The Evolution of Gender Equality's Concept in European Common Law

SWG 222, Gender, Law and Policy The Evolution of Gender Equality’s Concept in European Common Law Edoardo Schinco 1 The European Union is hard to be defined: if it was just an economic union among the most developed West European countries once, now it is undergoing a long-lasting process, whose aim is to create an economic, cultural and political union. In this context, traditional issues have been reframed in a peculiar way, and even institutional efforts to achieve gender equality have followed a quite singular path. This paper aims to illustrate the history of gender equality in European common law, by showing not only the quantitative improvement of antidiscriminatory laws, but also the qualitative evolution of gender equality’s concept itself. Indeed, gender equality’s juridical and cultural meaning has significantly changed in the past, according to three different steps. Notwithstanding this, we will also consider the contemporary state of things and the insufficiency of European approach to gender equality; that is, we will clarify how the neoliberal ideology embodied by European institutions shows itself to be an actual obstacle to the achievement of a full gender equality. After the end of World War II, six European countries decided to establish a customs union to improve domestic economics. The Treaty of Rome, signed in 1957, defined European Economic Community (ECC)’s purposes and tasks; since EEC was shaped by neoliberal ideology, its rules were focused on free-market’s dynamics. In this sense, even if gender-related issues were completely absent in European discussion at that time, nonetheless the Treaty of Rome included some significant protections for women. Indeed, article 119 established the principle of equal pay for equal work, in order to deter states from using lower wages for women and, in so doing, to guarantee a fair competition in European Common Market (Locher and Prügl 2009, p. 182): “Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. […] Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job.” (TR 1957, p. 43) 2 This treaty represented the first step of Europe legislation toward a broader and deeper enforcement of gender equality’s principles. Especially in its unintended gender-related consequences, article 119 determined a flourishing period for women’s rights from the standpoint of formal justice (Arriba and Carrasco 2003, p. 22). Stressing the category of “sameness”, mid-1970s European Council Directives clarified article 119’s anti-discriminatory implications; among the others, two Directives played a crucial role at this stage. On the one side, article 1 of 1975s Equal Pay Directive prohibited different pay “for the same work or for work to which equal value is attributed […] on the grounds of sex with regard to all aspects and conditions of remuneration.” (European Council 1975, p. 19) On the other side, one year later, the Council also adopted the Equal Treatment Directive, which broadened the principle of equal treatment for men and women in connection with the access to employment, vocational training and promotion, and working conditions (European Council 1976, p. 40). Moreover, on the basis of article 1 of this last Directive, a 1978s Council Directive further implemented the equal treatment in matters of social security by providing social assistance in case of “illness, accident or involuntary unemployment and [for] persons seeking employment”, without regard to sex (European Council 1978, p. 24). Beside European Council legislative action, some European Court of Justice’s decisions have also contributed to frame this principle of formal equality; for example, in 1976s case Defrenne v. Sabena the Court ruled that article 119 also had a horizontal direct effect, that is, article 119’s enforcement applied not only vertically between government and individuals, but also horizontally between private parties (Case 43/75, Defrenne v. Sabena [1976], ECR I-455). Furthermore, unlike Supreme Court of United States, the European Courts have often interpreted the notion of “sex” in a very progressive way: since 1994s landmark case P. v S. and Cornwall County Council, a “dismissal of a transsexual for a reason related to gender reassignment” is precluded; to put it differently, the Court of First Instance ruled that the Equal Treatment Directive also applied on discriminatory situation 3 involving transsexual people (Case C-13/94, P. v S. Cornwall County Council [1996], ECR I2143). The importance of these Directives is evident since they determine a formal equality between men and women in front of the law; that is, men and women have to be treated as the same and no sex-based discrimination will be allowed. As we said, this stage however represents just the first step toward a broader gender equality’s concept. In the history of feminism, indeed, we can find many criticisms against formal equality’s inner limits. From this point of view, indeed, institutions have to establish equality of opportunity by guaranteeing to both men and women the same negative rights, that is, rights that protect individual’s fundamental freedoms from external illegitimate interferences, such as government actions. In this sense, it has been argued that this first concept of equality conceives of individuals in a very abstract way. Unlike this first approach, the second wave of feminism developed and adopted an alternative interpretation of equality as equity and hence the new aim to pursue was substantive equality. From