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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Gender Discrimination

Jimena Suarez Ibarrola, Gautam Bhatia

Gender discrimination — Equality

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A. Introduction

In ordinary language, ‘gender’ is a complex word that carries multiple meanings. It is often contrasted with the word ‘sex’, which is taken to refer to a biological reality. Gender, on the other hand, is understood as the ‘social construction of sex’—although this understanding has itself been challenged (Mikkola). Historically, ‘gender discrimination’ has operated through the construction of stereotypes, which have been used to justify denial of access to equal rights in public and private spheres (‘direct discrimination’), or to shape public and private spheres through ostensibly neutral habits and practices that have a disparate, gender-based impact (‘indirect discrimination’; direct and indirect discrimination). This in turn has taken place through the discursive assignment of certain physical, mental, and emotional characteristics, as well as social, cultural, economic, and political roles, to the categories of ‘men’ and ‘women’. However, such purportedly immutable divisions have repeatedly been called into question, and with the onset of international suffragist movements in the late nineteenth and early twentieth centuries, followed by the rise of global feminist movements over the last few decades, it is now widely accepted as a matter of constitutional law that gender discrimination is a reality that must be addressed—at least in part by national and supra-national constitutional instruments, and through judicial remedies. Furthermore, it must be addressed not only through the discontinuation of existing discriminatory practices, but through positive action and temporary special measures that remedy past and continuing disadvantage, through reparative mechanisms such as (for example) mandatory equal representation in politics, or affirmative action. This entry examines how constitutional instruments and courts have addressed gender discrimination, drawing upon a wide range of jurisdictions that have considered this question, in North and South America, Southern and Central Africa, Europe, and Asia/Oceania.

B. Constitutional Texts

Gender non-discrimination has only recently been recognized as an element of equality. Some older constitutions merely guarantee equal protection of laws (Constitution of the United States of America 4 March 1789, amended 1992, 14th Amendment), subsequently interpreted to prohibit gender discrimination (Reed v Reed (US); followed in Attorney-General v Unity Dow (2001) (Bots)). More recent constitutions expressly forbid gender discrimination (Constitution of India: 26 November 1949, amended to 2016, Art. 15(1) (India); Canadian Charter of Rights and Freedoms: 17 April 1982, amended to 1993, s 15 (Can); Constitution of South Africa: 4 February 1997, amended to 2013, s 9(3) (S Afr); Constitution of the Republic of Ecuador: 20 October 2008, Art. 46(7) (Ecuador)). The meaning of ‘discrimination’, whether defined constitutionally (Constitution of the Republic of Ghana: 28 April 1992, amended to 1996, Art. 17(3) (Ghana); Constitution of Lesotho: 2 April 1993, amended to 2001, Art. 18(3) (Lesotho)), or judicially (Andrews v Law Society of British Columbia (1989) (Can); Amparo directo en revisión 993/2014 (2014) (Mex)), is widely accepted to mean the allocation of differential benefits and burdens to people, attributable to some personal or group characteristic, such as gender. Older constitutions do not distinguish between direct and indirect discrimination (Constitution of the United States of America, 14th Amendment (US); European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 14 (Eur)), while more recent constitutions specifically prohibit both forms (Constitution of South Africa, s 9 (S Afr); more concretely, Constitution of Botswana 30 September 1996, amended to 2005, s 15(1) (Bots)). Additionally, some constitutions permit or require the state to undertake ameliorative measures to achieve the real and effective equality of historically marginalized groups (Political Constitution of Colombia: 4 July 1991, Art. 13 (Colom)), and specifically of women (Constitution of India, Art. 15(3) (India); Constitution of the Kingdom of Bhutan, 2008, Art. 9(17) (Bhutan); Constitution of Greece, 1978, amended to 2008, Art. 116(2) (Greece); Basic Law of the Federal Republic of Germany, 1949, amended to 2012, Art. 3(2) (Ger)).

