Gender and Constitutions Bertil Emrah Oder Professor of
Gender and Constitutions Bertil Emrah Oder Professor of Constitutional Law, Koç University UNESCO Chair on Gender Equality and Sustainable Development
Constitutions and gender bias -Decision of the Constitutional Court on the basis of an application of a professional folk singer (delivered in 1990, but publicized in 1992) § -Constitutions as legally binding constitutional courts and strategic litigation frameworks, § -Right-centered and egalitarian approach against gender stereotypes § -Persistence of gender bias in law (secondary status of women, protection measures reinforcing care giver roles of women, victim blaming, improper use of unjust provocation and good manner clauses)
Post-war constitutionalism and international human rights law § -Convention on Elimination of All Kinds of Discrimination Against Women (CEDAW), Inter. American Convention on Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará), Istanbul Convention § -Justiciability: constitutional courts, European Court of Human Rights (ECt. HR), Inter-American Court of Human Rights (IACt. HR), African Court on Human and People’s Rights (ACt. HPR) § -Positive obligations of the state as to human rights violations of non-state actors
Post-war constitutionalism in Europe and Turkey § -Non-discrimination clauses, protection of family, familial roles of women § -Distinctive approach of Turkey’s republican constitutionalism: recognition of gender equality in the public sphere by gender responsive norms (right to education and political participation in 1924 and 1961 Constitutions) § -Regressive and progressive stances of the Constitutional Court § -Selected case-law on professional and artistic occupation, adultery, offences against sex workers, seniority allowances, nurses, surname of married women, violence against women
Formal or de jure equality § Article 10 of the Constitution, para. 1, 4, and 5 § Everyone is equal before the law without distinction as to language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such grounds. (…) § No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings. § International Covenant on Civil and Political Rights (ICCPR) article 26 § All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Formal or de jure equality § European Convention of Human Rights article 14 § The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. § European Convention on Human Rights Protocol 12, article 1 § The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. § No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
Substantive or de facto equality § -Equality of outcomes, and more comprehensive notion of equality § Article 52, para. 5 of the Constitution § Primary education is compulsory for all citizens of both girls and boys and is free of charge in state schools. § -Substantive equality, women’s potential reproductive capacity and careful application of protectionist measures § CEDAW article 11, para. 3 § Protective legislation relating to matters covered in this article [Added: such as maternity leaves, social benefits, special rules for pregnant women in employment] shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.
Direct discrimination § Direct discrimination is when a person is treated less favorably on the ground of gender. Less favorable treatment is determined through a comparison between the alleged victim and another person, who does not possess the same gender, in a similar situation. § The cases on equal pay between men and women, pregnancy cases, maternity leave cases and in vitro fertilization cases are examples of direct discrimination. .
Indirect discrimination § Indirect discrimination occurs when an apparently neutral rule disadvantages a person or a group sharing the same characteristics. It must be shown that a group is disadvantaged by a decision when compared to a comparable group. The legislation that provides a disadvantaged social security regime for part-time workers and flexible employment hit women disproportionately.
Multiple discrimination § Discrimination against women can also intersect with additional forms of discrimination based on other features such as ethnicity, religion, age, sexual orientation, gender identity, economic status and disability to deepen the disadvantage that women face, creating more barriers to their equality and enjoyment of rights. This dynamic of intersecting forms of discrimination is referred to as multiple discrimination.
Realization of substantive equality § 1. Temporary special measures (quotas and specific programs combating the underrepresentation of women) § Article 10 of the Constitution, para. 2 § Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice (Added on May 7, 2004; Constitutional Amendment Act No. 5170). Measures taken for this purpose shall not be interpreted as contrary to the principle of equality (Added on September 12, 2010; Constitutional Amendment Act No. 5982).
§ 2. Special or protective measures § Article 41, para. 2 of the Constitution § The State shall take the necessary measures and establish the necessary organization to protect peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice. § 3. Specially targeted positive action (access to education for girls, access to sanitation for girls during menstruation and schooling, women cooperatives, and work skills programs)
CEDAW and substantive equality § CEDAW Article 4, para. 1 § Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. § CEDAW article 5, para. 1, lit a § States Parties shall take all appropriate measures: § (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
Istanbul Convention and substantive equality § -Recognition of unequal power relations between women and men (Preamble) § -Substantive equality between women and men, including by empowering women among the purposes of the Convention (article 1) § -Significance ensuring the practical realization of substantive equality (article 4 and 6). § -Secondary victimization (article 15 and 18) § -Emergency barring orders (article 52) § -Restricting or restraining orders (article 53)
Istanbul Convention and substantive equality § A list of offences that are to be regulated and effectively punished in the jurisdictions including: § -psychological violence (Art. 33); § -stalking (Art. 34); § -physical violence (Art. 35); § -sexual violence, including rape, explicitly covering all engagement in non-consensual acts of a sexual nature with a person (Art. 36), § -forced marriage (Art. 37); § -female genital mutilation (Art. 38), § -forced abortion and forced sterilization (Art. 39). § -sexual harassment ("criminal or other legal sanction", Art. 40). § -honor crimes (Art. 42).
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