After the conquest of legal equality in this hemisphere of the world, the great challenge of the 21st century is to conquer real equality, which stands, after more than four decades of constitutionality, as an unattainable chimera.
The statistics are there. If we think about violence, women are more victims; if we think about work, women are more unemployed; if we think about poverty, women are also the poorest, and if we think about leadership, women are an anecdote in the domes of power from where the decisions that move the world are made.
To transform this unfortunate picture of inequity, immune to traditional legislative tools, the principle of equality and non-discrimination evolved legally from formal equality to substantive equality, integrated with positive actions. The last phase of this mutation has been promoted internationally under the so-called gender mainstreaming, a technique to deal with systemic social gender gaps. Its effective transfer to all government policies and strategies has been assumed by the most important international organizations and associations, including the EU and the Council of Europe. Currently, the international definition of gender discrimination does not require treating a woman like a man because women are not "imperfect men," it starts from a new concept of discrimination as any treatment that results in inequality. Equality is no longer a mathematical and homogeneous equalization of rights between sexes, but the application of equal treatment in equal situations, different treatment between dissimilar assumptions and different measures for the benefit of groups, which although from one perspective are equal, from another require better treatment by the State.
The translation of gender mainstreaming to the judicial field is called justice with a gender perspective, which is a standardized and binding mandate for the judge.
The gender perspective helps us discover the invisibility of gender asymmetries that still exist in our law.
Methodologically, judging with a gender perspective is a technique of holistic and contextualized legal analysis that obliges courts to adopt interpretations in accordance with the pro persona principle, through equitable solutions to unequal gender situations. It is a method of legal analysis to overcome stereotypes, which underpin the status quo of discrimination in times of legal equality.
In addition, the gender perspective helps us discover the invisibility of 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. Let's look at some examples that highlight how the experiences, aspirations and concerns associated with femininity are not protected to the same extent as the experiences, aspirations and concerns associated with masculinity.
In the criminal field, the case of La Manada socially uncovered the doubling of sexual offenses between abuse and aggression with a higher criminal reproach derived from the use of violence. This shows a different gender treatment, which negatively impacts women. It is explained from social psychology. Men are socialized for authority and command and women for submission and dependence, therefore, in a situation of panic, it is much more likely that men will react with violence and women with submission. Similarly, violence will not be necessary with minor victims, as it is easier to bend their will, especially when sexual abuse occurs in the family environment.
Another example, also criminal, is the greater punitive reproach provided for the crime of revealing industrial secrets (from 3 months to 5 years) in relation to the crime of sexting or revealing intimate images, whose prison sentence ranges from three months to one year. Why is it much more serious to publish a business secret on the Internet than photos of a naked ex-girlfriend?
In the field of labor law and Social Security, the examples multiply, because the feminine is treated as an exception within the "normality" of a labor market, sustained on a concept of productivity that despises everything related to family care, discriminating against people, mostly women, but also men, for not ceasing to care for others.
A paradigmatic example is the (bad) legal treatment of gender benefits, especially the benefit for risk during natural breastfeeding and during pregnancy, in relation to others, such as temporary disability (illness). To begin with, gender benefits lack an urgent procedure, exempt from prior claim, that speeds up their judicial resolution, as is the case with sick leave, which turns the judgments, even when they are estimative, into a pyrrhic victory, for having far exceeded the period of pregnancy (9 months) or lactation (9 months), which prevents the "in natura" restoration of the right, which goes beyond the economic and has repercussions not only for the mother but also for the unborn child or, where appropriate, the nursing baby.
On June 7, 2019 (Rec.223/2019), the Superior Court of Justice (TSJ) of the Canary Islands (Social Chamber) issued a judgment that very crudely reflects the above. It was a medical pediatrician worker who claimed against her company (a Public Entity) and the Mutual, access to the benefit for risk during natural breastfeeding. The fact is that the mother rejoined work, after giving birth and enjoying her maternity leave, and from then on her baby lost weight and began to have difficulties for proper feeding (intolerance to artificial teats), so breastfeeding was prescribed as the exclusive means for caloric intake. On-demand breastfeeding has no schedule and was incompatible with the professional requirements of the worker, and therefore requested the salary replacement benefits. However, they were denied forcing the mother to request a leave of absence, which meant her professional and retributive banishment, to be able to feed her baby.
In this case, both the social court and the Superior Court recognized the right of the working mother, making a finalistic interpretation in accordance with the gender perspective, and not formalistic as intended by the defendants. But this is not always the case.
