Strasbourg Observers

Gender Justice in Strasbourg

March 22, 2012

Today, in the judgment of Konstantin Markin v. Russia, the Grand Chamber has re-defined its jurisprudence on sex discrimination. Regular readers of this blog will know that the “Strasbourg Observers” have taken a close interest in this case (see earlier posts here and here).  The Human Rights Centre of Ghent University – of which we are a part – actually actively participated in arguing the case: we had submitted a third party intervention to the Court. Our brief is available here.

So I am thrilled to be able to report good news on this judgment. The issue in the case is whether military servicemen can be refused parental leave when such leave is available to servicewomen. With a vote of 16 to 1, the Court has held that such a difference in treatment on the ground of sex violates article 14 (the anti-discrimination provision) in conjunction with article 8 (right to private and family life). The judgment includes a thorough gender discrimination-analysis; I will do my best to highlight the most interesting parts.

Gender stereotypes cannot justify discrimination
Under the section of “general principles” the Court reiterates that a difference in treatment on the ground of sex requires “very weighty reasons”.  The Grand Chamber clarifies that this means that:

 In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man’s primordial role and the woman’s secondary role in the family (par. 127)

Later on, in assessing the State’s justifications for the difference in treatment between military servicemen and servicewomen, the Court considers that:

the Government’s reference to positive discrimination is misconceived. The different treatment of servicemen and servicewomen as regards entitlement to parental leave is clearly not intended to correct the disadvantaged position of women in society or “factual inequalities” between men and women (contrast Stec and Others, cited above, §§ 61 and 66). The Court agrees with the applicant and the third party that such difference has the effect of perpetuating gender stereotypes and is disadvantageous both to women’s careers and to men’s family life. (par 141)

Needless to say, I’m very pleased with this part of the judgment. The Court acknowledges the two-sided harm of gender stereotypes: these stereotypes harm all of us, men and women. In an age where, in Europe, the law has by and large firmly committed itself to formal sex equality (in that sense the facts of this case are exceptional), this kind of insight is in my opinion crucial to move forward in combating the less overt forms of inequality and discrimination.

Arguments concerning the operational effectiveness of the armed forces
The Russian State had argued that it could not allow parental leave to military servicemen, because that would seriously weaken the combat-readiness of the army. Arguably, the Court finds itself in troubled waters when it has to decide cases that are argued in terms of national security. I think the Court does a good job navigating these waters. It reiterates that “[a]ssertions as to a risk to operational effectiveness must be “substantiated by specific examples” (para. 137). Referring to other States’ practices, the Court notes:

there are means to attain the legitimate aim of protecting national security other than by limiting the parental leave entitlement to servicewomen while excluding all servicemen from such entitlement. Indeed, in a significant number of the member States both servicemen and servicewomen are entitled to parental leave (par. 147)

And while the Court notes that, in principle, the State’s margin of appreciation is wide when it comes to matters of national security in general and the armed forces in particular (par. 134), it holds that:

a general and automatic restriction applied to a group of people on the basis of their sex must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 14. (par. 148)

The Courts final remarks are worth noting too:

as regards the Government’s argument that by signing a military contract the applicant had waived his right not to be discriminated against, the Court considers that, in view of the fundamental importance of the prohibition of discrimination on grounds of sex, no waiver of the right not to be subjected to discrimination on such grounds can be accepted as it would be counter to an important public interest (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 204, ECHR 2007‑IV, for a similar approach in respect of racial discrimination). (par. 150)

Differences with Chamber judgment?
The Grand Chamber in essence repeats and elaborates the holding of the Chamber. There is one difference, however, that I wish to briefly draw attention to. In the Chamber judgment, the Court disaggregated military status from sex, meaning that they made two separate analyses: one regarding the difference in treatment between men and women and the other regarding the difference in treatment between civilian workers and military personnel (see paragraphs 47 and 50 of the Chamber judgment). I think this disaggregation was misconceived, because the discrimination that Mr Markin suffered was inseparable from both his military status and his gender. The Grand Chamber judgment rectifies this: the assessment of the merits is achieved by one (one might say “intersectional”) analysis.

These are exciting time for all Strasbourg Court observers, especially for those of us who work on discrimination issues. Last week saw the Grand Chamber judgment of Aksu v. Turkey (incidentally also a case concerning stereotypes; see blog here), and now Konstantin Markin.
In my opinion, this is a landmark judgment. The Court has made clear that “the advancement of the equality of the sexes” – which has been recognized as one of the major goals of the Council of Europe since the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom (1985) – entails a commitment both to formal equality and to disrupting gender-role stereotyping.

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