31979L0007 Directive 92/85/EEC of 19 October 1992 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 (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼celex%3A31992 L0085 Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC - Annex: Framework agreement on part-time work, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼celex%3A31997L0081 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, Brussels, 14.11.2012 COM(2012) 614 final 2012/0299 (COD) https://eur-lex.europa.eu/legal-content/ EN/TXT/PDF/?uri¼CELEX:52012PC0614&from¼PT Eurofound (2017) Sixth European Working Conditions Survey, Overview Report, https://www. eurofound.europa.eu/publications/report/2016/working-conditions/sixth-european-workingconditions-survey-overview-report Eurofound and ILO (2017) Working Anytime, Anywhere: The Effects on the World of Work. Publications Office of the European Union and ILO, Luxembourg and Geneva European Commission (2020) A Union of Equality: Gender Equality Strategy 2020-2025, Brussels, 5.3.2020 COM 152 final European Economic and Social Committee (2021a) Teleworking and gender equality – conditions so that teleworking does not exacerbate the unequal distribution of unpaid care and domestic work between women and men and for it to be an engine for promoting gender equality, Exploratory opinion at the request of the Portuguese Presidency, Rapporteur: Angelova, M., Co-rapporteur: Koller, E. SOC/662, Brussels European Economic and Social Committee (2021b) Teleworking and gender equality European Institute for Gender Equality (EIGE) (2020) Digitalisation in the World of Work. https:// eige.europa.eu/gender-equality-index/thematic-focus/digitalisation European Parliament Resolution of 21 January 2021 with Recommendations to the Commission on the right to disconnect (2019/2181(INL) European Pillar of Social Rights. https://ec.europa.eu/info/strategy/priorities-2019-2024/economyworks-people/jobs-growth-and-investment/european-pillar-social-rights_en European Union, Compilations of case law on the equality of treatment between women and men and on non-discrimination in the European Union: https://op.europa.eu/en/search-results?p_p_ id¼eu_europa_publications_portlet_search_executor_SearchExecutorPortlet_INSTANCE_ q8EzsBteHybf&p_p_lifecycle¼1&p_p_state¼normal&language¼en&startRow¼1& resultsPerPage¼10&SEARCH_TYPE¼SIMILAR_DOCUMENTS&ORIGINAL_DOCU MENT_ID¼e8711e0f-767c-466e-9fae-325dd6d2544f.0002 Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul, 11. May 2011. Hyperwallet (2017) The Future of Gig Work is Female: A study on the behaviours and career aspirations of women in the gig economy, https://www.hyperwallet.com/app/uploads/HW_ The_Future_of_Gig_Work_is_Female.pdf? ILO Discrimination (Employment and Occupation). Convention No.111(1958) https://gsphub.eu/ conventions/Discrimination%20(Employment%20and%20Occupation)%20Convention,%201 958%20(No.%20111)#:~:text¼111)-,Discrimination%20(Employment%20and%20Occupa tion)%20Convention%2C%201958%20(No.,the%20protection%20of%20labour%20standards

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ILO Maternity Protection Convention No. 183 (2000). https://www.ilo.org/dyn/normlex/en/f? p¼NORMLEXPUB:55:0:::55:P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:REV, en,C183,/Document ILO Workers with Family Responsibilities Convention No. 156 (1981). https://www.ilo.org/dyn/ normlex/en/f?p¼NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C156 International Labour Office (ILO) (2019a) The Business Case for Change, Geneva. https://www.ilo. org/infostories/en-GB/Stories/Employment/beyond-the-glass-ceiling#conclusion International Labour Office (ILO) (2019b) Global Commission on the Future of Work. Work for a Brighter Future, Geneva, https://www.ilo.org/global/publications/books/WCMS_662410/lang %2D%2Den/index.htm International Labour Organization (ILO) (2016) Non-standard Employment around the World: Understanding Challenges, Shaping Prospects. ILO, Geneva International Labour Organization (ILO) (2018) Care Work and Care Jobs for the Future of Decent Work International Labour Organization (ILO) (2021) Working from Home: From Invisibility to Decent Work, Geneva International Labour Organization (ILO). Home Work Convention (No. 177). International Labour Organization (ILO). Recommendation (No. 184). OECD (2018) Bridging the Digital Gender Divide: Include, Upskill, Innovate, https://www.oecd. org/going-digital/bridging-the-digital-gender-divide-key-messages.pdf Montreal Principles on Women’s Economic, Social and Cultural Rights. 2004. 26 Human Rights Quarterly 760. United Nations General Assembly Human Rights Council (2009) Report of the independent expert on the question of human rights and extreme poverty, Magdalena Sepúlveda Carmona, A/HRC/ 11/9 27 United Nations (2015) Transforming our world: The 2030 Agenda for sustainable development (A/RES/70/1). UN General Assembly, New York, NY. https://sdgs.un.org/2030agenda UNFPA (2020) Impact of the COVID-19 Pandemic on Family Planning and Ending Gender-based Violence, Female Genital Mutilation and Child Marriage Pandemic threatens achievement of the Transformative Results committed to by UNFPA

Web sites BBC, https://www.bbc.com/worklife/article/20200303-how-sweden-is-fixing-the-houseworkgender-gap Belgium Voucher System, http://impact-phs.eu/national-practices/belgium-the-service-vouchersystem/ Eurostat. 2018. https://ec.europa.eu/eurostat/web/products-eurostat-news/-/DDN-20190621-1 Eurostat Information and Communications Technology, https://ec.europa.eu/eurostat/web/prod ucts-eurostat-news/-/EDN-20180425-1

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Helga Špadina is Associate Professor of Labour and Social Security Law at the University of Osijek (Croatia). She obtained her MA degree in 2005 at the University of Zagreb in European labour law and her PhD in 2015 in European migration law with thesis titled: “Labour Migrations of Third Country Nationals to the EU – Legal Framework, Issues and Perspectives.” She teaches courses on Social Policy, Labour and Social Security Law, Crisis Management Law, Refugee Law and Migrant Workers Rights in the EU at the Faculty of Law Osijek. Professor Špadina coordinated ERASMUS Strategic Partnership project INSPIRED and published 30+ scientific papers and book chapters. Prior to joining University, Professor Špadina gained working experience with the UN DPKO, UNHCR, IOM, UNODC, UNRWA, OHCHR and OSCE in South-East Europe and Middle East on human rights, refugee law, migration management and anti-human trafficking. She regularly provides consultancy services to the UN agencies, the European Commission and international organizations on labour migration, labour and social security law and social policy, gender equality and anti-discrimination law.

Gender Discrimination: Procedural Issues Between Procedural Autonomy, EU Provisions and Effectiveness of Judicial Protection Cettina Di Salvo

Contents 1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Gender Equality From a Procedural Viewpoint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Access to Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Multiple Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Legal Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract When we reflect on the strength of gender equality and antidiscrimination legislation in general our thoughts turn to the provisions of the substantive right rather than to those of procedural law. The relationship between protection of women’s rights and judicial procedures is not so immediate, as shown by the development itself of the EU law on gender equality. In fact, first Directives to remove discrimination based on sex in the fields of pay (75/117/ECC), employment (76/207/EEC), social security (79/7/EEC) and protection of pregnant workers (92/85/EEC), only required Member States to adopt into their legal system “such measures as are necessary to enable all person. . . to pursue their claims by judicial process”. From this starting point, crucial importance of procedural mechanisms to ensure gender equality emerged soon, in fact it is in the practical implementation of the rights conferred that any regulatory weaknesses or gaps appear, and as such impair the effective legal protection. Women affected by discrimination are in a weaker position in legal proceedings against the abuser, especially if the perpetrator of unlawful discrimination is their employer. It is absolutely necessary to enforce appropriate procedural rules, aimed at achieving equality of conditions in civil proceedings in order to facilitate the legal protection of the right to equal treatment between men and women. This is evidenced C. Di Salvo (*) Independent researcher, Catania, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_10

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by the case law of the EU Court of Justice (CJEU) addressing a variety of procedural issues arising from proceedings before national courts, despite the initial absence in the directives as regards rules on procedure and the principle of procedural autonomy of the EU Member States. As a result of the Court’s rulings, the existing directives on equal treatment for men and women contain certain rules on, legal standing, burden of proof, sanctions and remedies. The paper is designed with intention to provide an overview of procedural provisions laid down in Directives 2006/54/EC and 2004/113/EC, reflecting on procedural measures which may be taken or interpretation which may be given in order to increase the effectiveness of equality right.

1 Preliminary Remarks Despite a vaste number of provisions at international, European and national level, setting up a body of law aimed at achieving the principle of equality between men and women and eliminating gender discrimination,1 as well as the numerous rulings of the European Court of Human Rights (EctHR)2 and the European Court of Justice (CJEU),3 promotion of gender equality is still a daunting task for all Member States. In her capacity as President of the European Commission, Ursula von der Leyen, has pointed out “Gender equality is a core principle of the European Union, but it is not yet a reality”.4 With regard to the provisions on procedure laid down in EU law, from the first directives on equal treatment in employment and occupational social security schemes,5 to the existing anti-discrimination directives, many steps have

1

The fundamental principle of equality between men and women provided for by Article 2 of the EC Treaty and now by Article 3, par. 3, TEU. In accordance with the aforesaid provision, the EU has to promote substantial equality between women and men. See, among others Fredman (2003), pp. 111–118. 2 Compilation of case law of the European Court of Human Rights on Gender Equality Issues, Gender Equality Division, DG II, 2019, https://rm.coe.int/compilation-echr-case-law-1-august-201 9/168096d977. 3 Compilation of caselaw on the equality of treatment between women and men and on non-discrimination in the European Union, 2010, European Commission. Directorate-General for Employment and Social Affairs, Union européenne, https://op.europa.eu/en/publication-detail/-/ publication/e8711e0f-767c-466e-9fae-325dd6d2544f. 4 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee and the Committee of the Regions. A Union of Equality: Gender Equality Strategy 2020-2025, Directorate-General for Justice and Consumers (European Commission), European Commission, 5.3.2020, https://op.europa.eu/en/publicationdetail/-/publication/4ed128c0-5ec5-11ea-b735-01aa75ed71a1/language-en. 5 Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ L 45, 19.2.1975, 19–20. The Directive is no longer in force. Council Directive 76/207/EEC of

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undoubtedly been taken to ensure effectively the prohibition of any discrimination against women. However, much remains to be done in order to assure effective legal protection.6 The paper is designed to examine the procedural norms contained in the current directives and undertake subsequent assessments of results achieved in terms of the effectiveness of the jurisdictional protection in cases of breach of the principle of gender equality. To this end, it may be worth starting off with some introductory remarks on the relationship between European law and national civil procedural law7 as well as with the link between the principle of equal treatment and procedures, and then look at the analysis of the provisions on access to justice of women discriminated against on grounds of sex, followed by an accurate reflection of the issue of multiple discrimination, legal standing, burden of proof and sanctions. Initially, European Community law did not have the impact on national procedural law even though the matter was within the competence of the Community and, hence, it was governed by the EU substantive law. However, with the progressive creation of the common market, increasing attention has been paid by the European institutions to rules applicable to civil litigation before the national courts of the Member States. In the view of promoting judicial cooperation between Member States on civil matters with cross-border implications, rules were thus adopted in the field of procedural law,8 such as on jurisdiction, evidence, recognition and enforcement of judgments in civil and commercial matters, as they were considered instrumental to the other Community freedoms and to the proper functioning of the common market.9 Moving away from the sole perspective of cross-border litigations, the EU legislator has started to lay down provisions with direct impact on national laws of civil procedure in relevant areas of EU law concerning, consumer protection, public procurement, intellectual property, environmental protection and infringement of competition law.

9 February 1976 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, OJ L 39, 14.2.1976, p. 40–42, no longer in force. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ L 6, 10.1.1979, 24–25, in force. 6 On this subject, see Wladash (2020), p. 235. 7 On this subject, among others, Biavati (2000), p. 717 ff. 8 It is worth noting that the notion of procedural law has to be understood in a broad sense, on this point Galetta (2010), p. 2. 9 On the development of the EU competence in the field of civil procedural law, see Gascón Inchausti (2018), p. 16, who observes that “the European Union allows for the fact that a wellfunctioning legal system is a factor of stability and economic growth, which contributes to the better development of the single market. However, the EU has clearly chosen not to abide by it in its legislative action, as evidenced by its effective exercise of regulatory powers that are categorically unrelated to the strictly patrimonial and/or commercial field” (author’s translation); see also Alonso García (2014), p. 104 ff.