We judges can and should be dynamizers of social changes to advance equality through our actions and judicial resolutions.
On April 26, 2016, a judgment was issued by the same Canary Court, (Rec. 121/2016). On this occasion, a worker, shop assistant by profession, filed a lawsuit against Social Security and the collaborating Mutual, requesting benefits for risk during pregnancy. The social court dismissed her claim on the understanding that the worker's risk pregnancy did not fit into the protection route of the benefits claimed as the pathology was not related to the agents, procedures or working conditions of the position performed by the pregnant operator, without prejudice to requesting her leave for temporary disability (illness) derived from common contingencies, with a significantly lower remuneration. The plaintiff filed an appeal that was upheld by the Superior Court, recognizing her access to benefits for risk during pregnancy, which have a remuneration of 100% of the regulatory base. In this judgment, the Chamber recalls that the benefits claimed are exclusive to the female gender, given their direct link with the biological state of pregnancy, and an integrating interpretation of the gender perspective must be made:
"the genesis of these benefits, derives from the need to give protection to a situation of need in which only women can be affected, but not any protection but a protection with the best guarantees of compliance and that does not mean for them a loss of purchasing power, a prejudice or loss of opportunities, as this would directly affect the principle of equal opportunities between men and women, being linked to a biological fact indissoluble with the condition of being a woman. Therefore, the protection of such situations was raised to professional risk (?)"
The impossibility of providing services derives from an objective risk directly linked to her state of gestation (high-risk pregnancy). This risk could cause irreparable damage to the fetus (spontaneous abortion), which is why it cannot be described as an external cause, unrelated or unrelated to the conditions of the job. It is a diagnosis directly related to the state of pregnancy, incompatible with work in general, and more specifically with her work as a shop assistant. This judgment in which the right to the worker is recognized for the first time, was issued three years after delivery.
In the case resolved by the judgment of July 20, 2016, also of the TSJ of the Canary Islands /(Rec. 506/2016), the Mutual had denied the operator, nursing assistant, the payment of benefits for risk during lactation, appealing to the possibility of the operator artificially extracting the milk and preserving it for 24 hours at a certain temperature. It was also stated that refrigerators were available in the work area, despite recognizing that the plane or helicopter was her usual work area. The judgment of the instance upheld the claim and recognized the right of the plaintiff and although the Mutual filed an appeal, the Superior Court confirmed the judgment given the difficulties existing in the provision of services of the plaintiff to reconcile it with the right to lactation, highlighting that lactation cannot be degraded to an "industrialized mechanical process" and it is recalled that:
"it is a period of life in which the mother offers the newborn a food suitable to their needs, breast milk, not only considering its composition but also in the emotional aspect, since the affective bond that is established between the mother and her baby constitutes a special, unique and unique experience(..)."
It also highlights "obiter dictum" that the first judicial resolution was issued nine months after the birth of the nursing minor, when it was no longer possible to satisfy the right "in natura" of the plaintiff and that of the minor:
"It is therefore palpable the failure of the rule in cases like the present, as it converts the right instituted in safeguarding the health of the working mother and the infant, into a mere economic value never enough to compensate for the damage produced, frustrating. Perhaps this is the reason why for this matter a quick solution would be required, without delay, as these eminently feminine benefits, do not have preference in the processing, nor shortening of deadlines, nor the exclusion of resources (?)".
The adverse gender normative impacts, show that the so-called "social values" on which our legal system has been built are not so "social" or so "neutral", nor do they represent social diversity equally. Surely that is why the standard of diligence of our Civil Code is still that of the "good father of the family", and our Constitution gives prevalence, without any constitutional shame, to the male with respect to the woman, in the succession to the throne of the Crown.
A justice cannot be authentic if it dispenses with half of the population.
Consequently, the path should not be to homogenize women and men so that apparently neutral rules are applied to them, but to transform the current model integrating all social diversity, where the experiences, concerns and aspirations of women enjoy the same degree of legal protection as those of men. Therefore, justice with a gender perspective is essential. We judges can and should be dynamizers of social changes to advance equality through our actions and judicial resolutions.
The judgments have the potential to make visible and reverse the effects of inequity derived from the power structures based on prejudices that sustain exclusion and marginalization. A justice cannot be authentic if it dispenses with half of the population.
By Gloria Poyatos Magistrate of the Superior Court of Justice of the Canary Islands
Article published in The Huffington Post
