January 24, 2023
By Dr Alice Margaria
What is the role of and what is expected of a (legal) father? From a legal perspective, this question that goes well beyond the scope of family law, and the recent judgment in Beeler v Switzerland, decided by the Grand Chamber on 11 October 2022, is a case in point. In this case, the Court was called upon to decide whether terminating the payment of a widower’s pension when the youngest child turned 18, whilst the same pension remains payable to a widow, amounts to discrimination on the grounds of sex in breach of Article 14 taken in conjunction with Article 8. In the footsteps of the Chamber, the Grand Chamber ruled in favour of Mr Beeler, an active father who had left paid employment to raise his young children after their mother’s death. This case foregrounds the structural pervasiveness of gender stereotyping in relation to parenting and care, and invites broadening conversations about legal fatherhood to the realm of social law as a channel through which images of fathers are shaped, and therefore can also be reshaped. The Grand Chamber’s reasoning highlights the by now uncontested unacceptability of gender stereotypes as justifications for differential treatment between men and women. At the same time, it draws our attention to less straightforward matters of gender justice, such as the timing of formal equality measures and the thin line between beneficial positive discrimination, on the one hand, and harmful differential treatment based on stereotyping, on the other hand.
In 1994, following the death of his wife, Mr Beeler decided to leave his job to raise their two children, who were 21 months and four years old. In 1997, following a revision of the Swiss pension system, Mr Beeler was granted a widower’s pension (before then only widows were entitled to a survivor’s pension). According to the relevant law, however, the payment was terminated when his younger daughter reached the age of 18 (Article 24(2), Federal Law on Pension Insurance and Survivors). At that time, Mr Beeler was 57 years old and had not been in paid employment for over sixteen years. He was not yet eligible for an old‑age pension and, he submitted, no longer able to find a job.
The applicant challenged the termination of his widower’s pension as being discriminatory, arguing that he had been treated less favourably than a widow with children above the age of 18, who remained eligible for a widow’s pension. The Cantonal Court noted that the conditions for entitlement to a pension applicable to widows and widowers were indeed different, and prima facie incompatible with the principle of gender equality enshrined in the Swiss Constitution (para. 15). Yet, only the legislature could change the state of affairs and, during the tenth revision of the old-age and survivor insurance system in 1997, Parliament had decided against amending Article 24(2) on the ground that, since there were still relatively few stay-at-home husbands, they could be expected to resume paid employment once their child-raising duties ended (para. 15). Mr Beeler lodged an appeal before the Federal Court of Justice, alleging a violation of Article 14 in conjunction with Article 8 ECHR. The Federal Court noted that Article 24(2) made a distinction on the grounds of sex which was not necessary for either biological or functional reasons and, therefore, was not justified (para. 17). Nonetheless, following the failed reform attempts, Article 24(2) remained in force and had to be applied to the case at hand. Mr Beeler’s complaint was subsequently heard by the third section of the European Court of Human Rights, which found a violation of Article 14 taken together with Article 8. In 2021, the case was referred to the Grand Chamber at the Government’s request.
The Grand Chamber found that the applicant had suffered a violation of Article 8 taken in conjunction with Article 14. Before delving into the merits, the Court had to clarify whether Mr Beeler could avail himself of the protection of Article 8. This part of the judgment will be discussed in a forthcoming blog post by Dr Maija Dahlberg. For now, it suffices to say that, given the purpose of a widow’s or widower’s pension and the tangible repercussions it had had on the applicant’s family life, the Court considered the benefit at stake to be closely linked to the applicant’s family life and, accordingly, declared Article 8, taken in conjunction with Article 14, applicable.
Moving on to the merits of the case, the Court held that the applicant stopped receiving the widower’s pension ‘simply because he was a man’ (para. 101). His pension was indeed terminated when his younger child reached the age of 18, whilst – according to domestic law – widows retain their entitlement also after that moment. Even though he was in an analogous position to a woman in terms of his subsistence needs, therefore, he was not treated equally to a woman/widow (para. 102).
This difference in treatment – so the Grand Chamber continued – was not objectively and reasonably justified. According to its own established case-law, very weighty reasons have to be put forward to justify a difference of treatment based exclusively on sex (para. 95). Even if states are usually granted a wide margin of appreciation in the field of social welfare, therefore, where a difference in treatment is based on sex, the margin is narrow. Referring to earlier case-law concerning parental leave entitlements (Petrovic v Austria and Markin v Russia), the Grand Chamber observed that European societies have moved towards a more equal share of childcare responsibilities between men and women, and the role of men as childcarers has gained increasing recognition (para. 108). Moreover, the Court recalled, the advancement of gender equality remains a major goal in the Council of Europe. It follows that references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justifications for a difference in treatment based on sex (para. 95). In this specific case, therefore, the Government could not rely on the breadwinner model to justify a legislative provision that places widowers in a less favourable position than widows (para. 110).