this new standpoint, it was possible to take account of all the subjects involved in a discriminatory situation and their actual social standings; in so doing, equality of opportunities turned into equality of results, and theoretical reflection on sameness was replace by a deep focus on sexual differences between men and women. For example, women’s peculiar conditions, such as pregnancy, needed to receive a special treatment since they could cause some sex-based disadvantages only to women. In other words, negative rights aside, individuals were also entitled to positive rights requiring a positive action from State, in order to eliminate social inequalities preventing women from being actually treated in the same way as men (Vaid 2012, pp. 8-20). In an analogous way, after the Equal Pay and Equal Treatment Directives, gender equality’s second step in European laws and policies was represented by EEC’s positive actions in fighting gender discrimination. However, neoliberal ideology distorted positive actions’ 4 traditional meaning by producing an alternative model of social welfare system. According to the classic model, the welfare state has to redistribute social wealth and socialize some individual risks – for example, aging, illness, involuntary unemployment – in order to promote the aggregate well-being of society as a whole (Castel 2003). Instead, in neoliberal model of welfare system the state has the task to create a “social market economy”, that is, a free market with a competition as perfect as possible; in so doing, the state will guarantee the most perfect allocation of resources, and hence every citizen will have the opportunity – and the resources – to take care of his/her own well-being (Dardot and Laval 2013, pp. 193-215). The EEC’s positive actions perfectly mirrored neoliberal approach to welfare system 1. Since Equal Opportunities Action Programme 1982-1985, the main strategy adopted by European Council has been not to protect family life from interference of free market’s dynamics, but rather to reconcile working and family life. The idea was that a better articulation between employment and care-work could be reached by a more appropriate regulation of time (Walby 2003, p. 12). According to the Programme, for example, every Member state “should examine the possibility of extending parental leave and leave for family reasons […] taking account of trends towards a new distribution of work and non-work time.” (European Commission 1981, p. 19) Moreover, under the category of positive actions there were measures, whose aim was to strengthen women’s competences related to working life: to encourage women into nontraditional occupations, or to provide for them training and vocational guidance were seen as alternative solutions to achieve equal opportunities in practice (Ibid., p. 9). On the one side, these reforms helped women to enter the workforce and to achieve a broader personal independence; on the other side, they assumed free market as the only playing field on which women could find the equality they claimed. 1 Even the latest version of the Treaty on European Union, article 3(3), explicitly uses the same neoliberal ter i ology: The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, [and] a highly competitive social market economy. (TEU 2016, p. 17) 5 Feminist scholars showed that this modus operandi had a negative impact on women’s conditions in the long run. Indeed, in this neoliberal context, feminization of workforce was used as a tool to create a feminized labor market mostly connected with flexible and part-time employment, while other crucial gender-related issues were set aside. For example, since the previous expression “sharing family responsibilities” was replaced by “reconciling work and family”, the classic question of unpaid labor’s distribution in the household remained substantially untouched (Stratigaki 2004). Furthermore, European second interpretation of gender equality brought some typical features of women’s condition – such as pregnancy, child rearing, and care work – back in the private sphere, instead of pursuing a socialization of individual risks. Because neoliberal order stressed individual’s rational choice and responsibility, child rearing or pregnancy was turned into economic and social externalities once again. Women should have provided themselves with the necessary resources via free market’s mechanism, which was guaranteed by state action, instead of via welfare state protection (Young 2004, p. 95 in Locher and Prügl 2009, p. 200). In the following years, many quantitative improvements were reached by European countries with regard to gender equality. The member states signed the Treaty of Maastricht in 1992, and EEC turned into the European Union (EU), reaching a higher level of economic and political integration; nonetheless the focus was still on employment’s conditions and market access for women, especially in non-traditional occupation fields. The deep changes that took place in the last decade of twentieth century did not affect this one-sided strategy to support gender equality. Indeed, the Treaty of Maastricht only included a Protocol on social policy and an Agreement annexed to the Protocol; article 2 of this Agreement explicitly declared that one of the European Union’s goal was to support member states in achieving “equality between men and women with regard to labour market opportunities and treatment at work” (TM 1992, p. 91). Further directives on maternity leave, parental leave, part-time work and burden of the 6 proof