C. Method: Standards of Review and Burdens of Proof

Latin American jurisdictions apply strict judicial review to gender discriminatory state action, requiring the state to demonstrate the absence of available alternatives (Discrimination against Divorced Women (Guam); marriage). The US Supreme Court also subjects gender-classificatory laws to ‘intermediate scrutiny’, requiring ‘that the (challenged) classification serve important governmental objectives and that the discriminatory means employed’ be ‘substantially related to the achievement of those objectives’ (United States v Virginia, 518 US 515 (1996) (US)). Similarly, under the European Convention on Human Rights, the ‘wide margin of appreciation’ afforded to member states is substantially narrower in gender discrimination cases (Abdulaziz and Ors v The United Kingdom (1985) (ECHR)). In 2007, the Indian Supreme Court cited both American and European approaches in order to apply heightened scrutiny to gender discriminatory laws (Anuj Garg vs Hotel Association (2008) (India)). More generally, jurisdictions such as Germany, Canada, South Africa, and Hong Kong require that discriminatory classifications must fulfil the tests of legitimate governmental aim, and of proportionality (R v Oakes (1986) (Can); Brink v Kitschoff (1996) (S Afr); Yao Yuk Lung (2007) (HK)). Some of these jurisdictions also place the onus of proof upon the state for justifying gender discriminatory action (see eg Constitution of South Africa, s 8(4) (S Afr)).

D. Substantive Doctrines

1. Direct and Indirect Discrimination

Courts disagree about whether discrimination arises out of discrete individual acts, and thereby requires a showing of discriminatory intent (Personnel Administrator of Massachusetts v Feeney (1979) (US)), or whether it is systemic, arising out of a set of ‘policies and practices’ often engaged in unconsciously but which have discriminatory effects (CN v Canada (1987) (Can)). The latter approach has allowed the Canadian Supreme Court to hold, in British Columbia Public Service Employee Relations Commission v BCGSEU (1999) (Can), that a facially gender ‘neutral’ aerobic test for fire-fighters discriminated against women (‘indirect discrimination’; rights of women). Scientific evidence demonstrated that a majority of women could not meet the standard and the state failed to show that it was a ‘bona fide occupational requirement’ (see also s 932. XLVI, Recurso de Hecho, Sisnero, Mirtha Graeiela y otros el Taldelva SRL y otros s/ amparo (2014) (Arg)). Indirect discrimination, however, has not only been applied to specific acts, such as employment tests, but also to a broader range of more intangible structural and systemic practices, such as for instance a comparatively hostile job market towards women in terms of hiring times (Australian Iron & Steel vs Banovic (1989) (Austl)).

Situations of social and economic inequality and armed conflict, as well as compliance with the Inter-American System for the protection of Human Rights (Abramovich (2009) 96–138), have made Latin American courts particularly solicitous of indirect discrimination. The Chilean Constitutional Court, for instance, held that legislation dealing with prices for health contracts where costs of services varied on the basis of age and sex had a disparate impact upon women, and constituted indirect gender discrimination (Rol 1710-10-INC (2010) (Chile)). Similarly, the Colombian Constitutional Court held that judicial decisions should be based on the effects that public and private decisions may have on women’s reality (Decision T-291/05 (2005) (Colom)).

Nevertheless, courts have often been hesitant in recognizing particular indirect discrimination claims beyond the workplace, citing lack of evidence. In Symes v Canada (1993) (Can), the Canadian Supreme Court upheld tax legislation disallowing childcare expenses as business deductions against the claims of gender discrimination, stating that it was not proven that women bore a disproportionate amount of the expenses for childcare. Similarly, in S v Jordan (2002) (S Afr), the South African Constitutional Court rejected the argument that the criminalization of prostitution had a gendered effect by disproportionately harming women, stating that more than ‘mere numbers’ were needed. And in Madzara v Stanbic Bank Zimbabwe Ltd (2015) (Zim), the High Court of Zimbabwe rejected the argument that allowing the matrimonial home owner to alienate his interest without the consent of his spouse disproportionately impacted women, given the social realities of property ownership.

