“The special social role of women”: the Strasbourg Court does not buy it (Konstantin Markin v. Russia)

Last week, the Court delivered what might well turn out to be a landmark judgment on the issue of sex discrimination; Konstantin Markin v. Russia. The facts seem simple enough: a military serviceman was not entitled to the same parental leave as a military servicewoman would have had in his case. A classic discrimination case. Yet, on reading the case, it is apparent that a lot is going on that is worth discussing and worth applauding. Here are my first thoughts.

The somewhat longer version of the facts is as follows:  Mr Markin and his wife divorced and agreed that their three children would live with their father and that their mother would pay child maintenance for them. Mr Markin subsequently asked the head of his military unit for three years’ parental leave. The request was rejected because parental leave of this duration could only be granted to female military personnel. Relying on Article 14 taken in conjunction with Article 8, Mr Markin complained to the European Court of Human Rights that the refusal to grant him parental leave amounted to discrimination on account of sex.

For reasons that are not quite clear to me, the Court treats the issue of discrimination between men and women as regards entitlement to parental leave separately from the special treatment of military personnel in that sphere (see paragraphs 47 and 50), thus repeating itself quite a bit.

Though they almost have to go out of their way to do it, this does give the Court the opportunity to make a very important point: the Court overturns Petrovic v. Austria. Petrovic (1998) is the well-known case in which the Court claimed that it was not discriminatory to award parental leave only to mothers and not to fathers, as there was no consensus among the Contracting Parties in this field. In the present case, the Court notes that the legal situation as regards parental leave entitlements has evolved: “In an absolute majority of European countries the legislation now provides that parental leave may be taken by both mothers and fathers . . . In the Court’s opinion, this shows that society has moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and that men’s caring role has gained recognition. . . It follows that the respondent State can no longer rely on the absence of a common standard among the Contracting States to justify the difference in treatment between men and women as regards parental leave.” (par. 49)

Hurrah! This is definitely a move forward. I think Petrovic was bad law from the day it was decided. I agree with the dissenters in that case, judges Bernhardt and Spielmann, who observed: “The discrimination against fathers perpetuates this traditional distribution of roles and can also have negative consequences for the mother”.

This brings me to the core of the problem at hand: gender stereotypes. The Russian Constitutional Court did not think the parental leave rule was discriminatory and observed that: “By granting, on an exceptional basis, the right to parental leave to servicewomen only, the legislature took into account, firstly, the limited participation of women in military service and, secondly, the special social role of women associated with motherhood.” (par. 19) Both parts of this statement seem highly problematic to me.  “The special social role of women associated with motherhood” is of course one of the oldest stereotypes in the book. But what the Constitutional Court implies about female military personnel is not fair either; they imply that women cannot be real soldiers, as if women are part of the military for the show. Women can be missed.

These blatant stereotypes do not convince the Court. “To the extent that the difference was founded on the traditional gender roles, that is on the perception of women as primary child-carers and men as primary breadwinners, these gender prejudices cannot, by themselves, be considered by the Court to amount to sufficient justification for the difference in treatment, any more than similar prejudices based on race, origin, colour or sexual orientation.” (par. 58) Other than that I would substitute the word “prejudices” for “stereotypes” here, I am very happy that the Court makes this point.

And I hope they remember it well: stereotypes based on gender/race/origin/sexual orientation cannot, without more, constitute valid justifications.