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In the meanwhile the CJEU has developed in its case law the so-called principle of national procedural autonomy” of Member States.10 According to the CJEU’s jurisprudence the national legal orders, in the absence of Community procedural rules, may choose the procedural conditions and the rules applicable to disputes inteded to protect the rights which individuals derive directly from Community law.11 However, the Court identifies two limits to the procedural autonomy of the Member States: the principles of equivalence and effectiveness.12 The first principle requires that the domestic procedural rules must not be less favourable than those governing similar domestic actions.13 The second requires that procedural conditions laid down by domestic law must not render impossible in practice or excessively difficult the exercise of rights conferred by Community (EU) law, “which the national courts are obliged to protect”.14 Thus, although every Member State is entitled to choose the means, and to determine the rules of procedure governing actions, aimed at ensuring the rights granted by EU law, those rules must be designed in such a way as to comply with the conditions laid down by the CJEU. Furthermore, the principles mentioned above, in particular that relating to effectiveness, have started to affect individual national procedural laws and to act as a parameter for determining the minimum standards of fair judicial protection in accordance with the EU law.15 As a matter of fact, there have been significant interventions on the domestic civil procedural systems by the EU legislator and the jurisprudence of the CJEU, the latter in the context of the preliminary ruling under Article 267 TFEU (234 TEC), which gave rise to deep scrutiny of existing domestic procedural provisions.16 Against the backdrop of its

10

See, among others, Galetta (2010), passim; Gascón Inchausti (2018), passim; Hoskins (1996), p. 365 ff.; Prechal (1998), p. 681 ff.; Arnull (2020), p. 681 ff. Some authors criticise the existence of procedural autonomy, see Kakouris (1997), p. 1389 ff. 11 See, judgment of the CJEU of 16 December 1976, Case 33/76, Rewe- Zentral AG v Landwirtschaftskammer für das Saarland, European Court reports 1976, p. 1989, para. 5. In the same vein, Court of Justice, Comet BV-Produktschap voor Siergewassen, Judgment of 16 December 1976, Case 45/76, Reports 1976, p. 2043, para. 12 to 16; Commission of the European Communities v Italian Republic, Judgment of 24 March 1988, Case 104/86, Reports p. 1799, para 7; Francovich and Others v Italian Republic, Judgment of 19 November 1991, Joined cases C-6/90 and C-9/90, Reports 1991 p. 5357, para. 43. 12 For an interesting analysis of the most important CJEU’s jurisprudence on the national procedural autonomy, Galetta (2010), p. 33 ff. 13 Rewe, para. 5; see also Judgment of the Court of 16 December 1976 and Judgment of 1 December 1998, concerning remuneration rates not paid by reason of discrimination on grounds of sex, C-45/ 76, Comet v Produktschap voor Siergewassen [1976] ECR 2043, paras. 13 and 16; C-326/96, B.S. Levez v T.H. Jennings (Harlow Pools) Lt, para 18. 14 Rewe, para. 5. The Court of Justice has regularly reiterated the reasoning expressed in Rewe, see for instance C-432/05, Ltd e Unibet (International) Ltd c. Justitiekanslern, 13 march 2007, para. 44. 15 Biavati (1999), p. 399 ff. 16 With regard to the impact of CJEU jurisprudence on the Spanish civil procedural system see, among others, Serrano Masip (2016), pp. 5–32; Gascón Inchausti (2018), p. 12; Nieva Fenoll (2020), pp. 183–201; with regard to the Italian civil procedural system, Carratta (2015), p. 1400 ff.

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increasing influence, it should be considered the role played by the principle of effective judicial protection as incorporated into Article 19, para. 1 TEU and then enshrined in Article 47 of the Charter of Fundamental Rights of the EU (which corresponds to Articles 6 and 13 of the European Convention on Human Rights).

2 Gender Equality From a Procedural Viewpoint The increasing attention drawn to the remedies and procedural measures, put in place by national legislations in relation to the judicial protection of rights conferred by Community law, is reflected in the evolution of anti-discrimination legislation. That is precisely in the area of equal treatment between men and women, employment and social security, that a path be identified. This path is characterized by the initial absence of procedural rules in the first EU directives,17 followed by the rulings of the CJEU on procedural issues and then by the subsequent interventions by European legislator, who has also integrated the relevant jurisprudence of the CJEU into the new directives. In fact, even a cursory look at the directives, no longer in force, on equal treatment of men and women, namely directives 75/117/EEC on equal pay, 76/207/EEC on access to employment, vocational training and promotion, and working conditions, 79/7/EEC in matters of social security, clearly shows that the Community legislator confined itself to imposing an obligation on Member States to introduce into their national legal systems judicial remedies in order to enable all persons who consider themselves victims of discrimination “to pursue their claims by judicial process”.18 However, starting from this provision (common to the above-mentioned directives) and, in particular, from Article 6 of Directive 79/7, the CJEU, has been playing a key role through its control over Member States laws (in response to references for preliminary rulings), in the gradual improvement of procedure and remedies for gender discrimination provided by national legal systems. More specifically, the procedural rulings emerging from the Court’s judgments were related to the core issue that domestic procedural rules applicable before national courts can affect the effectiveness of the substantive rights conferred by the directives prohibiting discrimination on grounds of sex in areas such as employment and social security.19

17

See Arnull (2011), p. 64. See Article 2 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women; Articles 6 e 7 of the Council Directive 76/207/EEC of 9 February 1976 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; Article 6 of Council Directive 79/7/ EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. 19 See Judgment of the CJEU of 15 May 1986, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, case 222/8414, ECLI:EU:C:1986:206, paras. 17-20, where in relation to the 18

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In this respect, it has been noted that initially the CJEU in the field of gender equality privileged the effectiveness rather than national procedural autonomy.20 Thus, for example, in the judgment Von Colson (10 April 1984)21 the CJEU does not make any reference to the national procedural autonomy and the requirements of practical impossibility and equivalence,22 but it takes the view that Member States have to take the measures in order to achieve the objective of directive 76/207/EEC (that is to put into effect the principle of equal treatment for men and women). Moreover, it stated that those measures must be sufficiently effective in achieving this objective and ensuring “that may in fact be relied on before the national courts by the persons concerned”. Following this reasoning, the Court ruled that where Member States choose to penalize the breach of the prohibition of discrimination, the sanction has “to guarantee real and effective judicial protection. Moreover it must also have a real deterrent effect on the employer”.23 Along the path of strengthening the access to justice and judicial protection against discrimination based on sex, the CJEU in its judgment of 15 May 1986 (Johnston) referred expressly to articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights (ECHR) and, while underlining the status of the principle of effective judicial protection as general principle, held that persons affected by discrimination must have an effective judicial remedy before the competent national courts.24 And it is precisely from the perspective of the effective judicial protection, that the provisions contained in the gender equality directives currently in force, must be read and interpreted, as well the national procedural rules applying in legal proceedings intended to safeguard the principle of equal treatment for men and women, which is a fundamental principle of the European Union and a fundamental human right. The importance of procedural rules has been highlighted in recitals 28–29 of the Gender Equality Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of provision on evidence laid down in the Sex Discrimination Order (Northern Ireland) the Court pointed out that Member States must take measures “sufficiently effective to achieve the aim of the directive and that they must ensure that the rights thus conferred may be effectively relied upon before the national courts by the persons concerned equality between women and men in the workplace”. The Court therefore holds that Article 53 of the Sex Discrimination Order is contrary to the principle of effective judicial control laid down in Article 6 of the directive 76/207/EEC, which “does not allow a certificate issued by a national authority stating that the conditions for derogating from the principle of equal treatment for men and women for the purposes of protecting public safety are satisfied to be treated as conclusive evidence so as to exclude the exercise of any power of review by the courts”. 20 Kilpatrick (2001), p. 149 ff. 21 Case 14/83, Von Colson and Kamann v Land Nordrhein, (CJEU 10 April 1984), paras. 15–18. 22 Kilpatrick (2001), p. 150. 23 Von Colson and Kamann v Land Nordrhein, para. 23. 24 Case 222/8414, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, paras. 17–19.

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employment and occupation (recast). The aforesaid Directive provides that the duty imposed on Member States to put in place appropriate and adequate judicial or administrative procedures is required for the effective implementation of the principle of equal treatment. It has to be considered, moreover, that individuals who wish to complain about alleged discrimination often face difficulties accessing judicial protection mechanisms and/or accessing evidence. Victims of discrimination, indeed, are in a weaker position in proceedings against the perpetrator of the discrimination or harassment, especially if the alleged perpetrator is their employer, which might lead to their renouncing the possibility to complain and initiate legal proceedings. Adequate procedural rules, governing legal proceedings aimed at enforcing compliance with the principle of equal opportunities and equal treatment for women and men in matters of work and employment (as well as in matters of social security, access to goods and services), are therefore required, in order to strengthen the claimant’s position, such as rules on legal aid, time limits, legal standing, burden of proof, provisional measures (to ensure the effectiveness of the national court’s final judgment)25 and sanctions. The effective implementation across the EU of the principle of equal treatment on grounds of sex (and on any ground covered by the EU law) requires procedural standards in national proceedings, in order to ensure in practice the individual’s right to bring legal action in case of infringement of the aforesaid principle, to be able to defend properly own right before the court and to achieve proper enforcement of the judgment, otherwise the right to non-discrimination under EU law would lose its purpose.

3 Access to Justice Access to justice for individuals who feel they have been discriminated against on the grounds of their gender is a crucial and critical point. In fact, although the Member States, as well the EU accession countries, have put in place judicial and/or administrative procedures to enforce compliance with the principle of gender equality, there are still barriers in accessing legal protection,26 what could explain the limited number of cases brought to justice compared with the widespread forms of discrimination against women in the context of workplace, including recruitment, hiring, promotion, remuneration, sexual harassment, dismissal based on pregnancy or maternity leave. Various reasons can be identified in this regard. First of all, 25 See case Unibet, C-432/05, Ltd e Unibet (International) Ltd c. Justitiekanslern, para. 67, where the CJEU held that the national courts “must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law”; see also Judgment of the Court of 19 June 1990, Factortame Ltd and others, C-213/89, para. 21. 26 In this regard, see the report conducted by the European Union Agency for Fundamental Rights, Access to justice in cases of discrimination in the EU. Steps to further equality, 2012.

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women are still in a disadvantaged position in the labour market, which often leads to them accepting a less favourable treatment; this certainly requires a culture change and combating persistent gender stereotypes through unified and concrete actions, both at national and European level, aimed at promoting gender-sensitive civic awareness. Indeed, promoting gender sensitivity will contribute, on the one hand, to reduce barriers to recruitment, retention, career progression in the workplace as well as unconscious biases, and thus the need for legal proceedings, on the other hand, will enable women to recognise any discriminatory treatment or conduct as unlawful. It should also be taken into consideration that women are not always aware of their rights and the court proceedings designed to ensure their protection. This is also due to the fact that the legislative framework is fragmented and in some cases national laws are not easily comprehensible, which entails difficulties both in accessing information on legal rights and on how to protect them. Bearing in mind that the access to justice is enshrined in Articles 6 and 13 of the European Convention on Human Rights27 and Article 47 of the EU Charter of Fundamental Rights, which guarantee the right to a fair trial and to an effective remedy, and the access to justice has to be protected by Member States in practice, it appears necessary to ensure sufficient clarity to the legislation.28 In the same perspective, procedures should not be unnecessarily complicated. The same goes for rigid rules of procedures or excessive formality. We should bear in mind that in some domestic legal systems a party can represent themself in court in the case of discrimination.29

27 Although Article 6 ECHR does not expressly state the right of access to justice, according to wellestablished case law of the European Court of Human Rights since the Case of Golder v. the United Kingdom (EctHR, 21 February 1975, Application no. 4451/70), it is deemed to be an element which is inherent in the right to a fair trial, stated by Article 6 para. 1. In that regard, the Court considers that “Article 6 para. 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 (art. 6-1) as regards both the organisation and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing” (para. 36). 28 In this sense, see for instance judgment of 16 December 1992, De Geouffre de la Pradelle v France, 12964/87, where the Strasbourg Court stated that if the law governing the access to court is not sufficiently coherent and clear, the access to justice cannot be regarded as effective (paras. 33–34). 29 Under the Italian law, pursuant to Article 28 of the Legislative Decree 150/2011, the legal representation by a lawyer in civil proceedings concerning discrimination is not compulsory, litigants can bring a court action by themselves, see footnote 40. According to the Greek law, as a general rule, the action must be brought by a lawyer. However, there are certain procedures, e.g. provisional remedies, minor disputes, labour disputes, in which a person may appear on their own behalf. In the Spanish legal system, according to Article 31 of the Spanish Code of Civil Procedure, as a general rule the litigants shall be counselled by lawyers, except where the claim does not exceed 2.000 euros or where a party applies for urgent measures prior to initiating legal proceedings.