2. Requirement of a Comparator

The traditional approach to equality is one of ‘sameness and difference’ (Harris 1923), holding that persons in analogous situations should be treated similarly, and those differently situated should be treated differently (Mmusi v The Presiding Officer (2012) (Bots); Rasmussen v Denmark (1985) (ECHR)). Under this approach, a woman must establish that a man (the relevant ‘comparator’) has been privileged unjustifiably. On this reasoning, the US Supreme Court held that pregnancy-based classifications did not constitute gender discrimination, since the relevant classification was between pregnant and non-pregnant persons (Geduldig v Aiello (1974) (US); Air India v Nergesh Mirza (1981) (India)).

This approach has been criticized (Khaitan) as insufficiently sensitive to the purpose of discrimination law, which is to remedy systemic disadvantage (Baer). The Canadian Supreme Court, while acknowledging that discrimination law is based upon comparisons, also specified that remedying systemic ‘disadvantage’ is central (Andrews v Law Society of British Columbia (1989) (Can)). Explicitly disagreeing with the US Supreme Court, it subsequently held that pregnancy-based burdens do violate the gender non-discrimination guarantee (Brooks v Canada Safeway Ltd (1989) (Can); see also Decision STC 136/1996 (1996) (Spain)). Similarly, the South African Constitutional Court held that the denial of recognition to polygamous Muslim marriages was unconstitutional, since it disadvantaged Muslim women (specifically widowed Muslim women) (Hassam v Jacobs (2009) (S Afr)). The Mexican Supreme Court of Justice also invoked historical and systemic disadvantage to hold that that a person had a right to a new birth certificate upon gender realignment (Amparo directo civil 6/2008 (2008) (Mex)). The Court observed that gender realignment requires a higher standard of judicial protection of personal integrity, privacy, and autonomy, specifically due to the vulnerability of such persons to social and institutional discrimination.

While the comparator approach continues to be applied across jurisdictions (Rasmussen v Denmark(ECHR) ), courts have also recognized that it must be applied with sensitivity towards systemic disadvantage. In a landmark judgment, the High Court of Australia (Australian Iron & Steel v Banovic (1989) (Austl)) held that a ‘last on, first off’ retrenchment policy discriminated on grounds of sex, because a greater delay in processing women’s job applications had led to a workforce where there was a disproportionately large number of women in junior positions. The Court held that the selection of comparator groups (in this case, the women and male applicants at the relevant times) must necessarily take into account the effect of past discriminatory practices, thereby merging the comparator and disadvantage-based approaches.

3. The Role of Stereotypes

10 Historically, gender discrimination was based upon stereotypical assumptions about women’s physical, mental, and emotional capabilities, and their ‘natural’ role as mother and caregiver within the home (Muller v Oregon (1908) (US); Air India v Nergesh Mirza (India)). More recent judgments have acknowledged that stereotyping included barring women from jobs that were traditionally conceived to be for men (s 932. XLVI (Arg); Decision T-098/94 (1994) (Colom)), and controlling their sexuality and reproductive life (Decision T-453/2005 (2005) (Colom); see also Decision STC 7/1983 (1983) (Spain)), thus inhibiting their ability to access public and private institutions as well as resources and services (Albiston 20; Acción de inconstitucionalidad 146/2007 y su acumulada 147/2007 (2007) (Mex)).

11 However, from the middle of the nineteenth century, these assumptions were strongly challenged by organized women’s movements, which culminated in the grant of suffrage and equal rights in civil and political spheres (Siegel). Consequently, over the last few decades, constitutional courts have been especially suspicious of laws that impose different benefits and burdens upon men and women, seemingly upon stereotypes and generalizations about the ability and roles of women in society (see Frontiero v Richardson (1973) (US), followed in Anuj Garg v Hotel Association(India) ; Nocturnal Employment (1992) (Ger)).

