Week Eight: Gender and Pluralism (Constitutions and Gender Discrimination,…
Week Eight: Gender and Pluralism
Constitutions and Gender Discrimination
+ve and -ve
negative: individual right to be free from discrimination (predomnant paradigm in the US: formal equality)
positive: state obligation to overcome inequalities and meet material needs (predominant understanding in Germany: BL.2 "the state shall promote the actual implementation of equal rights")
in the absence of a specific textual hook, the main constitutional litigation strategy has been to analogize to race: have argued it is visible and immutable; used to stereotype without regard to individua merit; in realms involving public benefits and private ordering; and has been accompanied by a history of formal legal disadvantages
Reed v. Reed
USSC 1971: can't use gender as a tiebraker in deciding on estate administrators
Frontiero v. Richardson
USSC 1973: can't presume wives to be dependent on their military husbands, but not the reverse
Weinberger v. Weisenfeld
USSC 1974: can't ppresumptively award social security benefits to widowed mothers, but require proof of dependency for fathers
Craig v. Boren
USSC 1976: can't discriminate in age for liquor purchase between genders (
US v. Virginia
USSC 1996: need an
exceedingly persuasive justification
for "any generalized differences between boys' and girls' education"
but is also quite different from race
not really "discrete and insular"
not a "minority"
one might expect that women would get more public sympathy, and be less likely to require the protection of the court
there are actual verifiable differences
in thinking about how to design sex equality provisions, can think about
general or specific?
i.e., covering equality generally or sex equality specifically?
leaving it unspecified leaves more discretion, and possibly room for expansion - but it may also limit the contexts in which women count as equals
symmetrical or asymmetrical
should it be a
on formal classifications (e.g. sex); or a
of certain classes (e.g. women)?
this reflects the debate between
(differential treatment) and
(subordination) notions of equality
private discrimination or state action only?
the US tradition of limiting constitutional constraints is rooted in traditions of privacy and federalism
"constitutional immunity for a private sphere fosters normative pluralisms"
given the pervasiveness of sex discrimination, however, it may be necessary to expand to the private sphere
protecting women or guaranteeing affirmative rights?
US traditionally excludes positive rights
but this is not true of other traditions
only judicially enforceable standards, or also aspirational norms?
"a strong culture of judicial review depends upon judges' abilities to have their decrees enforced by the political branches, and thus constitutional provisions must be modest in scope, less pronouncements bee ignored"
this is different in IHRL - see e.g. CEDAW, which has a "view to achieving the elimination of prejudices"
also need to consider the issue of
intent vs. effect
- see e.g.
, where the court rejected a challenge to a state law which gave hiring preferences to veterans, despite acknowledged discriminatory effects
finally, need to consider
direct vs. indirect
equality vs. equity
- the EU requires that an otherwise neutral provision which disadvantages a substantively higher proportion of the members of one sex to be "appropriate and necessary" with recourse to other factors in order to be upheld
Employment discrimination and the ECJ
The EU's equal treatment directive requires "equal treatment for men and women in access to employment"
in another case (
), a male worker had sued a city to challenge an employment policy which gave equally qualified women priority in hiring decisions - the ECJ found this to be forbidden
Marschall was a male teacher who was denied a promotion against an equally qualified woman
this was allowed under local civil service rules
historically, male candidates have been preferred in similar situations
"for these reasons, the mere fact that a male and a female candidate are equally qualified does not mean that they have the same chances"
therefore, the rule counteract traditional bias was permissible, but only where the candidates are the subject of an "objective assessment", and sex is a tiebreaker only
Re Georg Badeck
an employment provision similar to the one in
also included additional elements, such as "binding targets", to increase the proportion of women emoloyees
it required positions in academic departments to be filled in the same proportion as women graduating from that department; and that half of all training places be reserved for women
"a minimum quota in favor of women cannot be regarded as a measure for promoting equal opportunity"
this was because it was no longer about equal opportunity, but equal result
but this could be rescued by a provision which said if there were not enough women applicants, that portion of the quota could be filled by men
in any event, men could still train in private institutions
Electoral parity in France:
French CC 1982
The CC had previously invalidated a statutory requirement for some representation of women on electoral lists in France, as inconsistent with constitutional understandings of citizenships
this led a constitutional amendment to permit party list parity - this has a wider goal of legitimizing the legislature's exercise of power
the court's decision held that the combination of the right to vote (art 3) and the right to equality (art 6) created an understanding of citizenship "on identical terms on all those who are not excluded on grounds of age, incapacity or nationality"
Hugo was the surviving parent of an eight year old child
he challenged a 1994 act which allowed presidential pardons for women prisoners who had a child 12 years or younger
Hugo's argument was that this violated the right to equality before the law under art 8 of the SA Const.