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Effective access to justice requires more information to citizens about rights to equality of opportunity and treatment, including legal advice, information about legal costs and how to receive legal aid (which may cover both assistance by a lawyer and payment of court fees).30 The first step in improving access to justice is raising the awareness among women about their rights and about how to uphold those rights. To this end, it is certainly very important the activity of equality bodies, trade unions, and NGOs which offer legal advice and assistence to persons who have been discriminated against, as well as academic institutions can contribute significantly to improving access to justice by setting up gender equality legal clinics, which can promote gender-sensivity and provide free assistence on gender equality issues. There are also additional factors that can put obstacles in the way of effective access to justice, such as economic, language, physical barriers for women with disabilities, geographic for those who live in remote areas, which require further reflections on how overcome them and prompt actions from the Member States.31 As regards the economic factor, given that all persons who can prove that they do not have sufficient means are entitled to legal aid to cover costs of the legal proceedings, it is essential that appropriate level of legal aid be guaranteed. Furthermore, some reflection should also be made on the rules concerning cost recovery which can discourage the decision to initiate legal proceedings. For instance, according to a domestic rule for paying the legal costs (not always the standard rule in the Member States), the party that loses the case must cover the expenses of the counterparty. This implies that the applicant has to accept the risk of covering legal costs if he will lose the dispute.32 With a view to providing better protection of fundamental rights and to improving access to women’s justice, a different rule such as a rule providing that the loser claimant has to pay the costs only if they acted in a manifestly unreasonable way by bringing the case, or a rule on the exemption from the court fees, particularly in the field of employment, might facilitate the access.

3.1

Multiple Discrimination

Finally, a brief reflection should be given to access to justice for women discriminated against on more than one ground. The issue of multiple discrimination is taken into account from the angle of women in recitals (14) and (3) of the Race Equality

30

On legal aid, see EctHR Airey v. Ireland, 9 october 1979. The UN Committee on the Elimination of Discrimination against women (CEDAW) on 23 July 2015 has adopted a general recommendation on women’s access to justice. 32 On the other hand, the rule according to which the party, even if they win a case, they are under a legal obligation to pay court costs and lawyer’s fees, can prevent from taking legal action, in particular in case of small claims litigation. 31

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Directive 2000/43/EC and the Equality Framework Directive 2000/78/EC33 stating that “In implementing the principle of equal treatment, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination”. Women, in fact, besides the possibility of being subjected to discrimination because their gender, may be more likely to face violations of their rights due to additional conditions of vulnerability, such as belonging to a religious or racial/ethic minority or having a disability. Despite the awareness of the widespread problem the EU legislator has not yet provided a definition of multiple discrimination and has not adopted any legal provision aimed at combating it;34 as a result of this lack at European level, the Member States are not bound by any obligation to ensure a judicial instrument ad hoc in order to provide effective protection from this form of discrimination. In this regard, it would be necessary to take into account the specific features of the procedure, such as the features associated with the way of proving multiple or intersectional discrimination. For example, has the claimant established facts from which it may be presumed that there has been direct or indirect discrimination in relation to all the grounds involved? We should also take into consideration the use of comparators in order to prove discriminatory treatment or act (e.g. is it necessary to refer to a single comparator for each ground or to multiple comparators?)35 and the different exceptions related to the grounds for discrimination. It is worth noting that the CJEU, albeit aware of the issue, as it appears in some judgments,36 has not provided constructive interpretation on the matter, as well as the ECtHR.37 Hence, in the absence of a specific procedure to deal with situations of multiple and intersectional discrimination38 provided by domestic laws and

33

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L180/22; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L303/16. 34 In this regard, among others, Xenedis (2018), p. 41 ff. 35 On the possible ways to use comparators in intersectional claims, see Atrey (2018), p. 379 ff.; Fredman (2016), pp. 139–145. 36 Case C-443/15, David L. Parris v. Trinity College Dublin and Others, judgment of 24 November 2016, ECLI:EU:C:2016:897, Opinion of AG Kokott, ECLI:EU:C:2016:493, paras. 149-151. For an overview of the cases invoking multiple discrimination brough before the Court of Justice, Xenedis (2018), p. 60. 37 Aware of the issue of multiple and intersectional discrimination, even where those terms are absent. See e.g., ECtHR, case 29518/10, N.B. v. Slovakia, 12 june 2012; case 47159/08, B. S. v. Spain, 24 July 2012; case 43835/11, S.A.S. v. France, 1 July 2014; case 17484/15, Carvalho Pinto de Sousa Morais v. Portugal, 25 July 2017. 38 The term “Intersectional discrimination” refers to “a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable”, see FRA (2018) Handbook on European non-discrimination law, 60.

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jurisprudential interpretation by the Court of Luxembourg, there are two ways ahead, both unsatisfactory and highly dubious in terms of effectiveness of legal protection. First, the person who wishes to bring a claim has to select the ground of discrimination that considers prevailing or more favourable in terms of obtaining legal redress or re-establishing equal treatment (for example, a female worker with a disability who feels discriminated has to pick a ground of gender or disability and to proceed for the breach of the principle of non-discrimination on the basis of the chosen ground), without raising all aspects involved in the discrimination. This single ground approach obviously does not allow to grasp fully the breach of equality law resulting from the combination of different factors and to protect adequately the victim for the disadvantages suffered. Second, such person can pursue the proceedings across all the grounds involved. This means the resort to rules on connected cases, which are not often simple; therefore, in addition to the difficulties mentioned above with regard to the burden of proof, comparator, etc., there may be complications, among others, related to the different procedural rules which can govern the litigation on the ground of gender or disability (or other risk factors such as race, ethnic origin, religion, age), as it is the case, for example, of Italy where litigation concerning sex discrimination is subject to a procedural model different from that envisaged for cases relating to discrimination on other grounds. From these brief considerations it is clear that, in order to ensure effectiveness of the fundamental right of gender equality and the right to legal protection, national legal systems should tackle the problem of discrimination for more reasons linked to personal characteristics and should offer adequate judicial procedures for this particularly complex form of discrimination,39 in such a way that the complainant can raise easily all grounds determing the unequal treatment. Legislative action at European level, starting from a definition of the phenomenon, would certainly contribute to encouraging the Member States to deal with it.40

39 The Italian law contains an implicit reference to multiple discrimination in Article 1 of the Legislative Decree 216/2003, implemented Directive 2000/78, which provides that the decree ‘lays down the provisions relating to the implementation of equal treatment between persons irrespective of religion or belief, disability, age, or sexual orientation, as regards employment and occupation, establishing the necessary measures to ensure that there is no discrimination on those grounds, taking account also of the different consequences that those forms of discrimination may have for women and men’. The Legislative Decree 215/2003, transposing Directive 2000/43, in a similar way, stated that the Decree has been adopted ‘in a perspective that takes into account the different impact that the same forms of discrimination can have on men and women respectively’. 40 In order to tackle the problem of multiple discrimination, a considerable amount of reports and research studies have been conducted, among others, Bielefeldt (2007); European Union Agency for Fundamental Rights FRA (2011), Data in Focus Report-Multiple Discrimination European; European Union Agency for Fundamental Rights FRA (2018), Inequalities and multiple discrimination in access to and quality of healthcare; Hudson (2012); Fredman (2016); Crowley (2016); Kim et al. (2020), pp. 715–737.

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4 Legal Standing In accordance with the general rule of civil procedure, any person who believes that he/she has been the victim of harassment or discriminated against on the basis of sex can take a legal action before the court or other competent authority. The discriminated person can represent himself/herself in court without legal representation, where national law so provides,41 or can be represented by a lawyer. The EU legislator has provided, in the Directive 2004/113/EC on access to and supply of goods and services42 and in the Recast Directive 2006/54/EC,43 that associations, organisations and other legal entities, which have a legitimate interest (in accordance with the criteria enshrined in their respective national law) in ensuring the compliance with these Directives, are entitled to engage in legal proceedings either on behalf or in support of claimant44 against the perpetrator of the discriminatory act or conduct. This provision has been adopted with a view to improving access to justice and the level of protection in matters of equality between men and women.45 The participation of organisations in judicial proceedings, such as trade unions, equality bodies, NGOs and associations actively engaged in gender equality, represent a key element in ensuring better access to justice and guaranteeing effective implementation of EU non-discrimination law. Indeed, these legal entities can enhance the access to justice due to their legal support and assistance. As a matter of fact, people who suffered discrimination in some cases do not want to take court action as they feel to be in a weak position or they fear negative consequences in the employment relationship, for reasons of money (victims have 41

For example, according the Italian anti-discrimination law (Article 28 of Legislative Decree 150/2011), legal representation is not compulsory for proceedings at first instance concerning discrimination based on sex in access to and the supply of goods and services, within the field of employment for discrimination based on religion and belief, sexual orientation, disability, age, race and ethnic origin in the fields covered by Directive 2000/43/EC. Whereas representation by a lawyer is mandatory in discrimination litigation on the ground of sex in matters of employment and occupation. It is a legal discrepancy, from my point of view, due to the proliferation of laws on discrimination over the years and their lack of coordination. 42 Article 8.3, Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373, 21.12.2004, 37–41. 43 Article 17.2, Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L204, 26.7.2006, 23–36. 44 Associations may engage in proceedings in the name of a complainant against the alleged perpetrator of discrimination (in this case, they must be authorized by the victim), or may participate and support the victim as third part to asafeguard the interests of the victim. The cessation of discriminatory act or behaviour is in their interest since they have the purpose to promote and protect the principle of equality with reference to factors which can be a source of discrimination. 45 The same provision is contained in the Directive 2010/41/EU (Article 9.2) of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, OJ L 180, 15.7.2010, 1–6.

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to bear the cost of bringing a lawsuit and the financial risks linked to the ‘loser pays principle’, which is applied in most Member States). Such assessments could lead the victims to renounce to the initiation of proceedings, with the further consequence that the perpetrator of that discrimination can continue to behave in the same discriminatory way. In the path aimed at improving effective application of the principles of equality of treatment and non-discrimination through appropriate procedural tools, the Court of Justice has taken one more step regarding the legal standing of associations/legal entities in civil proceedings involving discrimination. The CJEU recognizes that these subjects representing collective interests are entitled to bring actions in response to an act or behaviour that does not respect equality of treatment, without acting in the name of a specific complainant. Thus, when discrimination concerns a group of people whose members are not identified or identifiable in a direct and immediate way, associations can institute proceedings before national courts.46 For example, an employer declares that they will not recruit in their company female workers because they are more often absent from work than men, in such case although there are not concrete victims the statement constitutes discrimination, because it has the effect to dissuade women from applying for a job in that company. In particular, in that regard the CJEU in Feryn47 ruled that an employer who “declares publicly that it will not recruit employees of a certain ethnic or racial background origin” is an example of direct discrimination, even if there is no identifiable victim-complainant. The CJEU found that this speach dissuaded “certain candidates from submitting their candidature”, and in that way accordingly, it hindered “their access to the labour market”. More recently, in the judgment of 3 April 2020, C-507/1848 concerning discrimination in employment on grounds of sexual orientation, the CJEU ruled that directive 2000/78 does not preclude national legislation under which an association of lawyers, whose objective is the legal protection of persons who have in common a certain sexual orientation and promotion of culture and respect for the rights of such category of persons, is automatically entitled to bring legal proceedings.

The same procedural mechanism works in the field of consumer protection. The Italian Consumer Code (Legislative Decree 6 September 2005 n. 206) allows consumer associations most representative at national level, bring claims, even where a victim cannot be identified. See Di Salvo (2011). 47 Centrum voor gelijkheid van kansen en voor racismebestrijding vs Firma Feryn NV, C-54/ 07, ECLI:EU:C:2008:397. See also Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării, C-81/12, 25 April 2013, EU:C:2013:275, paras. 62–63. 48 NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford, C-507/18, ECLI:EU:C:2020: 289. The case concerns statements made in a radio programme by a well-known Italian lawyer, who declared that he would never employ a homosexual person in his law firm, and specifying that he makes “a careful selection to make sure that this does not happen”. Therefore, the association “Advocacy for LGBTI rights” sued the lawyer for discrimination, and it won the case both at the Court of first instance and at the Court of appeal. In the view of the Italian Court, the appellant expressed, publicly, a discriminatory recruitment policy and they are statements which can dissuade candidates, belonging to the category of persons, from submitting their candidacy to his law firm and that certainly impeded access to employment or made it more difficult. 46

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Additionally, it should be noted that irrespective of whether it is a profit organization, legal action can be taken to enforce obligations under that directive and, where appropriate, to receive compensation. One important aspect emerging from this ruling is that associations representing a collective interest which act on their own behalf, without a specific victim to support or represent, may claim damages for infringement of EU provisions which aim to ensure equality of treatment. Bearing in mind that discrimination and inequalities is a phenomenon that affects society as a whole, the possibility to impose pecuniary sanctions will contribute to strengthening the enforcement of the principle of equality, by discouraging further discriminatory behaviour.