12 The stereotyping analysis has played a prominent role in cases about family relationships. For example, the Colombian Constitutional Court invalidated social security laws that prevented female workers from affiliating their dependents to their health insurance programs, because they perpetuated the notion that women should be restricted to reproductive and household work (T-098/94 (Colom); see also C-507/04 (Colom)). The Mexican Supreme Court held that laws awarding custody of children solely to women respond to outdated beliefs that women’s position and work belonged at home and in the family (Amparo Directo en Revisión 2159/2012 (2012) (Mex)). Applying similar logic, the ECHR found Russia’s refusal to extend parental leave to male servicemen to violate the European Convention (Konstantin Markin v Russia (2012) (ECHR)); see also G and Ors v B and Ors (Bots); Uganda Association of Women Lawyers and Ors v Attorney-General (2003) (Uganda); but see President v Hugo (1997) (S Afr), where the South African Constitutional Court held that even though a presidential amnesty to women prisoners with children under the age of twelve was based on stereotypes, it did not undermine the dignity of male prisoners, and was therefore constitutional.

13 Despite agreement upon the need to eliminate stereotypes, the distinction between ‘stereotypes’ and ‘natural’ or ‘objective’ differences between men and women, has been controversial. For instance, the US Supreme Court upheld a definition of statutory rape according to which only the male was criminally liable by referring to the ‘natural avoidance towards sexual intercourse for teenage women’ (Michael M v Superior Court (1981) (US)). Similarly, the Indian Supreme Court upheld the termination of female air hostesses upon their third pregnancy by stating that women would be the primary child carers in the household (Air India v Nargesh Mirza(India) ). And in Rasmussen v Denmark, while upholding differential time limits for instituting paternity proceedings, the ECHR accepted the Danish government’s contention that ‘the interests of the mother usually coincided with that of the child’. None of these statements were backed up by any empirical research.

14 Such cases have revealed the limitations of the stereotyping/natural distinctions mode of analysis. In recent years, as pointed out above, some Courts have signalled a shift from the primacy of the stereotyping approach, and focused instead upon disadvantage; in particular, the Supreme Court of Canada (CN v Canada, and Weatherall v Canada (1993) (Can)), Botswana (G v B(Bots) ), and Swaziland (Nombuyiselo v Sihlongonyane (2013) (Swa)). Similarly, Costa Rica declared that media campaigns associating images of women with alcoholic beverages and representing women as objects directly impair the attainability that women be respected for their intellectual capabilities by society as a whole (00198, 06–000100–0163-CA, Corte Suprema de Justicia, Constitutional Chamber (2010), Supreme Court of Justice (CRC) (Costa Rica)).

4. Cultural Rights, Gender Discrimination, and Sexual Violence

15 Many jurisdictions have seen clashes between ‘customary’ laws and gender equality. These questions have primarily arisen in postcolonial constitutions (postcolonial constitutionalism), where individual rights are often viewed as alien impositions (Bond 289) This is exacerbated by the fact that colonial authorities had often stilted the natural grown of customary law and strengthened its more patriarchal aspects (Bhe v Magistrate (2005) (S Afr), following Mojekwu v Mojekwu (1997) (Nigeria)).

16 Thus, many postcolonial African constitutions contain ‘clawback clauses’, specifying that non-discrimination provisions do not apply to marriage, divorce, inheritance, or customary law. On this basis the Zimbabwean High Court upheld denying daughters the right to succeed to their father’s estate (Magaya v Magaya (Zim); similarly, see Masupha v The Senior Resident Magistrate for the Surbodinate Court of Berea and Others (2013) (Lesotho). Indian courts have also held that uncodified religious law dealing with aspects of marriage, divorce, and inheritance is not subject to the gender equality guarantee (see Narasu Appa Mali v state of Bombay (1952) (India)), although customary law is (Madhu Kishwar v state of Bihar (1996) (India)).

