"Teach her not to universalize her principles and experiences. Teach her that her principles are only for her, not for others."
Chimamanda Ngozi Adichie [1]
The Law has gender and is adult-centric. This is nothing exceptional but a product of the ductility of one more discipline, which has not been spared from the historical social and cultural influences sustained on opposing, sexualized, and hierarchical dualisms: feminine values versus masculine values. The former, devalued, and the latter, revalued.
Our legal system has been sculpted by adult, white, and heterosexual men who have taken themselves as the pattern of the so-called "social values" that sustain the Law. This is not a Spanish monopoly; it happens in all countries and their respective legal systems and has a direct relationship with the gender gaps shown by statistics, in times of constitutional equality.
But the principles and "social values" that underpin our laws are neither so neutral nor so social, because they do not equally represent the complete view of society. The exclusion of values associated with femininity, and in general of the experiences, concerns, and aspirations of women or children, is an act of coherence with a concept of "productivity," imposed by economic powers, which despise motherhood, parenting, and family care, denying them economic, social, or curricular value, despite being an essential job for society and for life itself. Therefore, on many occasions, a mechanical application of the Law will serve to perpetuate social inequalities.
Historically, the Law has been one of the tools that has most actively contributed to maintaining the status quo of discrimination.
It could be said that the Law has historically been one of the tools that has most actively contributed to maintaining the status quo of discrimination. To remedy these basic shortcomings, which our Law suffers from, there are other tools, also legal, and binding on all powers of the State, including the judiciary: the gender perspective and the perspective of childhood and adolescence. Making the principle of equality real does not allow neutrality; a constitutional approach must be adopted, removing the obstacles that hinder it. This is the essence that sustains the inclusion of other different views in the handling of the Law.
The gender perspective helps us discover the invisibility of the gender asymmetries that still exist in our law, which, disguised as legal equality, has its own gender, and it is certainly not the feminine one. Methodologically, judging with a gender perspective is a technique of holistic and contextualized legal analysis that obliges the courts to adopt interpretations in accordance with the pro persona principle, through equitable solutions to unequal gender situations [2].
On the other hand, the perspective of childhood and adolescence is also a binding mandate that requires the best interests of minors to be valued and considered as paramount in all actions and decisions that concern them, both in the public and private spheres [3]. The perspective of childhood has been greatly forgotten in social laws and jurisprudence, despite the direct impact that a large part of the judicial decisions of this jurisdiction have on this sector of the population.
The perspective of childhood has been greatly forgotten in social laws and jurisprudence.
Some examples are family reconciliation, benefits for risk during pregnancy and lactation, care for minors affected by cancer, orphanhood, family benefits, etc. This interpretative hermeneutics, which internationally rests on art. 3.1 of the International Convention on the Rights of the Child (1989), imposes on the international community the mandate to ensure the application of the rights of the child in its entirety and urges governments to evaluate their legal and social welfare systems.
Judging with the perspectives of gender, childhood, and adolescence is not an easy task because we tend to think fast and we have very internalized stereotypes, embodied to such an extent that we do not differentiate them from our own way of thinking. This requires an extra cognitive effort that helps us to impart a truly impartial justice, that is, free of prejudice.
Below, three examples of judgments from the social chamber of the Superior Court of Justice of the Canary Islands that integrate both perspectives in the resolution of the legal debate are shared.
1. Judgment of December 19, 2019 (Rec. 890/2019). Benefits for risk during breastfeeding.
The court of first instance dismissed the worker's claim, as the agents, procedures, or working conditions that could negatively influence breastfeeding had not been clearly determined. It was proven that in her workplace there were: "agents, procedures, and working conditions that could negatively influence the pregnant or breastfeeding worker." It was not possible to adapt the job.
The Superior Court upholds the working mother's appeal and integrates the perspectives of gender and childhood. Firstly, it starts from the gender impact of the legal debate, which motivates the chamber to take extreme precautions in its legal analysis. But, in addition, it detects another impact on the nursing child, who may be deprived of their right to natural feeding in healthy conditions, in an essential phase of their short life, in which they need not only an adequate supply of nutrients to their needs but also the emotional contact derived from the affective bond that is established between the mother and her baby through breastfeeding.