The Grand Chamber placed particular emphasis on the remarks made by the Federal Supreme Court, in particular on the fact that it had considered the rules in question to breach the constitutional principle of gender equality. The Federal Court’s assessment as well as the multiple attempts to reform the law showed – in the Court’s view – that ‘the old “factual inequalities” between men and women ha[d] become less marked in Swiss society’ (para. 113). The contested legislation, the Court added, contributes to ‘perpetuating prejudices and stereotypes regarding the nature or role of women in society and is disadvantageous both to women’s careers and to men’s family life’ (para. 113). Looking at the specific situation of the applicant, the Court noted that, given his age and extended absence from paid employment, he would not have had less difficulty in returning to work than a woman in a similar position and the termination of the pension would not have had less impact on him than on a widow in comparable circumstances. Hence, the unequal treatment he had suffered was not considered to have been reasonably and objectively justified, and a violation of Article 8 in conjunction with Article 14 was found.
A significant part of the judgment is concerned with defining the ambit of Article 8 and, whether and according to which factors, that provision can be considered applicable in the context of social welfare benefits. This question is also at the core of the joint dissenting opinion of Judges Kjølbro, Kucsko-Stadlmayer, Mourou-Vikström, Koskelo and Roosma, who expressed concern as to the majority’s expansion of the applicability of Article 8 and the broader ‘risk of creating an increasingly dysfunctional court through the pursuit of overreaching ambitions of substantive omnipotence’ (para. 19).
While waiting to read Dr Maja Dahlberg’s thoughts on this aspect of the case, a brief remark from a purely gender perspective will be made. Qualifying the termination of a widower’s pension as pertaining to the right to respect for family life contributes to challenging the public-private divide, which runs through liberal thought and practice and has been central to centuries of critical feminist writings (see e.g. here). According to this dichotomy – which rests upon and supports a gender division of labour – unpaid care and paid employment constitute two separate and opposite spheres which, in turn, are inhabited by women and men respectively. By considering Mr Beeler’s complaint to fall within the ambit of Article 8, the Court acknowledges that, contrary to the public-private dichotomy, the organisation of paid employment and unpaid care are two sides of the same coin, which mutually influence one another. It follows that how a state deals with pensions inevitably restricts and more generally affects how childcare is organised and practiced – whether in a couple or after the death of a spouse, as Mr Beeler’s experience shows.
As anticipated above, this decision is about legal fatherhood. Fitting into a growing case-law under Article 8 alone or in conjunction with Article 14 where the Court tells us what is to be expected of (legal) fathers in today’s societies, this decision is emblematic of an increasing, yet slow, re-orientation of legal systems towards ‘active fatherhood’.
By finding a violation, the Court unties fatherhood from breadwinning. The Grand Chamber is of the view that providing for different entitlements to survivor’s pension depending on whether the beneficiary is a widow or a widower constitutes sex discrimination. In developing its reasoning, the Court could fruitfully build on the well-known Grand Chamber’s judgment in Markin v Russia, where a military serviceman complained about his exclusion from a three-year parental leave entitlement and related allowance – which domestic law reserved to servicewomen. In that case, the Grand Chamber had contested the Russian Constitutional Court’s view that excluding servicemen from parental leave entitlements was justified by the limited participation of women in the army and the special role of mothers in the upbringing of children, and found a breach Article 8 in conjunction with Article 14. The anti-stereotyping approach developed in Markin is reiterated in Beeler, where – just like in Markin – the Court was confronted with a legislative provision grounded in a stereotypical view of mothers as primary carers and men as primary breadwinners. In the footsteps of Markin, the Grand Chamber affirms that gender stereotypes around care based on the male breadwinner model could not justify a difference in treatment, and that the contested provision was liable for perpetuating gender stereotypes to the detriment of both fathers and mothers.
What differentiates this judgment from the precedent in Markin is the Court’s factual corroboration of the anti-stereotyping approach in Beeler. As I have noted elsewhere, the paradox of Markin – at least in my view – is that the Grand Chamber embarked on what was at that time a ground-breaking anti-stereotyping approach without grounding this approach in the actual circumstances of the case at hand and, thus, in abstracto. Even if the story of Mr Markin offered some opportunity in this regard, the Grand Chamber did not seem to find it necessary nor relevant to include case-specific remarks pertaining to the applicant’s relationship with his children and to emphasise the active participation of Mr Markin, a single divorced father, in his children’s lives, although these were inferable from the circumstances of the case as reported in the judgment (e.g. the fact that – after divorce – the children had been living with the applicant, para. 13). Differently, in Beeler, the anti-stereotyping approach appears supported by direct and frequent references to the actual role played by the applicant father in the life of his children. At several points in the judgment, the Court mentions that Mr Beeler had decided to leave paid employment and stayed home to take care of them for a period of sixteen years on a full-time basis (paras 10, 79, 114).