17 On the other hand, while holding that customary law must be understood in its context (Bhe v Magistrate(S Afr)), and judicially developed in order to bring it into conformity with constitutional principles (Mayelane v Ngwenyama (2013) (S Afr)), the South African Constitutional Court has nevertheless invalidated customary law where neither option is feasible (Gumede v The President (2009) (S Afr)), invalidating customary law denying women the right to hold property in a customary marriage (see also Ephraim v Pastory (2001) (Tanz), invalidating customary law barring women from selling clan land).

18 Some African courts have crafted gender equality jurisprudence notwithstanding clawback clauses. In Mmusi v Presiding Officer (Bots) and G v B (Bots), the High Court of Botswana explicitly disagreed with Zimbabwean jurisprudence and held that despite the clawback provision gender discriminatory laws could still be challenged under the omnibus equality clause (Constitution of Botswana, s 3). Consequently, it held that even matters relating to marriage, divorce, and inheritance, which were covered by the clawback clause, would have to run the gauntlet of equal protection, human dignity, and public interest (relying upon jurisprudence from Ghana, Nigeria (Mojekwu v Mojekwu( Nigeria)), South Africa (Bhe v The Magistrate(S Afr)), Tanzania (Ephraim v Pastory( Tanz)), and India (Madhu Kishwar v state of Bihar (India)). Other courts have used a combination of the constitution and international human rights instruments to invalidate laws that are defended on the touchstone of cultural rights (see eg Mojekwu v Mojekwu( Nigeria); Rono v Rono (2005) (Kenya).

19 One problematic aspect of the clash between culture and gender discrimination is that of gendered sexual violence, the causes for which often lie in cultural tropes or assumptions about the role and status of women. In this regard, influenced by international legal instruments (UN Committee on the Elimination of Discrimination against Women (CEDAW) ‘General Recommendation No 19: Violence against Women’ (1992)), some Latin American courts have begun to treat sexual harassment and sexual violence as aspects of gender discrimination. For instance, the Mexican Court has held that omitting to integrate the principles of gender equality and non-discrimination into the criminal justice system, as well as failure to comply with the rules of procedure for investigating and solving violent crimes against women, constitute indirect discrimination (Amparo en revisión 554/2013 (2013) (Mex)). Similarly, in Opuz v Turkey (2009) (ECHR), the ECHR held that by systemically failing to respond to sexual violence at any level, the Turkish state had violated Art. 14 of the European Convention. In a novel variant of this approach, the High Court of Uganda invoked constitutional gender equality to hold that suffering long-standing domestic violence would be a mitigating factor in sentencing a person for having murdered the perpetrator of the violence (see Uganda v Kamuhanda (2014) (Uganda)). On a similar note, the Brazilian federal tribunal upheld a challenged provision of its domestic violence statute, which denied benefits to perpetrators of domestic violence such as the suspension of criminal proceedings (Processo: 999.2011.000560–3/001, Habeas-Corpus (2011) (Braz)). Colombia, moreover, has differentiated the types of violence-based discrimination that women suffer through a landmark judicial decision on enforced displacement (Decision T-025 (2004) (Colom), Auto 092 (2008) (Colom)). In crafting a number of remedies to deal with the situation, the Colombian court recognized, in particular, the greater impact upon women of displacement due to vulnerability, the greater risk of suffering marginalization and poverty, and greater vulnerability to sexual violence.