2. Judgment of September 1, 2020 (Rec. 197/2020). Reconciliation of family and work life.
The social court dismissed the worker's claim regarding the adaptation of working hours for the care of her three-year-old child and imposed a fine of 180 euros for recklessness, appreciating res judicata, in relation to previous judicial proceedings. According to the factual account, the operator provided services on an ordinary day as the second housekeeper of a hotel, taking Thursdays and Fridays off. She had a son born in 2016 and a daughter with a disability. In May 2018, she requested a reduction in working hours (35 hours) from the company on a Monday to Friday schedule (taking weekends off) for the care of her son. The company accepted the reduction but not the specific hours, alleging organizational reasons. The plaintiff filed a claim that was conciliated in court, agreeing to recognize the reduction and specific hours requested, although she would (temporarily) perform the functions of a room attendant with the corresponding salary reduction. In September 2018, the operator communicated her willingness to return to her ordinary working hours and previous schedules, recovering her category as second housekeeper. And she submitted a new request for a reduction in working hours and specific hours under the same terms as her initial request, which was litigated, being dismissed by a (final) judgment in April 2019.
In September 2019, the plaintiff only requests an adaptation of working hours (without a reduction in working hours) for the care of her son, her claim being dismissed again. Against this judgment, an appeal is filed, upholding her appeal as res judicata is not appreciated, as her personal and family circumstances had changed in relation to her first claim. The perspective of gender and childhood is integrated, highlighting that the requirements and needs of a baby at 24 months (first claim) are not the same as at three years of age, when the second action was raised. In addition, during the last judicial process, the plaintiff had been affected by medical leave. Finally, it is highlighted that, during the operator's long leave process, the company had been able to organize and cover the plaintiff's work with two sub-housekeepers. The worker is also recognized compensation for moral damages of 3,125 euros.
3. Judgment of January 29, 2021 (Rec. 940/2020). "Allowance for dependent minor child."
This is the story of a 21st-century family, composed of a woman, a man, and 4 minors (2 sons and 2 daughters). The annual income of the family unit amounted to 13,991 euros in 2018, which is why they requested a non-contributory benefit for "dependent minor child" in its configuration prior to the legal reform of 2020, adhering to the economic limits required for large families, for access to this benefit, which was 12,625 euros.
The economic benefit of the Social Security System called "allowance for dependent minor child" is a non-contributory benefit that aims to cover a situation of family need or an excess of expenses that affects some families with minor children. But the INSS denied the allowance because the annual family income exceeded the economic thresholds set for ordinary families, which were 18,699 euros. The consideration of a large family was denied because of the four cohabiting minor children, only the youngest daughter was common to the couple. The INSS was not wrong, as certainly the other three cohabiting children were, biologically, descendants only of the father or the mother, but not of both.
The Canary Court dismissed the appeal formalized by the INSS against the judgment of the court that ruled in favor of the plaintiff. Again, the perspectives of gender and childhood are integrated as interpretative hermeneutics in the solution of the legal debate raised. The gender perspective becomes necessary if we take into account that statistics on the care of sons and daughters show that currently Spanish women continue to take care of the descendants disproportionately more in relation to their male partners.
On the other hand, the perspective of childhood is also necessary through the "best interests of the child" as an interpretative principle. Both perspectives lead the chamber to conclude that the children counted to determine if we are facing a large family for the purposes of the requested benefit, includes all cohabiting minors forming part of the family unit, regardless of whether they are common or not. This interpretation is in accordance with the provisions of Law 40/2003 on the protection of large families, and with the purpose of the benefit that seeks to protect economically vulnerable families with minor children. Therefore, the minor descendants are the cause that continues to be dependent on the cohabiting adults of the family unit, whether they are common or not, as this does not invalidate their situation of need as a particularly vulnerable group.
The referred judgments open a new interpretative path in the social order, in accordance with Human Rights and the international obligations assumed by Spain, in those cases in which the protected legal right transcends the worker, also affecting childhood or adolescence, through breastfeeding, family reconciliation, or their family vulnerability. The judgments have the potential to make visible and reverse the effects of inequity derived from power structures based on prejudices that sustain exclusion and marginalization.
The judgments have the potential to make visible and reverse the effects of inequity derived from power structures based on prejudices.
Consequently, the path should not be to homogenize women, childhood, adolescence, and men so that rules that are not neutral are applied to them, but to transform the current model by integrating all social diversity, where the experiences of other sectors of the population enjoy the same degree of legal protection as those of the adult male.
Justice is not justice if it disregards the other half of the population.
[1] Phrase extracted from the book Dear Ijeawele, or How to Raise a Feminist by Chimamanda Ngozi Adichie, 2019.
[2] Art. 4 of Organic Law 3/2007 of March 22 on effective equality of Women and Men
[3] Art. 2 of the Organic Law of January 15 on legal protection of minors, partially amending the Civil Code and the Civil Procedure Law.
Article published in The Huffingtonpost