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Chapitre d'ouvrage Année : 2023

Gender Equality in the European Court of Human Rights

Résumé

In its 2012 Grand Chamber landmark ruling Konstantin Markin v. Russia, the European Court of Human Rights ("ECtHR" or "Strasbourg Court") straightforwardly affirmed that "the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention:'' From the beginning, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, or the Convention) has included a general nondiscrimination clause, according to which "the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour. language. religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status" (Article 14). Article 14 therefore prohibits discrimination only in relation t<> the exercise of another Convention right. It does not forbid all differential treatments. It allows dilferential treatment as long as it pursues a "legitimate aim" and is proportional to that aim.' The antidiscrimination dimension ofECHR law was reinforced in 2005 by the entry into force of Protocol 12 to the Convention, which elevates the prohibition of discrimination as a freestanding right.' The nonnative apparatus of gender equality in the f.CHR is thus substantial. Nonetheless, a nwuber of issues that feature prominently in ECHR case law are frequently listed as examples of the Court's relative restraint, and indeed shyness, with respect to gender equality.; Well into the first quarter of the twenty-first century, the Court has ruled that abortion cannot be regarded as a right guaranteed under the Convention;' States remain free to legalize (or not) same-sex marriage;' burqa bans~ and a number of other restrictions on the wearing of religious signs do not amount to discrimination against Muslim women. This chapter thus intends to retrace the conceptual history of the ECI fR's commitment to gender equality. By doing so, the goal is both to analyze the domains in which the Court has affirmed a concept of gender equality, as well as the modes of reasoning that underpin those affirmations, and to unpack the very concept of gender equality that the Court uses, including its possible limitations. This chapter claims that although both the thing and the word "gender equality" have been elevated in the Court's case law, a number of obstacles continue to hinder its transformative potential. These obstacles include an enduring heteronormative frame that derives from a weaker rather than a robust concept of gender equality, as well as a lack of a theory of discrimination (let alone its relation to equality) that obtrudes the effective articulation of a social goal of nondiscrimination by leaving unaddressed (or inadequately addressed), most notably, issues of indirect and intersectional discl'imination. This chapter unfolds in three sections. Section I recalls the ways in which the Court affirmed a principle of equality between the sexes and later embraced the wider concept of gender equality. Section 2 analyzes two types of difficulties that can be identified in the unfolding of this principle: gender stereotypes and an enduring heteronormative frame. And Section 3 examines two issues that are used as examples of the difficulties of the Court to elaborate a robust concept of gender equality that goes beyond issues of identity, sexuality, or reproduction.

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Dates et versions

halshs-03945361, version 1 (18-01-2023)

Identifiants

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Stéphanie Hennette-Vauchez. Gender Equality in the European Court of Human Rights. Rebecca J. Cook. Frontiers of Gender Equality, University of Pennsylvania Press, Inc., pp.199-218, 2023, ⟨10.2307/j.ctv2sck6z6.14⟩. ⟨halshs-03945361⟩
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Dernière date de mise à jour le 20/04/2024
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