5 Burden of Proof According to the general rule concerning the burden of proof in civil or labour law proceedings, the party who brings a court action has to adduce evidence that the differential treatment was based on a personal characteristic (such as sex) and has to produce evidence in support of the sustained facts. This is a central rule in civil procedure. However, the first cases of sex discrimination, brought before the CJEU for a preliminary ruling, pointed to the claimants’ difficulties proving that the unequal treatment or situation has been based on the victim’s gender, as well as the need for rules of evidence more favourable to them.49 Difficulties arise for victims of direct discrimination but even more for victims of indirect discrimination. The claimant, in fact, should demonstrate that they have been treated less favourably on the grounds of sex, giving evidence of preferential treatment received by the other individual who is not of the same gender. Considerable difficulties are encountered in accessing evidence, since usually the perpetrator of the discrimination has information showing the reason for unlawful treatment.50 For example, a woman who believes that she has received a lower salary than her male colleague, doing equal work or work of equal value, will not get an easy access to his pay and conditions, or to the mechanism which produces unequal pay, such as a monthly salary supplement not displayed in the contract.

49

Di Salvo (2016), p. 225 ff. In the Case C-381/99, Brunnhofer v. Bank der österreichischen Postsparkasse AG, judgment of 26 june, 2001, ECLI:EU:C:2001:171, with regard to a differential pay the CJEU ruled that “a difference in pay is capable of being justified by circumstances not taken into consideration under the collective agreement applicable to the employees concerned, provided that they constitute objective reasons unrelated to any discrimination based on sex and in conformity with the principle of proportionality”. However, the different pay awarded “for the same work on the basis of factors such as the particular aptitude of a given worker cannot be justified by factors which become known only after the employees concerned take up their duties”. 50

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Relevant decisions of the CJEU, mainly in the field of equal pay women-men, recognised that proving discrimination could be particularly onerous. Thus, in the case Danfoss51 the Court stated that Member States have to take the measures necessary to comply with the principle of equal pay. Furthermore, the Court underlined that the concern about effectiveness “must be interpreted as implying adjustments to national rules on the burden of proof in special cases where such adjustments are necessary for the effective implementation of the principle of equality”. In Enderby it has been determined that the principle of equal treatment can be applied effectively, only the rules on the burden of proof are adapted when there is a prima facie case of discrimination, shifting the onus to the employer, who has to demonstrate that the difference in earnings between men and women is not discriminatory because there are objective reasons for such difference in pay. Thus where “significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men”.52 The significant Court’s judgements have led to the adoption of the Directive 97/80/EC which dealt with the issue of the onus probabandi in cases of discrimination based on sex53 This directive established that EU Member States have to take necessary measures to ensure that, when persons claiming to be victims of discrimination can establish, before a court or other competent authority, facts from which it may be deduced that direct or indirect discrimination took place. It lies with the respondent to prove that there has been no breach of the principle of equal treatment (Article 4).54 The defendant, in fact, is often in a procedural stronger position, especially if they are an employer, because he disposes a monopoly of information and they can usually takes advantage of the reluctance of witnesses. The rule on the burden of proof is henceforth laid down in the Directive 2006/54/ EC on the equal treatment of men and women (recast), as well as in all EU equality directives. Pursuant to Article 19 the procedural facilitation for the claimant who states only certain elements from which it may be presumed that a discriminatory situation has occurred, while the alleged author of discrimination must prove that there was no violation of the principle of non discrimination, otherwise they will be liable for the breach of non-discrimination law.55 This implies that the respondent, while proving their defence, has to rebut the presumption by providing contrary 51 Case 109/88, Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss, judgment of 17 october 1989, ECLI:EU: C:1989:383, p. 3199, paras. 13–14. 52 Case C-127/92, Dr. Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health, judgment of the Court of 27 October 1993, ECLI:EU:C:1993:859, p. 535, para. 19. 53 Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, OJ L 014, 20.1.1998, pp. 6–8. 54 On the proof of discrimination in EU directives, see Ormazabal Sánchez (2011), p. 77. 55 The rule shall not applied to proceedings in which it is for the court or other competent national body to investigate the facts.

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proof or giving objective reasons for the different treatment.56 However, it should be emphasized that the shift of the burden of proof to the defendant does not translate into a full exemption of giving proof for the person who believes to be a victim of unequal treatment. In fact, the claimant, has to prove the factual evidence from which it can be presumed that an unjustified differential treatment took place. As outlined in recital (30) of the Recast directive “the appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination remains a matter for the relevant national body in accordance with national law or practice”. The correct application of the rule on the allocation of the burden of proof between the applicant and defendant is a key issue for the effective implementation of the principle of equal treatment between men and women, closely connected to the access to justice, as real and not merely theoretical right. In this perspective, indeed, the rule represents a concrete response to the need to strengthen the protection of persons that have suffered discrimination who find more difficult to obtain the evidence necessary to prove the unequal treatment based on sex.57 As the CJEU emphasised, in the event that a system of individual pay supplements, which is totally lacking in transparency, female employees can prove differences only in terms of average pay for women and men. Therefore “they would be deprived of any effective means of enforcing the principle of equal pay before national courts if the effect of adducing such evidence” was not to place on the employer the burden of proving that his practice in the matter of wages is not discriminatory.58 However, bearing in mind the fact that for the Member States it is the determination of what constitutes a prima facie case of direct or indirect discrimination or, put differently, of what “level” of prima facie case of discrimination is required by national courts in accordance with national provisions or practices, the adoption of the rule on the burden of proof could equally create a “hole” in the effective protection of the principle of equal treatment. In fact, where national courts require, as sufficient prima facie, “precise” and “consistent” presumptions of discrimination (which are not always available to support the claim) adduced by the claimant,59 they

56

Over the years, the Court of Justice, through request for a preliminary ruling under Article 267 TFEU, issued relevant judgments relating to the burden of proof; see Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, C. 54/07, where it was stated that a public statement by an employer, who declares that he will not recruit employees of a certain ethnic or racial origin, may constitute a presumption of existence of discriminatory recruitment policy. The Court observed that, in accordance with EU provisions, the employer has to adduce evidence to the contrary that it has not breached the principle of equal treatment, which can be done, inter alia, by showing that the actual recruitment practice of the company does not correspond to the statement. See also, Bundesarbeitsgericht (Germany) lodged on 20 August 2010 - Galina Meister v Speech Design Carrier Systems C-415/10; Kelly v National University of Ireland (C-104/10), Asociaţia ACCEPT contro Consiliul Naţional pentru Combaterea Discriminării (C-81/12). 57 See the report by Farkas (2014). 58 Case 109/88, Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss, para. 13. 59 That is the level of prima facie case of discrimination required by the Italian courts. In this sense, the recent decision of the italian Supreme Court of Cassation concerning a case of discrimination

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have effectively weakened the rule in the practical application, depriving the interested party of the possibility to enforce the principle of equal treatment. For example, if a female worker who considers herself to be a victim of indirect discrimination for alleged demotion after the return from her maternity leave, how can she be able to adduce in proceedings “precise” and “consistent” evidence showing that business reorganisation (apparently neutral conduct) put her in a particular disadvantage compared to her male colleagues with the same qualifications? In addition, it should be considered that in case of indirect discrimination against women (more frequent form of discrimination) it is much more difficult to prove the adverse effects of a seemingly neutral measure. Here statistical evidence undoubtedly plays a crucial role. However, where there is a lack of gender equality data, it is more difficult to assess situations and prove the existence of gender discrimination. By way of example, a female worker has a fixed-term employment contract at university to whom is not offered the renewal of the same contract because according to University’s new policies other contract forms will be used, and her employment relationship thus terminates. It is a case of indirect discrimination on the grounds of gender because an apparently neutral provision (new employment’s policies) has the effect to place only women at a particular disadvantage compared with their male colleagues. How does the prima facie case of indirect discrimination work if there is a lack of gender equality data or other means?60 Relevant helpful clarification on how and by what means a person who considers herself to be wronged by indirect discrimination on grounds of sex can establish a prima facie case of discrimination in the event that statistical data are not available, or other means are difficult to access, were brought by the CJEU in the recent case Minoo Schuch-Ghannadan vs Medizinische Universität Wien.61 The case raised the question wheter measures which adversely affect part-time workers as compared with full-time workers are liable to put women at a particular disadvantage. With the view of ensuring that Article 19 of Directive 2006/54 has a practical effect, the Court ruled that the provision must be interpreted as not requiring the party to produce, in order to substantiate a prima facie case of discrimination, precise data or facts pertaining to workers concerned if such data are difficult to access or unavailable.62 Thus, in those circumstances to prove the case, the party can rely on general statistical data relating to the job market in the Member State concerned.

based on sex, Corte di Cassazione, Sezione Lavoro, in Order No 20253/2021 of 15th July 2021, according to which it is only when the plaintiff provides the court with precise and concordant facts showing the presumptions of discriminatory acts, agreements or conduct on the grounds of sex that the defendant has to prove that discrimination did not take place. 60 It should be noted that Gender Equality Plans (GEP) of unversities are valuable instruments both to promote gender balance in the field of research and to have data gender-sensitive collection in recruitment and career progression. 61 Case C-274/18, Judgment of the Court 3 October 2019. Minoo Schuch-Ghannadan vs Medizinische Universität Wien, OJ C, C/413, 09.12.2019. 62 See Minoo Schuch-Ghannadan vs Medizinische Universität Wien, paras 56–57.

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6 Sanctions Other relevant procedural issue, in the perspective of effective implementation of the principle of equal treatment between men and women and effective judicial protection, concerns the sanctions that may be imposed at the end of proceedings for the breach of the prohibition of sex discrimination.63 In this regard, in accordance with the settled case-law of the CJEU, Article 18 of Directive 2006/54/EC, entitled ‘Compensation or reparation’, requires Member States to introduce into their national legal systems such measures in order to ensure real and effective compensation or reparation for the loss and damage sustained by the person injured as a result of discrimination on grounds of sex. The provided compensation or reparation must be dissuasive and commensurate with the damage suffered and may not be restricted by the fixing a prior upper limit.64 Therefore, directive 2006/54/EC (as the previous Directive 76/207/EEC), in respect of a breach of the principle of equal treatment regarding access to employment, leaves Member States free to choose “between the different suitable solutions” in order to ensure that sanctions have a deterrent effect. The CJEU stated that “if a member state chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred”.65 As the Court has pointed out, in relation to actions brought by associations which do not act on behalf of specific victims of discrimination, the applicable sanctions must be effective and an award of compesation could apply even if there is not any identifiable injured party.66 An important issue is the enforcement of the judicial decisions in matter of discrimination based on sex when the perpetrator of the discrimination is obliged to perform an act which cannot be performed by third parties. So, a problem of its enforcement arises in case that him or her does not abide by the judgment. The

63

On the enforcement of judicial decisions concerning sex discrimination, see Judgment of the EctHR, 19 February 2013, Garcia Mateos v. Spain, no. 38285/09, where the Court found a violation of Article 6 in conjunction with Article 14 of the European Convention on Human Rights. 64 Similar provision is laid down in Article 8.2 of Directive 2004/113/EC on equal treatment between men and women in the access to and supply of goods and services, which states that “Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation, as the Member States so determine, for the loss and damage sustained by a person injured as a result of discrimination within the meaning of this Directive, in a way which is dissuasive and proportionate to the damage suffered. The fixing of a prior upper limit shall not restrict such compensation or reparation”. The previous Directive 76/207/EEC instead does not contain a provision corresponding to Article 18. 65 Von Colson, para. 28. 66 C-507/18, NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford, para. 64; C-81/12, Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării, paras. 63–64.

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question has been left to the discretion of the national legislator. Certainly, in the view of inducing the perpetrator to perform a specific act or behaviour, general measure of indirect coercion may seem suitable solution, where provided by national law. For istance Italian law provides in Article 614 bis of Civil Procedure Code, with regard to the obligation to perform a specific fungible or infungible act, that the Court must also order, upon request of a party, the payment of a fine in favour of the creditor. The judge fixes the amount of money due by the obligor for any violation or any subsequent non-compliance or for any delay in the measure. However, under article 614 bis indirect coercive measures to disputes regarding subordinate employment contract may not be used, as well as to contract for continuative and coordinated services.67 It means that in case the person was subject to unjustified different treatment in relation to conditions for access to employment, vocational training or working conditions, as regards both the public and private sectors, this measure can not be applied, creating a lack of protection.

