September 28, 2017
Those interested in stereotyping and intersectional discrimination might not want to miss the Court’s judgment in Carvalho Pinto de Sousa Morais v. Portugal. The compensation awarded domestically to a 50-year-old woman who could not have sexual relations after a failed operation was reduced, partly, because of age and gender stereotypes. After rejecting the use of gender stereotypes of women as primary child-carers in Konstantin Markin v. Russia, the Court now condemns the use of stereotypes about female sexuality in domestic judicial reasoning. In this post, I briefly discuss two points the judgment made me think about: the need for comparison in discrimination cases and implicit stereotyping.
The applicant suffered from a gynaecological condition for which she had to undergo surgery. The operation failed and she started to experience serious pain, incontinence and trouble sitting and walking. She could not have sexual relations, was depressed, and considered suicide. The Supreme Administrative Court reduced the compensation for non-pecuniary damage awarded at first instance from 80,000 to 50,000 Euros. It also reduced the amount allocated to pay a domestic worker from 16,000 to 6,000 Euros. The reasons for reducing the compensation for non-pecuniary damage included: 1) the applicant’s complaints were not new (the operation had only aggravated her situation) and 2) the applicant at the time had two children and was fifty “an age when sex is not as important as in younger years, its significance diminishing with age.” One of the reasons for reducing the amount allocated to pay the cost of house work was that, given the age of the applicant’s children, she “probably only needed to take care of her husband.”
The applicant complained of discrimination on the grounds of sex and age, in particular about the fact that the domestic judges who reduced the compensation had not considered sex life important for her, a fifty-year-old woman at the time. By five votes to two, the Court ruled in the applicant’s favour, finding a violation of Articles 14 and 8 ECHR. In what is probably the most remarkable part of the analysis, the Court names the stereotypes at work in Portugal’s Supreme Administrative Court’s reasoning:
52 … The question at issue here is not considerations of age or sex as such, but rather the assumption that sexuality is not as important for a fifty-year-old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self-fulfillment of women as people. Emphasis added.
The Court looks at the role that these assumptions played in the domestic decision: “the applicant’s age and sex appear to have been decisive factors in the final decision, introducing a difference of treatment based on those grounds” (§ 53). It seems to contextualize its findings by pointing to reports on gender stereotypes in the Portuguese judiciary (§ 54) and by contrasting the applicant’s case with the approach taken in two other domestic judgments concerning medical practice suffered by men in their fifties (§ 55). In these cases, the Court noted, the Portuguese Supreme Court found that the two men could no longer have sexual relations and considered how this affected their self-esteem, regardless of their age and of whether they had children (§ 55). The male plaintiffs were awarded 224,459 Euros and 100,000 Euros, respectively.
The Comparator Approach
Much of the discussion in the separate opinions reveals an interesting disagreement on the need to compare the applicant’s case with analogous cases. In a joint dissenting opinion, judges Ravarani and Bosnjak state that “in order to find discrimination, it has to be established that in Portugal men suffering from a comparable physical inability to that of the applicant, in their capacity as men, are treated differently from women suffering from a similar physical incapacity.” (18). The dissenting judges claimed that the majority had not carried out a comparative exercise (31). Discrimination, according to them, presupposes “the existence of comparable or at least analogous situations” (4).
A comparison, however, is unnecessary in Carvalho Pinto. As judge Yudkivska convincingly argues in her concurring opinion: “In the case at hand we do not require a long list of similar cases for comparison in order to find discrimination, the language of the judgment of 9 October 2014 being discriminatory in and of itself. It does not refer to any differential physical needs of men and women, but to the persistent perception that the primary focus of a woman’s sexual life is the reproductive function.” She is right to emphasize that “where prejudicial stereotypes have affected the judicial assessment of evidence, [it] is perfectly sufficient to find a violation of Article 14” (see also Senem Gurol’s post on EJIL Talk! discussing Strasbourg case law in which no comparator is used).