in cases of sex-based discrimination completed EU’s legislative body about equality between men and women (Arriba and Carrasco 2003, p. 23). The Treaty of Amsterdam represented a very significant turning point about gender equality’s concept in European common law. This treaty was signed in 1997 and entered into force two years later, modifying the functioning of European Union deeply. With this signature, the member states agreed to relinquish or reduce part of their powers in favor of the European Parliament. In addition, the Treaty of Amsterdam foster a different interpretation of gender equality that was broader than before. If compared with positive action’s previous stage, the new version of gender equality was indicated as a further development of gender equality’s concept. This third step was also characterized by the so-called “gender mainstreaming”, and article 2 and 3 of the Treaty of Amsterdam clearly bore witness of this qualitative evolution. The former established that “Community shall have as its task […] equality between men and women”, while the latter added that “in all the activities […] the Community shall aim to eliminate inequalities, and to promote equality, between men and women.” (TA 1997, pp. 2425) Substantive conceptual differences are immediately evident. Because of 1997s treaty, both task and activity of EU were no longer limited to the mere economic sphere and to women’s employment conditions; instead, EU’s new configuration started to take account of all the areas and the issues that EU’s treaties did not address from a gender perspective until that time. To be more precise, this gradual shift toward a more effective strategy to achieve gender equality was first formulated in 1996 by European Commission’s communication Incorporating Equal Opportunities for Women and Men into all Community Policies and Activity. Here, the document depicted gender mainstreaming as an approach “to promote equality between women and men in all activities and policies at all levels”, especially widening the scope of EU’s positive actions significantly: “Such a change requires not only progress in the field of legislation but also nothing short of a cultural transformation of individual behavior as much 7 as of attitudes and collective practices, and determined political action based on the broadest possible mobilisation.” (European Commission 1996, p. 2) Surely, gender mainstreaming strategy did not mean to set aside the economic aspects of gender-based discrimination; rather, this kind of discrimination should be fought in so far as European institutions was able. Therefore, article 119 of Treaty of Rome was amended in Amsterdam, and the new article 141 of the Treaty of Amsterdam was updated, according to aforementioned gender equality’s advancements. It contained parts of social policy provisions previously included in Protocol on social policy or derived from secondary legislation, as article 141’s paragraphs 1, 3, and 4 made clear (TA 1997, p. 242). In addition, a further important effort to improve gender equality in European context was the Charter of Fundamental Rights of European Union, proclaimed in 2000, that became legally binding after the signature of the Treaty of Lisbon in 20092. In particular, Charter’s article 23 ensured equality between men and women “in all areas” and guaranteed the “adoption of appropriate measures in favour of the under-represented sex.” (CFR 2000, p. 398) Lastly, an additional landmark document in European legislation about gender equality was 2010s Women’s Charter, presented by the European Commission under the form of a policy declaration. It summarized all the aspects that European institutions should have addressed in collaboration with member states in order to reinforce laws and policies with regard to gender equality. Comparing Treaty of Rome’s objectives with Women’s Charter contents, it is easy to understand the different point of view gradually adopted by European institutions. Instead of mere economic issues, the Charter took account of a very broad array of gender-related subjects: equal economic independence; equal pay for equal work or for work of equal value; equality in decision-making; protection of dignity and fight against sex-based violence; 2 We refer to article 6 of the Treaty of Lisbon: The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, […] which shall have the same legal value as the Treaties. (TL 2007, p. 13) 8 incorporation of gender equality in EU’s external policies (European Commission 2010, pp. 35). However, notwithstanding many efforts and improvements in gender equality legislation made by European Union, the outcome is still unsatisfying. According to the report Gender Equality Index 2017 provided by the European Institute for Gender Equality (EIGE), gender mainstreaming strategy has been not so effective so far: from 2005 to 2015 overall progress toward gender equality was still very slow and, if the situation remained the same in some countries, other countries even experienced a negative trend in some domains of gender equality (EIGE 2017). Surely, on the one side, EU’s responsibility is limited here since the principle of subsidiarity – established by TEU’s article 5(3) – greatly narrows down the scope of EU’s actions and a fortiori the scope of gender equality-related measures (TEU, p. 18). Anyway, on the other side, the neoliberal ideology that is embodied by European institutions plays a central role against a faster achievement of gender equality once again. As many feminist scholars suggest, these