7 Conclusions Effective protection against gender discrimination and its judicial prosecution requires, besides strong provisions, both substantive and procedural, at international, European and national level, active efforts by a wide range of actors from legislators, national equality bodies, academic institutions, civil society organizations, NGOs and national judges. Precisely, national judges, that are ‘first judges of European law’, should play an essential role in improving the effectiveness of the EU antidiscrimination legislation. They, in fact, can observe how gender equality law works in practice, pinpoint any weaknesses or lack of national procedural rules applying in anti-discrimination cases which may have an adverse impact on the effective judicial protection and encourage changes to those rules. From a European perspective, as it has been consistently held by the CJEU, national judges are duty-bound to interpret domestic rules according to the EU procedural standards, or rather national law must be interpreted in conformity with EU.68 Hence, national procedural provisions applying in anti-discrimination cases have to be interpreted according to the procedural standards as laid down in EU gender equality law directed towards guaranteeing the effective protection of the prohibition of non discrimination. Where the national court fails to respect the obligation of consistent interpretation to European standards, the court is under

67 On the exclusion of employment relationship among other see, Costantino (2014), p. 737 ff.; Taruffo (2014), p. 744 ff. 68 Case 14/83, Von Colson, para 26.

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obligation to disapply the conflicting provisions of national law,69 whether it precedes or follows the EU provision, without having to request or wait for its elimination by the national competent bodies. Furthermore, in the absence of specific EU procedural rules, aimed at ensuring the protection of the rights conferred by EU law, the national judge has a statutory duty to interpret domestic rules “wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective [. . .] of ensuring effective judicial protection of an individual’s rights under Community law”70 (principle of effectiveness) and in a manner that is not less favourable than that in which comparable domestic rights are safeguarded (principle of equivalence). This implies that, even in the absence of provisions relating to the judicial protection of the rights guaranteed by the European law, there might be a conflict between national procedural rules and the EU law if the procedural means prescribed by the national legal systems do not ensure adequate protection or if they offer a lower level of protection.71 And it is precisely through the lens of the principle of effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights and Articles 6 and 13 of the ECHR, that national courts in their day-to-day practice are in a position to assess any weakness of the procedural rules and contribute substantially to ensuring effective protection of individuals who belong to vulnerable categories and deserve particular protection. In order to achieve any changes needed of procedural provisions, they should use all available instruments, including requests to the CJEU for a preliminary ruling. To conclude, it is of the utmost importance that training to national judges and legal practitioners is provided in order to broaden knowledge in the field of gender equality law. In this regard, protocols and joint planning actions between members of the judiciary, lawyers, academics, equality bodies and NGOs aimed at encouraging mutual exchange and learning, can more efficiently ensure progress towards gender equality.

References Alonso GR (2014) Sistema Jurídico de la Unión Europea, 4ª edn. Cizur Menor Arnull A (2011) The principle of effective judicial protection in EU law: an unruly horse? Eur Law Rev 36:51–70 Arnull A (2020) Article 47 CFR and national procedural autonomy. Eur Law Rev 5:681–693 Atrey S (2018) Comparison in intersectional discrimination. Leg Stud 38:379–395. https://doi.org/ 10.1017/lst.2017.17

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See, e.g. Court of Justice, Factortame Ltd and others, case C-213/89, 19 June 1990, EU:C:1990: 257; Peterbroeck, Van Campenhout & Cie SCS v Belgian State, case C-312/93, 14 December 1995, EU:C:1995:437. 70 C-432-/05, Ltd e Unibet (International) Ltd c. Justitiekanslern, 13 march 2007, para. 44. 71 On this subject, Santangeli (2018), p. 541 ff.

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Biavati P (1999) Il cittadino e la giustizia. L’ordinamento comunitario. Giustizia civile 11:399–412 Biavati P (2000) Diritto comunitario e diritto processuale civile italiano fra attrazione, autonomia e resistenze. Diritto dell’Unione Europea 6:717–748 Bielefeldt H (2007) Tackling multiple discrimination: practices, policies and laws. European Commission. Directorate-General for Employment, Social Affairs and Equal Opportunities, Luxembourg Committee on the Elimination of Discrimination Against Women (CEDAW) (2015) General recommendation No. 33 on women’s access to justice. https://tbinternet.ohchr.org/Treaties/ CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_33_7767_E.pdf Costantino G (2014) Tutela di condanna e misure coercitive. Giurisprudenza Italiana, 737–743 Crowley N (2016) Innovating at the intersections. Equality bodies tackling intersectional discrimination. Equinet, Brussels Di Salvo C (2011) Sulla legittimazione all'azione collettiva inibitoria: associazioni rappresentative dei consumatori, singolo consumatore e altri organismi. www.diritto.it Di Salvo C (2016) The right to equality and non-discrimination. Recent case-law of the EU Court of Justice concerning the burden of proof. In: Acts of the conference European Convention on Human Rights. New perspectives and challenges. Opolska Polytechnic, p 225 ff European Commission (2010) Directorate-General for Employment and Social Affairs, Union européenne. Compilation of caselaw on the equality of treatment between women and men and on non-discrimination in the European Union, https://op.europa.eu/en/publication-detail/-/ publication/e8711e0f-767c-466e-9fae-325dd6d2544f European Commission, Directorate-General for Justice and Consumers (European Commission), 5.3.2020, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee and the Committee of the Regions. A Union of Equality: Gender Equality Strategy 2020-2025, https://op.europa.eu/en/ publication-detail/-/publication/4ed128c0-5ec5-11ea-b735-01aa75ed71a1/language-en European Union Agency for Fundamental Rights (2011) EU-MIDIS Data in Focus Report: Multiple Discrimination. FRA Wien. European Union Agency for Fundamental Rights (2012) Access to justice in cases of discrimination in the EU. Steps to further equality, FRA. Publications Office of the European Union, Luxembourg European Union Agency for Fundamental Rights (2018) Handbook on European non-discrimination law, FRA. Publication Office of the European Union, Luxembourg Farkas L (2014) Reversing the burden of proof: Practical dilemmas at European and national level. Available at http://www.migpolgroup.com/portfolio/reversing-the-burden-of-proof-practicaldilemmas-at-theeuropean-and-national-levels Fredman S (2003) Beyond the dichotomy of formal and substantive equality: towards a new definition of equal rights. In: Boerefijn I et al (eds) Temporary special measures. Intersentia, pp 111–118 Fredman S (2016) Intersectional discrimination in EU gender equality and non-discrimination law. Directorate-General for Justice and Consumers, Luxembourg Galetta DU (2010) Procedural Autonomy of EU Member States: Paradise Lost? Springer, Heidelberg Gascón Inchausti F (2018) Derecho europeo y legislación procesal civil nacional: entre autonomía y armonización, Madrid-Barcelona, Marcial Pons Gender Equality Division, DG II (2019) Compilation of case law of the European Court of Human Rights on Gender Equality Issues. https://rm.coe.int/compilation-echr-case-law-1-august-201 9/168096d977 Henrard K (2019). The effective protection against discrimination and the burden of proof. Evaluating the CJEU’s Guidance throught the lens of race. In: Belavusau U, Henrard K (eds) EU Anti-discrimination law beyond the gender. Hart, Oxford, pp 95–117 Hoskins M (1996) Tilting the balance: supremacy and national procedural rules. Eur Law Rev 21:365–377

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Hudson M (2012) The experience of discrimination on multiple grounds. Policy Studies Institute, University of Westminster. http://www.acas.org.uk/media/pdf/0/3/0112_Multidiscrim_Hud son-accessible-version-Apr-2012.pdf.ish Kakouris CN (1997) Do the Member States posses judicial procedural autonomy. Common Mark Law Rev 34:1389–1412 Kilpatrick C (2001) Turning remedies around: a sectoral analysis of the Court of Justice. In: de Burca G, Weiler JHH (eds) The European Court of Justice. Oxford University Press, Oxford, pp 149 ff Kim EJ, Skinner T, Parish S (2020) A study on intersectional discrimination in employment against disabled women in the UK. Disabil Soc 35(5):715–737 Nieva Fenoll J (2020) Autonomy of the Spanish Legislator in the regulation of procedural law: the borders of European case law, procedural autonomy across Europe. Intersentia Ltd, Cambridge, pp 183–201 Ormazabal S (2011) Discriminación y carga de la prueba en el proceso civil, Madrid Prechal S (1998) Community law in National Courts: the lessons from Vam Schijndel. Common Mark Law Rev 35:681–706 Santangeli F (2018) Norme processuali nelle giurisdizioni statali tra prassi, regole e principi nel mondo occidentale. In: Ius Dicere in a Globalized World. A comparative overwiew, II. Roma, pp 541 ff. http//romapress.uniroma3.it/ojs/index.php/ius, Serrano Masip M (2016) Efectos de la jurisprudencia de Justicia de la Unión Europea sobre el proceso civil interno. Revista de Estudios Europeos 68:5–32 Taruffo M (2014) Note sull’esecuzione degli obblighi di fare e di non fare. Giurisprudenza Italiana 3:744–750 Wladash K (2020) Making antidiscrimination law effective: burden of proof, remedies and sanctions in discrimination cases. In: Griegerich T (ed) The European Union as protector and promoter of equality. Springer, Heidelberg, pp 235–244 Xenedis R (2018) Multiple discrimination in EU anti-discrimination law: towards redressing complex inequality? In: Belavusau U, Henrard K (eds) EU Anti-discrimination law beyond the gender. Hart, Oxford, pp 41–74

Cettina Di Salvo PhD, is a civil lawyer authorised to practise before Italy’s Supreme Court. She was a university researcher of Civil Procedure at LUMSA University, Department of Law in Palermo. She holds a PhD in General and International Procedural Law from the University of Catania. She is Member of the international scientific committee of the law review Revista Persona y Familia, Instituto de la Familia – Facultad de Derecho UNIFE, Perù.

Gender Perspectives in Mediation Jelena Arsić and Nevena Petrušić

Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Gender-Sensitive Conflict Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Gender-Based Power Imbalance in Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Impact of Gender Stereotypes and Prejudices on Mediation Process and Its Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract People’s lives are accompanied by conflicts as an inseparable part of interpersonal relationships. Although often considered with a negative connotation, conflicts also have progressive potential, and its use will depend on the method of conflict resolution. This possibility is provided by mediation as an amiable method of dispute settlement. Experience shows that the dynamics, communication, and behaviour of the parties are influenced by many factors among which the cultural and gender-natured differences in behavioral patterns of men and women are of special importance. Based on their mediation-conducting knowledge and experience, the authors advocate for increasing the gender responsiveness of mediation and emphasize the need for consideration of gender dimensions of conflicts and its impact on the mediation process. Particular attention is given to the importance of performing gender-sensitive conflict analysis, the need for addressing gender-based power imbalance and the prevention of harmful influences of gender stereotypes and prejudices on the quality of mediation process and its possible outcomes. Gender dimensions of the mediability of mixed-gender conflicts as well as challenges of mediation in cases related to gender-based violence are also explored.