As I have argued before, the Grand Chamber’s judgment in Markin v Russia may be read as endorsing an understanding of fatherhood which reflects the ideology of ‘new fatherhood’, according to which fathers are not just breadwinners but also carers. In other words, the Court in Markin does not contest breadwinning as the role of fathers, but ‘merely’ adds the new layer of care to its understanding of legal fatherhood. Beeler takes an additional step in the reconstruction of legal fatherhood. The Grand Chamber’s judgment displays an even stronger emphasis on paternal care and, groundbreakingly, constructs fatherhood as prescinding from any breadwinning role. A father deserves legal protection under Article 8 and 14 in his ‘mere’ capacity as full-time child-carer. Nothing more is needed.
Listening to the recording of the hearing before the Grand Chamber, one cannot but notice a certain synergy between the image of the (legal) father as (sole) carer emerging from the judgment and the way in which the case was argued by Mr Beeler’s legal representatives. As asserted by attorney Dr Fanny de Weck, ‘Mr B was directly punished for doing what the Swiss legislator expects from women but not from men, which is caring for the household and children’ (25’). Her pleading includes also a powerful quote by Ruth Bader Ginsburg, acting as an attorney in the case of Weinberger v Wiesenfeld (1975) where the US Supreme Court unanimously held that gender based discrimination permitting widows but not widowers to collect survivor’s pension was unconstitutional: ‘… Congress had in mind male breadwinners, male heads of household and the women and children dependent upon them. Hence … a family where a parent dies gets more when the breadwinner is male and the household is run by the mother and less when the household is run by the father. This discriminates all family members in the sense that a nurturing father is treated as he did not perform the function he should; a mother is treated as her work is of secondary value and a motherless infant is not entitled to the personal care of his sole surviving parent.’ This well-chosen quote captures the true feminist spirit of the case as framed by the applicant’s representatives. This framing, I argue, made space for the narrative and image of Mr Beeler as the sole carer of his young children and lent support to the Court’s departure from a conventional understanding of fatherhood centred around breadwinning and away from care.
Another question which is central to the case of Beeler is: is the time ripe for legal provisions which provide identical entitlements to men and women – in this case to survivor’s pension – especially in the still highly gendered domains of care and paid employment? The Government’s response is ‘no’: in spite of the changing position of women in the labour market, widows still needed a ‘slightly higher level of protection’ than widowers (para. 89). The difference in treatment Mr Beeler complained about was therefore meant to – in the Government’s words – ‘compensate for the less favourable situation of women on the labour market and the persisting unequal distribution of household tasks’ (para. 91). The Grand Chamber was of the opposite view: ‘the considerations and assumptions on which the rules governing survivor’s pensions had been based over the previous decades are no longer capable of justifying differences on grounds of sex’ (para. 113, emphasis added). Also Judge Keller in her concurring opinion to the Chamber judgment had written that ‘a difference treatment of widows and widowers as exemplified in the present case is no longer justifiable today’ (para. 1, emphasis added). Regardless of the answer to the first question (is it time?), a follow-up question is: what is the cut-off point? What makes provisions directed to support women in their role as primary caretakers turn into a source of harm to women and gender equality more broadly, crystallising rather than challenging a gendered division of labour?
These are questions which run through many of the past and contemporary debates around women’s rights, and gender justice more broadly. To give an example from the family law context, a question that is more and more often raised is: does it still make sense and is it still desirable to differentiate between legal motherhood and legal fatherhood, or shall these legal categories be replaced with the gender-neutral ‘parenthood’? Some legislatures – in Ontario, for instance – have already opted for this terminological change to better accommodate the diversity and complexity of present family realities. At first sight, these two examples – entitlements to survivor’s pensions and legal parenthood terminology – might not seem to have much in common. Yet, at the conceptual level, the concerns they trigger are quite similar, if not the same: how to reconcile the past, which is still quite present, with the goal of gender equality and inclusivity? How to take account of slowly shifting patterns, but not yet widespread practices and realities, in a way that disrupts but at the same time is mindful of traditional patterns? In fatherhood terms, how to take account of and promote ‘active fatherhood’ in a way that does not ‘neuter’ mothering/hood – i.e., does not neglect the gendered nature of care and, therefore, the structural disadvantages of mothers as primary caretakers?
Rather than giving answers to these fundamental questions, this post ends by calling into question the boundaries of law and society, which are intimately linked to reflections on the role of the Court vis-a-vis social change. Rather than asking ‘is the Court’s role to reflect or to trigger social change?’, we should probably free our mind from misleading dichotomies (law/society; reflect/transform) and start looking at the ECtHR case-law and society as co-constitutive spheres, in constant dialogue with one another as peers. This approach would, at the very least, make us see that there is a plurality of norms at play and that delivering (gender) justice requires delicate manoeuvres and acts of (re)balancing between human rights provisions, domestic laws and society’s norms.