summary of the holding: while the Act did amount to gender discrimination, the discrimination was not unfair and therefore did not violate the Constitution. the Court focused on the very small number of female prisoners; the fact that early release was not a legal entitlement; and that their convictions were what deprived male prisoners of freedom
Goldstone (for the Court)
it was clear that the Act
on a prohibited ground of both sex and parenthood
but this needed to be weighed in proportionality
the government had a
: serving the interests of children, taking into account that mothers are primarily responsible (as an empirical, not normative fact)
"The prohibition on unfair discrimination seeks not only to avoid discrimination against people who are members of disadvantaged groups. ... At the heart of the prohibition ... lies a recognition that
the purpose of our constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity
the goal of equal dignity might sometimes require
- need to look at
"the nature of the power in terms of which the discrimination was effected
in this case, it would be impractical to extend the pardon to all male prisoners, and there would be less contribution to the government's valid objectives
the fundamental animating value behind the constitution is egalitarianism/equality
this is reflected in the presumption that prima facie discrimination is unfair unless otherwise justified
race and sex/gender are given special mention in the preamble, and should be subject to particularly close attention
the fact that discrimination is in good faith does not render it fair; the "rebutting" of justifying factors themselves cannot be discriminatory or otherwise objectionable
this should not be a proportionality analysis, but rather a higher standard of
fairness and nothing else
here, the discrimination
"was based on that very stereotyping of mothers and caregivers it nevertheless vindicated
Nguyen v. INS
there, SCOTUS allowed for gender discrimination in assessing parenthood for the purposes of immigration
the discrimination passed intermediate scrutiny because "mothers were more likely than fathers to have an opportunity to bond with their children"
Violence, subordination and duties to protect
the 1991 Constitution expressly reflects CEDAW's prohibition on discrimination against women, and its approval of special positive measures to ensure substantive equality
the enactment of that provision has resulted in a number of successful petitions (tutelas) against public institutions for failing to protect them in dmoestically violent relationships, with accompanying criminal sanctions
the legal basis of these petititions is that domestic abuse constitutions a denial of the right to life and physical integrity, and also the enumerated right to domestic peace between spouses
India SC 1997
a class action suit was brought following the gang rape of a social worker
the petition called for the enforcement of the fundamental rights of working women
the Court found that in the absence of action by the legislature, it had a duty under art 32 of the Const. to issue a writ of mandamus accompanied by extremely detailed guidelines on preventing future sexual assault
the court found that constitutional guarantees had to be read together with CEDAW
United States v. Morrision
challenge to the constitutionality of a statute which imposed additional civil penalties for crimes motivated by gender
the Court held that Congress lacked power under the CC to enact the civil penalties, in part because gender-motivated violence was not an economic activity that affected interstate commerce
furthermore, in the absence of state action, Congress lacked enforcement power under the 14th amendment; and it was not prophylactic legislation because it lacked a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end"
See the argument of
, who suggests that entrenched liberal constitutions may actually be harmful to women - constitutional rights are usually more likely to assist perpetrators rather than the positive rights of victims
Gender, religion and identity
Although the Indian Constitution protects sex equality and free choice of religion, it also retains plural systems of religious law
reduced Muslim support for a uniform code
the facts involved an elderly Muslim woman was thrown out after 44 years of marriage with no maintenance support - the local Sharia court found no breach of religious law
the court found that it could adjudicate the dispute and order maintenance, because there was
no conflict between Sharia and secular law
- effectively, the court developed
its own interpretation of Sharia
subsequent attempts by Muslim legislators to override
created resentment toward Muslims and anti-Muslim violence
Vriend v. Alberta
Alberta legislature passed the Individual Rights Protection Act (IRPA), which prohibited discrimination in public life
Vriend was fired from his job after the administration discovered he was gay
he lodged a complaint under the IRPA, but it was rejected because the IRPA did not include sexual orientation as a prohibited gronund
SCC rejected the argument that the Charter should not be applied to a legislative omission, instead finding that
the underinclusiveness of the IRPA was itself a discriminatory act in violation of s 15 of the CCRF
(right to equality)
the legislation also sent a "strong and sinister message" that it was acceptable to discriminate against gays and lesbialns
"even if the discrimination is experienced at the hands of private individuals, it is the state that denies protection from discrimination"
Lawrence v. Texas
A Texas statute made it a crime for two persons of the same sex to engage in "certain intimate sexual conduct"
Kennedy (for the Court)
this isn't just about the right to have sex - it goes to the
right to privacy in the home
the history of opposition to homosexuality was not related to the question of whether the state may enforce those views on all of soceity
cites comparative jurisprudnece (UK and ECtHR), as well as decriminalization in 13 states, to show that it can be done
in this case, the law went further than merely violating the EPC - this wasn't only unequal treatment but rather
serious stigmatization that offended human dignity
the constitution needs to be interpreted in the light of contemporary values
Why is the US so firmly committed to formal and not substantive equality?
textual differences? the relevant US text simply says "no person" and uses gender neutral language, rather than modern constitutions which specify particular protections for women
originalism? at the time the 14A was enacted, women's rights wweren't really on the agenda
history? issues of equality in the US are usually about race - perhaps gender has been "forgotten"?
economic? there is less of a tendency of US courts to interfere in private ordering (see e.g. obiter in
Washington v. Davis
another terminological phrase used in this context is "material" versus "recognition" equality. Material is much thinner
there is a tension between formal and substantive equality - recognizing one may actually inhibit the other
what accounts for the difference between US (Morrison) and India (Vishaka)?
US concerns about federalism?
US reluctance to interfere in private ordering?
greater levels of harassment in India, and also less political power for women?
appointment of judges - professional vs. partisan norms