5. Amelioration, Affirmative Action and Equal Political Representation

20 The acceptance that gender discrimination is historic, systemic and structural in nature raises the question of whether states may pass remedial laws specifically advantaging women. The US Supreme Court has favoured a narrow approach, upholding a statute that allowed women to calculate old age benefits from the age of 62 and men from the age of 65 on the grounds that its objective was to compensate barriers faced by women in the job market (Califano v Webster (1977) (US)). Conversely, it struck down a law that allowed widows but not widowers to claim childcare benefits, holding that even in benefiting women the law rested upon impermissible generalizations and stereotypes (Weinberger v Weisenfield (1975) (US)). Similarly, while the ECHR found that a law denying parental leave to male servicemen violated the European Convention since it directly reinforced gender stereotypes (Konstantin Markin v Russia(ECHR) ), it also upheld differential pension ages by referring to the need to correct ‘factual inequalities’ between men and women with respect to their participation in the workforce (Stec v The United Kingdom (2006) (ECHR)). The Court admitted that at some point the changing nature of the workforce would bring the situation to a point where differential pension ages were no longer based on social reality but upon stereotypes, but also held that the precise judgment of when that point was reached lay within the margin of appreciation of the state (see also Voto No 6472–99 (Costa Rica), upholding different retirement ages of bank employees for similar reasons). These cases demonstrate a peculiar tension between remedial and anti-stereotyping measures. Since disadvantage has been caused by the operation of long held stereotypes, remedial laws will often themselves be based upon many of those stereotypes in order to have effect. This risks entrenching those stereotypes still further, even while there may be a temporary material improvement in the lives of women (see President v Hugo(S Afr), concurring opinion of O’Regan J).

21 One specific and highly controversial application of affirmative action is in the realm of equal political participation. For instance, reservations in legislatures have been judicially upheld based upon evidence of women’s non-representation in the political sphere (Ts’epe v Independent Electoral Commissioner and Ors (2005) (Lesotho), following, R v Oakes (1986) (Can); Government of Andhra Pradesh v PB Vijaykumar (1996) (India); STC No 12/2008 (2008) (Spain)). In an even stronger opinion, the Supreme Electoral Tribunal of Costa Rica not only upheld a 40 per cent quota for women on party lists, but also held that women candidates must be listed in electable positions (Resolution No 1863–99 (Costa Rica)). On the other hand, in Sentencia No C-371/2000 (Colom), the Colombian Constitutional Court upheld quotas in high level public sector positions but invalidated quotas in political parties. Similarly, the French Constitutional Council (18 November 1982 (Fr)) invalidated electoral quotas. The French Constitution was subsequently amended to overcome this, and electoral quotas were then upheld (30 May 2000 (Fr)). The Italian (No 422/1995 (1995) (It)) and Swiss (Solothurner Quoten (1997) (Switz)) apex courts reached similar conclusions, and the Italian Constitution, like the French, needed to be amended to get around this judicial interpretation.

E. Conclusion

22 Over the years, substantive equality and non-discrimination have evolved from formalistic accounts of sameness and difference into a set of complex and multivalent principles. According to a recent typology, there are at least four distinct and complementary principles: redistribution (and remedying disadvantage), dignity (and redressing stigma), accommodating difference, and facilitating social and political participation (Fredman chapter 1). Our survey of comparative constitutional jurisprudence reveals that gender discrimination law has incorporated these principles to varying degrees. Across jurisdictions, there appears to be a basic consensus about the normative desirability of gender equality, that gender-based classifications must be subjected to rigorous scrutiny, that the root cause of gender discrimination is the continuation of archaic generalizations and stereotypes about the role and abilities of women (stigma), and that at least on some occasions the state must take positive steps to remedy the historical disadvantage faced by women (redistribution). There is, however, an equally large area of disagreement, pertaining to the balance between cultural rights and gender equality, whether and to what extent stereotypes can be relied upon for remedial legal action, the extent to which the state may take positive action to achieve gender parity in public office (facilitating participation), including in elected offices with the goal of interrogating hierarchies (Williams), and the circumstances and standards required to establish a claim of indirect discrimination (accommodating difference). Many of these disagreements stem from constitutional architecture, which frames the gender non-discrimination guarantee in different ways: expressed or implied in a general equality right; focusing on classifications or on disadvantage; on the public or the private spheres; being limited to protection or extending to affirmative action; and being enforceable or merely aspirational (Sullivan 763). This difference in design itself stems from different historical and cultural circumstances, two conditions that are likely to prevent an overall consensus beyond a certain level of specificity.

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