J. Arsić (*) Union University Faculty of Law, Belgrade, Serbia e-mail: [email protected] N. Petrušić University of Niš Faculty of Law, Niš, Serbia © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Carapezza Figlia et al. (eds.), Gender Perspectives in Private Law, Gender Perspectives in Law 4, https://doi.org/10.1007/978-3-031-14092-1_11

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1 Introduction People experience conflicts in different ways, and these experiences are shaped by various factors, including many aspects of our identity (gender, age, race, sexual orientation, ethnicity, ability, etc.). These factors also affect our reactions in conflicts, comprising our approaches to conflicts, communication patterns, negotiation strategies as well as expected outcomes. As a method of conflict resolution, mediation is a process whereby a neutral person (mediator) guides communication between the conflicting parties and, by using special knowledge and skills, assists in their negotiations aimed at reaching an agreement which resolves the conflict.1 Through mediation, parties are enabled to pursuit solutions to their conflict in a private and confidential setting, with the help of a qualified professional. The role of a mediator is primarily focused on managing the process of conflict resolution while the control of its outcome, in terms of a certainty of reaching a solution, ultimately always stays with the parties. As such, mediation is a flexible procedure tailored to the interests and needs of the conflicting parties in which the parties choose their own resolution of a conflict. Therefore, when managing the mediation process, mediators have to rely on a specific set of knowledge, skills and abilities so to be able to deal with various elements and requirements of conflicts attempted to be resolved through mediation.2 Mediation is always carried out within a specific social and cultural context which, among other issues, is characterized by social norms related to gender roles of men and women within the private and public spheres of life.3 Through gender socialization, supported by various social mechanisms, gender norms are imposed, learnt, and internalized, at the same time reflecting the relations of power of men and women in a given society. On the individual level, this often produces power imbalances that come as an expression of long-term patterns of domination, subordination and dependence, implying that one party has the control and access to resources tended to by both parties. This is also reflected in situations of conflict as well as in mediations that are conducted between the conflicting parties of the opposite sex. Additionally, gender norms are accompanied by many gender stereotypes and prejudices serving as basis for stereotypic interpretations of the needs, interests and behavior of women and men. Gender stereotypes, which differ in different cultures but are existing globally,4 also greatly affect the work of professionals who share the values of the society. Therefore, the negative impact of gender stereotypes is recognized in the work of judicial bodies, educational, health

1

Arsić (2006), p. 74. Arsić (2020), p. 4. 3 Petrušić and Arsić (2021), p. 167. 4 Becker and Sibley (2016), p. 318. 2

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and other institutions5 and in many situations is a cause of gender-insensitive practice. Similarly, gender stereotypes and prejudices may negatively impact the quality of the mediation process and its outcomes. The impact of gender on mediation has been neglected for a long time, but in the last few decades, this issue has slowly become the subject of a broader interest of both scholars and practitioners. The gender-based differences in terms of behavior and interaction between the conflicting parties, characteristics of male and female mediation styles, the efficiency of male and female mediators in mediations conducted in family, employment, business and other relations are all nowadays the subject of study.6 The attention is also paid to consideration of possible impact of gender stereotypes and prejudices on mediator selection, as well as on gender stereotypes, prejudices and biases on communication and behavior of each party in mediation, including a mediator, as well.7 Special consideration is given to the issue of gender power imbalance and other challenges of gender-neutral (blind) mediation thereby supporting the need for increasing the gender responsiveness of the mediation process.8 The role of gender was even recognized in terms of the growing preference in the legal profession for resolving conflicts through mediation.9 International human rights instruments also indicate the importance of considering gender when resolving conflicts. Here, the UN Security Council Resolution 1325 on women, peace and security10 is of a special importance since it has introduced the gender-sensitive peacebuilding as an international standard. The UN Resolution emphasized the necessity for a gender-responsive approach to peacebuilding in terms of conflict prevention, resolution and transformation, as well as for the stronger participation of women in these processes. Two decades later, this document continues to drive the efforts for the integration of gender perspective in the field of peace and security worldwide, but also influences the inclusion of genderresponsive approaches and interventions in processes that usually occur through mediation when implemented daily in various types of conflicts. Therefore, reasons for giving attention to gender-sensitive issues in the field of mediation are also tied with the necessity to ensure gender equality in all areas affecting the lives of men and women, including the implications of gender equality values in the field of conflict prevention, resolution and the achievement of fair and long-term standing mediation agreements.

5

See Coleman (2001); Cusack (2014), p. 22; Cislaghi and Heise (2020); Halilović et al. (2017), p. 17; Petrušić et al. (2015), p. 34; UN General Assembly, Independence of judges and lawyers, A/66/289, 10 August 2011. 6 See, for example, Maxwell (1992); Watson (1994); Nelson et al. (2010); Menkel-Meadow (2012); Manea et al. (2020). 7 See, for example, Burrell et al. (1988); Izumi (2017). 8 See, for example, Neumann (1992); Kelly (1995); Lang (2004); Field (2016). 9 See Klein (2005). 10 UN Security Council Resolution 1325 (2000), S/RES/1325 (2000), 31 October 2000.

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All this implies the importance of understanding and acknowledging gender differences in the context of mediation, but also calls for the development of mediation approaches that properly respond to the gender dynamics in conflict.11 Based on the authors’ mediation-conducting knowledge and experience, this paper discusses certain requirements that we consider as the three pillars of genderresponsive mediation practice. Firstly, we point to the importance of gendersensitive conflict analysis that is to be performed by a mediator as a part of the mediation preparation stage, but also upheld throughout the mediation process. Secondly, we argue that the mediation process has to be conducted in a way that recognizes, and effectively responds to gender-based power imbalance, anytime such imbalance appears between the conflicting parties. Thirdly, we focus on the need for gender-responsive interventions which serve to prevent negative impact of gender stereotypes and prejudices on the quality of mediation process.

2 Gender-Sensitive Conflict Analysis As natural followers of life, conflicts take many forms and develop in different ways depending on the range of factors that shape their existence and potential to be productively resolved. Considering that mediation represents a method of conflict intervention whereby a third neutral party, a mediator, controls the very process of conflict resolution, while conflicting parties maintain control of its result, it is of crucial importance for a mediator to undertake certain activities in the mediation preparation stage.12 These preparation activities allow a mediator to examine proper conflict resolution approach and the potential of various strategies and interventions that could be used in a given case of conflict. In order to do this, a mediator has to envisage the conflict dynamics and take into account a number of elements and factors that influence parties’ interactions in the presence of a conflict. This is usually encountered through preliminary conflict analysis which represents one of the most important preconditions for successful management of mediation.13 Conflict analysis is a strategic task that relies on the mediator’s collection and interpretation of relevant information concerning the conflict.14 It serves as a basis for assessing the suitability of a case for mediation, determines the manner in which a mediator enters a specific conflict setting, but it is also relevant for choosing the best methodology for conducting the whole mediation process as well as for designing possible mediator interventions. For example, the mediator considers

11

Unfortunately, so far, these issues have not been the subject of much interest of scholars and practitioners in our home country - Serbia. 12 Kovach (2004), pp. 142–155. 13 Moore (2003), pp. 118–144. 14 Moore (2003), pp. 118–144.

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what mediation style would be appropriate, whether co-mediation is needed,15 should the process be mainly organized in the form of joint or separate sessions, etc. When conducting mediation in the mixed-gender conflict, mediators have to explore various aspects of conflict, including gender perspectives that conflict entails, considering that gender differences naturally affect the development and the dynamics of parties’ relationship.16 The experience shows that gender impacts interactions of the conflicting parties, including their communication and negotiation strategies. Some studies show that biological sex has no correlation with the choice of conflict management style, while the gender role acts as predictor for the choice of conflict management style.17 Considering that the conflict dynamics is shaped by gender differences, mediators must be skilled to perceive the position of women and men in mediation and recognize that in some cases their behavior might reflect existing gender norms applicable in a given community, including how they express their interests and goals in mediation. For that reason, it is necessary to have a gender-sensitive conflict analysis which implies mediator’s perceptions of the causes, motives, structure and dynamics of conflict from the gender perspective. Mediators perform gender-sensitive conflict analysis based on the information collected about the parties in the preparatory mediation stage as well as throughout the whole mediation process. Asking questions, listening and observation are the main methods used by a mediator to put together sufficient load of information about gender aspects relevant for the conflict analysis.18 The aim of such analysis is to provide better understanding of conflict factors and allow identification of opportunities for change through gender-sensitive interventions that would support equal participation of the parties in the mediation process, prevent conflict escalation, and build mutually acceptable solutions. Gender-sensitive conflict analysis requires special attention in cases involving gender-based human rights violations such as domestic violence, sexual harassment, gender-based discrimination, etc. In these cases, gender-sensitive conflict analysis may reveal relations of power that create major obstacles to equal participation of the parties in the mediation process with the potential for secondary victimization.19 Good mediation practice therefore involves the use of various screening tools as a part of preliminary conflict analysis performed before the mediation is initiated.20 These tools help mediators identify elements of gender-based violence in a given relationship that requires, as later stated, the application of a tailor-made mediation

15

In the case of mixed-gender conflict, this would imply that mediation is conducted by two mediators of different gender, considering that such an approach might support the gender balance in mediation. 16 See Stamato (1992), Beham and Dietrich (2013); Tielemans (2015). 17 See Bordean et al. (2000). 18 See Moore (2003), pp. 128–136; Meierding (2004); Friedman and Himmelstein (2008). 19 See Field (2016). 20 See Milaney and Williams (2018).

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model. In certain cases, however, screening results might also support the conclusion that the case is not suitable for mediation. As a part of the mediation preparation stage, screening procedure should be performed timely, by a competent person, using appropriate screening tools and methods and in accordance with clearly defined ground rules for screening.21 When gender-sensitive conflict analysis is performed, it is important to acknowledge that gender is relational.22 This means that the conflict analysis should not be primarily concentrated on the position of women in conflict, but that it has to entail more inclusive gender-sensitive approach. Such an approach recognizes the need to consider gender identity of men alongside women in a given case of conflict.23 For example, women will use an apology even when they just want to express concern and empathy for something that has happened, while men will usually apologize only if something has happened as their fault.24 This might lead to misunderstanding that has to be solved by adequate mediator’s interventions helping each party to hear the other and supporting an understanding of each party’s actions. Otherwise, miscommunication will continue to prevent constructive conflict resolution since men may assume a woman is accepting fault and taking responsibility for what has happened, even though she may simply be trying to restore a relationship, while women may assume that a man is uncaring because he did not apologize, even though he does not see apologising being helpful for something that he did not cause.25 When performing gender-sensitive conflict analysis, mediators also have to be aware of general pitfalls that may result from certain misconceptions existing in terms of expected male and female approach to conflicts, including their communication and negotiation styles when attempting to solve it. Namely, behavior of men and women in some situations might reflect gender norms existing in a given society, but this may not always be the case considering many variations in the experiences of individuals that need to be understood in order to develop inclusive and effective mediation approach.26 For example, social norms in some places support women to be more open and naturally express their emotions, while men are taught not to display emotions such as sadness or fear considering this to be embarrassing and revealing vulnerability.27 Consequently, men in mediation could be more inclined to express anger instead of sadness or fear, although this does not mean a lack of these emotions. When a mediator is familiar with the existing gender-related social norms, and the parties confirm such behavioral patterns, mediator might be in a better position to “read between the lines”, recognize emotional patterns and with proper 21

Milne (2004), pp. 320–324. See Sudhakar and Kuehnast (2011). 23 See, for example, Eriksson and Sandberg (2012); UN Women (2014), p. 46. 24 See Schau and Meierding (2007). 25 Schau and Meierding (2007). 26 Strachan and Haider (2015), p. 14. 27 See Moore (2003), p. 205; See Kovach (2004), p. 72; Chaplin (2015). 22

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interventions slowly uncover hidden emotions that feed the conflict.28 However, the above mentioned emotional patterns might not confirm with each single man or woman since the nature of conflict and individual differences might lead to genderatypical behaviour of the conflicting parties. As a result, it might also happen in mediation that a woman is not ready to express her feelings, while a man is being overly emotional. This is to say that although preliminary conflict analysis is expected to rely on certain assumptions of gender roles and relations in a given society, a mediator has to be flexible, cautious with generalisations, and able to manage the emotional climate in the concrete gender-related setting.29 Gender-sensitive conflict analysis aims to identify links between gender and conflict in a concrete conflict context. A mediator looks at specific characteristics of all parties, including their positions, interests and needs, wishes, and fears, as well as the roots and causes of conflict and various factors influencing the conflict dynamics. Based on such all-inclusive conflict analysis mediators determine effective strategies and interventions to support equal involvement of the parties in the process of conflict transformation, interest-based negotiations and search for mutually acceptable solutions. This requires that the analysis is mainly informed by the views and experiences of the parties involved in a conflict. Therefore, direct communication of a mediator with the parties in the mediation preparation stage, either through interviews or written submissions, is of a particular relevance. Conflict analysis performed in a mediation preparation stage allows a mediator to gain better understanding of the conflict situation, to explore gender background of the conflict, include its potential effects on the upcoming process of conflict resolution and reveal opportunities for constructive transformation of relationships affected by gender differences in conflict. By acting in a gender-sensitive manner when analyzing the mixed-gender conflict, a mediator is in a position to create a platform to deal constructively with the parties’ behavior driven by gender. However, the mediator has to continue to analyze the parties’ reactions through “gender lenses” within the whole mediation process and properly intervene to address gender-related issues on various levels in order to assure the process fairness to all parties.30

28

See, for example, Love (2000); Moore (2003), p. 206; Meierding (2004), pp. 239–242. See Bennet and Hermann (1996, p. 73); Nair (2008). 30 Kovach (2004), p. 71; Menkel-Meadow et al. (2019), p. 260. 29