Scholars have called into question the use of the comparability test in stereotype cases and in discrimination cases more broadly. Suzanne Goldberg, for example, reminds us that “discrimination can occur without a comparator present.” The comparator approach is not without problems. Alexandra Timmer and I discussed on this Blog the shortcomings of the comparator approach in a comment we wrote on another discrimination case decided by the Court: “What is most worrying about a comparator-approach is that it obscures what discrimination law should be about: addressing disadvantage and subordination of certain disfavored groups. The comparator-approach gets us stuck in a sameness/difference ideology that – as feminist legal theorists already recognized two decades ago – impedes progress towards substantive equality.”
Two types of stereotypes work inseparably in the domestic judges’ reasoning: age and gender stereotypes. The age stereotype is explicit in the domestic court’s language: “an age when sex is not as important as in younger years.” The statement that sex is less important after fifty, as Senem Gurol puts it in her comment, is “ageist in nature, based on the misbelief and stereotyping that older people have no interest in or capacity for sexual activity.” The Court does not name the age stereotype expressly. This does not mean that it ignores it entirely. It acknowledges it – somehow implicitly in and inseparably from – the gender stereotype when it critiques the domestic court’s assumption that “sexuality is not as important for a fifty-year-old woman.”
Contrary to the dissenters’ opinion, I believe that the domestic court’s language does point in the direction of gender stereotypes and that the Court does well to uncover them. There are two references pointing to gendered reasoning in the domestic court’s decision: the reference to the fact that the applicant had children to underestimate the importance of sex in her life and the assumption that she had to take care of her husband. The children reference implies, as the Court states, that female sexuality is linked to child-bearing. The husband reference openly assumes that women’s role is to take care of their husbands. Judge Motoc nicely unpacks both gender stereotypes in her concurring opinion (14).
Unlike the age stereotype floating on the surface, the gender stereotypes lie beneath the domestic court’s reasoning. Progress in recent years to reduce discrimination formally makes it less and less likely that courts are going to use the kind of explicit stereotype expected by the dissenters: “women’s sexual life is less important than that of men” (37). To borrow from judge Yudkivska’s opinion, “the more equality is provided for by law, the more subtle gender discrimination becomes, precisely because stereotypes about the “traditional” roles of men and women are so deeply rooted.”
Stereotypes may oftentimes operate subtly rather than overtly and, for this reason, be hard to spot and challenge. Their subtle forms, however, should not preclude the Court from bringing them to the surface given the potential harms they may cause in the individual case and beyond. Judging on the basis of stereotypes precludes an actual inquiry into the facts of the case, lead to disregard for individual circumstances, undermine individual access to justice, and ultimately, compromise the fairness and impartiality of the justice system. The Court seems aware of some of these dangers when it notes that “the Supreme Administrative Court made a general assumption without attempting to look at its validity in the concrete case of the applicant herself …” (§52 emphasis added).
Carvalho Pinto is ultimately an intersectionality case. Ageism and sexism interact, one openly and the other subtly, to undermine the importance of non-reproductive sex in the applicant’s life and to shape the compensation she receives for the damage caused by medical malpractice. The Court could have paid more attention to the age dimension. It could have also addressed the intersectional discrimination more explicitly (see also post by Senem Gurol). Carvalho Pinto is still a laudable non-discrimination judgment. It unveils gender bias in judicial reasoning by naming the gender stereotypes, by describing their workings in the concrete case and by assessing their influence on the judicial decision. The judgment represents a key step in the Court’s anti-stereotyping case law and reinvigorates Article 14 jurisprudence.
 On the importance of naming and contesting stereotypes, see e.g. Cook and Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2010) and Timmer, “Toward an Anti-Stereotyping Approach for the European Court of Human Rights,” 11 Human Rights Law Review (2011) 707-738.
 See e.g. Timmer, “Toward an Anti-Stereotyping Approach for the European Court of Human Rights.”
 Cusack, Simone, “Eliminating judicial stereotyping: Equal access to justice for women in gender-based violence cases,” Final Paper submitted to the Office of the High Commissioner for Human Rights on 9 June 2014.