institutions covered up neoliberal laws with the label “gender equality” in order to justify processes of market deregulation (Holzleithner 2005, pp. 932-933) and – as we have seen about gender equality’s second step – to shape an alternative model of female subject, whose “equality and citizenship are based on the primacy of the market” (Kantola and Squires 2012, pp. 394-395). Furthermore, even if a slightly higher level of gender equality has been reached in some domains, core areas of EU’s policy and spending that are crucial for neoliberal theory (such as, agriculture, transport, environment, foreign policy, and competition policy) have remained largely untouched by gender mainstreaming’s attempts to reform (Pollack and Hafner-Burton 2000, p. 447; Wöhl 2008, pp. 15-16; Woodward 2001, pp. 22-23). Even today, employment sector is a domain in which employability and economic results are the mainly used criteria, while gender equality is still largely neglected (EIGE 2017, pp. 13-19). 9 Bibliography Arriba G. V., Carrasco L. (2003), Gender Equality and the EU. An Assessment of the Current Issues in Eipascope, No. 2003/1, pp. 22-30 Case 43/75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1975], ECR 455 Case C-13/94, P. v S. Cornwall County Council [1996], ECR I-2143 Castel R. (2003), L’Insécurité Sociale: Qu’est-ce qu’être protégé?, Seuil: Paris Charter of Fundamental Rights of European Union [CFR] (2000) in Official Journal of the European Communities, No C 202, 7 June 2016, pp. 389-405 Consolidated Version of Treaty on European Union [TEU] in Consolidated Version of Treaty on European and the Treaty on the Functioning of the European Union (2016) in Official Journal of the European Communities, No C 202, 7 June 2016, pp. 1-388 Dardot P., Laval C. (2013), The New Way of the World: On Neoliberal Society, trans. by G. Elliott, London: Verso European Commission (1981), A new Community Action Programme on the Promotion of Equal Opportunities for Women 1982-1985 in Bulletin of European Communities, Supplement 1/82, pp. 1-30 10 European Commission (1996), Incorporating Equal Opportunities for Women and Men into all Community Policies and Activities. Source: http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:51996DC0067&from=EN European Commission (2010), A Strengthened Commitment to Equality between Women and Men. A Women’s Charter. Source: http://ec.europa.eu/archives/commission_2010- 2014/president/news/documents/pdf/20100305_1_en.pdf European Council (1975), Council Directive 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 in Official Journal of the European Communities, No L 45, 19 February 1975, pp. 19-20 European Council (1976), Council Directive 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 in Official Journal of the European Communities, No L 39, 14 February 1976, pp. 40-42 European Council (1978), Council Directive of 19 December 1978 on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security in Official Journal of the European Communities, No L 6/24, 10 January 1979, pp. 24-26 11 European Institute for Gender Equality [EIGE] (2017), Gender Equality Index 2017. Measuring Gender Equality in the European Union 2005-2015. Source: http://eige.europa.eu/rdc/eige-publications/gender-equality-index-2017-measuring-genderequality-european-union-2005-2015-report Holzleithner E. (2005), Mainstreaming Equality: Dis/Entangling Grounds of Discrimination in Transnational Law & Contemporary Problems, vol. 14:XXX, pp. 927-957 Kantola J., Squires J. (2012), From state feminism to market feminism? in International Political Science Review, vol. 33(4), pp. 382-400 Locher B., Prügl E. (2009), Gender and European Integration in Diez T., Wiener A. (2009), European Integration Theory, Oxford: Oxford University Press, pp. 181-197 Pollack M. A., Hafner-Burton E. (2000), Mainstreaming Gender in European Union in Journal of European Public Policy, vol. 7:3, Special Issue: 432-456 Stratigaki M. (2004), The Cooptation of Gender Concepts in EU Policies: The Case of “Reconciliation of Work and Family” in Social Politics, Vol. 11(1), pp. 30-56 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed at Amsterdam, 2 October 1997 [TA] (1997) in Official Journal of European Communities, No C 340, 10 November 1997, pp. 1-145 12 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [TL] (2007) in Official Journal of European Communities, No C 306, 17 December 2007, pp. 1-271 Treaty of Maastricht on European Union [TM] (1992) in Official Journal of the European Communities, No C 191, 29 July 1992, pp. 1-110 Treaty of Rome (TR) or Treaty establishing the European Economic Community (1957). Source: https://ec.europa.eu/romania/sites/romania/files/tratatul_de_la_roma.pdf Vaid U. (2012), Irresistible Revolution. Confronting Race, Class and the Assumptions of Lesbian, Gay, Bisexual, and Transgender People, Magnum Books: New York Walby S. (2003), The European Union and Gender Equality: Emergent Varieties of Gender Regime. Paper presented to National Feminisms in a Transnational Arena Conference, University of Wisconsin at Madison. Wöhl S. (2008), The Open Method of Coordination and Gender Mainstreaming: Implications for Governing Gender Equality in Germany. Paper prepared for 49th Annual ISA Convention, Bridging Multiple Divides, San Francisco, California 26th-29th March 2008. Source: http://citation.allacademic.com/meta/p_mla_apa_research_citation/2/5/1/6/0/p251602_index. html Woodward, Alison E. (2001), Gender mainstreaming in European Policy: Innovation or Deception?, WZB Discussion Paper, No. FS I 01-103 13