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3 Gender-Based Power Imbalance in Mediation As already stated, gender inequalities are still deeply inserted in social structures of all societies and reproduced through various policies, institutions and practices.31 Gender inequalities are particularly common in societies with the dominant patriarchal matrix of power where “patriarchal dividends” are visible and enjoyed to a varying extent by men, but also by some women included in the system of rewards and power produced by patriarchy.32 These inequalities have multiple dimensions and could be manifested in various ways, but “at its core is an inability to participate in or influence decisions that profoundly affect one’s own life”. 33 They produce gender-based power imbalances which are reflected in the personal relationships of men and women in their partnerships and family relations, as well as in their relationships at work and in the wider community. Although in mediation various power imbalances encounter relatively frequently (intellectual, emotional, verbal power imbalance, imbalance based on differences in age, social status, experience, etc.),34 gender-based power imbalance is specific in many ways.35 This type of power imbalance is particularly challenging in mixed-gender mediations in terms of upholding the neutrality of a mediator and respect of the principle of selfdetermination of the parties in conflict.36 The principle of self-determination is one of the most important mediation standards implying the right of the conflicting party to choose and decide at its own will in terms of mediation.37 The principle of self-determination requires each party to be fully informed related to mediation so that s/he can freely and actively participate in the process aimed at achieving a mutually acceptable solution to the conflict. The self-determination of the parties may be jeopardized in cases where one party is unable to actively participate in talks or negotiations, thereby coming into an unequal position. In these cases, the mediator must be able to timely recognize and assess the power imbalance between the parties and appropriately intervene in order to empower the weaker party and encourage his/her active involvement in the mediation process. Therefore, ensuring the active participation of the parties in cases involving gender-based power imbalance requires timely and proper mediator

31

According to the latest Global Gender Gap Report, the gender gap between women and men globally is 32% and it is now estimated that it will take 135.6 years to close the gender gap worldwide (World Economic Forum 2021). 32 Hughson (2018), p. 108. 33 United Nations Development Programme (2019), p. 158. 34 See Kelly (1995), pp. 88–89; Neumann (1992). 35 Spencer and Brogan (2006), pp. 111–118. 36 This is particularly evident in family mediation processes (See Field 1998). 37 Arsić (2014), pp. 118–121.

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interventions so that the procedural balance between the parties can be maintained throughout the process.38 The gender-based power imbalance is most flagrantly expressed in cases involving gender-based violence, including domestic violence. Therefore, the justification of mediation in these cases has been the most extensively discussed and different views exist on the appropriateness of mediation in cases involving gender-based violence.39 Some authors think that the presence of gender-based violence in a conflict automatically excludes the possibility to use mediation as a method of conflict resolution.40 They claim, inter alia, that conducting mediation in these cases may be harmful since it implies the shared responsibility of parties for the violence; that the inequality of negotiation positions of the parties prevents the victim of violence to freely express her needs, being a barrier to achieving a fair agreement; that the victim of violence may not be granted safety in mediation and that the unwanted behavior of the perpetrator may not be punished; that the implementation of mediation in these cases means that „the secret“ of family violence will remain hidden from the public, etc.41 Inspired by the feminist critique of family mediation, many theorists point out that mediation in cases involving gender-based violence, which is identified as “coercive controlling violence” or “patriarchal terrorism”, may produce or even intensify power imbalance.42 Considering that systematic violence leads to the total domination of the perpetrator over the victim, it can be especially difficult for the victim to assert her rights and interests. It is also stated that in the presence of domestic violence mediation may actually increase the danger for woman that is to confront the perpetrator of the violence at the time or shortly after the point of separation, which is the most dangerous moment.43 Additional problem exists when mediators are not properly trained to recognize the manipulations of perpetrators of

38

Theorists and practitioners have differing opinions on how to manage power imbalances in mediation. Moore advocates for the interventionist approach which requires the mediator to actively balance the power between the parties (Moore 2003). Some authors support the idea of empowering the parties to balance their own power, while emphasizing that the responsibility of mediators to manage power relations should revolve around the control over the mediation process only (Boulle and Nesic 2010). Astor underscores the need for attempting to maximize parties’ control of the mediation, pointing out that the principle of mediator neutrality should be abandoned (Astor 2007, pp. 225–226). However, there is also an opinion that in mediation, there is a space for a mediator to intervene, balancing the power between the parties without necessarily relinquishing their neutral status (Bogdanoski 2009). 39 See Landrum (2011). 40 See, for example, Field (2016); Krieger (2002); Wheeler (2002); Grillo (1991). 41 See Zylstra (2001). 42 See Semple (2012), p. 217. The problem of gender-based power imbalance in mediation was raised by feminist scholars in the 1970s and 1980s who argued that, due to gender differences, women do not have enough power and a sense of entitlement to the negotiation table (Kelly and Duryee 1992). However, subsequent research has shown that there is a higher level of women satisfaction with both the process and the outcome of family mediation (Kelly 1995). 43 See Jaffe et al. (2003).

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violence, and there is also a danger that mediators may see domestic violence as a manifestation of conflict, rather than as a manifestation of control and domination.44 Because of this, the existence of mandatory family mediation schemes is often seen as highly problematic, particularly in systems where there are no clearly defined screening procedures securing that cases of domestic violence will be exempted from mediation.45 However, some authors are of an opinion that in cases of gender-based violence the decision on the appropriateness of mediation should be left to the victim, particularly when circumstances support the possibility that mediation might improve the victim’s ability to gain control over her life and future.46 This is supported by studies confirming that couples who have experienced violence in their relationship are willing to try mediation and that mediation in these cases has been successfully implemented.47 Therefore, it is emphasized that mediation should not be automatically excluded in cases involving gender-based violence, but that there is a need to initially assess the suitability of each particular case for mediation.48 Building upon this, the attention of theorists and practitioners in recent years has been increasingly focused on considering mediation approaches that are most effective to protect victims of gender-based violence but at the same time create opportunities for fair mediation outcomes. Closely related to this is the importance of improving screening protocols that can assist mediators and program administrators to effectively distinguish between those parties who can mediate on relatively equal terms and those who are unable to do so, as well as to assess the victim’s level of fear and other safety concerns and her overall ability to express her needs in mediation and negotiate in her own interest.49 It is emphasized that a core principle is to ensure that this “appropriateness” screen has to be all-time operating, beginning at the very earliest contacts that the victim of gender-based violence has with the judicial system and continuing all the way through the mediation session itself and beyond.50 Such mediation procedure should be conducted by a specially trained mediator and appropriate precautionary measures should be taken in order to secure safety and self-determination of the victim through appropriate procedural interventions.51 Notwithstanding the mixed opinions existing on the appropriateness of mediation in cases involving gender-based violence, it seems that theorists and practitioners agree on the point that the presence of violence represents a special challenge for a

44

Semple (2012), p. 217. Gerencser (1995), p. 55. 46 See, for example, Ver Steegh (2003), p. 206. 47 See, for example, Beck et al. (2009). 48 See Beck and Frost (2007); Salem and Dunford-Jackson (2008); Ver Steegh and Dalton (2008); Ajduković et al. (2016), p. 389. 49 See, for example, Zylstra (2001). 50 Murphy and Rubinson (2005). 51 See Beck et al. (2009); Ajduković et al. (2016), pp. 405–406. 45

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mediation process, and that thereby these cases require special treatment in the context of mediation.52 This has led to the adoption of family mediation standards supporting mediators to distinguish the cases that are not suitable for mediation from those that are appropriate for specialized mediation or may be treated in the usual way.53 In general, these standards instruct the mediator to recognize a family situation involving domestic violence and take appropriate steps to shape the mediation process accordingly. They imply, inter alia, the duty of a mediator to conduct initial screening separately with the parties, the duty to refer them to appropriate community resources, when needed, take measures to insure the safety of victim, including the possibility to conduct mediation in the form of separate sessions, as well as the duty of a mediator to suspend or terminate mediation while taking appropriate steps to protect the safety of the victim, etc.54 At the international level, the use of mediation in cases involving gender-based violence is addressed in the General recommendation No. 33 on women’s access to justice adopted by the Committee on the Elimination of Discrimination against Women (CEDAW).55 Since many states have developed mandatory or optional mediation systems, the Committee recommends the States parties to inform women of their right to use mediation, and to guarantee that the use of such alternative dispute resolution procedure does not restrict women’s access to judicial and other remedies or lead to further violation of their rights. The States parties also have to ensure that cases of violence against women are not included in any mandatory mediation schemes.56 In its later General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, the Committee recalls that States parties have to “ensure that gender-based violence against women is not mandatorily referred to alternative dispute resolution procedures, including mediation”.57 However, it leaves some space for the use of mediation in these cases provided that such procedures are conducted “only when a previous evaluation by a specialized team ensures the free and informed consent by the affected victim/survivor and that there are no indicators of further risks for the victim/survivor or their family members”.58 Additionally, mediation has to be conducted by specially trained professionals who are able “to understand and adequately intervene in cases of gender-based violence against women, ensuring

52

Murphy and Rubinson (2005), p. 54. See, for example, Model Standards of Practice for Family and Divorce Mediation of the Association of Family and Conciliation Courts (2000), and the Policy on intimate partner violence and power imbalances of the Ontario Association for Family Mediation (2016). 54 See Standard X of the Model Standards of Practice for Family and Divorce Mediation. 55 See CEDAW General recommendation No. 33, CEDAW/C/GC/33, 23 July 2015. 56 See CEDAW General recommendation No. 33, para. 58. 57 See CEDAW General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, CEDAW/C/GC/35, 14 July 2017, para. 45. 58 CEDAW General recommendation No. 35, para. 45. 53

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an adequate protection of women’s and children’s rights as well as an intervention with no stereotyping or re-victimization of women”.59 At the regional level, the Council of Europe Recommendation No. R (98) 1 on Family Mediation60 emphasizes the duty of mediators to pay particular attention to whether violence has occurred in the past or may occur in the future between the parties and the effect this may have on the parties’ bargaining positions, and to consider whether in these circumstances the mediation process is appropriate. Furthermore, the Council of Europe Convention on preventing and combating violence against women and domestic violence prescribes the duty of States parties to ban mandatory participation of victims of gender-based violence against women and domestic violence in any process of alternative dispute resolution, including mediation and conciliation.61 Although, in fact, implementation of mediation is not excluded in these cases, mandatory use of mediation is banned considering that in cases of gender-based violence victims always feel ashamed, helpless and vulnerable, while perpetrators feel powerful and dominant. Therefore, parties’ positions in a presence of violence are not the same and mediation process cannot guarantee that their interests and needs will be met on an equal level.62 Considering the many challenges and risks of mediation in cases involving gender-based violence, this method of conflict resolution has to be implemented carefully and cautiously.63 There is no doubt that mediation in cases involving gender-based violence should not be considered appropriate if the presence of violence is sufficient to jeopardize the victim’s ability to participate in mediation on an equal level. However, if the violence has not endangered the victim’s potential for self-determination and she is still capable of participating effectively in the mediation process, as it might happen in some cases involving the situational violence,64 the possibility of mediation should not be excluded. Such possibility has to be supported by the results of gender-sensitive case screening confirming that there are no indicators of further risks for the victim or any other family member. In addition, the use of mediation also has to be verified by the informed consent of the victim. This is why comprehensive mediation preparation with gender-sensitive conflict analysis, the ability of a mediator to understand the characteristics and dynamics of gender-based violence, provide relevant information and ensure safety of the victim, as well as the ability of a mediator to recognize various forms of power 59

CEDAW General recommendation No. 35, para. 45. Council of Europe Recommendation No. R (98) 1 of the Committee of Ministers to Member States on Family Mediation, 21 January 1998. 61 See Article 48, para. 1 of the Council of Europe Convention on preventing and combating violence against women and domestic violence. 62 See Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence, CETS No. 210, 11 May 2011, 42. 63 Konstantinović Vilić (2006), p. 120; Arsić (2006), p. 85. 64 Situational violence has been recognized as a type of domestic violence, in addition to coercive controlling violence, violent resistance and separation-instigated violence (Kelly and Johnson 2008). 60

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imbalance and adequately intervene to ensure active participation of the parties by establishing balance of power between them, are of utmost importance.65 For this to be achieved, the mediator should design and organize the mediation process to be inclusive that, in some cases, might imply the use of transformative mediation style which, compared to facilitative and evaluative style of mediation, should provide a greater opportunity for an empowerment of the party that feels inferior.66 Therefore, the implementation of a tailor made mediation model following the special standards of conduct for mediators intervening in cases involving gender-based violence is sine qua non for securing the appropriateness of mediation in these cases.

4 The Impact of Gender Stereotypes and Prejudices on Mediation Process and Its Outcome Like in other spheres of life, behavior, communication and interaction of the parties in a conflict and a mediator may be based on their gender stereotypes and prejudices. Generally speaking, all people are to a certain extent under the influence of stereotypes. Every person has his/her own prejudices that emanate from stereotypes and differing life experiences, thereby influencing perceptions, attitudes and behavior towards others. Although gender stereotypes and implicit gender prejudices are resistant to changes, the experience shows that these may be reduced with the use of suitable strategies and interventions alleviating their negative impact on human relationships. While previous research has suggested that each time someone meets the members of a certain group, this will spontaneously activate the group stereotypes,67 modern research shows that such spontaneous activation of stereotypes is neither inevitable nor universal and that it depends on prejudices, goals, cognitive resources and learned associativity of the observer.68 Prejudices are subject not only

65

See Petrušić et al. (2014). Research about mediation and domestic violence done by Keys Young in 1996 showed that positive mediation experiences do occur, and that there is a higher level of satisfaction with mediation agreements “where mediators: asked specific questions about violence or abuse, including non-physical types of abuse or harassment; offered women specific guidance in considering the possible impact of violence or abuse on the mediation process; offered women separate time with the mediator to disclose or discuss any concerns before, during and after mediation sessions; worked as a gender-balanced co-mediation team; demonstrated that they understood the woman’s concerns both within and outside the mediation session by implementing specific strategies to deal with those concerns; demonstrated that they could control abusive behavior in the session and/or assist the woman to deal with it; and assisted the woman to deal with any harassment or intimidation that occurred outside the actual mediation session itself” (Young 1996 cited by Bailey and Bickerdike 2005, p. 12). 66 Craver (2017), p. 909; Arsić (2009), p. 180. 67 Izumi (2017), p. 685. 68 Thus, for example, a friendly relationship with a person belonging to a social group, in relation to which negative stereotypes and prejudices exist, consciously excludes the activation of stereotypes. For a modern research on this issue, see Kunda and Spencer (2003, p. 523); Ito and Tomelleri

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to social control but also self-control “which can affect prejudice either because people want to receive social approval from others or because they have strongly held beliefs that they should not be prejudiced”.69 Gender stereotypes and prejudices are also recognized in the behavior of the conflicting parties in mediation. Namely, the internalization of gender norms affects how women and men think about themselves and about each other.70 Such internalized gender stereotypical patterns may further shape how women and men understand certain phenomena, define their goals in conflict, select negotiation strategies, etc.71 Therefore, for example, the words “the best interests of the child”, used by a mediator, a woman may interpret as her obligation to give up her own life and fully devote herself to caring about her children, while a man may understand these same words as his obligation to gain a higher income so as to provide better financial support for his child.72 One of the biggest challenges in mediation relates to recognizing and preventing the harmful effects of gender stereotypes and prejudices. Because of this, it is important to “be aware of when gender might or might not be salient in how mediators perform and in ways that disputants of different genders think or act”.73 Therefore, adequate mediator response in terms of behaviors driven by gender stereotypes and prejudices is of key importance for preserving the integrity of mediation and reaching the just outcomes. In practice, mediators use various interventions to prevent negative impact of gender stereotypical behavioral patterns on the process of conflict resolution and its potential outcome. For example, in some societies, the process of gender socialization teaches women to show modesty, selflessness and readiness for cooperation, and this social conditioning followed by expectations from women may lead to situations in which a woman will not be able to effectively articulate her views during the mediation process. Harmful effect of such stereotypical behavior may be prevented if a mediator provides clearly articulated mediation structure, organizes separate meetings with the parties (caucuses), invites the parties to highlight their goals in mediation, etc.74 In another situation, where one party expresses internalized

(2017); Izumi (2017, p. 690). Atkins and others have even developed a special intervention model which supports these behavioral changes, including the instructions for its use (Atkins et al. 2017). 69 Abrams (2010), p. 50. 70 For example, from an early age, girls who behave assertively in a conflict are often labelled as “difficult” or “big-headed”, while boys who behave in the same way are praised for being “strong” or “self-assured”. Over time, these behaviors become ingrained and lead to women being more likely to show kindness and cooperativeness when in interaction with the opposite sex. See Sheldon (1997), p. 227. 71 See Craver (2017). 72 See Beaton and Vick (2012). 73 See Moore (2003), p. 58. 74 See Beaton and Vick (2012); Omotunde (2015), p. 2.

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gender-based oppression,75 a mediator intervention should be directed to empower this party by emphasizing behaviors that deny the image that the party has of himself/herself. Otherwise, internalized oppression can jeopardize the possibility of self-determination of the party, thereby also his/her ability to recognize his/her own unfulfilled interests and needs. Therefore, these situations require that a mediator properly intervenes so to encourage the party to freely express what is important to him/her and to explore what s/he needs in the context of a conflict that is being resolved through mediation. If a mediator finds that the internalized oppression has largely framed the identity of the party thereby endangering his/her power to represent its own interests, s/he should consider to terminate the mediation.76 Finally, in order to preserve the integrity of the mediation process and create conditions for achieving fair outcomes, appropriate mediator interventions are also necessary to address internalized domination of one party that is often similarly manifested through the imposition of prejudices. A useful tool that mediators may apply when a party in mediation expresses stereotypes and prejudices towards the other party relates to the deconstruction of prejudices. Namely, having in mind that prejudices are formed through the phases of description, interpretation and evaluation of other people’s behavior,77 it is recommended that, in order to deconstruct prejudices, a mediator supports the parties to move backward through these phases.78 We believe that this model of deconstruction of prejudices is equally applicable in situations where gender prejudices are expressed during the mediation process. To illustrate this, let’s say that in a mediation dealing with the division of marital property the husband claims that he should be given the greater share of the property because he always dealt wisely with the money earned, while his wife did not manage to do that. At one point in mediation, he says that “women are irresponsible when it comes to finances”. The first step in deconstructing this gender prejudice is for a mediator to recognize that husband’s statement is not a fact, but an evaluation or a value judgment. Therefore, the mediator problematizes this value judgment by asking the husband why he thinks that women are irresponsible in terms of finances. This intervention leads to the identification of the interpretation, so the response of the husband could be, for example, that “women do not know how to manage money”. Next step would be for a mediator to identify the interpretation and further direct the husband to think one step back by asking him why he believes that women do not know how to manage money. The husband’s response could be, for example, that in his professional work he often cooperates with many financial institutions and knows that “most of them are run by men”. For the purposes of encouraging prejudice-free communication in

75

Internalized oppression occurs when an oppressed and marginalized person over time and through series of events learns to put himself/herself in a distress pattern (David and Derthick 2014, p. 2). 76 Petrušić et al. (2014), p. 77. 77 See Ćuk Milankov (2009), p. 79. 78 Ćuk Milankov (2009), pp. 79–80.

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mediation, this observation can be further treated as a sufficiently constructive basis for directing the dialogue. In that sense, the mediator’s next intervention could be aimed at decentralizing the party that expressed the initial prejudice by asking questions about possible reasons why the managers in financial institutions are mostly men, which directs the party to seek alternative interpretations of the observations made. Ultimately, this can lead to clearer description and the concretization of behavior that causes dissatisfaction, but in a way that is not offensive to or judgmental of the other party. This could also serve as a basis for a mediator to explore the unfulfilled needs of the party more easily. Related to the potential impact of gender stereotypes and prejudices, it should not be forgotten that mediators are a part of the society and share its dominant values. Because of this, the question also arises about the influence of the mediator’s gender stereotypes and implicit gender prejudices on his/her impartiality.79 Namely, the impartiality of mediators is one of the basic ethical standards of mediation which requires a mediator not only to act impartially, but to create the impression of impartiality with his/her overall behavior so that the parties also perceive him/her as such.80 The practice shows that conducting a mediation process without gender prejudices and partiality leading to favoring one party is not easy, and so there is always a risk for a mediator’s neutrality to be compromised. However, it should be said that the impartiality of mediators, same as the impartiality of judges, does not require them to “refrain from any sympathies or opinions, but to freely accept different views and react to them with an open mind”.81 Therefore, impartiality and fairness demand self-awareness and flexibility to acknowledge the subjective influence of the individual and make conscious effort to avoid the use of stereotypes and remain open.82 Preventing the negative impact of stereotypes and prejudices of a mediator in his/her reasoning and interactions with the parties requires “intention, attention, and effort”.83 The intention requires consciousness and motivation, and the first step is for a mediator to be aware of his/her own gender stereotypes and prejudices. This does not mean to ignore them, but to continuously raise awareness and carefully monitor to prevent his/her gender bias towards the parties. Related to this, in the mediation preparation stage, mediator is obliged to assess whether and to what extent the concrete case may provoke his/her own gender stereotypes and prejudices, as well as to perform the self-analysis in order to define a way to control these during the mediation process. When a mediator is not sure that s/he can conduct mediation impartially because his/her gender prejudices affect its course and a mediator is not

79

See Field (2006). Petrušić and Arsić (2021), p. 175. 81 Graycar (2008), p. 76. 82 Halilović et al. (2017), p. 17. 83 Armour (1995), p. 771. 80

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able to control them, professional ethics require that a mediator withdraws from the case.84

5 Conclusion For a mediation to serve the conflicting parties in reaching fair and sustainable solutions, the mediation process must be gender-responsive. This requires that when planning, designing, and implementing mixed-gender mediation, the influence of gender on the behaviour of the parties and the mediator is taken into account, including the recognition and prevention of negative influences of gender-based power imbalance as well as gender stereotypes and prejudices on the mediation process and its outcome. Related to this, timely conducted gender-sensitive conflict analysis should be considered as a prerequisite for the identification and consideration of opportunities for conflict transformation in gender relations, so that through mediation these relations may be reshaped to allow the equal participation of the parties and support their ability to jointly seek mutually acceptable solutions. In order to have secure gender-inclusive mediation processes, the issues of gender and gender responsiveness of mediation should be added as an important component of mediator trainings. With the proper gender-sensitive education, mediators will become better aware of the implications of gender issues in cases of conflict, and will be equipped with the knowledge, skills, and abilities necessary to maximize positive impacts of their interventions in the process of conflict resolution. This particularly implies that mediators have to be educated to perform gender-sensitive conflict analysis, to understand the ideological and cultural foundations of gender stereotypes and prejudices, and to develop skills to alleviate their negative impact, as well as to recognize and manage the gender-based power imbalance in mediation. Considering many challenges and risks of implementing mediation in cases involving gender-based violence, there is also a need for mediators to be trained to properly assess when mediation is appropriate and to use mediation approaches and interventions adapted to the characteristics of these cases. Such gender-sensitive mediator education represents an initial path for a gender perspective to become recognized and included in the mediation practice. Having in mind the importance of understanding and acknowledging gender differences in the context of mixed-gender mediations, it should be said that mediators cannot just “opt-out” of gender. Mediators have to be aware of gender issues throughout the mediation process taking into account the effects that their interventions might have on the parties as a result of their gender roles. Only then mediators will be able to decrease the risk to compromise their impartiality by losing insight into the importance of all aspects, including the need to always act in a genderresponsive manner. And only then the experiences, views, concerns, and needs of

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Petrušić et al. (2014), p. 73.

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both men and women will find its place on the mediation agenda, and the parties in a conflict will be given opportunity to truly benefit from the mediation process. Nowadays, mediation is a recognized and widely accepted method of conflict resolution. Mixed-gender conflicts require mediation to be gender-responsive in order to enable women and men to negotiate on an equal basis, and achieve fair and sustainable solutions that meet their interests and needs. In this way, genderresponsive mediation practice also contributes to the equal access of women and men to justice and has a positive impact on achieving gender equality in social relations.

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Jelena Arsić is an Associate Professor at the Union University Faculty of Law in Belgrade, Serbia, where she teaches Faculty Law, Child Rights and Mediation and also coordinates the work of a Family Law Clinic. She is a certified family mediator, trainer and consultant with the 15+ years of experience in the development and practice of mediation in Serbia and in the region. She is the author and co-author of several books, scientific papers, assessment reports and educational movies in the areas of alternative dispute resolution, family law and child rights. Nevena Petrušić is a Full Professor of Civil Procedure, Mediation and Gender Studies at the University of Niš Faculty of Law in Niš, Serbia. She has written, independently or in co-authorship, more than 50 books and over 200 articles in the field of civil procedure, alternative dispute resolution, children’s rights, protection against discrimination and gender-based violence. She also managed and participated in numerous studies in these areas. She is a certified mediator and trainer, and actively works on the promotion of mediation.